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Pluviose v. Select Portfolio Servicing, Inc.

United States District Court, D. Massachusetts

May 1, 2019

CIANA PLUVIOSE, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC. and KORDE & ASSOCIATES, Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS AND PLAINTIFF'S MOTION TO REMAND

          Judith Gail Dein United States Magistrate Judge.

         I. INTRODUCTION

         The 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.[1] 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 joinder.

         Additionally 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 Cir. 2003).

         As 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.

         II. STATEMENT OF FACTS

         When 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).

         The 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 at 1).

         Pluviose's 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.).

         Pluviose 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”[2] 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.”[3] (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. ¶ 12).

         Pluviose 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).

         Additional factual details will be provided below where appropriate.

         III. DISCUSSION

         A. Motion to Remand

         The 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 ...


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