Harihar v. U.S. Bank Nat'l Assocation, Civil Action No. 15-cv-11880-ADB
| Decision Date | 31 March 2017 |
| Docket Number | Civil Action No. 15-cv-11880-ADB |
| Parties | MOHAN A. HARIHAR, Plaintiff, v. U.S. BANK NATIONAL ASSOCATION, et al. Defendants. |
| Court | U.S. District Court — District of Massachusetts |
BURROUGHS, D.J.
Plaintiff Mohan A. Harihar ("Harihar" or "Plaintiff") brings suit against numerous defendants alleging unlawful conduct associated with the foreclosure of his home. Following this Court's April 27, 2016 Order [ECF No. 43], which dismissed several claims and defendants, there are 13 remaining defendants: U.S. Bank N.A. and Wells Fargo (the "Bank Defendants"); RMBS CMLTI 2006 AR-1 (the "Trust"); the Commonwealth of Massachusetts and former Massachusetts Attorney General Martha Coakley; Harmon Law Offices, PC ("Harmon"); Nelson, Mullins, Riley, and Scarborough, LLP ("Nelson Mullins"); Attorney Peter Haley; Mary Daher, Ken Daher, and the Daher Companies (the "Daher Defendants"); and Jeffery and Isabelle Perkins ("the Perkinses").
Presently pending before this Court are seven motions to dismiss all of the remaining claims against each of the remaining defendants. [ECF Nos. 66, 68, 70, 72, 76, 78, 91]. Harihar has filed oppositions to each of these motions. [ECF Nos. 107-13]. After careful consideration of all the filings submitted by the parties, and for the reasons discussed below, this Court GRANTS all seven of the outstanding motions to dismiss and DISMISSES the Complaint with prejudice.
The following facts are based on Harihar's Second Amended Complaint [ECF No. 24 (the "Complaint")], unless otherwise noted. Although the Court accepts all well-pleaded factual allegations as true, it need not credit Harihar's conclusory legal allegations. See A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013).
In December 2005, Harihar purchased property at 168 Parkview Avenue in Lowell, Massachusetts (the "Property"). Complaint ¶¶ 31, 43, 48. In connection with this purchase, Harihar obtained a loan and granted a mortgage to Wells Fargo Home Mortgage, which was both the lender and the loan servicer. Id. ¶¶ 48-50. From approximately December 2005 through August 2009, Harihar made monthly mortgage payments of around $2,458.00 to Wells Fargo. Id. ¶ 49.
In or around November 2008, Harihar experienced financial difficulties, which led him to seek a loan modification from Wells Fargo. Id. ¶ 51. Due to an alleged "calculation error" by Wells Fargo, his request was declined. Id. Wells Fargo refused to correct the error. Id. Harihar made a second request for a loan modification, which was also denied due to the same alleged error on the part of Wells Fargo. Id.
Harihar asserts that Wells Fargo then informed him that it would not grant him a loan modification unless there was a "default" on the mortgage for a period of at least 90 days. Id. Harihar took this as an instruction to stop making payments on his mortgage. Id. After he defaulted, he was instructed to make a "good faith payment" equivalent to one month's mortgage payment in order to qualify for a loan modification. Id. Harihar made the required payment, but his modification application was once again declined, due to the same alleged "calculation error"by Wells Fargo. Id. All told, Harihar tried for 22 months, without success, to secure a loan modification. Id.
In approximately April or May of 2009, U.S. Bank, acting as trustee for the Trust (RMBS CMLTI 2006-ARl) that purportedly owned Harihar's promissory note at the time, filed a civil action in Massachusetts state court to foreclose on the Property. Id. ¶ 58. The Property was sold at a foreclosure auction in September 2010. Id. ¶¶ 51, 59.
Harihar then engaged in extensive litigation in the Massachusetts state courts to fight the foreclosure. The Court takes judicial notice of the state court records submitted by the Bank Defendants as attachments to their memorandum in support of their motion to dismiss and summarizes them in pertinent part here.1 See generally Exhibits to Bank Defendants' Motion to Dismiss [ECF No. 67]. On May 23, 2011, after the foreclosure of the Property, U.S. Bank filed a summary process eviction action against Harihar in Lowell District Court to gain possession of the Property. [ECF No. 67-4 at 2]. On August 31, 2011, upon U.S. Bank's motion, the case was transferred to the Northeast Housing Court (the "Housing Court"), id., where Harihar continued to contest the foreclosure. See [ECF No. 67-5 at 5, 11, 19]. U.S. Bank moved for summary judgment on its claim of possession to the Property on the grounds that it held valid title, to which Harihar failed to file an opposition. See U.S. Bank Nat'l Ass'n v. Harihar, No. 12-P-1515, 2013 WL 5925143, at *1 (Mass. App. Ct. Nov. 6, 2013).
