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Barricello v. Bank of America

United States District Court, D. Massachusetts

March 25, 2019



          Leo T. Sorokin United States District Judge

         Michelle Barricello seeks to challenge the foreclosure of her home, and certain pre-foreclosure conduct by the defendant lenders and loan servicers.[1] 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 judgment.

         I. FACTS[2]

         In 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 Fargo.

         In the 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.

         In 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 Barricello, whose attorney had withdrawn, filed pro se oppositions to the motions along with various other motions and letters.

         On 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.

         Judge 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 *8-10.

         More 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.

         Barricello 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 bankruptcy stay.

         Before 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.

         The 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. 41.


         Rule 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 ...

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