United States District Court, D. Massachusetts
H. HENNESSY UNITED STATES MAGISTRATE JUDGE
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 (“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.
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.(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).
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.).
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.).
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).
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).
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).
bankruptcy action was dismissed on December 14, 2012. (Docket
#8 at ¶ 31).
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).
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).
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).
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).
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)).
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
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).
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, ...