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Bek v. Wells Fargo Home Mortgage

United States District Court, D. Massachusetts

September 7, 2018

NANCY BEK, Plaintiff,
v.
WELLS FARGO HOME MORTGAGE, et al. Defendants.

          ORDER

          DAVID H. HENNESSY UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and Wilmington Trust Company's, not in its individual capacity but solely as Successor Trustee to U.S. Bank National Association, as Trustee, for MASTR Alternative Loan Trust 2005-3[1] (“Wilmington Trust”) motion to dismiss. (Docket #14). Plaintiff Nancy Bek has filed an opposition to the motion. (Docket #23). Also before the court is Bek's motion for a temporary restraining order and preliminary injunction. (Docket #24). Defendants have filed an opposition to that motion. (Docket #26). A hearing on all pending motions was held on August 29, 2018. These matters are now ripe for adjudication. For the reasons that follow, the motion to dismiss (Docket #14) is ALLOWED and the motion for injunctive relief (Docket #24) is DENIED.

         I. BACKGROUND

         On January 6, 2005, Bek purchased property located at 20 Windsor Street in Worcester, Massachusetts (the “Property”). (Docket #8 at ¶ 6). To finance the purchase of the Property, Bek executed a promissory note that same day in the amount of $245, 000 (the “Note”). (Docket #15-1). The Note identifies the original lender as “Ohio Savings Bank.” (Id. at 1). To secure repayment of the Note, Bek also executed a mortgage on January 6, 2005 (the “Mortgage”), which was recorded at the Worcester County Registry of Deeds in book 35503, Page 308.[2](Docket #15-2). The Mortgage identifies the original mortgagee as “Mortgage Electronic Registration Systems, Inc.” (“MERS”) and has a stated maturity date of January 1, 2035. (Id. at 1).

         In April of 2007, Ohio Savings Bank changed its name to AmTrust Bank. (Docket #8 at ¶ 13). Subsequently, as a result of bank failure, AmTrust Bank was shut down by the Office of Thrift Supervision and placed into receivership with the Federal Deposit Insurance Corporation on December 4, 2009. (Id.). AmTrust Bank's assets were sold to New York Community Bank. (Id.).

         On January 27, 2010, counsel retained by Wells Fargo sent Bek a letter noting that it had been retained by Wells Fargo to foreclose on the Mortgage. (Docket #11 at 10-11). The letter notified Bek that the Note was hereby accelerated and the entire balance was due and payable forthwith and without further notice. (Id. at 10). The letter stated that there was outstanding $232, 608.57 in principal and $24, 807.92 in interest and other charges for a total outstanding balance of $257, 416.49. (Id.).

         On January 28, 2010, MERS assigned the Mortgage to “Wilmington Trust Company as Successor Trustee to U.S. Bank National Association as successor in interest to Wachovia Bank, N.A. as trustee for the holders of Mastr Alternative Loan Trust 2005-3, ” said assignee having an address of “1100 North Market Street, Wilmington DE 19801, ” in an assignment that was recorded in the Registry at Book 45416, Page 362 (the “Jan. 28, 2010 Assignment”). (Docket #15-3).

         Bek received a letter on February 23, 2010 from Wells Fargo demanding payment of $3, 565.23. (Docket #8 at ¶ 17). On November 4, 2010, Bek was put into foreclosure. (Id. at ¶ 19). Bek requested a loan modification. (Id. at ¶ 20). Wells Fargo responded with a demand of $4, 500. (Id.). Following the demand, Bek made three payments; however, because the third payment arrived a day late, Wells Fargo denied the modification. (Id. at ¶¶ 21-22). Wells Fargo retained the $4, 500 paid by Bek. (Id. at ¶ 23). On January 14, 2011, Bek received a letter from Wells Fargo that the foreclosure sale had been cancelled. (Id. at ¶ 24). On February 16, 2011, Bek received a letter from Wells Fargo scheduling a sale of the property on March 16, 2011, which was later rescheduled to April 18, 2012. (Id. at ¶¶ 25-27). Bek filed for bankruptcy on April 17, 2012. (Id. at ¶ 28).

