United States District Court, D. Massachusetts
ORDER ON PENDING MOTIONS
Sorokin United States District Judge
Barricello seeks to challenge the foreclosure of her home,
and certain pre-foreclosure conduct by the defendant lenders
and loan servicers. The defendants have moved to dismiss the
complaint; Barricello has opposed and requested entry of
judgment in her favor. Her motions to amend and for default
judgment also are pending. As explained below, the Court
ALLOWS the motions to dismiss and DENIES Barricello's
motions to amend, for default judgment, and for summary
2006, Barricello obtained a loan from Countrywide Bank, N.A.,
with a promissory note secured by a mortgage on her home in
Brewster, Massachusetts. The mortgage was granted to Mortgage
Electronic Registration Systems, Inc. (“MERS”) as
nominee for Countrywide. Thereafter, Countrywide sold its
interest in the loan to a company that securitized the note
as part of the HarborView Mortgage Loan Trust 2006-12 Asset
Group, for which Wells Fargo was the Trustee. In September
2011, MERS assigned its interest in the mortgage to BANA, as
successor in interest to Countrywide. On December 26, 2012,
BANA assigned its interest in the mortgage to Wells Fargo.
SPS was attorney-in-fact for BANA and loan servicer for Wells
midst of these assignments, Barricello declared bankruptcy
and, in February 2011, was granted a bankruptcy discharge.
The discharge encompassed her personal liability for the
note, but Barricello did not regain title to her home.
August 2013, Wells Fargo petitioned the Massachusetts Land
Court for determination of Barricello's status under the
Servicemembers Civil Relief Act. Viewing the petition as a
prelude to foreclosure, Barricello, represented by counsel,
filed a complaint in the Land Court challenging the
assignments of the mortgage, seeking to try title and enjoin
foreclosure proceedings. The defendants removed the case to
this Court and moved to dismiss the complaint under Rule
12(b)(6). Barricello, whose attorney had withdrawn, filed
pro se oppositions to the motions along with various
other motions and letters.
March 22, 2016, Judge Wolf granted the motions to dismiss,
addressing each count of the complaint and explaining why
Barricello's various filings did not provide a basis for
relief. See Barricello I, 2016 WL 1244993. Judge
Wolf dismissed with prejudice Barricello's declaratory
judgment claims challenging the assignments of her mortgage,
finding she lacked standing where the alleged defects
rendered the assignments voidable by the parties, but not
void or otherwise invalid. Id. at *5-6. He also
dismissed with prejudice Barricello's contract claims,
finding she had not met the pleading requirements of Rules
8(a)(2) and 12(b)(6). Id. at *7-8.
Wolf dismissed Barricello's state-law try-title claim
without prejudice, finding he lacked jurisdiction over it.
Id. at *4. He also dismissed without prejudice her
claims under Chapter 93A of the Massachusetts General Laws,
as she had not made a written demand for relief before filing
suit. Id. at *6-7. After reviewing all of
Barricello's pro se filings, Judge Wolf found no
allegations that would entitle her to relief and, therefore,
denied her request to amend her complaint. Id. at
than a year later, Barricello sought to reopen Barricello
I; Judge Wolf considered her request, along with other
pro se motions she filed while the request to reopen was
pending, and denied it in a December 27, 2017 Memorandum and
Order. Barricello I, No. 13-cv-12795, ECF No. 77.
filed the present action in February 2018, two weeks after
Wells Fargo had conducted a foreclosure auction on her
Brewster home. The lengthy Complaint advances numerous
theories of liability, repeats many of the allegations she
advanced in Barricello I, and incorporates without
explanation copies of numerous documents (e.g., a single page
of a Securities and Exchange Commission form for the trust
that held her note, and news articles about Bank of America,
Doc. No. 1 at 11, 41-42). In general, she challenges Wells
Fargo's legal right to foreclose, claims the foreclosure
was untimely under multiple state statutes, and alleges fraud
and misconduct by the defendants (some of which, she claims,
was concealed from her until she received an accounting
history in November 2015) and violations of the automatic
the defendants answered, Barricello filed a motion to amend
her complaint to include additional Chapter 93A claims
against BANA, as well as a breach of contract claim against
BANA related to the February 2016 foreclosure of another
property she owned in Eastham, Massachusetts. Doc. No. 17.
Barricello filed an emergency motion to prevent her eviction,
Doc. No. 18, which the Court denied after finding she had not
demonstrated a likelihood of success on the merits, citing
the dismissal of Barricello I, Doc. No. 19.
defendants responded to Barricello's complaint by seeking
dismissal under Rules 8(a)(2) and 12(b)(6). Doc. Nos. 24, 32.
Barricello opposed the motions to dismiss and requested
summary judgment in her favor. Doc. Nos. 34, 36. On July 2,
2018, Barricello filed a motion for default judgment, citing
the defendants' failure to respond to the request for
summary judgment embedded in her opposition brief. Doc. No.
8(a)(2) of the Federal Rules of Civil Procedure requires
plaintiffs to provide “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2); see Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). “The
fundamental purpose” of pleading rules like Rule 8
“is to protect a defendant's inalienable right to
know in advance the nature of the cause of action being
asserted against him.” Ruiz Rivera v. Pfizer
Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008). Rule
8's requirement of a “short and plain
statement” protects defendants and courts from the
“unjustified burden” of parsing and responding to
unnecessarily lengthy pleadings. Belanger v. BNY ...