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Thout v. Deutsche Bank National Trust Co.

United States District Court, D. Massachusetts

March 29, 2019

MARC THOUT, Plaintiff,




          Marc Thuot[1] (“Thuot” or “Plaintiff”) has filed suit against Deutsche Bank National Trust Company Trustee of the Residential Securitization Trust 2006-G Under the Pooling and Servicing Agreement dated May 1, 2006. New Century Home Equity Loan Trust 2005-1 (“Deutsche Bank” or “Defendant”) alleging state law claims for negligent failure to record affidavits of compliance with Mass.Gen. L. Ch. 244, §§14, 35B, and 35C, negligent failure to provide him and “certain governmental agencies” with notice that it had taken possession of a property, as required by Mass.Gen.L. Ch. 244, §15A, fraud and violation of the Massachusetts Consumer Protection Act, Mass.Gen.L. Ch. 93A (“Chapter 93A”).

         This decision addresses Defendant's Motion To Dismiss (Docket No. 10). For the reasons set forth below, that motion is granted.

         Standard of Review

         On a Rule 12(b)(6) 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 plaintiff must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (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 (internal citations 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, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (internal quotations and original alterations omitted). “The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).


         Deutsche Bank's Interest in the Property

         On November 15, 2002, Thuot purchased residential property located at 334 Sunderland Road, Worcester, Massachusetts (the “Property”). On March 10, 2006, Thuot executed a promissory note in the amount of $268, 800 (“Note”) in favor of Quicken Loans (“Quicken”). That same date, as security for the loan, Thuot granted a mortgage lien to the Mortgage Electronic Filing System (“MERS”), as nominee for Quicken (the “Mortgage”).[2]

         On February 18, 2010, MERS assigned the Mortgage to IndyMac Federal Bank FSB (“IndyMac”) and recorded the assignment at the Worcester Registry of Deeds. On March 1, 2011, the Federal Deposit Insurance Agency, as receiver for IndyMac, assigned the Mortgage to Deutsche Bank and recorded the assignment in the Worcester Registry of Deeds[3].

         Procedural History and the Foreclosure

         On February 25, 2009, Thuot filed a Chapter 7 bankruptcy action in the United States Bankruptcy Court, for the District of Massachusetts. On March 3l, 2009, IndyMac claiming an interest in the Mortgage, filed a “Motion for Relief from Automatic Stay” with the Bankruptcy Court. This motion was granted by the Bankruptcy Court on June 24, 2009. On October 10, 2009, the Bankruptcy action was terminated, without discharge of the Mortgage. On February 3, 2010, Thuot was sent a “Complaint to Foreclose.” The Complaint to Foreclose was recorded in the Worcester District Registry of Deeds on March 17, 2010.

         On July 21, 2010, OneBankWest, issued a “cash-for-keys notice” to Thuot, referring to itself as the owner/servicer of the Property. The cash-for-keys notice also stated the Property had been obtained through a foreclosure sale. On July 27, 2010, Thuot accepted the offer of cash-for -keys, in the amount of $4, 500.00. On August 7, 2010, believing that his home had been foreclosed, Thuot surrendered possession of the Property and obtained lodging for himself and his family at considerable expense.

         On February 11, 2011, Thuot received a “Notice of Intention To Foreclose”, as well as a “Notice of Mortgagee's Sale of Real Estate” stating the sale was to occur March 9, 2011, at 2:00 p.m. The notices referenced in the above paragraph were sent by Bennett & McHugh, PC, a Connecticut law firm claiming to act on behalf of Deutsche Bank.

         On or about October 25, 2013, Thuot received correspondence from IndyMac Mortgage Services. This letter acknowledged that no foreclosure sale had occurred due to a “court filing error.” On or about November 12, 2013, Thuot received correspondence from Ocwen Loan Servicing (“Ocwen”) stating it was a loan servicer, for Deutsche Bank. The correspondence also stated that the Property appeared vacant.

         On January 14, 2014, Thuot received from Ocwen an invitation to submit an application to its “Home Retention Department.” Thuot immediately hired counsel who assisted him completing and submitting the application. On or about April 26, 2014, Ocwen acknowledged receipt of Thuot s application for a “Deed-In-Lieu of Foreclosure.” On May 11, 2014, Thuot received ...

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