United States District Court, D. Massachusetts
CAROL B. ROWE, Plaintiff,
SETERUS, INC.; HSBC MORTGAGE CORPORATION; and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
Dennis Saylor IV United States District Judge
an action arising out of a mortgage foreclosure. Defendants
have moved to dismiss this action for failure to state claim
upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
Plaintiff has filed an opposition to the motion to dismiss.
For the following reasons, the motion will be allowed and
this action will be dismissed with prejudice.
Carol Rowe is the mother of the late Arthur Rowe. In 2008,
Arthur Rowe executed a mortgage for $280, 000 on property in
Plymouth County, Massachusetts. Arthur was the sole mortgagor
of the property. He died in 2011.
contends that one or all of defendants Seterus, Inc., HSBC
Mortgage Corporation (“HSBC”) and Federal
National Mortgage Association (“Fannie Mae”)
owned a bank-owned life insurance (“BOLI”)
policy, and upon Arthur's death, the proceeds of the
policy should have been applied to the $280, 000 mortgage
obligation. Plaintiff contends that in spite of the BOLI
policy and its payout, defendants improperly foreclosed upon
2016, plaintiff has filed three similar actions in this Court
before, both on behalf of Arthur's estate and
individually, all of which have been dismissed. On September 12,
2018, she brought essentially the same suit in Norfolk County
Superior Court, this time in her individual capacity, against
Seterus, HSBC, and Fannie Mae claiming unjust enrichment.
Defendants timely removed this action to this Court on
October 29, 2018. Plaintiff purports to attach the BOLI
policy to the complaint at Exhibit B. But that document is
not an insurance policy; rather, it appears to be a document
describing the use of such policies.
November 5, 2018, defendants moved to dismiss the complaint,
on the ground (among others) that the existence of a BOLI
policy has not been plausibly alleged under Rule 8 of the
Federal Rules of Civil Procedure. On January 24, 2019, Rowe
filed an untimely opposition. In her opposition, she does not
dispute the merits of the motion, other than to state as
. . . plaintiff was not a member of the state bar when she
acquired an interest in her son's estate and her
membership in . . . [the state bar] . . . is not required in
order to make a claim in her son's estate which has been
defrauded by the defendant's false and deceptive
representations within the probate proceeding. The
plaintiff's claim for unjust enrichment is the most
appropriate cause of action to obtain justice or a just
result and justice cannot be defeated simply because the
opposing parties are members of a labor union formed by this
court while the plaintiff is not or is not represented by the
same labor union.
motion to dismiss, the court “must assume the truth of
all well-plead[ed] facts and give . . . plaintiff the benefit
of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1,
5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d
75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). That is, “[f]actual allegations must be enough
to raise a right to relief above the speculative level, . . .
on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at
555 (citations and footnote omitted). “The plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 556). Dismissal is appropriate
if the facts as alleged do not “possess enough heft to
sho[w] that [plaintiff is] entitled to relief.”
Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84
(1st Cir. 2008) (alterations in original) (quoting Clark
v. Boscher, 514 F.3d 107, 112 (1st Cir. 2008)) (internal
quotation marks omitted). The court may consider documents
attached to the complaint. Trans-Spec Truck Serv., Inc.
v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008).
Although uncommon, a plaintiff “may plead [herself] out
of court by attaching documents to the complaint that
indicate that he or she is not entitled to judgment.”.
Matter of Wade, 969 F.2d 241, 249 (7th Cir. 1992);
see Barricello v. Wells Fargo Bank, N.A., No. CV
13-12795-MLW, 2016 WL 1244993, at *10 (D. Mass. Mar. 22,
2016) (“When a document attached to a complaint
contradicts an allegation in the complaint, the document
trumps the allegation.”).
the Federal Rules of Civil Procedure, a complaint must
provide ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.'”
Cardigan Mountain Sch. v. New Hampshire Ins. Co.,
787 F.3d 82, 84 (1st Cir. 2015) (quoting Fed.R.Civ.P.
8(a)(2)). At the motion to dismiss stage, the existence of a
“lost” insurance policy must be pleaded with
allegations that are “specific and factual.”
Id. at 87 (reversing dismissal of action where
specific facts alleged that supported inference of existence
of an insurance policy). In Cardigan Mountain
School, the existence of a specific insurance policy was
buttressed by allegations of audit reports for other policy
years and allegations of recollections of individuals with
knowledge of the policy. Id. Even though there was
no direct evidence of an insurance policy, the First Circuit
concluded, “[t]his case is not one in which a plaintiff
has selected an insurance company at random and filed a
declaratory judgment action against it in the hopes that the
plaintiff might get lucky and find a policy.”
Cardigan Mountain Sch. v. New Hampshire Ins. Co.,
787 F.3d 82, 88-89 (1st Cir. 2015).
contrast, in this action, plaintiff has provided nothing
other than repetitive and conclusory statements of the
existence of a BOLI policy. This time, however, she alleges
that each defendant “or a nominee held a bank owned
life insurance policy with New York Life, or its affiliate
within the same industry.” Compl. ECF No. 1-1, pp 5-6,
8, and 11. In those same allegations, she purports to attach
“a true and correct copy of this policy” to the
defendants correctly point out, the document attached to the
complaint is not a BOLI policy concerning Arthur
Rowe or anyone else, but rather a document concerning the
possible use of BOLI policies. Notably,
plaintiff's opposition is silent as to defendants'
characterization of the document. The allegations concerning
the existence of a BOLI policy are thus speculative. When
combined with the alleged policy attached to the complaint,
the specific factual allegations do not give rise to a
reasonable inference that a policy existed at all. Either
plaintiff is mistaken as to the nature of ...