United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
Lyons (“Plaintiff”) brought suit against Ditech
Financial LLC (“Ditech”), the servicer of his
mortgage, and Federal National Mortgage Association
(“Fannie Mae”), the holder of his mortgage,
(collectively, “Defendants”) seeking a
declaratory judgment and monetary damages from Ditech's
servicing of his mortgage loan. [ECF No. 26 (“Amended
Complaint” or “Am. Compl.”)]. The Amended
Complaint alleges five counts: a claim under “Consumer
Protection Law” against Defendants (Count I); a claim
under the Real Estate Settlement Procedures Act, 12 U.S.C.
§ 2605 (“RESPA”) against Ditech (Count II);
a declaratory judgment that Defendants have not strictly
complied with Plaintiff's mortgage terms (Count III); a
claim for breach of contract against Defendants (Count IV);
and, a claim for breach of the covenant of good faith and
fair dealing against Defendants (Count V). [Id.
¶¶ 21-51]. Defendants moved to dismiss Counts I and
II, [ECF No. 29], and this Court dismissed both Counts as
against Fannie Mae on March 5, 2019,  [ECF No. 39]. Presently
before the Court is Plaintiff's Motion for
Reconsideration of the March 15, 2019 Memorandum and Order on
Motion to Dismiss or Alternatively Leave to Amend Complaint
(“Motion for Reconsideration”). [ECF No. 41]. For
the reasons set forth below, Plaintiff's Motion for
Reconsideration [ECF No. 41] is DENIED.
following facts are drawn from the Amended Complaint and
documents appended thereto. Plaintiff owns a home in
Braintree, MA, and in 2007, he executed a promissory note,
secured by a mortgage on his residence. [Am. Compl.
¶ 7; ECF No. 26-1]. Plaintiff alleges that Fannie Mae is
the current holder of his mortgage loan and that Ditech is
its current servicer. [Am. Compl. ¶¶ 8-9].
years later, in 2012, Plaintiff filed for bankruptcy.
[Id. ¶ 10]. After the bankruptcy case
concluded, Plaintiff attempted to make payments on his
mortgage. [Id.]. Loan documents from Ditech stated
that no amount was due on the mortgage loan, but his credit
report indicated that Ditech had reported the mortgage loan
as 90-days delinquent. [Id. ¶¶ 11-12].
October 12, 2016, Plaintiff sent a letter to Ditech with a
payment for four months of the outstanding balance of his
mortgage loan. [Id. ¶ 13; ECF No. 26-2]. The
letter was addressed to Ditech, P.O. Box 94710, Palatine, IL
60094-4710, with copies to Ditech, P.O. Box 6172, Rapid City,
S.D. 57709-6172, and Ditech Financial LLC, 1100 Virginia
Drive, Suite 100A, Fort Washington, PA, 19034. [ECF No.
26-2]. On October 20, 2016, Ditech responded to
Plaintiff's October 12, 2016 letter, stating that it was
looking into the matter and indicating that Plaintiff could
expect to receive a written response within 30 days. [Am.
Compl. ¶ 14; ECF No. 26-3]. Ditech did not provide any
further response. [Am. Compl. ¶ 14]. Plaintiff sent four
follow up letters to Ditech between November 2016 and July
2017, each addressed to the same three Ditech locations as
the October 12, 2016 letter. [Id. ¶ 16; ECF No.
26-4]. Ditech did not respond. [Am. Compl. ¶ 16].
Instead, on or around August 10, 2017, Plaintiff received a
notice informing him of his right to cure his mortgage
default within 90 days. [Id. ¶ 17; ECF No.
26-5]. According to the notice, the past due amount on the
mortgage loan was $37, 617.05, [ECF No. 26-5], but this
letter did not account for Plaintiff's October 12, 2016
payment on the mortgage, [Am. Compl. ¶ 17].
October 2017, Plaintiff sent Ditech a demand letter under
“Consumer Protection Law.” [Id. ¶
19]. Ditech responded in November 2017. [Id. ¶
February 2, 2018, Plaintiff filed this action in the Superior
Court of Norfolk County. [ECF No. 1-1]. Defendants removed
the action to this Court on February 26, 2018. [ECF No. 1].
Defendants later moved to dismiss the complaint, [ECF No.
14], and Plaintiff responded by filing an Amended Complaint
on June 22, 2018, [ECF No. 26]. On July 12, 2018, Defendants
moved to partially dismiss the Amended Complaint. [ECF No.
29]. Plaintiff opposed the motion on July 26, 2018. [ECF No.
33]. On February 11, 2019, Ditech filed for Chapter 11
bankruptcy, which triggered an automatic stay that prohibits
further litigation against Ditech at this time. See
supra note 1; [ECF No. 38 at 1-2].
March 15, 2019, the Court issued its order on the motion to
dismiss (“March 15, 2019 Order”). [ECF No. 39].
On March 21, 2019, Plaintiff filed the Motion for
Reconsideration. [ECF No. 41]. On April 8, 2019, Plaintiff
filed a supplement to the Motion for Reconsideration, in
which he confirmed that Fannie Mae does have a place of
business in Massachusetts and agreed that he was required to
send Fannie Mae a demand letter as a prerequisite to his
consumer protection claim under Massachusetts General Laws
Chapter 93A (“Chapter 93A”). [ECF No. 46 at 2].
Plaintiff also requested that the Court amend its March 15,
2019 Order to dismiss the Chapter 93A claim without
prejudice, in order to permit him to serve Fannie Mae with a
demand letter and later seek leave to amend the operative
complaint once again. [Id.]. Fannie Mae filed an
opposition to the Motion for Reconsideration on April 10,
2019, [ECF No. 47], to which Plaintiff replied on April 15,
2019, [ECF No. 50].
Plaintiff does not clearly identify the basis for his Motion
for Reconsideration and “[t]he Federal Rules of Civil
Procedure do not specifically provide for the filing of
motions for reconsideration, ” such motions are usually
decided pursuant to either Federal Rule of Civil Procedure
59(e) or Federal Rule of Civil Procedure 60(b). See Cent.
Produce El Jibarito v. Luna Commercial Corp., 880
F.Supp.2d 282, 284 (D.P.R. 2012) (citation omitted). Both
Rules 59(e) and 60(b) are inapplicable here, however, because
they apply only to final judgments. See Barrows v.
Resolution Trust Corp., 39 F.3d 1166, at *3 (1st Cir.
1994) (table) (noting that Rule 59(e) “applies only to
final judgments”); Farr Man & Co. v. M/V
Rozita, 903 F.2d 871, 874 (1st Cir. 1990) (“It is,
by this time, well settled that Rule 60 applies ...