United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani, United States District Judge.
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.
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
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.
Legal Standard and Materials Considered
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
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.
Facts as Alleged in Complaint and Set Forth in the
Original Mortgage and Note
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.
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.
attaches to his complaint documents purporting to show the
assignments of his mortgage.
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 ...