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Keenan v. Wells Fargo Bank, N.A.

United States District Court, D. Massachusetts

March 30, 2017

EUGENE E. KEENAN, JR., Plaintiff,



         This case involves a dispute over the purported foreclosure of property at 56 Bartlett Parkway, Unit 1, Winthrop, Massachusetts (“the property”). Eugene Keenan (“Keenan” or “plaintiff”) alleges that defendants, Wells Fargo Bank, N.A. d/b/a America's Servicing Company (“Wells Fargo”) and U.S. Bank, N.A as Trustee d/b/a America's Servicing Company (“U.S. Bank” and, collectively with Wells Fargo, “defendants”) sent demand letters to him for money allegedly owed on the property after they had already foreclosed on it. Plaintiff claims that such conduct 1) violated the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Massachusetts Fair Debt Collections Practices Act (“MFDCPA”), M.G.L. c. 93, § 49, 2) negligently inflicted emotional distress upon the plaintiff and 3) violated the Massachusetts Consumer Protection Act, M.G.L. c. 93A (“Chapter 93A”).

         Defendants have filed a motion for judgment on the pleadings and, for the following reasons, that motion will be, with respect to the FDCPA claim, denied but otherwise allowed.

         I. Factual and Procedural Background

         For purposes of a motion for judgment on the pleadings, the Court assumes the truth of the facts in the complaint. According to the complaint, in February, 2007, Keenan granted a mortgage on the property to Mortgage Electronic Recording Systems, Inc. (“MERS”). MERS assigned the mortgage to U.S. Bank in March, 2009 and Wells Fargo is the loan servicer. In May, 2010, Wells Fargo informed Keenan by letter that his property was being placed in foreclosure. In June, 2012, U.S. Bank allegedly held a foreclosure sale on the property and in July, 2013, a foreclosure deed, purportedly transferring title to U.S. Bank, was recorded along with an affidavit confirming the foreclosure.

         In October, 2013, U.S. Bank began a summary process eviction action against Keenan in East Boston Municipal Court. That case was removed to Boston Municipal Court (“BMC”) and U.S. Bank moved for summary judgment on its eviction claim. Keenan opposed summary judgment on the grounds that U.S. Bank's purported foreclosure was unlawful and thus the foreclosure sale was null and void. The BMC denied U.S. Bank's motion for summary judgment.

         In January, 2016, after a bench trial in the BMC, U.S. Bank filed a motion to dismiss its eviction claim as a result of changes in foreclosure law that may have invalidated the foreclosure sale. The BMC set a briefing schedule for the remaining issues, including Keenan's counterclaims. It is unclear whether the BMC case is now resolved or still pending.

         Contemporaneously, Wells Fargo, apparently conceding that the foreclosure was invalid, sent Keenan two letters attempting to collect money that he owed on the mortgage. Although he was represented by counsel, Wells Fargo sent the letters directly to Keenan. One letter stated that “Wells Fargo has not made the first notice or filing required . . . for the foreclosure process”. Keenan alleges that, because Wells Fargo and U.S. Bank had already foreclosed upon his property, they knew that statement was false. The second letter requested proof of insurance on the property. Keenan asserts that defendants are not entitled to any money owed on the mortgage because, as a result of the attempted foreclosure, U.S. Bank is now the record owner of the property.

         According to Keenan, he was “utterly shocked” by the letters and felt “nauseous, depressed and panicky”. Keenan also states that “his anxiety became extreme”, he had difficulty sleeping and he suffered depression. Shortly thereafter, he made a Chapter 93A demand for damages on defendants, claiming that their unfair and deceptive practices had harmed him. Defendants responded to the Chapter 93A demand letter by again communicating directly with Keenan rather than with his counsel.

         Keenan subsequently filed suit against defendants in this Court in April, 2016, alleging 1) violations of the FDCPA and MFDCPA, 2) negligent infliction of emotional distress and 3) Chapter 93A violations. Defendants timely answered, denying all substantive allegations. In November, 2016, defendants moved for judgment on the pleadings which plaintiff opposes and that motion is the subject of this memorandum and order.

         II. Motion for Judgment on the Pleadings

         A. Legal Standard

         Although a Rule 12(c) motion for judgment on the pleadings considers the factual allegations in both the complaint and the answer, it is governed by the same standard as a Rule 12(b)(6) motion to dismiss. See Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). To survive such a motion, the subject pleading must contain sufficient factual matter to state a claim for relief that is actionable as a matter of law and “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). For a claim to be facially plausible, the pleadings must show “more than a sheer possibility that a defendant has acted unlawfully.” Id. A plaintiff cannot merely restate the defendant's potential liability. Id.

         In considering the merits of such a motion, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006). The Court may also consider documents if 1) the parties do not dispute their authenticity, 2) they are “central to the plaintiffs' claim” or 3) they are “sufficiently referred to in the complaint.” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).

         B. Application

         Defendants assert that judgment on the pleadings is warranted because plaintiff successfully argued in the BMC action that 1) the foreclosure was invalid and 2) he rightfully possessed the property. Therefore, according to defendants, plaintiff is judicially estopped from now asserting that the foreclosure was valid thus preventing U.S. Bank from collecting mortgage payments.

         Defendants further aver that judgment on the pleadings is warranted because 1) the MFDCPA does not include a private cause of action, 2) defendants owe no duty of care to plaintiff and thus the negligent infliction of emotion distress claim must fail and 3) ...

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