United States District Court, D. Massachusetts
DANIEL J. WILSON and ANGELA L. LAGROSS-WILSON, Plaintiffs,
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
DENNIS SAYLOR, IV, UNITED STATES DISTRICT JUDGE
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
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.
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.
following reasons, the motion for leave to amend will be
granted, and the motion to dismiss will be denied.
otherwise noted, the following facts are drawn from the
proposed amended complaint, documents referred to in the
proposed amended complaint, and the accompanying
Wilson and Angela Lagross-Wilson are residents of
Massachusetts and the owners of the subject property in
Billerica, Massachusetts. (Proposed Am. Compl. ¶¶
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.
Servicing, LLC is a residential mortgage-servicing company
headquartered in Springfield, Illinois. (Id. ¶
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).
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.
through assignment and merger, the mortgage was transferred
to Bank of America, N.A. (Proposed Am. Compl.
¶¶ 13, 14; Defs.' Exs. 2, 3).
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.
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.
¶¶ 16-17; Defs.' Mot. to Dismiss at 3; Ex. 4).
A limited power of attorney authorizing Orion to take such an
action was ...