United States District Court, D. Massachusetts
THOMAS J. LA CASSE, and JOSEPH LA CASSE, Plaintiffs,
AURORA LOAN SERVICES, LLC; U.S. BANK, NATIONAL ASSOCIATION, as Trustee for the Lehman XS Trust, Series 2007-2N; JOHN DOES 1-4; MORTGAGE CONTRACTING SERVICE, INC.; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants.
MEMORANDUM AND ORDER REGARDING DEFENDANTS'
MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM (DKT., 11 AND
G. MASTROIANNI United States District Judge
J. La Casse and Joseph La Casse (“Plaintiffs”)
originally brought this action in state court against: Aurora
Loan Services, LLC (“Aurora”); U.S. Bank,
National Association, as Trustee for the Lehman XS Trust,
Series 2007-2N (“US Bank”); Mortgage Contracting
Services (“MCS”); unknown MCS's employees
listed as John Does 1 through 4; and Mortgage Electronic
Registration Systems, Inc. (“MERS”)
(collectively, “Defendants”). On April 22, 2015,
Defendants removed the action to this court pursuant to 28
U.S.C. §§ 1331, 1332, and 1441. The case arises out
of Aurora's foreclosure in 2010 of Thomas's property,
to which Joseph held a leasehold interest.
assert eleven counts pleading various state-law and federal
claims. The counts are captioned as follows: Predatory
Lending Practices - Breach of Contract (Count 1); Breach of
Contract (Count 2); Fraudulent Misrepresentation (Count 3);
Unconscionability (Count 4); Breach of the Implied Covenant
of Good Faith and Fair Dealing (Count 5); Damages to
Thomas's Reputation in the Community (Count 6); Forcible
Entry (Count 7); Breach of Contract (Count 8); Violation of
Consumer Protection Statute Mass. G. L. c. 93A § 11
(Count 9); Conversion (Count 10); and Loss of Use of Property
(Count 11). Plaintiffs seek monetary damages, an injunction,
and a declaratory judgment that would return them to their
before the court are motions to dismiss filed by all
Defendants. (Dkt. Nos. 11 and 24.) For the reasons discussed
below, the court will allow Defendants' motions to
Standard of Review
confronted with a Rule 12(b)(6) motion to dismiss for failure
to state a claim, the court must accept the well-pleaded
allegations of the complaint as true, drawing all reasonable
inferences in favor of the plaintiff. See S.E.C. v.
Tambone, 597 F.3d 436, 441 (1st Cir. 2010). A complaint
that states a plausible claim for relief, on its face, will
survive a motion to dismiss. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). The Supreme Court has explained
that “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
following facts come directly from Plaintiffs' complaint,
exhibits attached thereto, and official public records.
See Trans-Spec Truck Serv., Inc. v. Caterpillar
Inc., 524 F.3d 315, 321 (1st Cir. 2008); Watterson
v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
Plaintiffs' Mortgage and Foreclosure
November 15, 2006, “Thomas purchased a residential home
at 270 Park Avenue, Longmeadow, Massachusetts, ”
financing the purchase through a $600, 000 “loan
transaction with Homecomings Financial, LLC.” (Dkt. No.
10, Compl. ¶¶ 25-26.) He secured the loan with a
mortgage on the purchased property, with MERS designated as
the mortgagee. (Id. ¶ 29.) According to the
mortgage, “MERS is organized and existing under the
laws of Delaware, and has an address . . . of P.O. Box 2026,
Flint, MI 48501.” (Id., Ex. 3 at 1.)
31, 2009, MERS assigned the mortgage to Aurora, located at
2617 College Park, Scottsbluff, Nebraska. (Id.
¶ 32; Ex. 2.) The assignment lists MERS as located at
“3300 S.W. 34th Avenue, Suite 101, Ocala, FL 34474,
” and it was signed by Vice President Theodore Schultz
before Notary Public JoAnn Rein. (Id.) This
assignment was recorded in the Hampden County Registry of
Deeds (“Registry”), Book 17990, page 528.
October and November of 2010, Aurora published notice of the
foreclosure sale in The Republican. (Compl. ¶ 77; Ex. 1
at 3, 5.) On November 17, 2010, the Massachusetts Land Court
issued a judgment authorizing Aurora, in compliance with the
Servicemembers Civil Relief Act, 50 U.S.C. §§ 501
et seq., to foreclose upon the property in accordance with
the statutory power of sale in the mortgage. (Dkt. No. 12,
Defs.' Mem., Ex. 10.)
November 22, 2010, Aurora sold itself the property at a
foreclosure sale for $689, 000.00 and thereafter recorded the
deed in the Registry, Book 18726, page 54. (Id.
