O'Brien v. Wilmington Trust Nat'l Ass'n, C.A. No. 17-CV-11228-MLW

• Decision Date: 30 November 2020
• Docket Number: C.A. No. 17-CV-11228-MLW
• Parties: Jane E. O'BRIEN, Plaintiff, v. WILMINGTON TRUST NATIONAL ASSOCIATION, AS Successor TRUSTEE TO CITIBANK, N.A., as Trustee for Holders of Bear Stearns Alt-A Trust 2006-6 Mortgage Pass-Through Certificates Series 2006-6, Defendant.
• Court: U.S. District Court — District of Massachusetts

506 F.Supp.3d 82

Jane E. O'BRIEN, Plaintiff,

v.WILMINGTON TRUST NATIONAL ASSOCIATION, AS Successor TRUSTEE TO CITIBANK, N.A., as Trustee for Holders of Bear Stearns Alt-A Trust 2006-6 Mortgage Pass-Through Certificates Series 2006-6, Defendant.

C.A. No. 17-CV-11228-MLW

United States District Court, D. Massachusetts.

Filed November 30, 2020

Alex R. Hess, Alex R. Hess Law Group, Boston, MA, for Plaintiff.

Meredith A. Swisher, Matthew A. Gens, Bernkopf Goodman LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

WOLF, D.J.

I. INTRODUCTION

Plaintiff Jane E. O'Brien filed this action in Massachusetts Superior Court on June 5, 2017, seeking an injunction to stop foreclosure on her home, a declaratory judgment to quiet title to her home, and damages for intentional infliction of emotional distress. See Verified Compl. (Dkt. No. 1-1). After the Massachusetts Superior Court granted plaintiff's motion for preliminary injunction, defendant Wilmington Trust National Association¹ removed the case to this court and answered the complaint. See Dkt. Nos. 1, 4. Defendant subsequently moved for judgment on the pleadings and to dissolve the preliminary injunction. See Dkt. No. 11 (the "Motion"). Recently, defendant filed a second motion to dissolve the preliminary injunction based on allegations that plaintiff has not complied with it by failing to pay into escrow $8,000 per month for use and occupancy, and is $248,000 in arrears on such payments. See Dkt. No. 34.

For the reasons explained below, the court is allowing the motion for judgment on the pleadings on all counts and dissolving the preliminary injunction.

II. PROCEDURAL HISTORY

On June 5, 2017, plaintiff filed the complaint in the Massachusetts Superior Court for Norfolk County, seeking both injunctive relief and damages. See Dkt. No. 1-1. Following briefing and a hearing, the Superior Court issued a Preliminary Injunction. See Endmt. Order (Dkt. No. 5, at 66 of 218); Prelim. Inj. (Dkt. No. 5, at 139 of 218). The Preliminary Injunction enjoins defendant from foreclosing on the Property. Id. It also requires plaintiff to obtain insurance, pay future real estate taxes, and pay into escrow $8,000 each month, beginning September 1, 2017, for use and occupancy of the property. Id.

On July 3, 2017, defendant removed the case to this United States District Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. See Notice of Removal ¶¶4-8 (Dkt. No. 1). On March 30, 2018, defendant filed the Motion. See Dkt. No. 11.

Plaintiff did not timely oppose the Motion. Instead, she belatedly moved for an extension of time, without the certificate of consultation required by Rule 7.1 of the Local Rules of the United States District Court for the District of Massachusetts (the "Local Rules"). See Dkt. No. 13. However, because defendant opposed extending plaintiff's time to respond to the Motion, the court ordered her to file a reply by May 8, 2018 instead of ordering the parties to confer. See Dkt. Nos. 14, 15. Plaintiff did not file a timely reply. On May 16, 2018, she filed another motion for extension of time (Dkt. No. 16), which defendant again opposed (Dkt. No. 17).

Although the court noted that plaintiff had failed to show good cause for failing to file a reply by May 8, 2018, the court also noted the strong preference for cases being decided on the merits. See Dkt. No. 18. Therefore, the court ordered plaintiff to file her opposition to the Motion by May 23, 2018, and stated that "no further extensions [would] be granted." See Dkt. No. 18. The court also ordered plaintiff's counsel to confer with defense counsel regarding payment by counsel of the reasonable attorneys’ fees defendant's counsel had incurred in opposing the motion for extension of time. Id. Plaintiff did not file her opposition to the Motion by May 23, 2018.