         On May 7, 2012, MERS, “as nominee for Ohio Savings Bank, its successors and assigns, ” issued a subsequent assignment, recorded in the Registry at Book 48935, Page 337, assigning the Mortgage to the same assignee as the Jan. 28, 2010 Assignment, but this time explaining that the assignee's address was “Rodney Square North, Wilmington, DE 19890-0001” (the “May 7, 2012 Assignment”). (Docket #15-4).

         Bek's bankruptcy action was dismissed on December 14, 2012. (Docket #8 at ¶ 31).

         On October 2, 2017, in what was labeled a “Corrective Assignment of Mortgage, ” recorded in the Registry at Book 57841, Page 396, MERS, “as nominee for Ohio Savings Bank, its successors and assigns, ” assigned the Mortgage to “Wilmington Trust Company, not in its individual capacity but solely as successor trustee to U.S. Bank National Association, as trustee, for MASTR Alternative Loan Trust 2005-3 at Rodney Square North, Wilmington, DE 19890-0001” (the October 2, 2017 Assignment”). (Docket #15-5). MERS clarified that the assignment was being recorded to amend the May 7, 2012 Assignment, which incorrectly showed the assignee name. (Id. at 2).

         Wells Fargo, acting as loan servicer for Wilmington Trust, executed an affidavit pursuant to Mass. Gen. Laws ch. 244, §§ 35B and 35C (the “Pre-Foreclosure Affidavit”) on November 30, 2017, which was recorded in the Registry at Book 58219, Page 299. (Docket #15-6).

         Bek received a notice of foreclosure sale of the Property dated April 11, 2018. (Docket #11 at 20-21). On May 14, 2018, Bek filed suit against the Defendants in Worcester Superior Court. With the complaint, Bek filed an ex parte motion for a temporary restraining order and injunction seeking to enjoin the foreclosure sale. (Id. at 36-37). The Superior Court issued a temporary restraining order and set a further hearing for May 24, 2018. (Id. at 36). Prior to the hearing, on May 23, 2018, Defendants removed the action to this court. (Docket #1).

         Bek filed an amended complaint on June 6, 2018. (Docket #8). In an assented-to motion seeking an extension to file their answer, Defendants represented that they had agreed to postpone the foreclosure sale until August 9, 2018. (Docket #9). On June 29, 2018, Defendants filed the instant motion to dismiss. (Docket #14). Bek responded to the motion on August 1, 2018. (Docket #23). On August 6, 2018, Bek filed a motion for preliminary injunction, seeking to enjoin the foreclosure sale of the Property scheduled for August 9, 2018. (Docket #24). On August 7, 2018, the court scheduled a hearing on the motion for August 8, 2018. (Docket #25). Later that day, Defendants filed their opposition to the motion for preliminary injunction. (Docket #26). At a hearing on the preliminary injunction motion on August 8, 2018, the parties agreed to postpone the auction following a hearing on all pending motions on August 28, 2018. (Docket #29).

         II. STANDARD

         On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court “must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). “Under Rule 12(b)(6), the district court may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment.” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (quoting Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)). There lies an exception to this rule “for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.” Id. (quoting Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).

         To survive a motion to dismiss, a plaintiff must “state a claim that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (internal citations omitted). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Despite this generous standard, “Rule 12(b)(6) is not entirely a toothless tiger . . . [t]he threshold for stating a claim may be low, but it is real.” Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (quotation omitted). The complaint must therefore “set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988); see DM Research, Inc. v. Coll. Of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (explaining that the complaint must “allege a factual predicate concrete enough to warrant further proceedings”).

         Although the complaint need not provide “detailed factual allegations, ” Twombly, 550 U.S. at 555, it must “amplify a claim with some factual allegations . . . to render the claim plausible, ” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). Thus, the complaint must provide “the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Dismissal is appropriate if a plaintiff's well-pleaded facts do not “possess enough heft to show that [the] plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).

         Though most motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) are “premised on a plaintiff's putative failure to state an actionable claim, such a motion may sometimes be premised on the inevitable success of an affirmative defense.” Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006). “As a general rule, a properly raised affirmative defense can be adjudicated on a motion to dismiss so long as (i) the facts establishing the defenses are definitely ascertainable from the complaint and the other allowable sources of information, ...


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