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Saade v. Wilmington Saving Fund Society

United States District Court, D. Massachusetts

September 22, 2017

JACQUES SAADE, Plaintiff,
v.
WILMINGTON SAVINGS FUND SOCIETY, CHRISTIANA TRUST, PNMAC MORTGAGE CO. LLC, PENNY MAC SERVICING LLC, PENNYMAC MORTGAGE INVESTMENT TRUST HOLDINGS I, LLC, CITI MORTGAGE, MORTGAGE LENDERS NETWORK USA, INC., SLS LLC, DEUTSCHE BANK TRUST COMPANY DELAWARE, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., BENDETT AND MCHUGH, EVA MASSIMINO, NELSON MULLINS LLP, and KEVIN POLANSKY, Defendants.

          MEMORANDUM & ORDER

          Indira Talwani, United States District Judge.

         Plaintiff Jacques Saade filed a Verified First Amended Complaint & Request for Injunctive Relief Demand for Jury Trial [“Amended Complaint”] [#14], alleging multiple causes of action against numerous Defendants. This order addresses Defendants Nelson Mullins Riley & Scarborough LLP (“Nelson Mullins”) and Kevin Polansky's Motion to Dismiss [#44], Defendant Bendett & McHugh's Motion to Dismiss [#75], and Plaintiff's Motion for Reconsideration [of] Entry of Default Against Bendett & McHugh [“Motion for Reconsideration”] [#74]. Other pending motions will be addressed in separate orders. For the reasons set forth below, Defendants Nelson Mullins and Polansky's Motion to Dismiss [#44] and Defendant Bendett & McHugh's Motion to Dismiss [#75] are GRANTED. Plaintiff's Motion for Reconsideration [#74] is DENIED.

         I. Facts as Alleged in Plaintiff's Amended Complaint

         In 2006, Plaintiff executed a promissory note and granted a mortgage (the “Mortgage”) to Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) “as nominee for [Defendant Mortgage Lenders Network USA, Inc. (“MLN”)] and [MLN]'s successors and assigns.” Am. Compl. ¶ 26 [#14]; Id. Ex. 2 [#14-2]. The Mortgage prescribed a three-year fixed interest rate; after three years, the interest rate would adjust every six months to a rate of 2.25% plus the 6-month LIBOR rate. Am. Compl. ¶ 28 [#14]. Plaintiff alleges that in 2009, after a dispute with his mortgage servicer, Defendant CitiMortgage, Inc. (“CitiMortgage”), regarding the correct interest rate, the parties agreed to a loan modification. Id. ¶ 29-32, 40. In April 2011, CitiMortgage transferred servicing of the Mortgage to Defendant Specialized Loan Servicing LLC (“SLS”). Id. ¶ 33. Thereafter, but also in April 2011, SLS notified Plaintiff that he was in default, and that SLS was seeking to foreclose on his property. Id. ¶¶ 33, 40, 44. On May 2, 2011, CitiMortgage informed Plaintiff that it could not approve his loan modification request because “the subject loan . . . was paid off on 29-APR-2011.” Id. Ex. 4 [#14-2].

         On June 19, 2012, MERS assigned the Mortgage to Defendant PNMAC Mortgage Co. LLC (“PNMAC”), and PNMAC assigned the Mortgage to PennyMac Loan Trust 2011-NPL1. Am. Compl. ¶ 47 [#14]; Id. Ex. 9 [#14-2]. On or about January 15, 2015, PennyMac Loan Trust 2011-NPL1 assigned the Mortgage to Defendant Christiana Trust. Am. Compl. ¶ 50 [#14].

         In March 2015, Plaintiff received a “Right to Cure” notice pursuant to Mass. Gen. Laws ch. 244, § 35A from Bendett & McHugh, on behalf of its client, Defendant PennyMac Loan Services, LLC (“PennyMac”). Id. ¶ 52. On February 16, 2016, PennyMac sent Plaintiff a letter stating that it had approved the Mortgage for a Trial Plan Period (“TPP”). Id. ¶ 58, 60; Id. Ex. 6 [#14-2]. On April 2, 2016, PennyMac sent Plaintiff a notice requesting that, due to a change in flood requirements, Plaintiff obtain insurance coverage for flood hazard. Am. Compl. ¶ 56 [#14]; Id. Ex. 5 [#14-2]. In response to these notifications, Plaintiff sent multiple demand letters to PennyMac. Am. Compl. ¶¶ 53-55, 59, 62 [#14].

         Plaintiff alleges that sometime in the summer of 2016, he and Polansky, an attorney at Nelson Mullins, entered into negotiations to resolve the dispute over the Mortgage. Id. ¶¶ 64-67. While negotiations were ongoing, Eva Massimino, an associate attorney at Bendett & McHugh, initiated an action in Massachusetts Land Court relating to the Mortgage on behalf of Bendett & McHugh's client Christiana Trust. Id. ¶¶ 66-70.

         II. Procedural History Related to the Instant Motions

         Plaintiff filed his Complaint on October 3, 2016, and attempted to serve the summons and complaint on Bendett & McHugh on October 5, 2016, by way of a package addressed to Massimino at Bendett & McHugh's Farmington, Connecticut location. Proof of Service Upon Def. Bendett & McHugh [#40]. On October 12, 2016, he filed and mailed to Bendett & McHugh his Amended Complaint [#14].

         On February 14, 2017, Plaintiff filed a Request for Entry of Default Against Defendant Bendett & McHugh [#67]. Plaintiff stated that default judgment should enter against Bendett & McHugh for its failure to plead or otherwise defend against the action. Id. He stated that he had “caused the summons and complaint to be mailed to defendant Bendett & McHugh” on or about October 5, 2016. He also provided his proof of service, which showed that a package addressed to Massimino at Bendett & McHugh's Farmington, Connecticut location had been signed for on October 6, 2016. In response, Bendett & McHugh filed an Objection to Plaintiff's Request for Default and Motion for Leave to File Out-of-Time Response to Plaintiffs Amended Complaint [#71]. Bendett & McHugh stated that default judgment should not enter because Plaintiffs service was faulty for two reasons. First, although Massimino received the mail addressed to her, it did not include a summons. Id. Ex. A, Aff Of Eva M. Massimino, Esq. [“Massimino Aff.”] ¶¶ 2-3 [#71-1]. Further, Massimino was not an officer of the firm and was not otherwise authorized to accept service on behalf of the firm. Id. ¶¶ 4-5. The court denied Plaintiffs request for entry of default, explaining that service of Bendett & McHugh was not proper because Massimino was not authorized to accept service on its behalf. Order [#72]. As a result of the defective service, the court granted Bendett & McHugh's request to file a late answer or other response. Id.

         On March 20, 2017, Plaintiff filed the pending motion asking the court to reconsider its Order [#72] denying his request for entry of default. Mot. for Reconsideration [#74]. On March 24, 2017, Bendett & McHugh filed the pending Motion to Dismiss [#75], which Plaintiff opposed. Opp'n to Def Bendett & McHugh's Mot. to Dismiss [#77].

         Meanwhile, Defendants Nelson Mullins and Polansky filed a Motion to Dismiss [#44] on December 28, 2016, which Plaintiff opposed on January 11, 2017. Opp'n Defs.' Dec. 28th Mot. Dismiss [#51].

         III. Causes of Action

         The Amended Complaint contains the following causes of action[1] against Defendants Nelson Mullins, ...


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