On January 23, 2012, the Housing Court held a hearing on U.S. Bank's motion for summary judgment, during which both U.S. Bank and Harihar presented arguments. [ECF No.67-6]. At the hearing, U.S. Bank produced certified copies of the mortgage, a recorded assignment of the mortgage to U.S. Bank, and the foreclosure deed, as well as the original promissory note. Id. at 3-4. U.S. Bank argued that it had sufficiently established valid title to the Property. Id. at 4. Harihar contested the validity of the foreclosure at the hearing. Id. at 12-13. The Housing Court granted U.S. Bank's motion for summary judgment and entered judgment on January 26, 2012. [ECF No. 67-4 at 4]. The decision was affirmed by the Massachusetts Appeals Court on November 6, 2013. Harihar, 2013 WL 5925143, at *1 (hereinafter, "Harihar I"). Before the Harihar I court, Harihar argued:
(1) his case was not properly transferred to the Housing Court; (2) the Housing Court judge failed to consider equitable preforeclosure loan modification claims; (3) the Housing Court judge failed to allow certain discovery; (4) U.S. Bank failed to establish the proper chain of title to the property; and (5) the decision of the Housing Court judge was premature given pending actions by the Attorneys General of various States in connection with the national mortgage crisis.
Id. The Harihar I court held that Harihar had failed to comply with Massachusetts procedural rules because his appeals briefing was deficient, but also that the claims would have failed on the merits. Id.
On December 16, 2011, while the Housing Court litigation was ongoing, Harihar filed a complaint in Massachusetts Middlesex County Superior Court (the "Superior Court") against the Bank Defendants and Harmon, seeking to enjoin the foreclosure and sale of his home and gain monetary damages. [ECF No. 67-9 at 1]; see also Harihar I, 2013 WL 5925143, at *1 n.1; Harihar v. U.S. Bank, N.A., 5 N.E.3d 1, 2014 WL 981527, at *1 (Mass. App. Ct. Mar. 14, 2014) (hereinafter, "Harihar II"). In the Superior Court complaint, Harihar directly attacked the propriety and legality of the foreclosure of the Property. See [ECF No. 67-9]. He alleged that the "Bank Defendants engaged in unfair or deceptive foreclosure practices," including that they failed to comply with relevant statutory schemes in the foreclosure, falsely representedthemselves as present holders of mortgages to mortgagors, and engaged in false documentation practices to facilitate foreclosure. Id. Further, Harihar alleged that the Bank Defendants deceived homeowners in their role as servicers of loans and during loan modification programs. Id. The Bank Defendants filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6)2 and 12(b)(9). [ECF No. 67-11 at 2-3]. Harihar did not respond to the Bank Defendants' motion, and the Superior Court allowed it, dismissing the complaint. [ECF No. 67-12]. The Superior Court also granted Harmon's motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6). [ECF No. 67-8 at 4; ECF No. 92-1]. Harihar filed a motion for a new trial ten months after the dismissal of his complaint, which the Superior Court denied. Harihar I, 2013 WL 5925143, at *1 n.1; Harihar II, 2014 WL 981527, at *1. The Superior Court also denied his motion for reconsideration. Id. Harihar then appealed the denial of these motions to the Massachusetts Appeals Court. Harihar II, 2014 WL 981527, at *1. The Harihar II court affirmed the Superior Court on procedural and substantive grounds. Id.
Harihar returned to the Superior Court in 2013, before the Harihar II decision came down, and filed two motions, which were denied and which he also appealed to the Massachusetts Appeals Court. See Harihar v. U.S. Bank, N.A., 20 N.E.3d 982, 2014 WL 6889417, at *1 (Mass. App. Ct. Dec. 9, 2014) ("Harihar III"). Harihar's first motion was for "a court order against the defendants and their counsel 'to cease and desist from making false, unfounded statements against'" him. Id. Harihar also moved for clarification of comments made by the Bank Defendants' counsel. Id. The Harihar III court affirmed the Superior Court's denials of the two motions, and agreed with the Bank Defendants that the appeal was "frivolous." Id.
In the instant case, Harihar contends that Wells Fargo acted unlawfully with respect to his failed loan modification and the foreclosure on the Property. Complaint ¶¶ 52, 57. He alleges that U.S. Bank did not have the authority to foreclose on his home, due to allegedly "fraudulent assignments" of Harihar's mortgage, id. ¶ 60, and that the Bank Defendants and their counsel acted unlawfully in the state court litigation following the foreclosure. Id. ¶¶ 15(a)-(d), 65(f). Harihar believes that his experiences are representative of systemic problems in the national mortgage market. See id. ¶ 43. Harihar alleges that the Bank Defendants created, sold, and serviced securities allegedly backed by notes and residential real estate mortgages, when in fact, the trusts that issued the securities did not possess the notes or hold validly assigned mortgages. Id. ¶ 2. Further, he claims that when certain defendants foreclosed upon property, they used fraudulent mortgage assignments to conceal the fact that the trusts lacked the...
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