United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani, United States District Judge.
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
Facts as Alleged in Plaintiff's Amended
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
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
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].
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.
Procedural History Related to the Instant Motions
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].
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.
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
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].
Causes of Action
Amended Complaint contains the following causes of
action against Defendants Nelson Mullins,