United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
October 21, 2016 Report and Recommendation, the Magistrate
Judge recommended that defendants' motion for judgment on
the pleadings be denied as to plaintiff's claim for quiet
title (Count I), and allowed as to plaintiffs' claims for
inaccurate credit reporting in violation of the Fair Credit
Reporting Act ("FCRA") (Count II), defamation
(Count III), and invasion of privacy (Count IV) . The
Magistrate Judge also recommended that plaintiff Marie
Macdala Louis ("Marie Louis") be dismissed for lack
of standing. The defendants, Bank of New York Mellon
("BNY Mellon") and Specialized Loan Servicing LLC
("SLS"), filed an objection concerning Count I to
the Report and Recommendation and submitted new evidence
concerning that objection. Plaintiffs Carole and Marie Louis
made no objection to the Report and Recommendation.
court has reviewed de novo the issues to which a
proper objection has been made. See Fed.R.Civ.P. 72(b)(3).
For the reasons explained below, the court is adopting the
Report and Recommendation in part as to Counts II, III, and
IV, remanding the Report and Recommendation in part to the
Magistrate Judge as to Count I, and dismissing plaintiff
Marie Louis for lack of standing.
parties have not made any objection to the Report and
Recommendation regarding Counts II, III, and IV, and the
issue of Marie Louis' Article III standing. The court,
therefore, need not review these issues de novo.
Waiver of de novo review by failing to file proper
objections does not entitle a party to "some lesser
standard" of review. Thomas v. Arn, 474 U.S.
140, 149-50 (1985); see also Costa v. Hall, No.
00-12213-MLW, 2010 WL 5018159, at *17 (D.Mass. Dec. 2, 2010)
("Absent objections, the court may adopt the report and
recommendation of the magistrate judge."). However,
review by the court in such circumstances is not prohibited,
and some level of oversight, even if not de novo, is
encouraged. See Henderson v. Carlson, 812 F.2d 874,
878 (3rd Cir. 1987). The court has reviewed the Report and
Recommendation and finds it to be thorough and persuasive as
to Counts II, III, and IV, and the matter of Marie Louis'
standing. It is, therefore, being adopted with regard to
Count I, plaintiffs argue for quiet title and rescission of
the 2015 foreclosure under the theory that defendants failed
to provide the plaintiffs a notice of the foreclosure sale,
which is required under Mass. Gen. Laws c. 244 §14. The
Magistrate Judge recommended that the motion for judgment on
the pleadings be denied as to Count I because the defendants
did not present sufficient evidence to prove that they met
the notice requirements of §14. Section 14 requires that
the mortgagee must provide notice to the mortgagor by
registered mail. The defendants, in their answer, provided
only a compilation of notices with certified article numbers
stamped on them. See Ex. A to Answer (Docket No. 10-1). The
Magistrate Judge found that such evidence is insufficient to
prove notice was sent. In their objection to the Report and
Recommendation, defendants submitted additional evidence,
including certified mail receipts and returned envelopes of
the notices they sent, which are the type of evidence that
the Magistrate Judge suggested would be sufficient.
See R&R at 6-7.
of the additional evidence presented by the defendants, the
court finds that it is appropriate to have the Magistrate
Judge reconsider Count I. See 28 U.S.C.
§636(b)(1). Ordinarily, evidence not attached to a
Complaint should not be considered. However, on a motion for
judgment on the pleadings, the court may consider
"'documents the authenticity of which are not
disputed by the parties; . . . documents central to
plaintiffs' claim; [and] documents 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)); see also
Beddall v. State St. Bank & Trust Co., 137 F.3d 12,
17 (1st Cir. 1998) ("[T]he court need not accept a
complaint's 'bald assertions' ... [and the]
inquiry into the viability of [plaintiff's] allegations
should not be hamstrung simply because the plaintiff fails to
append to the complaint the very document upon which by
her own admission the allegations rest."). The
evidence submitted for the first time to this court may or
may not be within this exception. The Complaint alleges not
that notice was never received by the plaintiffs but that it
was "never sent to [them]." Compl. ¶18.
Therefore, the Complaint's factual allegations appear to
be expressly linked to the returned envelopes and certified
mail receipts submitted by the defendants. See
Beddall, 137 F.3d at 17. The court does not know if
their authenticity is disputed.
defendants had the opportunity to present this evidence to
the Magistrate Judge and did not do so. Usually, the
"[p]arties must take before the magistrate, not only
their best shot but all of their shots." Borden v.
