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Chomo v. Full Spectrum Lending, Inc.

United States District Court, D. Massachusetts

July 19, 2019

PHILIP R. CHOMO, Plaintiff,
v.
FULL SPECTRUM LENDING, INC., COUNTRYWIDE HOME LOANS, BANK OF NEW YORK MELLON FKA BANK OF NEW YORK AS TRUSTEE ON BEHALF OF THE CERTIFICATE HOLDERS CWABS INC. ALTERNATIVE LOAN TRUST 2004-15 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-15, SELECT PORTFOLIO SERVICING, INC., BANK OF OF NEW YORK MELLON and CITIMORTGAGE, INC., Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Philip R. Chomo (“Chomo”) has filed this lawsuit against Defendants Full Spectrum Lending, Inc. (“Full Spectrum”), Countrywide Home Loans (“Countrywide”), Bank of New York Mellon (“BNY Mellon”), Bank of New York Mellon as trustee on behalf of the certificate holders CWABS Inc. Alternative Loan Trust 2004-15 Mortgage Pass-through certificates, series 2004-15 a (“the Trustee”), Select Portfolio Servicing, Inc. (“SPS”) and Bank of America, N.A. (“BANA”) (collectively, “Defendants”)[1] alleging violations of the Truth in Lending Act, 15 U.S.C. § 1641, by BANA (Count I) and BNY Mellon (Count II) and wrongful acceleration by the Trustee and/or BNY Mellon (Count III). D. 1. Chomo also brings an action for quiet title against all Defendants except SPS (Count IV), alleges a violation of Mass. Gen. L. c. 93A against Countrywide (Count VI) and seeks a declaratory judgment against the Trustee and BNY Mellon (Count V). Id. Defendants Countrywide, Full Spectrum and BANA have moved to dismiss all claims against them, D. 14, and Defendants the Trustee, BNY Mellon and SPS have separately moved to dismiss all claims against them, D. 22. For the reasons stated below, the Court ALLOWS Defendants' motions.

         II. Standard of Review

         On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint “as a whole, ” the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” García-Catalán, 734 F.3d at 103 (citation omitted).

         The Court will dismiss a pleading that fails to include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To avoid dismissal, a complaint must provide ‘a short and plain statement of the claim showing that the pleader is entitled to relief'” García-Catalán, 734 F.3d at 102. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertions]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557) (alteration in original). “In determining whether a complaint crosses the plausibility threshold, ‘the reviewing court [must] draw on its judicial experience and common sense.'” García-Catalán, 734 F.3d at 103 (alteration in original) (citation omitted). “This context-specific inquiry does not demand ‘a high degree of factual specificity.'” Id (citation omitted).

         When a plaintiff is pro se, the Court must apply a liberal reading to the complaint and hold pro se litigants to a less stringent pleading standard. Green v. Commonwealth of Mass., 108 F.R.D. 217, 218 (D. Mass. 1985). A pro se plaintiff, however, must still comply with procedural and substantive law and “dismissal remains appropriate . . . when the complaint fails to even suggest an actionable claim.” Overton v. Torruella, 183 F.Supp.2d 295, 303 (D. Mass. 2001).

         III. Factual Background

         The following facts are taken from Chomo's complaint, D. 1, and the Court accepts them as true for the purposes of resolving this motion.

         On November 18, 2004, Chomo signed a promissory note (the “Note”) for $490, 000 and granted a mortgage (the “Mortgage”) securing the Note on the property located at 24 Ridge Lane, Nantucket, MA. D. 1 ¶¶ 1-2. Mortgage Electronic Registration Systems, Inc. (“MERS”) was to hold the Mortgage as nominee for the original lender, Full Spectrum. D. 1 ¶ 2. At that time, Full Spectrum was a subsidiary of Countrywide Financial Corporation and, soon thereafter, it became a subsidiary of Defendant Countrywide. D. 1 ¶ 3. Countrywide Financial Corporation and Countrywide are both owned by Bank of America. Id.; D. 15 n.2. At some point, the Note was converted into a negotiable instrument through two endorsements: one from Full Spectrum to Countrywide and one through an endorsement in blank by Countrywide. D. 1 ¶ 13. Both endorsements were signed by a specific managing director of Countrywide. D. 1 ¶ 14. The two signatures, however, allegedly appear different, and Chomo contends that they were not signed by this same director, but rather by “some other person with no personal knowledge of the circumstances.” Id.

         On March 26, 2009, MERS, acting as nominee, attempted to assign the Mortgage to the Trustee. D. 1 ¶ 4. The Trustee, however, was unable to accept new mortgages at that time pursuant to the terms of the trust and IRS rules. Id. On May 19, 2011, MERS once again attempted to assign the Mortgage to the Trustee. D. 1 ¶ 5. Chomo signed a loan modification agreement with BANA on December 9, 2013, but the Mortgage had already been assigned to the Trustee and accordingly the modification never went into effect. D. 1 ¶ 6.

         On July 15, 2016, the Trustee assigned the Mortgage to BANA. D. 1 ¶ 7. One week later, SPS sent a letter to Chomo informing him that SPS was servicing the Mortgage on behalf of the Trustee. Id. In seventeen subsequent letters, SPS identified itself as the servicer of the Mortgage without stating that it was no longer acting on behalf of the Trustee or that BANA now owned the Mortgage. D. 1 ¶ 8. On July 26, 2017, Chomo received a notice from a law firm informing him that SPS had retained the firm “because the loan had been accelerated.” D. 1 ¶ 10. The notice stated: “[t]he name of the creditor is The Bank of New York Mellon.” Id. There is no foreclosure action currently pending against Chomo. D. 24 at 1.

         IV. Procedural History

         Chomo instituted this action on December 26, 2017. D. 1. Defendants Countrywide, Full Spectrum and BANA have now moved to dismiss all counts against them, D. 14, and Defendants BNY Mellon, the Trustee and SPS moved separately to dismiss all counts against them, D. 22. The Court ...


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