United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Larry Loew, along with several trusts of which he is the
trustee, 641 Beach Street Trust, 643 Beach Trust, 6 and 8
Nahant Trust and 640 Beach Street Trust, and the beneficiary
of those trusts, (collectively, "Plaintiffs")
brings suit against Ditech Mortgage Corp., formerly known as
Green Tree Servicing LLC ("Ditech"), Harmon Law
Offices, P.C. ("Harmon"), CitiMortgage, Inc.
("CitiMortgage"), and HSBC Bank USA
("HSBC") (collectively, "Defendants"). D.
1. Each of the Defendants has moved to dismiss. D. 10; D. 14;
D. 17; D. 19. Loew subsequently moved for a temporary
restraining order and preliminary injunction. D. 29. The
Court heard the parties on the motions and took the matters
under advisement. D. 39. For reasons discussed below, the
COURT ALLOWS the motions to dismiss, D. 10, 14, 17, 19, and
DENIES as moot the motion for injunctive relief, D. 29.
Court accepts the following non-conclusory factual
allegations in the complaint as true for the purposes of
evaluating the motion to dismiss. Valentin v. Hosp. Bella
Vista, 254 F.3d 358, 363 (1st Cir. 2001). Loew is the
trustee of the 641 Beach Street Trust, the 643 Beach Street
Trust, the 6 and 8 Nahant Trust and the 640 Beach Street
Trust. D. 1 ¶¶ 1-4. Each trust holds the property
for which it named. D. 1 ¶¶ 1-4. Gail Goldstein is
the beneficiary of each of the trusts. D. 1 ¶¶ 1-4.
To the extent that the Court can discern, as the complaint is
not a model of the clarity as required by Fed.R.Civ.P.
8(a)(2) (requiring “a short and plain statement of the
claim showing that the pleader is entitled to relief”),
the complaint alleges that Ditech (known at the time as Green
Tree Servicing LLC) breached a Stipulated Order for a
Permanent Injunction and Monetary Judgment ("Stipulated
Order") that it had entered into with the Federal Trade
Commission and the Consumer Financial Protection Bureau on
April 23, 2015, D. 1 ¶¶ 29-36, 65-82, and that the
Defendants collectively violated the Real Estate Settlement
Practices Act ("RESPA") by failing to respond
properly to Loew's qualified written requests. D. 1
¶¶ 38-63. The complaint makes reference to an
earlier complaint that Loew filed against CitiMortgage and
Harmon in Suffolk Superior Court, in which Loew alleged that
CitiMortgage improperly rescinded a modification of his
mortgage loan, and an earlier complaint that Loew had filed
against HSBC, in which Loew alleged that HSBC wrongfully
failed to modify Loew's mortgage loan. D. 1 ¶¶
50, 62, 63.
pro se complaint "is to be liberally
construed," and "however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551
U.S. 89, 94 (2007). While pro se complaints must be
read with an "extra degree of solicitude," Rodi
v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991), the
burden remains on plaintiff “to set forth plausible
claims upon which relief may be granted and to provide
sufficient notice to [Defendants] of [his] claims.”
Ghazarian v. American Home Mortg. Serv. Wells
Fargo¸ No. 11-11277-PBS, 2013 WL 4411758, at *4
(D. Mass. July 18, 2013).
complaint does not state factual allegations sufficient to
state a claim for relief. With respect to the RESPA claims,
to state a claim for relief based on a loan servicer's
failure to respond properly to a qualified written request, a
plaintiff must allege "(1) that the servicer failed to
comply with the statute's [qualified written request]
rules; and (2) that the plaintiff incurred 'actual
damages' as a consequence of the servicer's
failure," Okoye v. Bank of New York Mellon, No.
CIV.A. 10-11563-DPW, 2011 WL 3269686, at *17 (D. Mass. July
28, 2011); see 12 U.S.C. § 2605(f)(1)(A), (B).
