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Squizzero v. U.S. Bank N.A.

United States District Court, D. Massachusetts

August 1, 2018




         Plaintiff, acting pro se, initiated this mortgage foreclosure action on February 13, 2017. [ECF No. 1-1]. After retaining counsel and filing an Amended Complaint on October 13, 2017, she now asks for leave to further amend the pleadings to add a claim asserting a violation of Mass. Gen. Laws Ch. 93A. [ECF No. 42]. Defendants oppose the motion on the grounds that Plaintiff unduly delayed seeking leave to amend and that the proposed amendment does not state a plausible claim under Chapter 93A.

         I. Legal Standard

         Federal Rule of Civil Procedure 15 “reflects a liberal amendment policy, ” and “the district court enjoys significant latitude in deciding whether to grant leave to amend.” ACA Fin. Guaranty Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008) (quoting LaRocca v. Borden, Inc., 276 F.3d 22, 32 n.9 (1st Cir. 2002)). A court may deny leave to amend for reasons including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). A request to amend the complaint “requires the court to examine the totality of the circumstances and to exercise its informed discretion in constructing a balance of pertinent considerations.” Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006). “In reviewing for ‘futility,' the district court applies the same standard of legal sufficiency as applies to a Rule 12(b)(6) motion.” Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996).

         II. Chapter 93A Allegations

         Plaintiff alleges that she first applied for a HAMP modification of her home mortgage loan in January 2012 with her servicer at the time, GMAC, who denied her application after Plaintiff made payments over a three-month period. [ECF No. 42-1 at ¶¶ 20-21]. In October 2012, servicing of Plaintiff's mortgage loan transferred to Ocwen. Id. ¶ 23. In January 2013, Plaintiff applied for a loan modification with Ocwen, which was denied in February 2013. Id. ¶¶ 26-27. Thereafter, Plaintiff “made one of the late payments, ” but Ocwen informed her that it would not accept such payments until the outstanding defaulted amounts were satisfied in full. Id. ¶ 28. Between October 2013 and June 2015, Ocwen allegedly contacted Plaintiff in excess of the number of times allowed under Massachusetts' debt collection regulations. Id. ¶ 29. In or around January 2014, Ocwen denied Plaintiff's third application for a loan modification and refused to accept less than full payment of the outstanding defaulted payments.[1] Id. at ¶¶ 30-31.

         In June 2015, Plaintiff retained a law firm to assist her with the loan modification process. Id. ¶¶ 32-33. The law firm told Plaintiff that it was waiting for documentation from Ocwen to finalize the modification, but then ceased communicating with her for months before informing her that the application was denied for failure to make trial payments. Id. ¶¶ 34-35. Plaintiff again applied for a loan modification with Ocwen in October 2016, and completed the application package in accordance with Ocwen's document requests by November 2016. Id. ¶ 37. The application was denied in December 2016. Id. ¶ 38.

         Plaintiff asserts that she has plausibly alleged a Chapter 93A violation based on Defendants' “(i) failing to make reasonable efforts to avoid foreclosure . . .; (ii) unreasonably delaying the modification process to the point that the growing arrearages put modification out of reach for the Plaintiff, and not accepting partial payments in the interim; (iii) providing false and misleading information to the Plaintiff in the modification process;” and (iv) violating the provisions of 15 U.S.C. § 1692(d) (“Fair Debt Collection Practices Act” or “FDCPA”). Id. ¶ 58.


         Defendants oppose the motion for leave to amend on the grounds of undue delay and futility. The Amended Complaint, which was filed on October 13, 2017, acknowledged that Plaintiff intended to further amend the pleadings to add a Chapter 93A claim “following service of the thirty-day demand letter required under that statute, which was served [on both Defendants] on October 12, 2017.” [ECF No. 23 at 6 n.1]. Defendants responded to the demand letters on November 9, 2017. [ECF No. 42-1 at ¶ 57]. After the parties appeared for a scheduling conference, the Court ordered that all motions to amend the pleadings be filed by July 9, 2018. [ECF No. 39].

         Defendants argue that there is no reasonable basis for Plaintiff's delay until the deadline to request leave to amend. Although Plaintiff timely filed the instant motion for leave to amend on July 9, 2018, she possessed the requisite information to seek leave to amend the pleadings in November 2017. The Amended Complaint, which was filed in October 2017, plainly states that Plaintiff intended to file a second amended complaint following the service of her Chapter 93A demand letters. She provides no explanation as to why she waited approximately eight months since Defendants responded to her demand letters to request leave. Although Plaintiff's motion is not late according to the scheduling order, she fails to provide “some valid reason for [her] neglect and delay.” Neelon v. Krueger, 303 F.R.D. 433, 434 (D. Mass. 2014) (quoting Grant v. News Grp. Bos., Inc., 55 F.3d 1, 6 (1st Cir. 1995)) (denying leave to renew for undue delay although plaintiff sought leave prior to expiration of the deadline under the court's scheduling order).

         Although the Court may excuse Plaintiff's undue delay considering that she complied with the scheduling order, the proposed amendment is nonetheless futile in almost all respects. To prevail on a Chapter 93A claim, Plaintiff must prove (1) “that a person who is engaged in trade or business committed an unfair or deceptive trade practice, ” and (2) “that the [plaintiff] suffered a loss of money or property as a result.” Morris v. BAC Home Loans Servicing, L.P., 775 F.Supp.2d 255, 259 (D. Mass. 2011) (quoting Brandon Assocs. v. FailSafe Air Safety Sys. Corp., 384 F.Supp.2d 442, 446 (D. Mass. 2005)). Although there is no precise test for determining whether conduct is unfair or deceptive, “Massachusetts courts have laid out a number of helpful guideposts.” Hanrahran v. Specialized Loan Servicing, LLC, 54 F.Supp.3d 149, 154 (D. Mass. 2014). “Under Chapter 93A, an act or practice is deceptive ‘if it possesses a tendency to deceive' and ‘if it could reasonably be found to have caused a person to act differently from the way he [or she] otherwise would have acted.'” Walsh v. TelTech Sys., Inc., 821 F.3d 155, 160 (1st Cir. 2016) (quoting Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 486- 87 (Mass. 2004)). “[A]n act or practice is unfair if it falls ‘within at least the penumbra of some common-law, statutory, or other established concept of unfairness;' ‘is immoral, unethical, oppressive, or unscrupulous;' and ‘causes substantial injury to consumers, '” and the “conduct must generally be of an egregious, non-negligent nature.” Id. (quoting PMP Assocs. v. Globe Newspaper Co., 321 N.E.2d 915, 917 (Mass. 1975)).

         As relevant here, “HAMP violations can give rise to a viable [Chapter 93A] claim if the activity would be independently actionable under Chapter 93A as unfair and deceptive.” Morris, 775 F.Supp.2d at 256. The applicable inquiry is:

(1) [has Plaintiff] adequately plead that [D]efendant[s] violated HAMP; (2) are those violations of the type that would be independently actionable conduct under [C]hapter 93A even absent the violation of a statutory provision (i.e. are the violations unfair or deceptive); and (3) if the conduct is actionable, is recovery pursuant to ...

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