United States District Court, D. Massachusetts
CAROLYN GELINEAU and JAMES W. GELINEAU
THE BANK OF NEW YORK MELLON AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS OF THE CWABS 2004-5 and GREEN TREE SERVICING, LLC
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
and James Gelineau brought this lawsuit in Norfolk Superior
Court against the Bank of New York Mellon (BNY
Mellon) and Green Tree Servicing, LLC, seeking to
enjoin a foreclosure sale of their property. They allege that
defendants violated Mass. Gen. Laws ch. 244, § 35A
(Count I) and Chapter 93A (Count II) by failing to provide
notice of the right to cure their mortgage loan default
before acceleration and foreclosure. BNY Mellon removed the
case to the federal district court on diversity
grounds and now moves to dismiss both counts for
failure to state a claim. For the reasons to be explained, BNY
Mellon's motion to dismiss will be allowed.
facts, viewed in the light most favorable to the Gelineaus as
the nonmoving party, are as follows. On November 26, 2003,
the Gelineaus borrowed $256, 800 from Intervale Mortgage
Corporation to purchase their residential property at 15
Cottage Street in Plainville, Massachusetts. Compl., Ex. B.
BNY Mellon subsequently became the holder of the note and
mortgage, and Green Tree became the thirty-party loan
April of 2015, the Gelineaus received a letter from Green
Tree's counsel notifying them that their mortgage was
being accelerated. Compl., Ex. A. They allegedly did not
receive any correspondence “prior to” that letter
affording them the statutorily required 150-day right to cure
the default. Compl. ¶ 5. At the end of September of
2018, Carolyn, but not James, received a separate letter from
Green Tree's counsel, stating that their property would
be foreclosed on October 30, 2018. On October 29, 2018, the
Gelineaus initiated this lawsuit in Norfolk Superior Court to
enjoin the foreclosure sale scheduled for the following day.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Two basic principles guide the court's analysis.
“First, the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678.
“Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss.” Id.
at 679. A claim is facially plausible if its factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678.
in Count I, the Gelineaus allege that defendants
“failed to fulfill conditions precedent to a valid
foreclosure by accelerating the note without having first
sent a written, 150-day right to cure in accordance
with” Mass. Gen. Laws ch. 244, § 35A. Compl.
¶ 6; see U.S. Bank Nat. Ass'n v.
Schumacher, 467 Mass. 421, 432 (2014) (“[W]here a
homeowner who is facing foreclosure claims that the mortgage
holder has failed to provide timely and adequate written
notice of the right to cure the default in payment of the
mortgage, in violation of § 35A, the homeowner may file
an equitable action in Superior Court seeking to enjoin the
foreclosure.”). BNY Mellon responds by arguing that
this claim is not facially plausible and purely speculative.
BNY Mellon contends that, even assuming that no Section 35A
notice was sent or received “prior to” April of
2015, Compl. ¶ 5, the Complaint does not allege that
“no Section 35A notice was sent at any time
after” April of 2015. Mem. (Dkt # 9) at 7
(emphasis in original). And since the foreclosure sale was
not scheduled until October 30, 2018, defendants had
“ample time after April 2015 within which to
provide (another) notice in compliance with Section 35A, wait
until the cure period expired, and then commence
foreclosure.” Id. at 8 (emphasis in original).
with BNY Mellon that the Gelineaus have not sufficiently pled
a Section 35A violation. See S.E.C. v. Tambone, 597
F.3d 436, 442 (1st Cir. 2010) (“If the factual
allegations in the complaint are too meager, vague, or
conclusory to remove the possibility of relief from the realm
of mere conjecture, the complaint is open to
dismissal.”). And even assuming the Gelineaus have pled
a plausible claim, Count I fails for the additional reason
that judicially noticeable public records reveal that proper
notice was provided to them. In a Servicemembers Civil Relief
Act (SCRA) action brought in the Massachusetts Land Court,
Green Tree attested, in an affidavit, that notices had been
given to both Carolyn and James in compliance with Section
35A. Mem. (Dkt # 9), Ex. B. The notices attached to the
affidavit were sent on October 6, 2014, over 150 days before
the April 2015 letter that forms the basis for Gelineaus'
claims. Id. The court, therefore, must dismiss Count
Count II, the Gelineaus allege that defendants' failure
to adhere to Section 35A and 209 C.M.R. 18.21A(c) constitutes
a violation of Mass. Gen. Laws ch. 93A. Compl. ¶ 8.
Having already dismissed Count I, Count II must also be
dismissed because it is wholly derivative. See Pembroke
Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62
Mass.App.Ct. 34, 40 (2004) (dismissing Chapter 93A claim as
“wholly derivative of the [insufficient] tortious
interference claim); Murphy v. Nat'l Grange Mut. Ins.
Co., 2014 WL 5307671, at *6 (D. Mass. 2014)
(“Summary judgment as to the underlying contract claim
forecloses a derivative chapter 93A claim.”). The
Gelineaus' Chapter 93A claim also fails because they did
not plead compliance with the statutorily mandated 30-day
written demand letter, which is a prerequisite to suit.
See Kanamaru v. Holyoke Mut. Ins. Co., 72
Mass.App.Ct. 396, 407-408 (2008) (“Not only must such a
letter be sent, but a plaintiff must also plead that he has
complied with this requirement as a prerequisite to
suit.”); Spring v. Geriatric Auth. of Holyoke,
394 Mass. 274, 287 (1985) (“We have often held that
‘[a] demand letter listing the specific deceptive
practices claimed is a prerequisite to suit and as a
special element must be alleged and
proved.'”) (emphasis in original), quoting
Entrialgo v. Twin City Dodge, 368 Mass. 812, 812
foregoing reasons, BNY Mellon's motion to dismiss is
ALLOWED. The Clerk will enter judgment for defendants and
close the case.