A qualified written request is a communication that
"include[s] a statement of reasons for the belief of the
borrower, to the extent applicable, that the account is in
error or provides sufficient detail to the servicer regarding
other information sought by the borrower."
O'Connor v. Nantucket Bank, 992 F.Supp.2d 24, 34
(D. Mass. 2014) (quoting 12 U.S.C. § 2605(e)(1)(B)).
principally alleges in conclusory fashion that the Defendants
failed to respond to his qualified written requests,
providing a list of dates on which he alleges RESPA
violations occurred. D. 1 ¶¶ 38-63. The only
allegations containing any specifics are the allegations
referencing the two earlier complaints filed by Loew in state
court. D. 1 ¶¶ 50, 62, 63. To the extent, however,
Loew means to re-assert the claims he brought in state court,
those claims would be barred by res judicata. A claim is
precluded under res judicata if there is "(1) a final
judgment on the merits in an earlier action; (2) sufficient
identity between the causes of action asserted in the earlier
and later suits; and (3) sufficient identity between the
parties in the two suits." Bay State HMO Mgmt., Inc.
v. Tingley Sys., Inc., 181 F.3d 174, 177 (1st Cir.
1999). CitiMortgage and HSBC have filed copies of state court
records, of which the Court may take judicial notice,
indicating that the state court complaints referenced by Loew
were litigated to final judgment on the merits favorable to
the defendants and involved the same defendants involved in
this suit. D. 18-1; D. 18-2; D. 20-1. See Andrews-Clarke
v. Lucent Techs., Inc., 157 F.Supp.2d 93, 99 (D. Mass.
2001) (holding that "dismissal for failure to state a
claim does constitute a final judgment for res judicata
res judicata did not apply here, Loew has not made any
allegations regarding the contents of the communications sent
to Defendants, so Loew has not sufficiently pled that those
communications constituted qualified written requests within
the meaning of RESPA. Moreover, Loew has not alleged any
damages, actual or otherwise, that resulted from the
Defendants' failure to comply with RESPA. Finally, at
least some of Loew's claims appear to be barred by the
statute of limitations. The statute of limitations for a
RESPA claim under Section 2605 is three years from the date
of the alleged violation. 12 U.S.C. § 2614; see
Saade v. Pennymac Loan Servs., LLC, 15-12275-IT, 2016 WL
4582083, at *7 (D. Mass. August 31, 2016). The complaint was
filed on December 8, 2017, so the RESPA claims related to
communications occurring before December 8, 2014 are
time-barred. D. 1 ¶¶ 40-43.
respect to the counts asserting claims under the Stipulated
Order, the complaint alleges no specific facts setting forth
how Ditech breached the Stipulated Order. D. 1 ¶¶
29-36, 65-82. Even a pro se complaint may not
consist entirely of "conclusory allegations that merely
parrot the relevant legal standard," Griffin v. Me.
Dep't of Corr., No. 1:15-CV-00519-GZS, 2016 WL
748947, at *1 (D. Me. Jan. 28, 2016), report and
recommendation adopted, No. 1:15-CV-00519-GZS, 2016 WL
756466 (D. Me. Feb. 25, 2016) (quoting Young v. Wells
Fargo, N.A., 717 F.3d 224, 231 (1st Cir. 2013)).
Moreover, individual consumers lack standing to enforce the
Stipulated Order. Fed. Trade Comm'n v. Green Tree
Servicing LLC, No. 15-CV-2064 (SRN/SER), 2018 WL 614472,
at *4 (D. Minn. Jan. 8, 2018), report and recommendation
adopted sub nom. Fed. Trade Comm'n & Consumer Fin.
Prot. Bureau v. Green Tree Servicing, LLC, No. 15CV2064,
2018 WL 614731 (D. Minn. Jan. 29, 2018).
foregoing reasons, the Court ALLOWS the Defendants'
motions to dismiss, D. 10, D. 14, D.17, D. 19. In light of
this ruling, the Court DENIES Loew's motion for a
temporary restraining order and preliminary injunction as
moot. D. 29.