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Pantano v. Ocwen Loan Servicing, LLC

United States District Court, D. Massachusetts

December 20, 2019

CHERYL PANTANO, on behalf of herself and all others similarly situated, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          MEMORANDUM AND ORDER

          DENISE J. CASPER UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiff 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.

         II. Standard of Review

         A. Motion for Remand

         Upon 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) (citation omitted).

         B. Motion to Dismiss

         On a 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 (citation omitted).

         III. Factual Background

         A. Motion to Dismiss

         The 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.

         Pantano 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.

         In the 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.

         On 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 ...


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