United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS
TO DISMISS AND PLAINTIFF'S MOTION TO REMAND
Gail Dein United States Magistrate Judge.
pro se plaintiff, Ciana Pluviose, has brought this
action against Select Portfolio Servicing, Inc.
(“SPS”) and Korde & Associates
(“K&A”) over the allegedly wrongful
foreclosure of her residence in Brockton,
Massachusetts. The plaintiff originally brought suit in
Plymouth County Superior Court, alleging that SPS had engaged
in unfair and deceptive practices in relation to the
foreclosure of her home. SPS removed the action to federal
court with K&A's consent. This matter is presently
before the court on the plaintiff's “Motion to
Remand” (Docket No. 9), by which the plaintiff seeks to
have this case remanded to the state court. Both defendants
contend that even though there does not appear to be complete
diversity of citizenship among the parties due to the
existence of K&A as a defendant, this court may retain
diversity jurisdiction under the doctrine of fraudulent
before the court are SPS's Motion to Dismiss (Docket No.
11) and K&A's Motion to Dismiss (Docket No. 14). SPS
contends that the plaintiff has failed to state a claim upon
which relief may be granted. K&A separately argues that
because the plaintiff has failed to advance any allegations
or claims against K&A, it should be removed as a party to
the case under Fed.R.Civ.P. 21. The plaintiff has not filed
an opposition to either of the defendants' motions to
dismiss. Nevertheless, “the mere fact that a motion to
dismiss is unopposed does not relieve the district court of
the obligation to examine the complaint itself to see whether
it is formally sufficient to state a claim.”
Vega-Encarnacion v. Babilonia, 344 F.3d 37, 41 (1st
detailed herein, this court finds that the Complaint, in its
present form, does not articulate any factual allegations
against K&A. Therefore, K&A must be dismissed and
this court should retain subject matter jurisdiction under
the doctrine of fraudulent joinder. The Complaint also fails
to state a claim against SPS upon which relief may be
granted. As a result, this court recommends to the District
Judge to whom this case is assigned that the plaintiff's
motion to remand be DENIED, K&A's motion to dismiss
be ALLOWED, and SPS's motion to dismiss be ALLOWED. This
court further recommends that the District Judge allow the
plaintiff thirty days to amend her Complaint to clarify the
allegations and claims being made since this court cannot
state as a matter of law that no possible claims can be
asserted against the defendants.
STATEMENT OF FACTS
ruling on a motion to dismiss, the court must accept as true
all well-pleaded facts and give the plaintiff the benefit of
all reasonable inferences. See Cooperman v. Individual
Inc., 171 F.3d 43, 46 (1st Cir. 1999). Where, as here,
the plaintiff is proceeding pro se, the court must
construe her allegations liberally. See Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d
251 (1976) (a pro se complaint, however inartfully
pleaded, must be liberally construed).
plaintiff is a sixty-year-old certified nursing assistant
working in Randolph, Massachusetts. (See Docket No.
1-3 (“Complaint”) ¶¶ 1, 2). Her native
language is Haitian Creole and she has difficulty
understanding English, both written and verbal. (Id.
¶ 5). In December 2001, Pluviose and her then-husband
took title to a property located in Brockton, Massachusetts.
(Id. ¶ 1). To finance the transaction, they
took on a $189, 000 mortgage with Mortgage Trust Group, Inc.
(Id.). The mortgage was eventually assigned to Wells
Fargo Bank, National Association (“Wells Fargo”
or “the bank”), as trustee for SABR Trust
2004-OPI, Mortgage pass through certificates, series
2004-OPI. (See id.). Although not explicitly stated
in the Complaint, SPS appears to have acted as the loan
servicer for Wells Fargo. (See Docket No. 12 at 1).
Similarly, although K&A is not mentioned in any of the
allegations, K&A appears to have acted as foreclosure
counsel on behalf of Wells Fargo. (See Docket No. 15
husband made monthly payments on the couple's mortgage
until 2010, when he left Pluviose. (Complaint ¶ 3). The
couple's divorce was finalized in 2013 and Pluviose's
husband conveyed the property to her. (Id.). The
loss of her husband's income created significant
financial hardship for the plaintiff. (Id. ¶
4). She also suffered a stroke during this period.
(Id.). Consequently, she became delinquent on her
monthly mortgage payments. (Id.).
contacted a local housing counseling agency for assistance
with her mortgage. (Id.). Because she has difficulty
with English, Pluviose used a translator and her son to
communicate with staff at the counseling agency.
(Id. ¶ 5). Through the agency, Pluviose was
able to obtain financing from a new lender for a “short
pay” of the mortgage loan. (Id. ¶
6). Due to title issues with the property, the refinancing
process was delayed and the new lender required Pluviose to
obtain a new agreement from the bank in order to effectuate
the short pay transaction. (Id.). The bank agreed to
provide a new agreement and indicated that it would send the
agreement to the counseling agency, which would then forward
it to the new lender. (Id. ¶ 7). However, the
bank sent the new agreement to Pluviose, rather than the
agency. (Id.). Pluviose was unable to read the
agreement (which was presumably written in English).
(Id.). By the time someone helped the plaintiff
identify the contents of her mail, she “realized it was
acknowledged on the same day the foreclosure was
scheduled.” (Id.). She asserts that the
scheduling of the foreclosure did not give her enough notice
or time to complete the short pay of the mortgage loan.
(Id.). She also notes that the counseling agency
believes that she was not given a fair and reasonable
opportunity to complete the short pay. (Id. ¶
subsequently filed the instant suit in Plymouth Superior
Court, alleging that SPS had made (unspecified) promises to
the plaintiff and the counseling agency that ultimately
proved to be misleading. (Id. ¶ 13). She also
asserts that SPS engaged in unfair and deceptive practices.
(Id. ¶ 9). She seeks an injunction against the
recording of a foreclosure deed, as well as a vacatur of the
foreclosure judgment. (Id. at 4). She also seeks to
compel SPS to allow Pluviose to complete the short pay
transaction and to “[c]ompel the bank to act in good
faith in working towards a resolution by providing adequate
notices in a timely manner and allow a reasonable time in the
borrower's response.” (Id.). SPS
subsequently removed this case to federal court, with
K&A's consent, on the basis of diversity
jurisdiction. (See Docket No. 1).
factual details will be provided below where appropriate.
Motion to Remand
plaintiff contends that the case should be remanded to state
court because she is unable to afford an attorney and the
“assistance [she] can receive is only available in
Plymouth County.” (Docket No. 9). This court is
sympathetic to the difficult situation in which the plain-
tiff finds herself, particularly as a non-native English
speaker with limited financial resources. However, a remand
is only appropriate if this court lacks subject ...