United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
case involves claims brought by plaintiff Karen Shea
(“Shea” or “plaintiff”) against
defendants Ditech Financial LLC and Wilmington Savings Fund
Society, FSB (collectively, “defendants”) for 1)
breach of contract, 2) violation of M.G.L. c. 244, §
35A, 3) negligent infliction of emotional distress, 4)
intentional infliction of emotional distress and 5) violation
of M.G.L. c. 93A. Pending before this Court is
defendants' joint motion to dismiss the complaint for
failure to state claims upon which relief can be granted. For
the reasons that follow, their motion will be allowed.
Shea and then-husband Patrick Shea bought the subject
property at 145 Jericho Road, Scituate, Massachusetts
(“the Property”) on October 6, 1996. Nearly ten
years later, in March, 2006, the Sheas refinanced their
mortgage with a $400, 000 loan from Mt. Washington
Cooperative Bank. They signed a promissory note (“the
Note”) and granted a mortgage on the Property
(“the Mortgage”) to secure the loan. The Mortgage
was assigned to the Mortgage Electronic Registry System
(“MERS”) on the same day. In December, 2008, MERS
assigned the Mortgage to Countrywide Home Loans Servicing, LP
(“Countrywide”), the successor of which is Bank
of America Home Loans Servicing, LP (“BAC”). On
December 15, 2010, pursuant to a divorce decree, the Property
was conveyed from Patrick and Karen Shea to Karen Shea alone.
falling behind on her payments, BAC offered Shea a
forbearance agreement under the Fannie Mae Homesaver program.
Shea agreed to the offer and the agreement became effective
on July 19, 2009 for a six-month period. Shea timely made
payments for that entire period and claims that sometime
thereafter, BAC instructed her to continue making the reduced
payments which she did through July 20, 2010.
14, 2010, BAC sent a Notice of Intention to Foreclose
(“the Notice”) to Shea. The Notice stated that if
the default was not cured by June 13, 2010, payments would be
accelerated. No such action was taken, however, until 2016.
transferred the Mortgage to Green Tree Servicing, LLC
(“Green Tree”) by assignment recorded February 3,
2014. A corrective assignment was recorded on January 15,
2015 and Green Tree changed its name to Ditech Financial, LLC
(“Ditech”) on August 31, 2015.
made several requests for loan modification at unspecified
times between receiving the Notice and filing this action. On
December 28, 2014, Green Tree acknowledged receipt of one
such request but denied it three days later.
January 8, 2015, Green Tree sent Shea a “Modification
Trial Period Plan Notice” that would have allowed her
to make payments for three months, which, if successfully
made, would have made Shea eligible for certain modifications
of the Mortgage. Shea asserts that she was unable to make
those payments because they exceeded her income as calculated
by Green Tree in their December 31, 2014 letter.
sent a demand letter, pursuant to M.G.L. c. 93A, to Ditech,
f/k/a Green Tree, on September 24, 2015 alleging unfair and
deceptive trade practices in the servicing of her loan, as
well as failure to apply the payments made under the
Forbearance Agreement to the loan balance. Ditech responded
on October 20, 2015 asserting that her payments had been
applied to the outstanding balance on May 13, 2010 but it did
not account for the alleged July 20, 2010 payment of $1,
initiated this suit against Ditech in April, 2016 in Plymouth
Superior Court, Massachusetts. Ditech removed the action to
this Court in July, 2016 and shortly thereafter filed a
motion to dismiss Shea's claims.
promptly sent Shea a Notice of Mortgage Foreclosure Sale and,
on July 29, 2016, assigned the Note and Mortgage to
Wilmington Savings Fund Society, FSB
(“Wilmington”). Plaintiff amended her complaint
to include Wilmington as a defendant on August 17, 2016.
filed a motion for preliminary injunction with this Court on
August 11, 2016. That motion was held in abeyance until
September 21, 2016, at which point it was denied because