United States District Court, D. Massachusetts
JAMES S. SIMMONS, Plaintiff,
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
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.
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.
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].
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].
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].
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].
MOTION TO DISMISS
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.
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
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).