United States District Court, D. Massachusetts
CHERYL PANTANO, on behalf of herself and all others similarly situated, Plaintiffs,
OCWEN LOAN SERVICING, LLC, Defendant.
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE
Cheryl Pantano (“Pantano”) has filed this
putative class action lawsuit against Defendant Ocwen Loan
Servicing, LLC (“Ocwen”) alleging violations of
Mass. Gen. L. c. 93A, § 2 and 940 C.M.R. § 7.04
(Count I). D. 1-3. Pantano has moved to remand the matter to
state court, D. 12, and Ocwen has moved for dismissal, D. 7.
For the reasons stated below, the Court ALLOWS
Plaintiffs' motion for remand, D. 12, and DENIES AS MOOT
Ocwen's motion to dismiss, D. 7.
Standard of Review
Motion for Remand
the filing of a motion to remand, the Court must assess
whether it “would have had original jurisdiction of the
case had it been filed in [this] court” initially.
BIW Deceived v. Local S6, Indus. Union of Marine &
Shipbuilding Workers of Am., IAMAW Dist. Lodge 4, 132
F.3d 824, 832 (1st Cir. 1997) (quoting Grubbs v. General
Elec. Credit Corp., 405 U.S. 699, 702 (1972)) (internal
quotation mark omitted). When a plaintiff files an action in
state court and the defendant responds by invoking federal
jurisdiction through removal, the defendant has the burden of
establishing that removal to the district court is proper.
Danca v. Private Health Care Sys., Inc., 185 F.3d 1,
4 (1st Cir. 1999). The defendant “must . . . make a
‘colorable' showing that a basis for federal
jurisdiction exists.” Id. (quoting BIW
Deceived, 132 F.3d at 832). “Generally, [d]oubts
about the propriety of removing an action should be resolved
in favor of remand.” Miara v. First Allmerica Fin.
Life Ins. Co., 379 F.Supp.2d 20, 26 (D. Mass. 2005)
Motion to Dismiss
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
Motion to Dismiss
following facts are drawn from Pantano's complaint, D.
1-3, and are taken as true for the purposes of resolving
Ocwen's motion to dismiss.
is a resident of Peabody, Massachusetts who took on debt to
Ocwen in the form of a residential mortgage loan. D. 1-3
¶¶ 6, 8-9. Ocwen is a corporation with its
principal place of business in West Palm Beach, Florida. D.
1-3 ¶ 7. At all relevant times, Pantano's debt to
Ocwen has been allegedly more than thirty days overdue. D.
1-3 ¶ 10.
last four years, Ocwen has repeatedly called Pantano's
cellular telephone to attempt to collect the amount owed on
the mortgage. From November 2017 through January 2018, Ocwen
allegedly called Pantano daily and repeatedly more than two
times within a given seven-day period. D. 1-3 ¶ 13.
Pantano suffered anger, anxiety, emotional distress, fear and
frustration as a result of the calls. D. 1-3 ¶ 15.
January 16, 2019, Pantano sent Ocwen a letter via certified
mail identifying her claim and describing Ocwen's unfair
and deceptive acts, pursuant to Mass. Gen. L. c. 93A, §
9(3). D. 1-3 ¶ 18. On March 6, 2019, Ocwen responded to