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Gelfgatt v. U.S. Bank National Association

United States District Court, D. Massachusetts

July 27, 2018

Leon I Gelfgatt, Plaintiff,
v.
U.S. Bank National Association; Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton, United States District Judge.

         This 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.

         Before the Court are two motions to dismiss by defendant and plaintiff's motion for a preliminary injunction.

         A. Background

         Leon 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.

         Plaintiff 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.

         Gelfgatt 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.

         B. Legal Standard

         To 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.

         Although 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.

         C. Analysis

         In the 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.

         The 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 ...

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