On May 31, 2018, defense counsel reported to the court that it had sought to confer with plaintiff's counsel regarding the attorneys’ fees incurred in opposing the motion for extension of time. See Dkt. No. 19. Defense counsel requested additional time to get approval from defendant regarding the settlement offered by plaintiff's counsel. Id. On June 8, 2018, defense counsel reported that defendant had accepted plaintiff's counsel's offer, but had not heard from him since. See Dkt. No. 20. Defense counsel asked the court to order plaintiff's counsel to pay $2,000 to defense counsel by June 22, 2018. Id. Plaintiff's counsel eventually paid this amount. See Gens Letter 2 (Dkt. No. 30).

On June 10, 2018, plaintiff finally filed her opposition to the Motion. See Dkt. No. 21. Defendant promptly moved to strike the opposition as untimely. See Dkt. No. 24. Later, defendant moved in the alternative for leave to file a reply in support of the Motion. See Dkt. No. 26. The court permitted defendant to file a reply and noted that it would "consider imposing sanctions on plaintiff for her late filing." Dkt. No. 27. Defendant filed its reply on August 24, 2018. See Dkt. No. 28.

On July 1, 2019, defendant wrote to the court to state that plaintiff had violated the preliminary injunction. See Gens Letter 1 & n.2 (Dkt. No. 30). Defendant states that until March 2018, plaintiff had complied with the terms of the preliminary injunction and paid $68,000 into escrow for use and occupancy. See id.; Fragomeni Decl. ¶¶3-4 (Dkt. No. 31). However, defendant states that plaintiff has failed to make any payments since. See id. ¶4; Gens Letter 1 & n.2 (Dkt. No. 30). Defendant also informed the court of supplemental authority on the question of ineffective purported assignments of mortgage. See id. at 2. The defendant recently incorporated these allegations into a new motion to dissolve the preliminary injunction. See Dt. No. 34. Defendant alleges that plaintiff is now $248,000 in arrears on her payment obligations. Id. at 1. Plaintiff has not responded to the July 1, 2019 letter or the second motion to dissolve the preliminary injunction.

III. JUDGMENT ON THE PLEADINGS STANDARD

"After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "Because rendition of judgment in such an abrupt fashion represents an extremely early assessment of the merits of the case, the trial court must accept all of the nonmovant's well-pleaded factual averments as true." Rivera-Gomez v. De Castro, 843 F.2d 631, 635 (1st Cir. 1988). In other words, as a motion for judgment on the pleadings "calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom" in the nonmovant's favor. R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006).

A Rule 12(c) motion for judgment on the pleadings "is treated much like a Rule 12(b)(6) motion to dismiss." Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). Accordingly, in reviewing a motion for judgment on the pleadings, the court must "accept all of the non-movant's well-pleaded factual averments as true." Rivera-Gomez, 843 F.2d at 635. "Under Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 [2007], to survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that ‘raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.’ " Perez-Acevedo, 520 F.3d at 29. Such a motion should be denied if a plaintiff has shown "a plausible entitlement to relief." Twombly, 550 U.S. at 559, 127 S.Ct. 1955. This means that the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted). A claim is facially plausible if the plaintiff pleads "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 683, 129 S.Ct. 1937. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678, 129 S.Ct. 1937 (internal quotations omitted). The plausibility standard does not require "detailed factual allegations," but does require "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

While the court must "take all factual allegations as true and ... draw all reasonable inferences in favor of the plaintiff." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007), the court must disregard "bald assertions, unsupportable conclusions, and opprobrious epithets." In re Citigroup, Inc., 535 F.3d 45, 52 (1st Cir. 2008) ; see also Penalbert-Roia v. Fortuno-Burset, 631 F.3d 592, 595 (1st Cir. 2011). The court "neither weighs the evidence nor rules on the merits because the issue is not whether plaintiffs will ultimately prevail, but whether they are entitled to offer evidence to support their claims." Day v. Fallon Cmty. Health Plan, Inc., 917 F. Supp. 72, 75 (D. Mass. 1996).

At this stage, "the district court may properly consider only facts and documents that are part of or incorporated into the complaint." Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (quotation omitted). However, in certain circumstances the court may also consider other documents as well. There are "narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiff[’s] claim; or for documents sufficiently referred to in the complaint." Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993) ; see also Schatz v. Republican St. Leadership...