United States District Court, D. Massachusetts
EUGENE E. KEENAN, JR., Plaintiff,
WELLS FARGO BANK, N.A. and U.S. BANK N.A. AS TRUSTEE Defendants.
MEMORANDUM & ORDER
NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE
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”).
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.
Factual and Procedural Background
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.
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.
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
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.
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
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.
Motion for Judgment on the Pleadings
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.
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.
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.
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) ...