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Lamonica v. Fay Servicing, LLC

United States District Court, D. Massachusetts

December 21, 2018

DENNIS LAMONICA, Plaintiff,
v.
FAY SERVICING, LLC and U.S. BANK, N.A. AS TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS (DOCKET NO. 7)

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Dennis Lamonica (“Plaintiff”) alleges that Fay Servicing, LLC and U.S. Bank (“Defendants”) wrongfully foreclosed on his property at 60 Latisquama Road, Southborough, Massachusetts (the “Property”). His Complaint asserts three claims: wrongful disclosure (Count I), breach of contract (Counts II), and declaratory judgement that Defendants' lacked standing to foreclose (Count III). Defendants subsequently filed a motion to dismiss for failure to state a claim upon which relief can be granted as to all three claims. (Docket No. 7). Plaintiff thereafter voluntarily withdrew Count III but opposed Defendants' motion with respect to Counts I and II. For the reasons below, with respect to Counts I and II, Defendants' motion is denied.

         Background

         The following facts are taken from Plaintiff's complaint and documents incorporated therein by reference and assumed to be true at this stage in the litigation. (Docket No. 1-1).[1]

         By deed dated March 14, 2007, and recorded with the Worcester County Registry of Deeds, Plaintiff became the sole record owner of the Property. That day, Plaintiff was also granted a mortgage loan, secured by the Property, in the amount of $349, 200.00 (the “Mortgage”). The Mortgage was subsequently assigned to several entities the last being U.S. Bank on June 29, 2017. On July 14, 2017, U.S. Bank recorded the assignment. Fay Servicing is the loan servicer for U.S. Bank for the Mortgage.

         The Mortgage mandates that the “Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument.” (Docket No. 8-1 ¶ 22). In addition, the Mortgage states:

All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means.

Id. ¶ 15.

         On January 10, 2018, Defendants filed an Order of Notice in the Massachusetts Land Court to determine Servicemember status of Plaintiff for the purpose of initiating foreclosure action against him. On April 24, 2018, Fay Servicing filed an affidavit pursuant to Mass. Gen. L. c. 244 §§ 35B and 35C in furtherance of Defendants' continuing efforts to foreclose on the Property.

         According to Plaintiff, prior to acceleration and foreclosure, he never received notice in accordance with the Mortgage.

         Standard of Review

         A defendant may move to dismiss, based solely on the complaint, for the plaintiff's “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955 (2007). Although detailed factual allegations are not necessary to survive a motion to dismiss, the standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555, 127 S.Ct. 1955. “The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

         In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir. 2000). It is a “context-specific task” to determine “whether a complaint states a plausible claim for relief, ” one that “requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937 (2009) (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)). ...


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