United States District Court, D. Massachusetts
ALAN J. ROSS and RUTH ROSS, Plaintiffs,
DEUTSCHE BANK NATIONAL COMPANY d/b/a DEUTSCHE BANK and DEUTSCHE BANK NATIONAL COMPANY in its capacity as Indenture Trustee for New Century Home Equity Loan Trust 2005-4, Defendants.
ORDER ON MOTION TO DISMISS (DOC. NO. 13)
Sorokin, United States District Judge.
Ross and Ruth Ross brought suit against Deutsche Bank
National Company, and Deutsche Bank National Company in its
capacity as Indenture Trustee (collectively, “Deutsche
Bank”), to enjoin the foreclosure of their home. They
assert a breach of contract claim in connection to a
settlement agreement between the parties, a product of a
previous foreclosure proceeding involving the Rosses’
property. Deutsche Bank has moved to dismiss the suit for
failure to state a claim. For the reasons expressed herein,
the motion to dismiss is ALLOWED.
September 1986, the Rosses have been the owners of the
property at 974 Dedham Street in Newton, Massachusetts. Doc.
No. 6 ¶ 3. In June 2005, the Rosses applied for and
accepted a loan in the amount of $500, 000 (“the
Loan”) from New Century Mortgage Corporation
(“New Century”). Doc. No. 6-1 at 1. A promissory note
(“the Note”) evidenced the Loan, and the Note was
secured by a mortgage encumbering the property (“the
Mortgage”). Id. In August 2005, the Note and
the Mortgage were transferred from New Century to Deutsche
Bank. Id. at 2. In May 2007, New Century sold the
loan servicing rights to Carrington Mortgage Services
(“Carrington”). Id. The Rosses defaulted
on the Loan in December 2006, and after further defaults in
2008 and 2010, they entered into loan modification agreements
with Carrington. Id.
about December 1, 2010, Carrington commenced foreclosure
proceedings. Id. The Rosses brought suit in
Middlesex County Superior Court on March 7, 2012, to request
a preliminary injunction, which was granted on March 12,
2012. Id. Deutsche Bank filed a notice of removal to
another session of this Court on April 4, 2012. Id.
Following a hearing and subsequent mediation, on September
11, 2013, the parties executed a Settlement Agreement and
Unconditional General Release (“the Settlement
Agreement”). Doc. No. 6 ¶ 7. The Settlement
Agreement permitted the Rosses to remain at the residence for
an 18-month period from the time of the execution of the
Settlement Agreement (“the Occupancy Period”) but
required them to surrender their home on February 1, 2015.
Doc. No. 6-1 at 4.
relevant part, the Settlement Agreement states: “Upon
the execution of this Settlement Agreement, [Deutsche Bank
and Carrington] shall continue with the Foreclosure
Proceeding. . . . Without limiting the generality of the
foregoing, during the Occupancy Period, Borrowers acknowledge
and agree that the Lender will restart the Foreclosure
Proceeding in accordance with M.G.L. ch. 244[.]”
Id. at 3. After the expiration of the Occupancy
Period and the surrender of the property, any of the
Rosses’ loan debt not recovered via the foreclosure
sale would be forgiven, and the Rosses further waived any
future claims against Deutsche Bank or its agents involving
their property. Id. at 6, 8. Additionally, the
Settlement Agreement provides that “[n]o delay or
omission by the Lender in exercising or enforcing any of
[Deutsche Bank’s] powers, rights, privileges, remedies,
or discretions hereunder shall operate as a waiver thereof on
the occasion nor on any other occasion.” Id.
at 7. Finally, the Settlement Agreement notes that
“[t]ime is of the essence with respect to the
performance of any and all provisions of this
Agreement.” Id. at 11.
the Occupancy Period expired on February 1, 2015, the Rosses
relocated to their new residence in Watertown, Massachusetts.
Doc. No. 6 ¶¶ 8, 19; Doc. No. 14 at 5–6. The
Rosses twice notified Deutsche Bank and Carrington of their
updated address. Doc. No. 6 ¶ 8. But the Rosses were
unaware of any action taken to proceed with the foreclosure
until sometime after January 23, 2019-over five years after
the execution of the Settlement Agreement-when Deutsche Bank
filed affidavits in Massachusetts Land Court under the
federal Servicemembers Civil Relief Act (SRCA). Id.
¶ 9. It was not until “various real estate brokers
solicit[ed] potential business” from the Rosses that
they were made aware of the fact that Deutsche Bank had
reinitiated foreclosure proceedings. Id. ¶ 10.
Thus, the Rosses come before this Court contesting the
proceedings, alleging a breach of the Settlement Agreement
and seeking both a permanent injunction against Deutsche Bank
foreclosing their home and a declaratory judgment ruling the
Note and the Mortgage tied to their property are null and
void. Id. ¶¶ 21, 24, 27.
survive a motion to dismiss pursuant to Rule 12(b)(6), a
complaint “must provide fair notice to the defendants
and state a facially plausible legal claim.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
(1st Cir. 2011). The pleader must “‘show’
an entitlement to relief” by including in the complaint
“enough factual material ‘to raise a right to
relief above the speculative level’” if the facts
alleged are accepted as true. Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007));
accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Fed.R.Civ.P. 8(a). In assessing whether a complaint
withstands a Rule 12(b)(6) challenge, courts “employ a
two-pronged approach.” Ocasio-Hernandez, 640
F.3d at 12.
statements in the complaint that amount to “threadbare
recitals of the elements of a cause of action” are
identified and disregarded. Id. (quotation marks and
brackets omitted). So, too, are “bald assertions,
subjective characterizations and legal conclusions.”
DM Research, Inc. v. Coll. Of Am. Pathologists, 170
F.3d 53, 55 (1st Cir. 1999) (quotation marks omitted). As the
First Circuit has warned, such statements “are a danger
sign that the plaintiff is engaged in a fishing
expedition.” Id. “[T]he price of entry,
even to discovery, is for the plaintiff to allege a
factual predicate concrete enough to warrant further
proceedings, which may be costly and burdensome.”
Id. (emphasis in original).
“[n]on-conclusory factual allegations” are
“treated as true, even if seemingly incredible.”
Id. If such allegations “allow the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged, ” and thereby “state
a plausible, not a merely conceivable, case for relief,
” then the motion to dismiss must be denied.
Id. (quotation marks omitted); accord
Iqbal, 556 U.S. at 678. “The plausibility standard
is not akin to a ‘probability requirement, ’ but
it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678
(citation omitted). “Determining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679 (citation omitted).
Breach of Contract
Rosses’ primary claim alleges a breach of the
Settlement Agreement arising from the manner in which Deutsche
Bank reinitiated the foreclosure proceedings. Doc. No. 6
¶¶ 11, 13. Under Massachusetts law, the elements of
a breach of contract claim are as follows: “plaintiffs
must prove that a valid, binding contract existed, the
defendant breached the terms of the contract, and the
plaintiffs sustained damages as a result of the
breach.” Brooks v. AIG SunAmerica Life Assurance
Co., 480 F.3d 579, 586 (1st ...