United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
case involves allegations by plaintiff Leon Gelfgatt
(“plaintiff” or “Gelfgatt”), who
appears pro se, that his 2010 discharge in
bankruptcy altered the stated maturity date of his mortgage,
assigned to U.S. Bank National Association
(“defendant” or “U.S. Bank”), thereby
rendering it null and void. Gelfgatt contends that the
defendant failed to foreclose within the requisite time
period required by the Massachusetts Obsolete Mortgage
Statute, M.G.L. c. 260, § 33, and thus forfeited its
interest in the subject property.
the Court are two motions to dismiss by defendant and
plaintiff's motion for a preliminary injunction.
Gelfgatt acquired title to real property located at 75
Garfield Street in Marblehead, Massachusetts, (“the
property”) in February, 2003. In February, 2005, in
connection with a loan, he executed a promissory note for
$343, 500 in favor of Homevest Mortgage Corporation
(“Homevest”). The same day, he granted a mortgage
lien to Mortgage Electronic Registration System
(“MERS”), as nominee for Homevest, to secure the
note. In July, 2010, MERS assigned the mortgage to U.S. Bank.
Plaintiff had previously defaulted on the loan in March,
2010, and subsequently filed for Chapter 7 bankruptcy
protection in February, 2012. He received a discharge of
unsecured claims in May, 2012.
filed a complaint related to the property in the
Massachusetts Superior Court for Suffolk County in December,
2010 (“Gelfgatt I”). That court
dismissed the complaint and the Massachusetts Appeals Court
denied his motion for injunctive relief pending appeal and
ultimately dismissed the appeal for lack of prosecution.
filed a second complaint with respect to the property in
September, 2012, this time in the Massachusetts Superior
Court for Essex County (“Gelfgatt II”).
It granted summary judgment for defendant in March, 2015.
Plaintiff's subsequent appeal was dismissed for failure
to prosecute in March, 2018. Gelfgatt filed a third complaint
in Suffolk County Superior Court in April, 2018, along with
an ex parte motion for endorsement of a lis
pendens (“Gelfgatt III”). That
court allowed the ex parte motion and plaintiff
recorded the lis pendens in the Essex South County
Registry of Deeds. Defendant removed the case to this Court
in May, 2018. He filed a fourth complaint in Essex County
Superior Court in June, 2018, which defendant removed to this
Court in July, 2018 (“Gelfgatt IV”).
That case was assigned to another session of this Court but,
because it is related to Gelfgatt III, on July 25, 2018, the
Court allowed plaintiff's motion to consolidate
Gelfgatt III and Gelfgatt IV.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In considering the merits of a motion to dismiss, the
Court may look only to the facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference
in the complaint and matters of which judicial notice can be
taken. Nollet v. Justices of Trial Court of Mass.,
83 F.Supp.2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d
1127 (1st Cir. 2000). Furthermore, the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69
(1st Cir. 2000). If the facts in the complaint are sufficient
to state a cause of action, a motion to dismiss the complaint
must be denied. See Nollet, 83 F.Supp.2d at 208.
a court must accept as true all of the factual allegations
contained in a complaint, that doctrine is not applicable to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662
(2009). Threadbare recitals of the legal elements which are
supported by mere conclusory statements do not suffice to
state a cause of action. Id. Accordingly, a
complaint does not state a claim for relief where the
well-pled facts fail to warrant an inference of any more than
the mere possibility of misconduct. Id. at 1950.
Gelfgatt III complaint, plaintiff contends that U.S.
Bank has no right to foreclose on his property because the
statute of limitations imposed by the obsolete mortgage
statute has run. He seeks a declaratory judgment to that
effect. Defendant responds that a discharge in bankruptcy
does not alter the maturity date of the mortgage and that the
obsolete mortgage statute does not provide to the contrary.
obsolete mortgage statute provides, in relevant part, that
A power of sale in any mortgage of real estate shall not be
exercised . . . nor proceeding begun for foreclosure of any
such mortgage after the expiration of, . . . in the case of a
mortgage in which the term or maturity date of the mortgage
is stated, 5 years from the expiration of the term or from
the maturity date, unless an ...