United States District Court, D. Massachusetts
Daniel G. Gaudet; Plaintiff,
U.S. Bank, N.A. as Trustee for Credit Suisse First Boston Mortgage Securities Corp., CSFB Mortgage-Backed Pass-Through Certificates, Series 2005-12; and Wells Fargo Bank, N.A.; Defendants.
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
case involves a mortgage dispute between Daniel Gaudet
(“Gaudet” or “plaintiff”), proceeding
pro se, and U.S. Bank, National Association
(“U.S. Bank”) and Wells Fargo Bank, N.A.
(“Wells Fargo”, collectively
August, 2005, plaintiff granted a mortgage on property
located on Nashua Street in Ayer, Massachusetts (“the
property”) in favor of Mortgage Electronic Registration
Systems, Inc. (“MERS”) to secure a promissory
note. That mortgage was eventually assigned to U.S. Bank, the
current mortgagee of record and holder of the note. Plaintiff
defaulted on his mortgage and applied for a loan modification
without success. Gaudet filed a complaint against the
mortgagee and others in state court on January 30, 2018, a
foreclosure sale proceeded on February 2, 2018, and
defendants removed the case to this Court on February 18,
2018. Pending before the Court are defendants' motion to
dismiss and plaintiff's motion to stay execution.
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). Plaintiff's barebones complaint is devoid of
facts sufficient to state a legal claim for relief. The
“Facts” section of the complaint contains three
sentences. The only substantial allegation is that:
About the last year applied for the loan modification plan,
the Defendant upon receiving his loan modification
application despite promise by the loan mitigation department
of the WELLS FARGO BANK, they schedule my home for Auction on
the date of the Thursday February first-2018.
complaint must provide the defendant “fair notice of
what the plaintiff's claim is and the grounds upon which
it rests.” Educadores Puertorriquenos en
Accion v. Hernandez, 367 F.3d 61, 66
(1st Cir. 2004). Gaudet's complaint does do so, nor does
it even purport to state a cause of action.
complaint alleges three “counts”: injunctive
relief, loan modification and damages. Those are remedies,
however, and not causes of action. Given that the foreclosure
has already occurred, plaintiff's request for injunctive
relief is moot. See Oakville Dev. Corp. v.
FDIC, 986 F.2d 611, 613 (1st Cir. 1993).
fact that a plaintiff files a complaint pro se
“militates in favor of a liberal reading, ”
Boivin v. Black, 225 F.3d 36, 43
(1st Cir. 2000), but even under that stricture,
plaintiff's complaint is deficient. The Court will,
however, afford Mr. Gaudet the opportunity to amend his
complaint. See Fed. R. Civ. P. 15(a)(2). The amended
complaint must contain more facts and must provide defendants
notice of the specific claim (or claims) he is bringing.
instance, if plaintiff is alleging that defendants breached a
contract, he must specify how defendants breached it. If he
alleges that he relied on a misrepresentation made by
defendants, he must specify
(1) the allegedly fraudulent statements; (2) the identity of
the speaker; (3) where and when the statements were made; and
(4) [how] the statements were fraudulent.
See Suna v. Bailey Corp., 107 F.3d
64, 68 (1st Cir. 1997).
“promise by the loan mitigation department of Wells
Fargo Bank” was made in writing, plaintiff should
attach that letter to his amended complaint.
amended complaint need not present every detail of his
interactions with Wells Fargo and U.S. Bank. A “short
and plain statement of the claim” will suffice,
see Fed.R.Civ.P. 8(a)(2), but the plaintiff must
state “with particularity the circumstances
constituting fraud or mistake.” Fed.R.Civ.P. 9(b). In
any event, the complaint must give defendants notice of the
claims against them and the factual allegations in support of
plaintiff fails to allege facts sufficient to state a claim
upon which relief can be granted, defendants' motion to
dismiss will be allowed. For the same reason, ...