Sec'y of Health & Human Servs., 836 F.2d 4, 6
(1st Cir. 1987) (internal quotations omitted). The reviewing
court may consider evidence and arguments not presented to
the Magistrate Judge only "in the most compelling
circumstances." Id. The rule promotes judicial
efficiency. It also serves the interest of fairness by
assuring that a matter will not be decided based on evidence
or arguments that an opposing party has not had the
opportunity to address.
case, because new evidence was presented to this court in the
objections to the Report and Recommendation, rather than to
the Magistrate Judge in connection with a motion for
reconsideration, plaintiffs have not had an opportunity to
dispute their authenticity, contend that they should not be
considered on the pending motion, or argue the implications
of them. However, if the new evidence is considered it may
justify judgment for defendants in Count I. Therefore, the
court concludes that it is most appropriate to deny the
motion for judgment on Count I without prejudice to the issue
being reconsidered by the Magistrate Judge, to whom this
question is being referred for a second Report and
of the foregoing, it is hereby ORDERED that:
1. The attached Report and Recommendation (Docket No. 29) is
ADOPTED in part and REMANDED in part, as described in this
Memorandum and Order, pursuant to 28 U.S.C. §636(b)(1).
2. Defendant's Motion for Judgment on the Pleadings
(Docket No. 14) concerning Counts II, III, and IV is ALLOWED.
3. Defendant's Motion for Judgment on the Pleadings
(Docket No. 14) on Count I is DENIED without prejudice, and
REMANDED to the Magistrate Judge for further proceedings and
another Report and Recommendation.
4. Plaintiff Marie Louis is DISMISSED for lack of standing.
AND RECOMMENDATION ON DEFENDANTS BANK OF NEW YORK MELLON AND
SPECIALIZED LOAN SERVICING, LLC'S MOTION FOR JUDGMENT ON
THE PLEADINGS (#14)
PAGE KELLEY, UNITED STATES MAGISTRATE JUDGE
Carole Louis and Marie Macdala Louis filed an action in the
Superior Court of the Commonwealth of Massachusetts, Plymouth
County against Bank of America, N.A. (BANA), Specialized Loan
Servicing, LLC (SLS), and Bank of New York Mellon (BNY
Mellon) to quiet title, Count I, for inaccurate credit
reporting in violation of the Fair Credit Reporting Act
(FCRA), Count II, defamation, Count III, and invasion of
privacy, Count IV.(##1, 1-1.) BANA removed the matter to this
court. (#1.) On August 9, 2016, BANA was dismissed from the
case. (See #21 Joint Stipulation of Dismissal with
Prejudice.) Thereafter, remaining defendants, SLS and BNY
Mellon, filed a motion to dismiss (#14); plaintiffs responded
in opposition (#25); and defendants filed a reply (#28). At
this juncture the motion to dismiss stands ready for
facts as set forth in the complaint are as follows. On
November 13, 2006, plaintiffs purchased the property at 56
Clarence Street in Brockton, Massachusetts (the Property).
(#1-1 ¶ 7.) Plaintiff Carole Louis granted a mortgage to
Mortgage Electronic Registration Systems Inc. (MERS), as
nominee for American Wholesale Lenders Network (AWLN).
Id; (#10 ¶ 7.) BANA, through its predecessor
Countrywide, serviced the loan from 2007 to 2012. (#1-1
¶¶ 8, 16.) SLS took over as the servicer of the
loan in 2012 and remained as such until the debt was released
via foreclosure in 2015. Id. at ¶¶ 16, 24.
BNY Mellon was the mortgagee on the Property from October 20,
2011 through the 2015 foreclosure. Id. at
¶¶ 15, 20.
2007, plaintiff Carole Louis, the sole mortgagor for the
Property, defaulted on the loan. Id. ¶ 8.
According to plaintiff, in May 2009, the Property was sold
via short sale to a bona fide third-party purchaser.
Id. ¶¶ 9, 10. At the time of sale, the
outstanding balance on the mortgage was $320, 000.00, which
was to be offset by the $200, 000.00 sale price, leaving a
deficiency of $120, 000.00. Id. ¶ 10. BANA, as
the then servicer of the loan, failed to record the short
sale deed and continued to represent to the Commonwealth,
credit bureaus, and the federal government that plaintiff was
the mortgagor, even though the mortgage had allegedly been
satisfied with the discount sale price from the 2009 short
sale.- Id. ¶ 11. BANA also
allegedly failed to report the forgivable deficiency to the
Internal Revenue Service (IRS). Id. ¶ 14.
BANA's failures caused plaintiffs credit to decrease
dramatically and resulted in her inability to obtain desired
employment. Id. ¶ 12.
October 20, 2011, the mortgage was assigned by MERS, as
nominee for AWLN, to BNY Mellon. Id. at ¶ 15.
Around 2012, BANA transferred its loan servicing duties to
SLS. Id. at ¶ 16. SLS reported to various
credit bureaus that plaintiff was in a state of
foreclosure on the mortgage from the time it took over
as servicer through the 2015 foreclosure. Id.
¶¶ 42, 52. In like manner to her allegations
against BANA, plaintiff ...