United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTIONS TO DISMISS
GAIL DEIN UNITED STATES MAGISTRATE JUDGE
plaintiff, Gwendolyn Holland, has brought this action against
Select Portfolio Servicing, Inc. (“SPS”), a
servicer of her mortgage and attorney-in-fact for MetLife
Home Loans, a division of MetLife Bank, N.A.
(“MetLife”), and Carrington Mortgage Services,
LLC (“Carrington”), the subsequent servicer and
holder of her mortgage. The Complaint, as amended, purports
to state a claim of fraud (Count I) and violation of Mass.
Gen. Laws ch. 93A (Count II). It is the plaintiff's
contention that the purported assignment of the servicing
rights from SPS to Carrington, and transfer of the ownership
of her mortgage loan from MetLife (by SPS as
attorney-in-fact) to Carrington, were void, and that JPMorgan
Chase Bank, N.A. (“JP Morgan”) is the actual
holder of her mortgage loan. Ms. Holland's mortgage
payments are current, and she is seeking to have all payments
returned to her so that they can be made to the correct
entity. No. other entity has challenged SPS's and
Carrington's involvement with Ms. Holland's mortgage
loan, and JPMorgan has expressly denied still having any
interest in the mortgage loan.
matter is before the court on the defendants' motions to
dismiss brought pursuant to Fed.R.Civ.P. 8, 9(b) and
12(b)(6). For the reasons detailed herein, the Complaint
fails to satisfy the pleading requirements for fraud, and
otherwise fails to state a claim upon which relief can be
granted. Therefore, SPS's motion (Docket No. 4) and
Carrington's motion (Docket No. 15) are ALLOWED.
STATEMENT OF FACTS
facts are derived from Ms. Holland's Complaint
(“Compl.”) (Docket No. 5-1) as well as
“information found in the mortgage itself, public
records, documents incorporated into the complaint by
reference, and other matters susceptible to judicial
notice.” Wilson v. HSBC Mortg. Servs., Inc.,
744 F.3d 1, 4 (1st Cir. 2014) (citation
December 17, 2009, Ms. Holland executed a promissory note to
Drew Mortgage Associates, Inc. (the “Note”)
(Carr. Ex. A). The Note was secured by a mortgage of the same
date to Mortgage Electronic Registration Systems
(“MERS”) as nominee for Drew Mortgage Associates,
Inc., its successors and assigns, on Ms. Holland's home
in Marlborough, Massachu-setts (the “Mortgage”)
(Carr. Ex. B). The Mortgage was recorded with the Middlesex
County (South) Registry of Deeds at Book 54034, page 564 on
December 22, 2009. (Carr. Ex. B).
2010 Assignment to MetLife
27, 2010, MERS assigned the Mortgage to MetLife (the
“2010 Assignment”) (Compl. ¶ 4; Carr. Ex.
C). The 2010 Assignment was recorded with the Middlesex
County (South) Registry of Deeds at Book 55116, page 341 on
August 5, 2010. (Compl. ¶ 7; Carr. Ex. C). Prior to that
time, on May 7, 2010, Ms. Holland had received a letter from
MetLife notifying her that MetLife had purchased her mortgage
on May 3, 2010 from Government National Mortgage Association.
(Compl. ¶ 5).
Challenged 2015 Assignment to Carrington
to her Complaint, on November 2, 2012, “MetLife
announced an agreement to sell MetLife Bank, N.A.'s $70
billion mortgage servicing portfolio to J.P. Morgan Chase
Bank, N.A.” (Compl. ¶ 8). On May 1, 2013, Ms.
Holland received a letter from JPMorgan notifying her that
her mortgage had “been sold or otherwise transferred or
assigned” to it, and that SPS was the new servicer.
(Compl. ¶¶ 9-10). This assignment was never
recorded, and forms the basis of Ms. Holland's Complaint.
According to Ms. Holland, SPS, MetLife, and over 100 other
companies use the same address in Salt Lake City, Utah.
(Compl. ¶¶ 12-15).
about August 11, 2015, Carrington notified Ms. Holland that
the servicing rights for her mortgage were being transferred
from SPS to Carrington, effective August 1, 2015. (Compl.
¶ 20; Carr. Ex. D). On October 29, 2015, MetLife assigned
Ms. Holland's Mortgage to Carrington (the “2015
Assignment”). (Compl. ¶ 16; Carr. Ex. E). The 2015
Assignment correctly identifies the original mortgagor
(Gwendolyn G. Holland), the original mortgagee (MERS as
nominee for Drew Mortgage Associates, Inc., its successors
and assigns), the date of the original mortgage (December 17,
2009) and the recording information for the original mortgage
(Book No. 54034, at Page No. 564). (Carr. Ex. E). The 2015
Assignment was executed before a Notary Public, and indicates
that it was signed by Michelle Sandoval, Document Control
Officer, on behalf of MetLife by SPS as its attorney in fact
pursuant to its power of attorney being recorded therewith.
(Id.). The 2015 Assignment was recorded on November
20, 2015 with the Middlesex County (South) Registry of Deeds
at Book 66409, page 383. (Id.). The limited power of
attorney granted by MetLife to SPS, dated June 3, 2013, was
recorded at Book 66409, page 359. (SPS Ex. E; Compl. ¶
11). The power of attorney was also executed before a Notary
Public, and was signed by Angela Cavener, Limited Vice
President of MetLife Bank, NA, a/k/a MetLife Home Loans, a
Division of MetLife Bank, N.A. (SPS Ex. E).