United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
DISMISS (DOCKET NO. 7)
TIMOTHY S. HILLMAN DISTRICT JUDGE
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.
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.
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.
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.
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.
to Plaintiff, prior to acceleration and foreclosure, he never
received notice in accordance with the Mortgage.
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).
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)). ...