United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE
case arises from allegations of misconduct with respect to
the refinancing of a mortgage, its assignment and conduct by
the servicer of the mortgage. Plaintiff Jack Saade
(“plaintiff” or “Saade”), who appears
pro se, alleges that Option One Mortgage Company
(“Option One”), the original mortgagee of
property he owns, misrepresented the status of his mortgage
refinancing. He contends that 1) Security Connection Inc.
(“SCI”), a facilitator of mortgage assignments,
committed fraud and 2) Ocwen Loan Servicing LLC
(“Ocwen”), the mortgage servicer, engaged in
various unfair trade practices, 3) Orlans Moran PLLC
(“Orlans Moran”), legal counsel for the
mortgagee, engaged in unfair debt collection practices, and
4) HSBC Bank, USA, National Association (“HSBC”),
the purported assignee of the mortgagee, was not a legitimate
the Court are 1) motions to dismiss of defendants Orlans
Moran, Ocwen and SCI, defendant 2) Ocwen's motion to
continue and defer plaintiff's motion for partial summary
judgment, 3) plaintiff's motions for summary judgment
generally and, in particular, as to Counts II, III and IV and
to vacate the Court's order granting defendant
Homeward's motion to dismiss, and 4) plaintiff's
request for notice of default as to HSBC.
alleges a number of illicit incidents by several entities on
a number of occasions.
first nucleus of allegations concerns the refinancing of
plaintiff's mortgage. Mr. Saade obtained a mortgage from
Option One in 2003. In 2009, he sought to refinance that
mortgage. Saade alleges that Option One was evasive and
misinformed him that the request was under review when, in
fact, it was not.
second alleged wrong-doing involves a series of assignments
of the 2003 mortgage. According to plaintiff, Option One
assigned the mortgage to American Home Mortgage Servicing,
Inc., (“AHMSI”), the original mortgage servicer,
which, in turn, assigned the mortgage to Homeward
Residential, Inc. Homeward was eventually acquired by Ocwen.
third claim focuses on an affidavit that Ocwen filed with the
registry of deeds averring the authenticity of what plaintiff
alleges were fabricated mortgage records produced by SCI.
final alleged misconduct involves Ocwen's servicing of
the loan. Saade alleges that Ocwen placed “forced
insurance” on the property, knowing that it was already
adequately insured and causing Saade additional expense. In
addition, Saade claims that his loan servicer was replaced
without proper statutory notice.
originally brought this suit in the Massachusetts Land Court
(Suffolk County) in January, 2017. The case was removed to
this Court later that month. Plaintiff filed an amended
complaint in February, 2017, and the multiple motions to
dismiss and for partial summary judgment followed
Court will address each count of the amended complaint in
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.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In considering the merits of a motion to dismiss, the
Court may look only to the facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference
in the complaint and matters of which judicial notice can be
taken. Nollet v. Justices of Trial Court of Mass.,
83 F.Supp.2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d
1127 (1st Cir. 2000). Furthermore, the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69
(1st Cir. 2000). If the facts in the complaint are sufficient
to state a cause of action, a motion to dismiss the complaint
must be denied. See Nollet, 83 F.Supp.2d at 208.
a court must accept as true all of the factual allegations
contained in a complaint, that doctrine is not applicable to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662
(2009). Threadbare recitals of the legal elements which are
supported by mere conclusory statements do not suffice to
state a cause of action. Id. Accordingly, a
complaint does not state a claim for relief where the
well-pled facts fail to warrant an inference of any more than
the mere possibility of misconduct. Id. at 1950.
I - Intentional Misrepresentation and fraudulent assignment
in the amended complaint alleges two different claims. First,
plaintiff avers that Option One misrepresented to plaintiff
the status of his refinancing application. Second, plaintiff
contends that Option One, AHMSI, Homeward and Ocwen
fraudulently assigned the mortgage in a scheme facilitated by
SCI. Saade alleges that SCI employees fraudulently
represented themselves to be employees of the assignor (Sand
Canyon) to fabricate the assignment.
intentional misrepresentation and fraud claims often arise in
the context of a contract, Massachusetts state courts
consistently construe such claims as torts. Salois v.
Dime Sav. Bank of New York, FSB, 128 F.3d 20, 24 (1st
Cir. 1997). The issue presents a threshold determination for
this Court. Actions of contract, under Massachusetts law,
must be commenced within six years after the cause of action
accrues, M.G.L. ch. 260, § 2, while tort actions must be
commenced within three years. M.G.L. c. 260, § 2A. For
“[a]ctions arising on account of violations of any law
intended for the protection of consumers, ” a plaintiff
has four years to commence an action. M.G.L. ch. 260, §
5A (“including but not limited to . . . chapter
plaintiff's intentional misrepresentation claim arises
from his frustrated attempts to refinance his mortgage in
2009. Plaintiff filed his complaint in this action in
January, 2017, more than seven years after the complained-of
conduct. This action is time barred.
second claim within Count I arises from the allegedly
fraudulent assignment of a mortgage executed on January 3,
2013 and recorded on January 31, 2013. Plaintiff filed his
complaint in this action on January 31, 2017, exactly four
years after the alleged wrongful conduct. Because the
Massachusetts statute of limitations ...