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Tucker v. U.S. Bank, N.A.

United States District Court, D. Massachusetts

February 16, 2018

JACQUELINE TUCKER, Plaintiff,
v.
U.S. BANK, N.A. AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, INC., 2006-HE3, ASSET BACKED PASS-THROUGH CERTIFICATES SERIES 2006-HE3; WELLS FARGO BANK, N.A.; and SERVICELINK FIELD SERVICES, Defendants.

          MEMORANDUM AND ORDER

          Hon. Patti B. Saris Chief U.S. District Judge.

         INTRODUCTION

         This is a mortgage foreclosure case involving a summer home on Martha's Vineyard. Plaintiff Jacqueline Tucker brought this action in state court challenging the foreclosure on multiple grounds, most of which have been rejected multiple times by the governing caselaw. Defendants are U.S. Bank, N.A., as Trustee for Citigroup Mortgage Loan Trust, Inc., 2006-HE3, Asset Backed Pass-Through Certificates, Series 2006-HE3 (“U.S. Bank, as Trustee”); Wells Fargo Bank, N.A. (“Wells Fargo”); and ServiceLink Field Services (“ServiceLink”).

         In Count I, Plaintiff seeks a declaratory judgment that U.S. Bank, as Trustee does not have the authority to foreclose on her property, pursuant to Mass. Gen. Laws ch. 244, § 14. Compl. ¶¶ 103-18. In Count II, Plaintiff alleges that the certification she received from her mortgage loan servicer, Wells Fargo, failed to comply with 209 Mass. Code Regs. 18.21A(2)(c), constituting a violation of Mass. Gen. Laws ch. 93A. Compl. ¶¶ 119-29. In Count III, Plaintiff asserts that U.S. Bank, as Trustee slandered the title of her property. Compl. ¶¶ 130-38. In Count IV, Plaintiff alleges that agents of Wells Fargo and ServiceLink trespassed onto and stole her property. Compl. ¶¶ 139-52.

         After an ex parte hearing, the state Superior Court issued a preliminary injunction to prevent Defendants from executing a foreclosure auction sale of Plaintiff's property. Docket No. 1-4. Defendants U.S. Bank, as Trustee and Wells Fargo subsequently removed the case to this Court on the basis of diversity jurisdiction. They moved to dissolve the injunction and to dismiss Counts I-III of the complaint under Fed.R.Civ.P. 12(b)(6). In its November 20, 2017 order (Docket No. 14), this Court granted the motion to dissolve the injunction. The motion to dismiss is now before the Court.

         After hearing, Defendants' motion to dismiss Counts I-III (Docket No. 6) is ALLOWED. Count IV is REMANDED to the state court for lack of subject-matter jurisdiction.

         FACTUAL BACKGROUND

         The following facts are derived from the complaint, as well as documents, including official public records, referenced in and attached to the complaint. See Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993) (holding that public records and other essential documents submitted by plaintiffs may be considered as part of the pleadings).

         I. The Note and Mortgage

         On July 31, 2006, Plaintiff executed an adjustable rate promissory note and mortgage in the amount of $564, 000 on her vacation home, located at 48 Narragansett Avenue, Oak Bluffs, Martha's Vineyard, Massachusetts. Compl. ¶¶ 1-2, 5-7. The original holder of both the note and the mortgage was Flagstar Bank, N.A. (“Flagstar”). Compl. ¶ 5.

         The note was subsequently assigned to New Century Mortgage Corp. (“New Century”), which, in turn, endorsed the note in blank and without recourse. Compl. Ex. A, at 5. Both endorsements are undated.

         Meanwhile, the mortgage was assigned by Flagstar to Mortgage Electronic Registration Systems, Inc. (“MERS”), on August 17, 2006. Compl. ¶ 10. On October 31, 2011, MERS, styling itself “as nominee for Flagstar Bank, its successors and assigns, ” assigned the mortgage to U.S. Bank, as Trustee. Compl. Ex. E.

         On June 19, 2013, MERS executed a Confirmatory Assignment of Mortgage to U.S. Bank, as Trustee. Compl. Ex. F. The Confirmatory Assignment avers that it “is being recorded to amend that Assignment dated 10/31/2011 . . . as that Assignment incorrectly shows the Assignor's name to be Mortgage Electronic Registration Systems, Inc., as nominee for Flagstar Bank, its successors and assigns, whereas it should show Mortgage Electronic Registration Systems, Inc.” Compl. Ex. F.

         II. The Pooling and Servicing Agreement

         U.S. Bank, as trustee for the Citigroup Mortgage Loan Trust, Inc., 2006-HE3, Asset Backed Pass-Through Certificates, Series 2006-HE3 (the “Trust”), was assigned Plaintiff's mortgage by MERS. The Trust is governed by a Pooling and Servicing Agreement (“PSA”).[1] Compl. ¶ 52. The parties to the PSA are 1) Citigroup Mortgage Loan Trust, Inc., as Depositor; 2) U.S. Bank, as Trustee; 3) four different banks, including Wells Fargo, as Servicers; and 4) Citibank, N.A., as Trust Administrator. Compl. Ex. G, at 4. The PSA was executed in 2006, five years before Plaintiff's mortgage was assigned to U.S. Bank, as Trustee. Compl. Ex. G, at 8. U.S. Bank, as Trustee holds the note.

         III. ...


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