¶¶ 38-39; Ex. 1) Aurora also recorded a certificate
of entry on April 1, 2011 in the Registry, Book 18726, page
52, stating that Bonnie Baer-Green, “attorney-in-fact
and agent of Aurora, ” “made an open, peaceable,
and unopposed entry onto the premises” on November 22,
2010. (Defs.' Mem., Ex. 14.) On May 2, 2011,
Aurora filed a summary process action in Hampden County
Housing Court against Thomas. (Dkt. No. 22, Pls.' Mem.,
January 19, 2010, Thomas filed a voluntary petition for
Chapter 11 bankruptcy, which was converted into a Chapter 7
proceeding upon the trustee's motion on June 21, 2010.
(In re Thomas James LaCasse (“In re
LaCasse”), Case No. 10-30088-HJB, Dkt. Nos. 1, 54,
64.) In an Amended Schedule B, Thomas listed as an asset
“[t]ruth in lending, mortgage, foreclosure, and related
violations, and any other violations, concerning validity and
extent of mortgage(s) on 270 Park Drive, Longmeadow,
MA.” (Id., Dkt. Nos. 244, 247.) These assets
thereafter were abandoned by the estate pursuant to 11 U.S.C.
§ 554(c). (Id., Dkt. No. 264.) The Bankruptcy
Court discharged Thomas's Chapter 7 case on May 22, 2012.
(Id., Dkt. No. 271.)
Plaintiffs' Connecticut Action
filed a complaint with the Connecticut Superior Court of
Stamford/Norwalk on December 8, 2010. (Defs.' Mem., Ex.
19 at 2.) In the Connecticut action, Plaintiffs sought
recovery for five counts: predatory lending practices, breach
of contract, fraud, unconscionability, and violation of the
Fair Debt Collection Practices Act. (Id., Ex. 19 at
5-12.) On January 23, 2015, the Connecticut Action was
“dismissed for failure to prosecute in accordance with
[Connecticut] Practice Book § 14-3.”
(Id., Ex. 22.)
filed the present action in the Massachusetts Superior Court
on February 18, 2015. (Dkt. No. 10.) Plaintiffs admit the
present action is “almost indistinguishable in both
substance and syntax from the allegations” advanced in
a proposed Amended Complaint to the Connecticut action.
(Defs.' Mem. at 11; Pl.'s Mem. at 6; Ex. 21.) The
Massachusetts Superior Court action was consolidated with the
summary process action for “hearing purposes
only.” (Dkt. No. 10 at 5.) Thereafter, Defendants
removed the Massachusetts Superior Court action to this court
and filed the motion to dismiss presently at issue.
raise four arguments in support of their motions to dismiss.
First, Defendants argue Plaintiffs' action is barred by
res judicata, because an identical action was dismissed in
Connecticut Superior Court. (Defs.' Mem. at 13; Ex. 22.)
Second, Defendants argue Plaintiffs lack standing to bring
suit, because Plaintiffs' claims belong to the Chapter 7
trustee. (Id. at 16.) Third, they assert
Plaintiffs' claims are untimely. (Id. at 17-19.)
Finally, Defendants argue Plaintiffs' complaint fails to
state a claim upon which relief can be granted. (Id.
at 20.) Before analyzing these arguments, the court will
briefly address two preliminary matters raised in
suggest that removal to this court was improper and the court
lacks subject-matter jurisdiction because the Massachusetts
Superior Court action was consolidated with the summary
process action, making Aurora the plaintiff and thus
incapable of removing an action to federal court. The court
does not agree. The actions were consolidated for
“hearing purposes only, ” (Dkt. No. 10 at 5),
which the court takes to mean that the summary process action
remained a separate case and thus properly was not removed
along with the Massachusetts Superior Court action. See,
e.g., Boston Water & Sewer Com'n v.
Automatic Switch Co., 2010 WL 759125, at *1 n. 2 (Mass.
App. Ct. Mar. 8, 2010) (noting that the actions were
consolidated “for hearing purposes” but retained
separate trial court docket numbers). This conclusion is
supported by Plaintiffs' own allegations that the summary
process action has been stayed pending disposition of this
controversy. (Pls.' Mem at 10, 14.) Accordingly, the
court concludes that it has jurisdiction over this
Violation of Local Rule 7.1(B)(4)
also notes that Aurora, U.S. Bank, and MERS submitted a
thirty-one page memorandum in violation of Local Rule
7.1(B)(4), which provides that “[m]emoranda supporting
or opposing allowance of motions shall not, without leave of
court, exceed twenty (20) pages, double-spaced.”
Although the court may be inclined to excuse an excess
memorandum of a pro se party, see Tian v. Aspen
Tech., Inc., 53 F.Supp.3d 345, 360 (D. Mass. 2014),
represented parties are expected to adhere to the local
rules. However, while “[f]ailure to comply with . . .
Local Rules may result in dismissal, default, or the
imposition of other sanctions, ” Local Rule 1.3, courts
have “broad latitude in administering local rules,
” Air Line Pilots Ass'n v. Precision Valley
Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994), and
may choose to forgive a ...