United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO
DISMISS (Docket No. 14)
TIMOTHY S. HILLMAN DISTRICT JUDGE
Saris (“Plaintiff”) sold his home and paid off
his mortgage. Subsequently, a mortgage payment in the amount
of $1, 354.37 was erroneously debited form his bank account.
He then filed this action against Flagstar Bank
(“Defendant”) alleging violations of Mass. Gen.
Laws ch. 266 § 33 (Count I); Mass. Gen. Laws ch. 265
§ 21 (Count II); Mass. Gen. Laws ch. 267 § 5 (Count
III), Mass. Gen. Laws ch. 106 § 5-109 (Count IV); and
negligence (Count V). Defendant subsequently moved to dismiss
all claims for failure to state a claim upon which relief can
be granted. (Docket No. 14). For the reasons stated below,
Defendant's motion is granted.
Plaintiff formerly owned the property located at 42 Duxbury
Road, Worcester, MA 01605. He held the property subject to a
mortgage serviced by Cenlar FSB (“Cenlar”).
Plaintiff transferred the property by quitclaim deed and the
mortgage was then discharged.
Cenlar transferred servicing responsibilities for the
mortgage to Defendant. On or about December 1, 2018,
Plaintiff's bank account was erroneously debited in the
amount of $1, 345.37 for a mortgage payment. On January 14,
2019, Flagstar issued Plaintiff a reimbursement check for the
misappropriated funds. (Docket No. 1-2, at 74).
defendant may also move to dismiss, based solely on the
complaint, for the plaintiff's “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a
complaint must allege “a plausible entitlement to
relief.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 559, 127 S.Ct. 1955 (2007). Although detailed factual
allegations are not necessary to survive a motion to dismiss,
the standard “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555, 127
S.Ct. 1955. “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-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011).
evaluating a motion to dismiss, the court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Langadinos v. American Airlines, Inc., 199 F.3d 68,
68 (1st Cir. 2000). It is a “context-specific
task” to determine “whether a complaint states a
plausible claim for relief, ” one that “requires
the reviewing court to draw on its judicial experience and
common sense.” Ashcroft v. Iqbal, 556 U.S.
662, 679, 129 S.Ct. 1937 (2009) (internal citations omitted).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘show[n]'-that
the pleader is entitled to relief.” Id.
(quoting Fed.R.Civ.P. 8(a)(2)). On the other hand, a court
may not disregard properly pled factual allegations,
“even if it strikes a savvy judge that actual proof of
those facts is improbable.” Twombly, 550 U.S.
at 556, 127 S.Ct. 1955.
Plaintiff appears pro se, we construe his pleadings more
favorably than we would those drafted by an attorney. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197
(2007). Nevertheless, Plaintiff's pro-se status does not
excuse him from complying with procedural and substantive
law. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st
Counts I, II, III
I, II, and III attempt to state causes of action based on
Massachusetts criminal statutes: criminal larceny (Count I);
stealing by confining or putting in fear (Count II); and
uttering false or forged records (Count III).
I, II, and III fail to state a claim because the criminal
statues do not support civil causes of action. See
Mass. Gen. Laws ch. 265; 266; 267; see also Urbon v.
JPMorgan Chase Bank, N.A., No. 12-cv-10303-RWZ, 2013 WL
1144917, at *4 (D. Mass. Mar. 18, 2013); Harry ...