United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE.
Janice Modica, the mortgagor, brought this action in state
court against U.S. Bank, N.A. (“U.S. Bank”), as
Trustee for Citigroup Mortgage Loan Trust 2006-WFHE2
Asset-Backed Pass-Through Certificates, Series 2006 WFHE2
(the “Trust”) and Wells Fargo Bank, N.A
(collectively “defendants”). On December 21,
2016, defendants removed the action to this court based on
diversity jurisdiction. Docket # 1.
seeks a declaratory judgment that U.S. Bank, as trustee, did
not have the authority to exercise the statutory power of
sale under Massachusetts General Law chapter 244, section 14
to foreclose on plaintiff's property (Count I). She also
asserts that Wells Fargo violated Massachusetts regulations,
209 C.M.R. 18.21A(2) and 209 C.M.R. 18.22 (Count II), and
that U.S. Bank, as trustee, slandered the title of her
property (Count III). Docket # 1-1. Defendants have moved to
dismiss the verified complaint asserting that plaintiff lacks
standing to challenge the validity of the mortgage assignment
and that the verified complaint fails to state a claim upon
which relief can be granted. Docket # 8.
following facts come directly from plaintiff's verified
complaint as well as documents, including official public
records, referenced in, attached to, and central to the
complaint, which were provided by both parties. See
Watterson v. Page, 987 F.2d 1, 4 (1st Cir. 1993).
Mortgage, Note, and Assignments
24, 2006, plaintiff executed an adjustable rate promissory
note and mortgage in favor of Wells Fargo in the amount of
$360, 000 for a property located at 98-100 Lancaster Avenue,
Revere, MA 02151 (the “Property”). On April 19,
2010, Wells Fargo assigned the mortgage and note to U.S.
Bank, as Trustee for Citigroup Mortgage Loan Trust
2006-WFHE2, and on April 20, 2010, the assignment was
recorded in Suffolk County Registry of Deeds. Docket # 1-4,
at 50. Wells Fargo filed a corrective assignment on July 27,
2012, “to fix the scriveners error in the previously
recorded Assignment of Mortgage . . . as it relates to the
assignee.” Docket # 1-4, at 44. The corrective
assignment identified the assignee as U.S. Bank, N.A., as
Trustee for Citigroup Mortgage Loan Trust 2006-WFHE2,
Asset-Backed Pass-Through Certificates, Series
2006-WFHE2. Id. (emphasis added).
Pooling Service Agreement
Trust is governed by its Pooling and Servicing Agreement
(“PSA”), dated August 1, 2006, executed among the
depositor (Citigroup Mortgage Loan Trust Inc), the servicer
(Wells Fargo), the trust administrator (CitiBank, N.A.), and
the trustee (U.S. Bank). Docket # 1-3. The PSA authorizes the
depositor (Citigroup Mortgage Loan Trust Inc.) to transfer
its mortgage loans to the trustee (U.S. Bank), on or before
the closing date of August 1, 2006, or within two years
thereafter. Docket # 1-1, at ¶¶ 43-45.
defaulted on her loan beginning in May 2007, but for reasons
that were unexplained in the verified complaint, foreclosure
proceedings did not begin until 2016. See Docket #
1-4, at 2-5 (loan information report stating that foreclosure
was referred on May 17, 2007, and account had been past due
for 3, 189 days). On November 9, 2016, Wells Fargo's
counsel sent a notice letter to plaintiff, enclosing the
Notice of Mortgagee's Sale of Real Estate and informing
her that the Property was scheduled to be sold at a public
auction on December 14, 2016. Docket # 1-2, at 2-3. The
letter also included a “Certification Pursuant to
Massachusetts 209 C.M.R. 18.21A(2)(c), ” which recited
that the loan on the Property was in default. Id. at
4. The Certification further identified the chain of title of
the mortgage, reflecting the two mortgage assignments, and
identified U.S. Bank, as trustee for the Trust, as the
current owner of the note and assignee of the mortgage.
Id. at 4-5.
one month later, in December 2016, plaintiff filed a verified
complaint in the superior court against defendants asserting
three counts related to U.S. Bank's foreclosure on the
Property. Defendants removed the matter to federal court and
now seek to dismiss the verified complaint.
Standard of review
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. For purposes of a motion to dismiss, the court
accepts all well-pleaded factual ...