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Sokoloski v. Wells Fargo Bank, N.A.

United States District Court, D. Massachusetts

October 26, 2018

WELLS FARGO BANK, N.A., Defendant.


          David H. Hennessy, United States Magistrate Judge

         Pursuant to General Order 09-3, this matter was assigned to me on July 23, 2018 as a referral under 28 U.S.C. § 636(b) for all pretrial non-dispositive matters, and Report and Recommendations. Dkt. no. 6. Now pending before the Court is Defendant Wells Fargo Bank, N.A.'s motion to dismiss the complaint filed by pro se Plaintiff Joseph B. Sokoloski. Dkt. no. 10. Plaintiff has not opposed this motion, which is now ripe for adjudication.

         For the reasons that follow, I RECOMMEND that Defendant's motion to dismiss be GRANTED.


         Plaintiff filed this lawsuit in Massachusetts Superior Court on July 3, 2018. Dkt. no. 1-1. Along with his verified complaint, Plaintiff sought an ex parte temporary restraining order enjoining Defendant from conducting any foreclosure-related activity concerning a residence in Easthampton. Id. On the date Plaintiff commenced the state court action, a Superior Court judge granted the ex parte temporary restraining order pending a hearing scheduled for July 13, 2018. Dkt. no. 13, at p. 3. On July 12, 2018, Defendant removed the case to this Court. Dkt. no. 1.

         On August 1, 2018, Defendant filed a motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. Dkt. no. 10. Given that Plaintiff is proceeding pro se, this Court issued an Order instructing Plaintiff to file, on or before August 14, 2018, an opposition to Defendant's motion or a motion for an extension of time. Dkt. no. 12; see also L.R. 7.1(b)(2). Plaintiff did not submit an opposition by August 14, 2018, nor did he request an extension of time. On August 17, 2018, this Court then ordered Plaintiff to show cause why his complaint should not be dismissed. Dkt. no. 15. Plaintiff has failed to respond to this Order, and to date has not opposed Defendant's motion.


         By a deed dated February 15, 1980, Plaintiff became the owner of real property located at 39 Highland Avenue in Easthampton, Massachusetts (the “Property”).[1] On September 13, 2006, Plaintiff obtained a loan from World Savings Bank (“WSB”) and executed an Adjustable Rate Mortgage Note in favor of WSB in the principal amount of $165, 000 (the “Note”). Dkt. no. 1-1, at pp. 20-26. As security for the loan, Plaintiff granted WSB and “its successors and/or assignees” a mortgage on the Property (the “Mortgage, ” and together with the Note, the “Loan”). Dkt. no. 11-1, at pp. 2-15. The Mortgage identifies WSB, and its successors and/or assignees, as the “Lender” to whom Plaintiff, as borrower, gave the Mortgage. Id. at pp.. 2-3 (“I mortgage, irrevocably grant and convey the Property . . . to Lender subject to the terms of this Security Instrument.”). The Mortgage was duly recorded on September 18, 2006 in the Registry of Deeds. Id. at p. 2. Paragraph twenty-seven of the Mortgage contains a provision acknowledging the mortgagee's right to exercise the statutory power of sale, as provided by Massachusetts General Laws, ch. 244 § 21, in the event of a “Breach of Duty, ” including Plaintiff's failure to “pay the full amount of each payment on the date it is due.” Id. at p. 11.

         Defendant serviced and eventually acquired the Loan as successor by merger to WSB, the original mortgagee. See dkt. no. 1-1, at p. 30 (“The name of the creditor to whom the debt is owed is Wells Fargo Bank, N.A., successor by merger to Wachovia Bank, N.A., successor by merger [to] Wachovia Mortgage FSB, f/k/a World Savings Bank, FSB.”); see also id. at p. 17 (correspondence dated June 12, 2017, identifying Defendant as servicer); id. at pp. 29 (correspondence dated October 29, 2015, identifying Defendant as “the creditor to whom the debt is owed”).

         Pursuant to the terms of the Note, Plaintiff was required to make monthly payments on the Loan. Id. at p. 21 (setting forth monthly payment schedule). In March 2012, Plaintiff defaulted by failing to make the monthly payment. Id. at p. 17. The Note authorizes the lender to accelerate all amounts due under the Loan in the event of a default. Id. at. p. 23 (Note ¶ 7(c)).

         On August 3, 2013, after defaulting on the Loan, Plaintiff filed a voluntary Chapter 7 petition in the United States Bankruptcy Court for the District of Massachusetts.[2] Dkt. no. 11-2. On February 25, 2013, Plaintiff received a Chapter 7 discharge, and his case was closed on March 17, 2014. Id. at p. 2 (setting forth dates of discharge and termination).

         On May 23, 2018, Defendant certified pursuant to 209 C.M.R. § 18.21A(2)(c) that it owned the Note and was the current mortgagee of record. Dkt. no. 1-1, at pp. 14-15. Furthermore, on May 29, 2018, Defendant caused to be filed in the Registry of Deeds an affidavit pursuant to M.G.L. ch. 244, §§ 35B and 35C, in which Defendant attested that it held the Note. Dkt. no. 11-3. Defendant thereafter provided notice to Plaintiff that the Property was to be sold at a foreclosure sale, scheduled for July 5, 2018. Dkt. no. 1-1, at p. 11. A notice of sale was published in the Daily Hampshire Gazette on June 14, 2018. Id. at p. 12.

         On June 29, 2018, Plaintiff filed a motion in the closed bankruptcy action seeking an order requiring Defendant to show cause as to its entitlement to pursue a foreclosure action against the Property. Dkt. no. 11-4. Plaintiff believed that Defendant's attempt to foreclose on the Property violated the terms of Plaintiff's bankruptcy discharge and the Bankruptcy Code's automatic stay. Id. That same day, the Bankruptcy Court denied Plaintiff's motion, explaining that his theories failed as a matter of law. Dkt. no. 11-5. Moreover, the Bankruptcy Court stated that Defendant “is free to pursue its in rem rights against [the Property] in which it has a security interest, so long as it does not seek to hold [Plaintiff] personally liable for the debt.” Id. at p. 2 (emphasis in original).

         On July 3, 2018, Plaintiff filed his complaint in Massachusetts Superior Court, along with an ex parte request for a temporary restraining order enjoining Defendant from completing the scheduled foreclosure sale. Dkt. no. 1-1. That same day, the Superior Court issued a temporary restraining order pending a hearing on July 13, 2018. Dkt. no. 13, at p. 3. Plaintiff failed to give Defendant notice of this temporary restraining order prior to July 5, 2018, the date of the scheduled sale. Id. at pp. 54-55. On July 10, 2018, after the foreclosure sale went forward as scheduled, Plaintiff sent a copy of the ...

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