Superior Court of Massachusetts, Suffolk, Business Litigation Session
MEMORANDUM AND ORDER ALLOWING DEFENDANTâS MOTION TO
Kenneth W. Salinger, Justice of the Superior Court
Thomson claims that Eastern Bank violated Massachusetts law
by sending a notice, after repossessing Thomsonâs 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 Thomsonâs unpaid
loan balance. Thomson asserts claims under G.L.c. 106, Â§
9-625(c)(2), and G.L.c. 93A.
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 Â§ 9-625.
Court will ALLOW the motion and dismiss the claim under Â§
9-625 because it finds that Thomson lacks standing to assert,
and the Court therefore lacks subject matter jurisdiction to
consider, that claim.
Findings of Fact
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 plaintiffâs
Court makes the following findings of fact based on the
credible evidence submitted by the parties and on reasonable
inferences drawn from that evidence.
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 Thomsonâs obligations under the
agreement. Thomson defaulted on the loan. Eastern repossessed
the truck on July 23, 2017.
next day, July 24, Thomson redeemed and reacquired the
vehicle by paying Easternâs 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.
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
* * *
We, as secured party, will sell the above-described property
at private sale sometime after the period to ...