United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE.
April 3, 2015, Reba Danastorg (“Danastorg”)
brought suit against U.S. Bank National Association
(“US Bank”). Presently before this Court is U.S.
Bank's Motion to Dismiss the Amended Complaint for
failure to state a claim. [ECF No. 36]. For the reasons
stated below, the motion to dismiss is GRANTED.
Court takes judicial notice of the related state court and
bankruptcy proceedings, records of which have been submitted
as exhibits to the instant motion to dismiss and which are
publicly available. See Giragosian v. Ryan, 547 F.3d
59, 66 (1st Cir. 2008) (“Matters of public record
ordinarily include ‘documents from prior state court
adjudications.'” (quoting Boateng v.
InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir.
2000))); see also Rodi v. S. New Eng. Sch. of L.,
389 F.3d 5, 12 (1st Cir. 2004).
2002, Danastorg acquired 3 Whiting Lane, Unit 3, Building F,
Hingham, MA 02043 (the “Property”). In re
Danastorg, 499 B.R. 8, 11 (Bankr. D. Mass. 2013). In
July 2005, Danastorg took out a loan in connection with
refinancing the Property. Id. at 11. After
defaulting on her mortgage and note for nonpayment, U.S. Bank
“conducted a foreclosure sale of the Property on
September 13, 2012 pursuant to the statutory power of sale in
the mortgage.” Id. at 12. In early 2013, U.S.
Bank executed a Foreclosure Deed for the Property.
Id. at 11. After receiving a notice to vacate from
U.S. Bank, Danastorg filed a petition under Chapter 13 of the
United States Bankruptcy Code on May 20, 2013. Id.
at 12. Before the bankruptcy court, Danastorg challenged U.S.
Bank's ability to pursue a summary process proceeding
against her. On September 16, 2013, the bankruptcy court held
that Danastorg's “suggestions that U.S. Bank did
not hold either the mortgage or the note at the time of the
foreclosure sale are without evidentiary support of any sort,
” and granted U.S. Bank relief from the automatic stay
to continue the summary process proceeding against Danastorg.
Id. at 20.
around October 3, 2013, another notice to vacate the
Property, giving her 72 hours to vacate, was sent to
Danastorg. [ECF No. 43-5 at 4]. On or around November 1,
2013, Danastorg received a notice of a summary eviction
process against her in the Massachusetts Housing Court,
Southeastern Division in Plymouth/Bristol County
(“Housing Court”) for failing to vacate the
Property. See [ECF Nos. 43-5]. On December 4, 2013,
Danastorg entered into an Agreement for Judgment (the
“Agreement”) with U.S. Bank to end the Housing
Court matter. [ECF No. 35, Ex. A]. The Agreement is central
to the allegations in her Amended Complaint and is discussed
below. The Agreement required that she either vacate or
purchase the Property by January 31, 2014. [ECF No. 35, Ex. A
at ¶¶ 2, 10]. Although she tried, she was unable to
purchase the Property for reasons set forth more fully below.
It appears that her negotiations with U.S. Bank continued
into April 2014. Thereafter, U.S. Bank again tried to evict
eventually filed suit in the Massachusetts Superior Court in
Plymouth County (the “Superior Court”) to stop
the eviction then scheduled to take place on June 13, 2014.
[ECF No. 43-11]. The Superior Court issued a temporary
restraining order staying the execution until June 17, 2014.
Id. On or around July 22, 2014, U.S. Bank moved for
summary judgment in the Superior Court case, [ECF No. 43-13],
which Danastorg opposed [ECF No. 43-14]. In December 2014,
after full briefing and a hearing, the Superior Court granted
summary judgment in favor of U.S. Bank. [ECF No. 43-21]. On
March 3, 2015, Danastorg initiated a new case in Housing
Court, Case No. 15-CV-00210, through which she was able to
get a further stay of execution. [ECF No. 43-24]. For reasons
not entirely clear, Danastorg seemed to remain on the
Property until approximately April 2015, at which time she
vacated the premises. See [ECF No. 43-23].
April 3, 2015, Danastorg filed her first complaint in this
Court. [ECF No. 1]. On January 27, 2016, U.S. Bank moved to
dismiss the complaint [ECF No. 20], and the motion was
granted in part and denied in part [ECF No. 32]. On June 9,
2016, Danastorg filed her Amended Complaint with one exhibit,
the Agreement for Judgment between the parties filed in state
court. [ECF No. 35]. U.S. Bank moved to dismiss the Amended
Complaint on June 22, 2016. [ECF No. 36]. Danastorg opposed
the motion on July 27, 2016. [ECF No. 46].
ALLEGATIONS IN THE AMENDED COMPLAINT
the December 4, 2013 Agreement with U.S. Bank [ECF No. 35,
Ex. A], either Danastorg or a third party acting for her
benefit was allowed to purchase the Property before January
31, 2014. If no such purchase occurred, the
Agreement required that Danastorg vacate the premises by
January 31, 2014. As part of the Agreement, Danastorg also
agreed to drop any pending and future claims against U.S.
Bank and its subsidiaries related to the foreclosure.
Danastorg was allowed to remain on the Property until the
deadline. She claims that she was paying rent to the U.S.
Bank in the amount of $2300 per month at the time she was
evicted, although the Agreement specifies that she was
expected to pay $300 per month from the date of foreclosure
until January 31, 2014.
avers that immediately following the execution of the
Agreement, she attempted to learn the asking price for the
Property and the contact information of the relevant person
who would be handling the sale at U.S. Bank. She was not
provided the contact information until one week before the
January 31, 2014 deadline and was not informed of a purchase
price for the Property by the deadline, despite her repeated
efforts to get that information in time. Even following the
January 31, 2014 deadline, she continued to inquire into the
asking price for several months. Danastorg alleges that U.S.
Bank's failure to provide an asking price prohibited her
from purchasing the Property and constituted a breach of the
March 14, 2014, despite still not having been given an asking
price, Danastorg offered $410, 000 for the Property based on
researching the Property's value online (through a
website called Zillow), which reported that the Property was
worth $433, 966. Danastorg factored into her offer that,
based on information received from U.S. Bank, she would be
purchasing the Property “as is” and
“without inspections.” Danastorg only later
discovered that the bank recorded a purchase price of $470,
000 for the Property at foreclosure. She was not given an
asking price until April 5, 2014. Danastorg alleges that U.S.
Bank declined her offer of $410, 000 and began eviction
support of her breach of contract claim, Danastorg alleges
that U.S. Bank breached the Agreement when it refused to
provide the asking price for the Property and “when the
defendants later agreed to the purchase of the property they
changed the agreement guidelines that either [Danastorg] or a
third party could purchase property to only a third
person.” Am. Compl. ¶ 10. She further alleges that
the Agreement “was not signed in good faith and was
done with extreme prejudice and with malice.” Am.
Compl. ¶ 11. Despite related proceedings in the Housing
Court and Superior Court, Danastorg avers that “no
court would consider the fact that [she], in good faith,
entered into an agreement with U.S. National Bank
Association, and a requirement necessary in order to execute
that agreement within the agreement time frame would be to
know what the asking price of the property would be.”
Am. Compl. ¶ 8.
also claims that her civil rights were violated and that she
“was discriminated against by being foreclosed on
without regard for the status of a mortgage originated and
then sold by an unlicensed lender.” Am. Compl. ¶