Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilson v. Fay Servicing, LLC

United States District Court, D. Massachusetts

January 11, 2019

DANIEL J. WILSON and ANGELA L. LAGROSS-WILSON, Plaintiffs,
v.
FAY SERVICING, LLC, and WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee for MFRA Trust 2014-2, Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR LEAVE TO AMEND AND DEFENDANTS' MOTION TO DISMISS

          F. DENNIS SAYLOR, IV, UNITED STATES DISTRICT JUDGE

         This is an action arising out of a mortgage foreclosure. Plaintiffs Daniel Wilson and Angela Lagross-Wilson filed this suit against the foreclosing mortgagee, defendant Wilmington Trust, not in its individual capacity but solely as trustee for MFRA Trust 2014-2, and its mortgage servicer, defendant Fay Servicing, LLC. Jurisdiction is based on diversity of citizenship.

         The proposed amended complaint alleges that in 2017, Fay offered the Wilsons a trial period plan (“TPP”) for modifying their mortgage, which they accepted. It alleges that the TPP was a binding contract supported by consideration; that the Wilsons sent all six required payments to Fay in the months that they were due under the TPP; and defendants nonetheless refused to modify the mortgage, thereby breaching the contract.

         The proposed amended complaint asserts one claim for breach of contract against Wilmington Trust and Fay. Wilmington Trust and Fay have moved to dismiss the complaint for failure to state a claim upon which relief can be granted.

         For the following reasons, the motion for leave to amend will be granted, and the motion to dismiss will be denied.

         I. Background

         Unless otherwise noted, the following facts are drawn from the proposed amended complaint, documents referred to in the proposed amended complaint, and the accompanying exhibits.[1]

         A. Factual Background

         Daniel Wilson and Angela Lagross-Wilson are residents of Massachusetts and the owners of the subject property in Billerica, Massachusetts. (Proposed Am. Compl. ¶¶ 5, 10).

         Wilmington Trust, National Association is a banking company and a trustee of the securitized mortgage-backed trust named MFRA Trust 2014-2. (Id. ¶¶ 7, 16). Wilmington Trust is headquartered in Wilmington, Delaware. (Id. ¶ 7).

         Fay Servicing, LLC is a residential mortgage-servicing company headquartered in Springfield, Illinois. (Id. ¶ 6).

         On August 3, 2005, the Wilsons acquired the subject property. The deed evidencing transfer of the ownership of the property was recorded in the Middlesex North Registry of Deeds on August 5, 2005. (Id. ¶ 11).

         On August 5, 2005, the Wilsons were granted a mortgage loan, secured by the property, in the amount of $459, 000, which was recorded in the Middlesex North Registry of Deeds that same day. (Id. ¶ 12; Defs.' Ex. 1). The mortgage identified National City Mortgage, a division of National City Bank of Indiana, as the lender and mortgagee. (Id.).

         Eventually, through assignment and merger, the mortgage was transferred to Bank of America, N.A. (Proposed Am. Compl. ¶¶ 13, 14; Defs.' Exs. 2, 3).

         At some point, the Wilsons fell behind on their mortgage payments. On February 5, 2016, Bank of America filed an order of notice in the Massachusetts Land Court pursuant to the Servicemembers Relief Act, 50 U.S.C. § 3901 et. seq., to determine the servicemember status of the Wilsons for the purpose of initiating foreclosure action against them. That order of notice was recorded in the Middlesex North Registry of Deeds on March 7, 2016. (Proposed Am. Compl. 15).

         On August 31, 2016, Bank of America assigned the mortgage to Wilmington Trust, N.A. That assignment was recorded in the Middlesex North Registry of Deeds on September 5, 2016. The assignment to Wilmington Trust was executed by Charles R. Hall, Vice President of Orion Financial Group, attorney-in-fact for Bank of America. (Id. ΒΆΒΆ 16-17; Defs.' Mot. to Dismiss at 3; Ex. 4). A limited power of attorney authorizing Orion to take such an action was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.