United States District Court, D. Massachusetts
SERGIA G. ROSA, Plaintiff,
PNC MORTGAGE, Defendant.
A. O'Toole, Jr. United States District Judge.
Sergia Rosa has brought this action against PNC Bank,
National Association, which formerly held a mortgage on her home.
The mortgage was apparently discharged in completion of a
short sale of the home. Although she has not clearly spelled
out her intended legal theories in the Complaint, Rosa
alleges that the defendant acted in bad faith in refusing to
help her obtain a loan modification (Count I) and that she
suffered severe emotional and financial distress as a result
of an unfair short sale (Count II). She claims that the
defendant's unfair conduct caused her losses (Count III).
PNC has moved to dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6), arguing that the plaintiff
has failed to include factual allegations sufficient to
support her conclusory assertions of harm (dkt. no. 8).
documents referred or adverted to in the Complaint and
properly attached to PNC's memorandum, it appears that in
February 2008, the plaintiff obtained a residential mortgage
loan from National City Mortgage, a division of National City
Bank, which has since merged with PNC, making the latter the
successor-in-interest to the loan and mortgage. The loan was
secured by a mortgage on the property located at 215-217 Park
Street in Lawrence, Massachusetts. In October 2014, under an
apparent short sale arrangement with the defendant, plaintiff
entered into a purchase and sale agreement with a third-party
buyer, and subsequently conveyed her home. The summary
allegations of the Complaint do not spell out the details of
the short sale arrangement.
Rule of Civil Procedure 8 generally requires only “a
short and plain statement of the claim showing that the
pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2),
and this Court construes pro se complaints
liberally, Erickson v. Pardus, 551 U.S. 89, 94
(2007). Still, plaintiffs are required to allege sufficient
facts to “state a claim to relief that is plausible on
its face, ” and not just a “formulaic recitation
of the elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A complaint must
“set forth factual allegations, either direct or
inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory.”
Lister v. Bank of Am., N.A., 790 F.3d 20, 23 (1st
the plaintiff's pleading liberally, it is conceivable
that she intends to raise one or more of the following claims
common in mortgage-related cases: (1) breach of contract; (2)
violation of the implied covenant of good faith and fair
dealing; (3) failure to comply with Massachusetts General
Laws Chapter 244, Section 35B; and (4) violation of Mass.
Gen. Laws ch. 93A, § 9. Because the Complaint does not
contain sufficient factual allegations to support a claim for
relief under any of these theories, the defendant's
motion to dismiss is granted.
Breach of Contract
state a claim for breach of contract, “a plaintiff must
allege, at a minimum, that there was a valid contract, that
the defendant breached its duties under the contractual
agreement, and that the breach caused the plaintiff
damage.” Guckenberger v. Boston Univ., 957
F.Supp. 306, 316 (D. Mass. 1997). Here, the plaintiff simply
alleges that the defendant refused to help her through loan
modification. However, the mortgage does not obligate the
defendant to modify the loan, nor does the plaintiff allege
that there was any other contract under which the defendant
had such an obligation. Therefore, the plaintiff has failed
to state facts sufficient to support a plausible claim for
breach of contract.
Violation of the Implied Covenant of Good Faith and Fair
may also intend to allege a violation of the implied covenant
of good faith and fair dealing. As a threshold matter, such a
breach requires the existence of a contract between the
parties: “without a contract, there is no covenant to
be breached.” Mass. Eye & Ear Infirmary v. QLT
Phototherapeutics, Inc., 412 F.3d 215, 230 (1st Cir.
2005). Additionally, the “plaintiff bears the burden of
presenting evidence to demonstrate a lack of good
faith.” Clinical Tech., Inc. v. Covidien Sales,
LLC, 192 F.Supp.3d 223, 237 (D. Mass. 2016)
only “contract” with the defendant referred to in
the Complaint is the mortgage. With regard to that agreement,
the plaintiff's assertion of bad faith is not supported
by any particular factual allegation. It is simply a
“formulaic recitation” of a legal conclusion, and
for that reason it does not meet the pleading standard set
forth in Iqbal, 556 U.S. at 678.
Failure to Comply with Mass. Gen. Laws ch. 244, §
law may require lenders holding “certain mortgage
loans” to review borrowers' requests to pursue
modified loans. M.G.L. ch. 244, § 35B. For a loan to
fall within the scope of the statute, it must have certain
specified features. Additionally, nothing in § 35B
prevents “a creditor from offering or accepting an
alternative to foreclosure, such as a short sale.”
Id. In sum, the statute does not provide mortgagors
with a general provision for modification.
the plaintiff alleges that the defendant refused to help her
retain her home through a loan modification, she provides no
information to indicate whether any of the criteria outlined
in § 35B were met, or that her loan even fit into the
definition of “certain mortgage loans” under the
statute, or why the defendant's offer or acceptance of
the short sale was not an appropriate alternative. See
IV.Violation of Mass. Gen. ...