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Coulsey v. Option One Mortgage Corp.

United States District Court, D. Massachusetts

September 30, 2016

SARAH COULSEY, Plaintiff,
v.
OPTION ONE MORTGAGE CORP., et. al., Defendant.

          Sarah Coulsey, Plaintiff, Pro Se.

          Homeward Residential Holdings, Inc., Defendant, represented by Maura K. McKelvey, Hinshaw & Culbertson LLP & Vanessa V. Pisano, Hinshaw & Culbertson LLP.

          Ocwen Loan Servicing, LLC, Defendant, represented by Maura K. McKelvey, Hinshaw & Culbertson LLP & Vanessa V. Pisano, Hinshaw & Culbertson LLP.

          American Home Mortgage Servicing, Inc., Defendant, represented by Maura K. McKelvey, Hinshaw & Culbertson LLP & Vanessa V. Pisano, Hinshaw & Culbertson LLP.

          Wells Fargo Bank, N.A., Defendant, represented by Maura K. McKelvey, Hinshaw & Culbertson LLP & Vanessa V. Pisano, Hinshaw & Culbertson LLP.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS (Dkt. No. 75)

          MARK G. MASTROIANNI, District Judge.

         INTRODUCTION

         Plaintiff, Sarah Coulsey, brought this action against Option One (Defendant) and several other defendants, asserting a variety of claims related to the issuance and servicing of a mortgage on Plaintiff's home. By consent of the parties, the case was initially before Magistrate Judge Robertson, who considered motions to dismiss filed by various defendants. Judge Robertson dismissed a number of counts with prejudice, but dismissed Plaintiff's count alleging Defendant violated a Massachusetts consumer protection statute, Mass. Gen. L. ch. 93A, § 9 ("93A") without prejudice. The court explained that it lacked jurisdiction over that claim because Plaintiff had not sent a demand letter to Defendant prior to filing the action, as required by § 9 of 93A.

         In January of 2016, Plaintiff sent Defendant a 93A demand letter. After receiving Defendant's response, she filed her Second Amended Complaint, in which she reasserted her 93A claim (Count IV) and asserted three new claims for (i) violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. sq. ("FDCPA") (Count I), (ii) defamation of character (Count V), and (iii) emotional distress (Count VI). Defendant moved to dismiss all four claims based on failure to state a claim for which relief can be granted.[1] Though Plaintiff asserts claims against several defendants, this opinion concerns only Defendant's motion to dismiss and therfore confines its discussion to the conduct attributed to Defendant and the claims asserted against it.

         JURISDICTION

         Plaintiff's Second Amended Complaint asserts four claims against Defendant; one claim alleges violations of a federal statute, the FDCPA, while the remaining counts assert claims which can be brought, if at all, only pursuant to state law. Federal courts have jurisdiction over claims brought pursuant to federal laws and claims brought pursuant to state law where there is complete diversity of citizenship between the adversaries and the amount in controversy exceeds a threshold amount of $75, 000. 28 U.S.C. §§ 1331, 1332; Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Consistent with the Judge Robertson's explanation for denying Plaintiff's earlier motion to remand, this court has subject matter jurisdiction over this case based on both federal question and diversity jurisdiction. ( See Dkt. No. 48.)

         MOTION TO DISMISS STANDARD[2]

         When deciding a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must determine whether the plaintiff has alleged sufficient facts that, if proved true, support "the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[D]etermining whether a complaint states a plausible claim for relief" is a context-specific task that requires "the reviewing court to draw on its judicial experience and common sense." Id. at 679. The court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Id.; see also San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465, 471 (1st Cir. 2012).

         When the court talks about "well-pleaded facts" the court refers to specific allegations about "who did what to whom, when, where, and why." Calvi v. Knox Cnty.,470 F.3d 422, 430 (1st Cir. 2006) ( quotingEducadores Puertorriqueños en Acción v. Hernández,367 F.3d 61, 68 (1st Cir. 2004)). The court does not accept as true allegations that are legal conclusions. Iqbal, 556 U.S. at 678. However, in some cases if additional facts are contained in other documents that are "sufficiently referred to in the complaint" and are "central to plaintiffs' claims, " the court can also consider those facts. Watterson v. Page,987 F.2d 1, 3 (1st Cir. 1993); see alsoFudge v. Penthouse Int'l, Ltd.,840 F.2d 1012, 1015 (1st Cir. 1988). In this case, the court, recognizing the difficulties facing plaintiffs who proceed pro se, reads the Complaint liberally and also considers ...


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