FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Denise J. Casper, U.S. District Judge
Carmenelisa Perez-Kudzma on brief for appellant.
Marissa I. Delinks, Maura K. McKelvey, and Hinshaw &
Culbertson LLP on brief for appellees.
Howard, Chief Judge, Lynch and Barron, Circuit Judges.
August 2005, Paulo Rezende took out two loans from Aegis
Funding Corporation ("Aegis") to refinance his
mortgage on property in Everett, Massachusetts. Rezende
executed mortgages identifying Mortgage Electronic
Registration Systems, Inc. ("MERS") as the
mortgagee, "solely as nominee" for Aegis and its
successors and assigns. In June 2010, MERS assigned one of
the mortgages to U.S. Bank, N.A. ("US Bank"), as
Trustee for Aegis Asset Backed Securities Trust, Mortgage
Pass-Through Certificates, Series 2005.
default and a first loan modification in 2009, which was
cancelled later that year, Rezende obtained a second loan
modification in March 2010. He did not receive any statements
for the modified loan until September 2010. He made payments
from September 2010 through June or July 2013, at which time
Ocwen Loan Servicing, LLC ("Ocwen") returned his
latest payment and informed him that the loan was in
default. In June 2015, Rezende sued Ocwen and U.S.
Bank (the "Defendants") in federal district court,
invoking diversity jurisdiction, seeking, inter alia,
unclouded title to the property, an injunction against
foreclosure, and damages. In June 2016, the district court
granted Defendants' motion for judgment on the pleadings
under Fed.R.Civ.P. 12(c), and dismissed all six counts of
Rezende's complaint. On appeal, Rezende argues that the
district court's entry of judgment was premature and
challenges the court's findings that (1) he lacked
standing to raise a quiet title claim (count V) and (2) his
claim under Massachusetts's consumer-protection law
("Chapter 93A claim") (count VI) was
review the district court's judgment on the pleadings de
novo. Jardín De Las Catalinas Ltd. P'ship v.
Joyner, 766 F.3d 127, 132 (1st Cir. 2014) (citation
omitted). We accept all of the non-moving party's
well-pleaded facts as true and draw all reasonable inferences
in his favor. Feliciano v. Rhode Island, 160 F.3d
780, 788 (1st Cir. 1998). A judgment on the pleadings is only
appropriate when "it appears beyond a doubt that the
nonmoving party can prove no set of facts in support of [his]
claim which would entitle [him] to relief." Id.
challenge that the court abused its discretion by considering
and granting Defendants' allegedly premature Rule 12(c)
motion lacks merit. Not only was Defendants' filing of
their motion on January 25, 2016 itself timely,
the district court did not even hear the motion until four
months later on May 25, 2016, and granted it on June 24,
2016. Rezende had ample time to seek leave from the court to
amend his complaint, but chose not to do so. We also dismiss
Rezende's unsubstantiated assertion that "there were
disputed issues of material fact . . . as to Counts V and VII
[sic] of the Complaint, " for it is not relevant in the
context of a Rule 12(c) motion. Rather, we agree with the
district court's assessment that Defendants were entitled
to judgment on the pleadings because Rezende failed to plead
any set of facts that would entitle him to relief.
respect to count V (quiet title), the district court properly
found that Rezende lacked standing. A mortgagor lacks
standing to bring a quiet title action as long as the
mortgage remains in effect. See, e.g., Oum v.
Wells Fargo, N.A., 842 F.Supp.2d 407, 412 (D. Mass.
2012), abrogated on different grounds by Culhane v.
Aurora Loan Servs. of Nebraska, 708 F.3d 282 (1st Cir.
2013); Flores v. OneWest Bank, F.S.B., 172 F.Supp.3d
391, 396 (D. Mass. 2016), appeal docketed, No.
16-1385 (1st Cir. Apr. 8, 2016). This is because under
Massachusetts law, a quiet title action "cannot be
maintained unless both actual possession and the legal title
are united in the plaintiff, " Daley v. Daley,
14 N.E.2d 113, 116 (Mass. 1938), yet "a 'mortgage
splits the title in two parts: the legal title, which becomes
the mortgagee's, and the equitable title, which the
mortgagor retains.'" Bevilacqua v.
Rodriguez, 955 N.E.2d 884, 894 (Mass. 2011) (quoting
Maglione v. BancBoston Mortg. Corp., 557 N.E.2d 756,
757 (Mass. App. Ct. 1990)). Rezende's assertion that
Defendants bear responsibility for his default is irrelevant:
what matters is the existence of a mortgage, not whether the
underlying loan is in default.
district court also correctly rejected Rezende's attempts
to circumvent his lack of standing by challenging MERS's
assignment of the mortgage to U.S. Bank. Rezende asserts that
the assignment was void because MERS failed to seek
permission from the bankruptcy court to assign the mortgage
after Aegis had filed for bankruptcy. Rezende waived this
argument by failing to cite any authority whatsoever in
support of his conclusory assertion. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
. . . unaccompanied by some effort at developed
argumentation are deemed waived."). As for
Rezende's contention that the assignment was void because
it was made after the closing date of the mortgage loan
trust, Rezende lacked standing to bring this challenge.
See Butler v. Deutsche Bank Trust Co. Ams., 748 F.3d
28, 37 (1st Cir. 2014) (borrowers lack standing to challenge
mortgage assignment for alleged violation of trust's
pooling and servicing agreement). On appeal, Rezende cites
Culhane's holding that "a mortgagor has
standing to challenge a mortgage assignment as . . .
void, " but Culhane specified that a
mortgagor "does not have standing to challenge
shortcomings in an assignment that render it merely
voidable." 708 F.3d at 291 (emphasis added).
Here, the assignment, allegedly made in contravention of the
trust agreement, was "at most voidable at the option of
the parties to the trust agreement, not void as a matter of
law." Dyer, 841 F.3d at 554.
respect to count VI, the district court correctly found that
the Chapter 93A claim was time-barred. Rezende alleges that
the delay caused by Defendants' failure to provide him
monthly statements between March and September 2010 was an
"unfair and deceptive practice."
At the latest, this claim accrued by September 2010 and
expired by September 2014--well before Rezende brought suit
in June 2015. See Mass. Gen. Laws ch. 260, § 5A
(setting a four-year statute of limitations). On appeal,
Rezende asserts that the "trigger" for his claim
was Defendants' notifying him in June 2013 that he was in
default, but it is apparent from the face of the complaint
that the predicate harm was Defendants' failure to timely
bill Rezende in 2010. See Compl. ¶¶ 79-85
(alleging that Defendants "delayed five months"
before billing Rezende; that "[s]uch delay was
unreasonable"; and that "[u]nreasonable delay may
be an unfair and deceptive act").
attempt to invoke the discovery rule "to salvage his
untimely claims" is unavailing because, as the district
court already noted, the alleged harm was not
"inherently unknowable at the moment of [its]
occurrence." Latson v. Plaza Home Mortg., Inc.,
708 F.3d 324, 327 (1st Cir. 2013) (internal quotation marks
omitted). Rezende argues that because Defendants failed to
send him statements between March and September 2010, he
could not have reasonably known of his default until
Defendants notified him in June 2013. Yet Rezende signed the
2010 loan modification agreement, which expressly required
him to make monthly payments, in March 2010 at the latest.
Therefore, Defendants' delay in issuing statements and
Rezende's default were not "inherently
unknowable" harms. See id. (holding that the
plaintiffs' alleged injury of payment of excess interest
became "apparent" when plaintiffs signed the loan