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Johnson v. Wilmington Trust, N.A.

United States District Court, D. Massachusetts

September 20, 2016

ROBERT JOHNSON a/k/a ROBERT JOHNSON, JR., Plaintiff,
v.
WILMINGTON TRUST, N.A. AS SUCCESSOR TRUSTEE TO CITIBANK, N.A., AS TRUSTEE TO STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC., BEAR STEARNS ALT A TRUST 2006-4, and NATIONSTAR MORTGAGE, LLC, Defendants.

          MEMORANDUM & ORDER

          Indira Talwani, United States District Judge.

         I. Introduction

         Upon receiving notice concerning the sale of his property, on January 28, 2016, Plaintiff Robert Johnson filed suit in state court. Plaintiff sought a declaratory judgment that Defendant Wilmington Trust ("Wilmington") failed to satisfy the requirements of Mass. Gen. Laws. ch. 244, § 14, and therefore cannot utilize the statutory foreclosure process. Plaintiff also brought a claim of slander of title against Wilmington and a claim for violation of Mass. Gen. Laws ch. 93A ("Chapter 93A"), for failing to comply with the requirements of 209 C.M.R. 18.21A(2)(c), against Nationstar Mortgage, LLC ("Nationstar"), the loan servicer acting on behalf of Wilmington.

         Plaintiff also filed an emergency motion for preliminary injunction on January 28, 2016, seeking to enjoin the related foreclosure auction of the property at issue. The Superior Court denied the motion.

         Defendants then removed the action to this court and now before the court is Defendants' Motion to Dismiss Plaintiff's Complaint [#9]. For the reasons below, Defendants' motion is ALLOWED.

         II. Legal Standard and Materials Considered

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In resolving such a motion, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The court, however, need not accept the plaintiff's legal conclusions as true. Id. at 678.

         In deciding such a motion, a court is ordinarily limited to considering “only the complaint, documents attached to it, and documents expressly incorporated into it.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 72 (1st Cir. 2014). Plaintiff has attached a number of exhibits-including recordings of mortgage assignments, a Pooling & Services Agreement, and a certification by Nationstar under 209 CMR 18.21(A)(2). The court can therefore consider those attached documents.

         III. Facts as Alleged in Complaint and Set Forth in the Attached Documents

         a. Original Mortgage and Note

         According to the complaint, on May 4, 2006, Plaintiff executed a note in the amount of $496, 000.00 in favor of Countrywide Home Loans, Inc. Notice Removal Ex. A. ¶ 5 [#3-1] (the state court complaint) (hereinafter “Complaint”). To secure the payment obligations on that note, Plaintiff executed a mortgage on May 4, 2006, in the principal amount of $496, 000, which encumbered property located at 413 County Street, New Bedford, MA (“Property at issue”). Id. ¶ 6; Ex. B. Plaintiff and a manager of Countrywide signed the note, and that same manager endorsed the note. Id. Ex. B.

         The mortgage identified the mortgagee as Mortgage Electronic Registration Systems, Inc. (“MERS”), acting “solely as nominee” for Countrywide and its successors and assigns, but did not define the term “nominee.” Id. ¶¶ 7, 8. The mortgage was recorded at the Bristol County Southern District Registry of Deeds (“Registry”) at Book 8124, Page 72. Id. Ex. B.

         b. Mortgage Assignments

         Plaintiff attaches to his complaint documents purporting to show the assignments of his mortgage.

         On June 30, 2011, MERS, as “holder of [the] Mortgage, ” purportedly assigned “all beneficial interest” under the mortgage, “together with the note(s) and obligations therein described, ” to Citibank, N.A., as Trustee for the Certificateholders of Bear Stearns ALT-A Trust 2006-4, Mortgage Pass-Through Certificates, Series 2006-4. Compl. ¶¶ 19-20, Ex. D. An alleged assistant secretary for MERS executed the assignment and a notary public for the State of ...


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