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Thomson v. Eastern Bank

Superior Court of Massachusetts, Suffolk, Business Litigation Session

February 27, 2019

Liam THOMSON
v.
EASTERN BANK

          MEMORANDUM AND ORDER ALLOWING DEFENDANT’S MOTION TO DISMISS

          Kenneth W. Salinger, Justice of the Superior Court

          Liam Thomson claims that Eastern Bank violated Massachusetts law by sending a notice, after repossessing Thomson’s motor vehicle, stating that if Eastern sold the vehicle it would only apply the sales proceeds— rather than the fair market value of the truck— against Thomson’s unpaid loan balance. Thomson asserts claims under G.L.c. 106, § 9-625(c)(2), and G.L.c. 93A.

         Eastern Bank moves to dismiss, arguing in part that Thomson lacks standing because he redeemed his vehicle by paying off the loan in full before Eastern sent the challenged notice. Thomson does not oppose dismissal of his claim under G.L.c. 93A, but vigorously asserts his standing under § 9-625.

         The Court will ALLOW the motion and dismiss the claim under § 9-625 because it finds that Thomson lacks standing to assert, and the Court therefore lacks subject matter jurisdiction to consider, that claim.

          1. Findings of Fact

         Where, as here, the defendant makes "factual challenge to subject matter jurisdiction" supported with evidence, "the court is required to address the merits of the jurisdictional claim by resolving any factual disputes between the plaintiff and the defendant." Wooten v. Crayton, 66 Mass.App.Ct. 187, 190 n.6 (2006). To do so the Court "may consider documents and other materials outside the pleadings." Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 710 (2004). Under these circumstances the factual allegations in the complaint are not presumed to be true, id. at 711, the evidence submitted regarding subject matter jurisdiction is "not viewed in the light must favorable to the non-moving party," Wooten, supra, and "the plaintiff bears the burden of proving jurisdictional facts to support each of the plaintiff’s claims," id.

          The Court makes the following findings of fact based on the credible evidence submitted by the parties and on reasonable inferences drawn from that evidence.

          In April 2017, Liam Thomson borrowed over $ 39, 000 from Eastern Bank to buy a used 2014 Ford F150 pickup truck. Under the terms of the loan agreement, Thomson gave Eastern a security interest in the truck "[t]o secure payment and performance" of Thomson’s obligations under the agreement. Thomson defaulted on the loan. Eastern repossessed the truck on July 23, 2017.

          The next day, July 24, Thomson redeemed and reacquired the vehicle by paying Eastern’s collection agent the total amount that Thomson still owed Eastern under the loan agreement plus two days of storage charges. Thomson was able to repay Eastern in full by refinancing his outstanding debt with another lender, again using the truck as collateral.

          One day later, on July 25, Eastern sent Thomson a "Notice of Repossession and Right of Redemption." The Court credits the affidavit of Martha Dean stating that this notice was placed into the United States mail on July 25, 2017, even though it was dated July 24, 2017. This notice by Eastern told Thomson the following, among other things:

You have a right to REDEEM your vehicle. To REDEEM, you must fulfill all of the obligations due to Eastern Bank under the agreement secured by the said vehicle and you are required to tender to Eastern Bank that sum sufficient to fulfill all of your obligations, (meaning to pay all sums due under the said note including reasonable attorneys fees and reasonable expenses).

          * * *

We, as secured party, will sell the above-described property at private sale sometime after the period to ...

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