United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE
Louise and Kevin Thomas have filed this lawsuit against U.S.
Bank National Association, as Trustee, for Residential
Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through
Certificates, Series 2006-QS2 (“U.S. Bank”)
alleging breach of contract (Count I) and a claim under Mass.
Gen. L. c. 93A (“Chapter 93A”) (Count II). D. 1.
U.S. Bank now moves to dismiss the claims under Fed.R.Civ.P.
12(b)(6). D. 12. For the reasons discussed, the Court ALLOWS
the motion to dismiss as to both Count I and Count II.
Standard of Review
to Rule 12(b)(6), a complaint must include “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); García-Catalán v. United
States, 734 F.3d 100, 103 (1st Cir. 2013). This
requirement “simply calls for enough facts to raise a
reasonable expectation that discovery will reveal
evidence” of the illegal conduct alleged.
Twombly, 550 U.S. at 556. The Court “must
assume the truth of all well-plead[ed] facts and give the
plaintiff the benefit of all reasonable inferences
therefrom.” Ruiz v. Bally Total Fitness Holding
Corp., 496 F.3d 1, 5 (1st Cir. 2007). To do so, the
Court may consider “implications from documents
attached to or fairly incorporated into the complaint,
” “facts susceptible to judicial notice, ”
and “concessions in plaintiff's response to the
motion to dismss.” Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55-56 (1st
Cir. 2012) (quoting Arturet-Velez v. R.J. Reynolds
Tobacco Co., 429 F.3d 10, 13 n. 2 (1st Cir.
2005)); see Pare v. Northborough Capital Partners,
LLC, 133 F.Supp.3d 334, 336 (D. Mass. 2015) (quoting
Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc.,
524 F.3d 315, 321 (1st Cir. 2008)).
following facts are based upon the allegations in the
complaint (and the documents attached to and fairly
incorporated therein) and are accepted as true for the
consideration of the motion to dismiss. In 1973, Mrs. Thomas
purchased the real estate property located at 17 Fresh Pond
Circle, in Plymouth, Massachusetts (the
“Property”). D. 1 ¶ 6. In 2005, Mrs. Thomas
executed the Note and both Plaintiffs executed the Mortgage
for $224, 250, Id. ¶¶ 7-8; D. 13-1; D.
13-2. The Note and Mortgage identify Family Choice Mortgage
Corporation (“FCMC”) as the original lender.
Id. ¶¶ 7-8. The Note, signed solely by
Mrs. Thomas had a maturity date of January 1, 2021. D. 13-1
¶ 3(A). The Mortgage, executed by both Plaintiffs, also
had the same maturity date and granted Mortgage Electronic
Registration System (“MERS”), as nominee for
FCMC, a security interest in the Property. D. 13-2 at 1-2,
12. Pursuant to a pooling and servicing agreement, on or
about February 1, 2006, the Note and Mortgage were assigned
to U.S. Bank as trustee and the assignment of the Mortgage
was subsequently recorded on June 18, 2012. D. 1 ¶ 9.
The Mortgage has been previously serviced by GMAC Mortgage,
LLC (“GMAC”) and is now serviced by Ocwen Loan
Servicing, LLC (“Ocwen”), as agents of U.S. Bank.
D. 1 ¶¶ 11-13.
to the execution of the Note and Mortgage, on September 18,
2006, the Plaintiffs executed a quitclaim deed from the
Plaintiffs to themselves as co-trustees of the Seventeen
Fresh Pond Circle Realty Trust (the “Realty
Trust”). D. 13-3; 21-1.
Plaintiffs defaulted sometime in 2012. D. 1 ¶ 10. Under
the Home Affordable Modification Program (“HAMP”)
and on behalf of U.S. Bank, GMAC offered Mrs. Thomas a
three-month Trial Period Plan (“TPP”) loan
modification agreement in November 2012. D. 1 ¶ 17; D.
1-1 at 1. As part of the TPP, Mrs. Thomas certified that
there had been “no change in the ownership of the
Property since [she] signed the Loan Documents, ” D.
1-1 at 4 (¶ 1C), and the TPP indicated that “if
the Lender determined that [Mrs. Thomas's]
representations . . . are no longer true and correct, [the]
loan will not be modified and this [TPP] will
terminate.” D. 1-1 at 5-6 (¶ 2F). Under the TPP,
Ms. Thomas further agreed that the lender was not
“obligated or bound to modify [the loan] if [she]
fail[ed] to meet any one of the requirements” under the
TPP. D. 1-1 at 6 (¶ 2G).
the three months following the TPP - January, February and
March - the Plaintiffs were obligated to make three payments
each in the amount of $2, 132.49, D. 15 at 3, and did so. D.
1 ¶¶ 23-24. After such payments were made, Ocwen
informed Ms. Thomas that a loan modification would not be
made given the issue of the title of the Property since the
guidelines were not met for “loans held in an Estate or
a Trust.” D. 1-2 at 1. As a result, the Plaintiffs did
not receive a permanent loan modification. Ocwen subsequently
made two loan modification offers in 2015, but the Plaintiffs
rejected both, as alleged by the Plaintiffs, these offers
were unsustainable, unaffordable, and doomed to foreclosure.
D. 1 ¶¶ 39-40, 43-44. Thereafter, in 2016, U.S.
Bank initiated foreclosure proceedings on the Property in
2016, D. 1 ¶ 14, and the Plaintiffs filed this complaint
in September 2017. D. 1.
Bank has now moved to dismiss the complaint. D. 12. The Court
heard the parties on the pending motion and took the matter
under advisement. D. 20.
Count I - Breach of Contract
Plaintiffs allege a breach of contract claim against U.S.
Bank arguing that, despite their compliance with the three
trial payments under the TPP agreement, U.S. Bank failed to
provide them with a permanent loan modification agreement. D.
1 ¶ 33. To state a breach of contract claim, Plaintiffs
must plausibly allege that there was a valid contract; the
defendant breached the contract; and that the Plaintiffs
sustained injury as a result of the defendant's breach.
Linton v. N.Y. Life Ins. Corp., 392 F.Supp.2d 39, 41
(D. Mass. 2005). Even accepting the allegations in the
complaint (and those exhibits attached and ...