United States District Court, D. Massachusetts
JOSEPH B. SOKOLOSKI, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.
REPORT AND RECOMMENDATION
H. Hennessy, United States Magistrate Judge
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.
reasons that follow, I RECOMMEND that Defendant's motion
to dismiss be GRANTED.
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.
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
deed dated February 15, 1980, Plaintiff became the owner of
real property located at 39 Highland Avenue in Easthampton,
Massachusetts (the “Property”). 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.
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”).
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)).
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. 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).
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.
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
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 ...