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Saade v. Wilmington Saving Fund Society

United States District Court, D. Massachusetts

September 26, 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.

         I. Introduction

         Currently pending before this court are the Motion to Dismiss [#42] by Wilmington Savings Fund Society, FSB (“Wilmington”), Christiana Trust, PNMAC Mortgage Co. LLC (“PNMAC”), PennyMac Loan Services, LLC (“PennyMac”), PennyMac Mortgage Investment Trust Holdings I, LLC (“PennyMac Holdings”), Deutsche Bank as Trustee of PennyMac Loan Trust 2011-NPL1 (“Deutsche Bank Trustee”), Mortgage Electronic Registration Systems, Inc. (“MERS”), and Specialized Loan Servicing LLC (“SLS”) (collectively, the “PennyMac Defendants”) and Defendant CitiMortgage's Motion to Dismiss [#57]. Both motions seek dismissal of Plaintiff Jacques Saade's Verified First Amended Complaint & Request for Injunctive Relief Demand for Jury Trial [“Amended Complaint”] [#14] based on res judicata and other grounds. Also pending is Plaintiff's Motion to Strike Defendants' Motion to Dismiss [“Motion to Strike”] [#66]. For the reasons set forth below, Plaintiff's Motion to Strike [#66] is DENIED, and Defendant CitiMortgage's Motion to Dismiss [#57] is GRANTED. The PennyMac Defendants' Motion to Dismiss [#42] is GRANTED with respect to Counts 1-6, 8, 10-14, 16-21, and 24-25. The court reserves ruling on whether Count 9 should be dismissed, and will set a hearing with respect to the issue identified below.

         II. Plaintiff's Motion to Strike

         Plaintiff asked this court to strike the PennyMac Defendants' motion to dismiss as untimely, and to enter default judgment against them pursuant to Federal Rule of Civil Procedure 55. Mot. to Strike 6 [#66]. Plaintiff notes that he filed this action on October 3, 2016, and that the PennyMac Defendants did not file their motion to dismiss until December 20, 2016. Id. at 1, 3-4.

         The record shows no attempt to serve any of the PennyMac Defendants, other than Defendant Christiana Trust, and thus no facts to suggest that the unserved PennyMac Defendants failed to timely defend this action.

         Plaintiff does claim to have served Christiana Trust, while the PennyMac Defendants assert that the purported service was improper. The court need not resolve this dispute. Even if Plaintiff had properly served Christiana Trust on October 12, 2016, he did not file an Affidavit of Service until December 13, 2016. Once the claim of service was filed, the PennyMac Defendants promptly filed their motion to dismiss on December 20, 2016.

         Federal Rule of Civil Procedure 55(a) states that where “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” After such entry of default by the clerk, the plaintiff may seek a default judgment. Fed.R.Civ.P. 55(b). Here, the PennyMac Defendants have defended this action prior to service or attempted service on all but one of them, and as to that one, moved prior to any clerk's entry of default, and prior to Plaintiff seeking entry of default judgment. The court finds no basis for a default judgment and accordingly, Plaintiff's Motion to Strike [#66] is DENIED.

         III. Defendants' Motions to Dismiss

         A. Legal Standard

         To survive a motion to dismiss, a complaint must include factual allegations that, taken as true, demonstrate a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58 (2007). A plausible claim is one containing “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To assess a complaint, the court first “must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).” Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 24 (1st Cir. 2016) (citation omitted). The court must then “determine whether the remaining facts allow it to ‘draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Id.

         This court can, in an appropriate case, consider the affirmative defense of res judicata on a Rule 12(b)(6) motion to dismiss. See In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 16 (1st Cir. 2003). An appropriate case is one in which (1) “the facts that establish the defense [are] definitively ascertainable from the allegations of the complaint, the documents (if any) incorporated therein, matters of public record, and other matters of which the court may take judicial notice, ” and (2) “the facts so gleaned [] conclusively establish the affirmative defense.” Id. In deciding a Rule 12(b)(6) motion to dismiss, a court is ordinarily limited to considering “only the complaint, documents attached to it, and documents expressly incorporated into it.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71-72 (1st Cir. 2014). The court can also consider matters of public record, Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013), including the record of the purportedly preclusive action where a “motion to dismiss is premised on a defense of res judicata.” Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).

         B. Plaintiff's Factual Allegations

         A review of the facts alleged in the Amended Complaint is set forth in the Memorandum & Order [#78].

         C. The PennyMac Defendants' Motion to Dismiss[1]

         The Amended Complaint asserts the following claims against the PennyMac Defendants: Counts 1-6, 8-14, 16-21, and 24-25. The PennyMac Defendants have moved to dismiss each of the counts against them in the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

         1. Res Judicata

         The PennyMac Defendants argue first that the doctrine of res judicata precludes Plaintiff from asserting his claims here.

         Plaintiff has filed two prior actions regarding his mortgage (the “Mortgage”). First, in April 2015, Plaintiff filed a complaint in Massachusetts state court against the PennyMac Defendants, CitiMortgage, and other defendants. That action was removed to this court, Plaintiff's motion to remand was denied, and on October 14, 2015, Plaintiff filed his Second Amended Complaint. The Second Amended Complaint was eventually dismissed, and the case was closed. See Saade v. PennyMac Loan Services, LLC, 15-cv-12275-IT (D. Mass.) (the “First ...


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