United States District Court, D. Massachusetts
CARL W. RELLSTAB, Plaintiff,
DITECH FINANCIAL LLC and ORLANS P.C., Defendants.
ORDER AND MEMORANDUM ON DEFENDANTS' MOTIONS TO
DISMISS (DOCKET NOS. 6 & 8)
TIMOTHY S. HILLMAN, DISTRICT JUDGE
Rellstab (“Plaintiff”) filed this action
asserting several claims against Ditech Financial LLC
(“Ditech”) and Orlans P.C. (“Orlans”)
in connection with the attempt to foreclose on his home.
Defendants subsequently moved to dismiss all claims for
failure to state a claim upon which relief can be granted.
(Docket Nos. 6 & 8). For the reasons stated below,
Defendants' motions are
September 5, 2003, Plaintiff signed a note in the original
principle amount of $195, 000 payable to Countrywide Home
Loans, Inc. and a mortgage granting Mortgage Electronic
Registration System, Inc. a security interest in the
property. Subsequently, the mortgage was assigned to Ditech.
By signing the note, Plaintiff expressly waived his rights of
presentment. See Docket No. 6-1 ¶ 9. Plaintiff
then defaulted on the loan.
2018, Plaintiff requested Ditech produce the original note
for his review. He claims that Ditech's “vague and
confusing statements were obviously in violation of the
mortgage.” On January 31, 2019, Orlans, foreclosure
counsel for Ditech, provided Plaintiff with a reinstatement
quote of $199, 302.48 through February 18, 2019. Plaintiff
contests this amount.
February 8, 2019, Ditech issued a payoff statement of $342,
879.80, of which $173, 943.44 was for the unpaid principal
balance. Again, Plaintiff alleges this amount is “too
high to be consistent with the terms of [his]
mortgage.” According to Plaintiff, HIS Trust-Homesavers
“believe[s] the principal balance at this time should
be in the $125, 000 range.” Ditech scheduled a
foreclosure sale for February 19, 2019. That day, Plaintiff
requested and was granted an Ex Parte TRO enjoying the
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 (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. “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 (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.
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 (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 Cir.
Claims against Ditech
Failure to Provide Accounting
Massachusetts law, an equitable accounting is available only
if there exists a fiduciary or trust relationship between the
parties.” Chedd-Angier Production Co., Inc. v. Omni
Publications Intern., Ltd., 756 F.2d 930, 937 (1st Cir.
1985). Further, “[t]he mere relationship between
mortgage holder or servicer and borrower does not give rise
to a fiduciary duty to the latter.” Shaw v. VAC
Home Loans Servicing, ...