Rellstab v. Ditech Financial LLC

          ORDER AND MEMORANDUM ON DEFENDANTS' MOTIONS TO DISMISS (DOCKET NOS. 6 & 8)

          TIMOTHY S. HILLMAN, DISTRICT JUDGE

         Carl W. 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 granted.

         Background

         On 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.

         In July 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.

         On 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 sale.^[1]

         Legal Standard

         A 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).

         In 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.

         Because 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. 1997).

         Discussion

         1. Claims against Ditech

         a. Failure to Provide Accounting

         “Under 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, ...