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Simmons v. Deutsche Bank National Trust Co.

United States District Court, D. Massachusetts

April 24, 2018

JAMES S. SIMMONS, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2004-HE8, Defendant.

          MEMORANDUM AND ORDER ON MOTION TO DISMISS AND REQUEST FOR A PRELIMINARY INJUNCTION

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Defendant scheduled a foreclosure sale of Plaintiff's home for January 19, 2018, but the sale was postponed upon the filing of this lawsuit in which Plaintiff asserts that Defendant does not hold the mortgage and has failed to comply with certain conditions precedent to foreclosure. Currently pending before the Court is Defendant's motion to dismiss the complaint for failure to state a claim [ECF No. 13] and Plaintiff's request for a preliminary injunction [ECF No. 1-1]. The Court previously granted Plaintiff's request for a temporary restraining order (“TRO”), enjoining Defendant from foreclosing on the property until 5:01 P.M. on March 2, 2018, in order to hold a hearing on the request for a preliminary injunction and an extension of the TRO. [ECF No. 22]. At the hearing held on March 1, 2018, the parties agreed to extend the TRO until 5:01 P.M. on April 25, 2018. [ECF No. 22]. For the reasons stated herein, the motion to dismiss is GRANTED and the request for a preliminary injunction is DENIED. Accordingly, the TRO will not be further extended.

         I. BACKGROUND

         The following facts are drawn from the complaint, the well-pleaded allegations of which are taken as true for purposes of evaluating Defendant's motion to dismiss. See Ruivo v. Wells Fargo Bank, 766 F.3d 87, 90 (1st Cir. 2014). Certain details are also culled from documents whose authenticity are not disputed by the parties, official public records, and documents sufficiently referred to in the complaint, or attached thereto. Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008).

         On June 4, 2004, Plaintiff executed a promissory note in the amount of $119, 700 in exchange for a mortgage on his home from Aames Funding Corporation d/b/a Aames Home Loan (“Aames”). [ECF No. 1-1 at ¶¶ 1, 3] (“Complaint”). Plaintiff has not made any payments on the mortgage since at least September 1, 2008. Id. ¶ 4. According to the information on file with the Hampden County Registry of Deeds (“Registry”), on March 2, 2016, Accredited Home Lenders, Inc., as successor by merger to Aames (hereinafter, “Aames/Accredited”), assigned Plaintiff's mortgage to Bank of America, N.A., and, on March 25, 2016, Bank of America, N.A. assigned the mortgage to Defendant. [ECF Nos. 14-6, 14-7].

         On January 8, 2016, Plaintiff received a notice titled “150 Day Right to Cure Your Mortgage Default, ” which identified Defendant as the mortgagee and Select Portfolio Servicing, Inc. as the mortgage servicer. Compl. ¶ 4; [ECF No. 15 at 15-16]. Plaintiff later received from Defendant a notice of a foreclosure sale dated December 13, 2017, stating that a public auction on his property was scheduled for January 19, 2018. Compl. ¶ 5; [ECF No. 15 at 19-20]. The sale notice included a copy of the promissory note and a certification identifying the chain of mortgage assignments that were recorded with the Registry. Compl. ¶ 6; [ECF No. 15 at 21-27].

         After counsel for Plaintiff was unable to negotiate a resolution or postponement of the auction, on January 16, 2018, Plaintiff filed in the Hampden County Superior Court a motion for an ex parte TRO and a Complaint in which he requested a preliminary injunction, a permanent injunction, and a declaration that the mortgage and note are unenforceable. [ECF No. 15 at 6]. The Superior Court temporarily enjoined Defendant from proceeding with the foreclosure sale and scheduled a hearing on the TRO motion for January 25, 2018. Id. On January 24, 2018, Defendant removed the case to federal court. [ECF No. 1]. Thereafter, a hearing on the TRO motion was scheduled for February 14, 2018 before Judge Mark G. Mastroianni of the United States District Court for the District of Massachusetts, after Defendant indicated that the foreclosure sale had been rescheduled for February 21, 2018. [ECF Nos. 10, 11]. On February 13, 2018, Plaintiff filed his memorandum of law in support of the TRO motion. [ECF No. 16]. Both parties were represented at the hearing held on February 14, 2018 [ECF No. 20], during which Judge Mastroianni entered an order of recusal. [ECF No. 17]. The case was ultimately assigned to this Court. [ECF No. 19].

         On February 15, 2018, this Court entered a TRO enjoining Defendant from conducting a foreclosure sale of Plaintiff's home, which remained in effect until 5:01 PM on March 2, 2018, so that the Court could conduct a hearing on the request for a preliminary injunction and the extension of the TRO on March 1, 2018. [ECF No. 22]. Consequently, the foreclosure sale was rescheduled for March 6, 2018. [ECF No. 23]. On March 1, 2018, both parties appeared through counsel at the hearing, and by the agreement of the parties, the TRO entered on February 15, 2018 [ECF No. 22] was extended until 5:01 PM on April 25, 2018. Id. Plaintiff filed his opposition to the pending motion to dismiss on March 14, 2018. [ECF No. 25].

         II. MOTION TO DISMISS

         Plaintiff asks the Court to enjoin the foreclosure and declare the mortgage and note void and unenforceable based on the following: (1) that Defendant lacks the authority to foreclose due to alleged defects in the chain of title of the mortgage and note; and (2) that the 150-day cure notice incorrectly stated the amount required to cure the default. Plaintiff does not otherwise argue that Defendant failed to comply with the terms of the mortgage or other statutory conditions precedent to foreclosure.

         A. Legal Standard

         On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all well-pleaded facts in the complaint and analyzes those facts “in the light most hospitable to the plaintiff's theory, and draw[s] all reasonable inferences for the plaintiff.” United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011). Although detailed factual allegations are not required, the complaint must set forth “more than labels and conclusions” to survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, courts are not bound to accept as true legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The facts alleged, when taken together, must therefore be sufficient to “state a claim to relief that is plausible on its face, ” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 570), and must “raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action” is not enough. Id. Dismissal for failure to state a claim is thus appropriate “[i]f the complaint does not set forth ‘factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'” Lemelson v. U.S. Bank Nat'l Ass'n, 721 F.3d 18, 21 (1st Cir. 2013) (quoting Hutcheson, 647 F.3d at 384) (further internal quotations omitted).

         When evaluating the sufficiency of 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).” A.G. ex rel. Maddox, 732 F.3d at 80 (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Second, the Court must determine whether the remaining factual content allows a “reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Although evaluating the plausibility of a legal claim requires the reviewing court to draw on its judicial experience and common sense, the court may not disregard properly pled factual allegations, even if it strikes a savvy judge that actual proof of those facts is improbable.” Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (internal quotations and citation omitted).

         B. ...


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