Jones v. Bank of N.Y. for the Certificate Holders Cwabs, Inc.

• Decision Date: 03 June 2021
• Docket Number: Civil Action No. 20-10800-FDS
• Citation: 542 F.Supp.3d 44
• Parties: Paul JONES, Plaintiff, v. BANK OF NEW YORK AS TRUSTEE FOR the CERTIFICATE HOLDERS CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2004-7; Sandra Robinson; and, Select Portfolio Servicing, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

542 F.Supp.3d 44

Paul JONES, Plaintiff,

v.BANK OF NEW YORK AS TRUSTEE FOR the CERTIFICATE HOLDERS CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2004-7; Sandra Robinson; and, Select Portfolio Servicing, Inc., Defendants.

Civil Action No. 20-10800-FDS

United States District Court, D. Massachusetts.

Signed June 3, 2021

Paul Jones, Stoughton, MA, Pro Se.

Carson M. Shea, Peter Francis Carr, II, Eckert Seamans Cherin & Mellott, LLC, Boston, MA, for Defendant Bank of New York.

Peter Francis Carr, II, Eckert Seamans Cherin & Mellott, LLC, Boston, MA, for Defendant Select Portfolio Servicing Inc.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS UNDER 12(b)(6)

SAYLOR, C.J.

This action arises out of a mortgage foreclosure. Plaintiff Paul Jones, proceeding pro se , has brought this action against defendants the Bank of New York Mellon ("BNY"), Select Portfolio Servicing, Inc. ("SPS"), and Sandra Robinson, seeking to void the foreclosure and to obtain damages for unfair and deceptive acts or practices. The amended complaint seeks to void the foreclosure based upon (1) violations of Mass. Gen. Laws ch. 183, § 21 (Count One); (2) violations of Mass. Gen. Laws ch. 244, § 15A (Count Two); and (3) failure to comply with paragraph 19 of the mortgage (Count Four). In addition, it contends that defendants committed unfair and deceptive acts or practices in violation of Mass. Gen. Laws ch. 93A, § 9 (Count Three).

Defendants BNY and SPS have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. For the following reasons, the motion to dismiss will be granted.

I. Background

Unless otherwise noted, the following facts are drawn from the amended complaint, and documents referred to or attached to the amended complaint.¹

A. Parties

Paul Jones is a resident of Stoughton, Massachusetts. He was the homeowner and mortgagor in the underlying foreclosure matters.

Bank of New York Mellon is a Delaware corporation with a principal place of business in New York. It was the trustee and foreclosing mortgagee of the mortgage at issue.

Select Portfolio Servicing, Inc. is a Utah corporation with a principal place of business in Utah. It was the servicer of the mortgage.

Sandra J. Robinson is a resident of Aubrey, Texas. She is a notary public in Texas.

B. Factual and Procedural Background

On June 22, 2004, Paul Jones executed a note in the amount of $274,550 with Optima Mortgage Corporation ("Optima"). (Dkt No. 11, First Am. Compl. ¶ 14; id. , Ex. 1 at 1). That same day, Optima executed an allonge to the note that granted its interest in the note to Countrywide Document Custody Services, which in turn endorsed the note to Countrywide Home Loans, Inc. (First Amend. Compl. ¶ 14; id. , Ex. 1 at 7-8).² Also on that day, as security for the note, Jones granted Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Optima, a mortgage on his property at 572 Park Street in Stoughton, Massachusetts. (First Am. Compl. ¶¶ 12, 15; Dkt. No. 1, Compl., Ex. 1 at 1).

On September 28, 2004, Countrywide Home Loans, Inc. entered into a pooling and servicing agreement with several other banks, and sold certain loans to CWABS, Inc. Asset-Backed Certificates, Series 2004-7, a securitized trust. (See, e.g. , First Am. Compl. ¶¶ 64, 66, 73 (referring to the PSA); see generally Pl. Ex. 1). BNY was the trustee of CWABS. (Pl. Ex. 1 at 1). It is not clear from the portions of the agreement attached to Jones's opposition whether Jones's note was transferred to BNY as part of that agreement. (See generally id. (omitting Exhibit F-1 containing a list of the covered mortgage loans)). However, the complaint itself alleges that Jones's note was part of the agreement. (First Am. Compl. ¶ 73 ("Optima mortgage no longer held any interest in the Note according to the defendants Pooling and Service Agreement [ ] [w]hich the note and mortgage was transferred to on or about September 28, 2004 ") (emphasis added); id. ¶ 65 ("It is ... not a question of the validity of the assignment under the PSA, but a question of the timing of the assignment in relation to the initiation of foreclosure proceedings.")).

In 2005, Jones fell behind on his mortgage payments. (Id. ¶¶ 15-17). It appears that he occupied the property and failed to make payments on the loan for the next thirteen years. (First Am. Compl. ¶ 30 (referring to Apr. 26, 2017 notice of default); Defs. Ex. C at 1).

On November 6, 2006, BNY filed a complaint to foreclose the mortgage. (First Am. Compl. ¶ 19, ¶ 23 (referring to Compl., Ex. 3); Compl., Ex. 3 at 1). On November 20, 2006, MERS attempted to assign the mortgage to BNY. (Compl., Ex. 6 at 1; First Amended Compl. ¶¶ 23, 26). Amanda Farrar, an assistant vice-president of MERS, signed that assignment. (Compl., Ex. 6, at 1). Farrar did not fill in the date on the line above her signature, but a notary swore that Farrar personally appeared before her to execute the assignment on November 20, 2006. (Id. ). Although not entirely clear from the complaint, Jones appears to allege that the failure to fill in the date made the November 20, 2006 assignment of the mortgage to BNY ineffective. (See, e.g. , First Am. Compl. ¶ 28).

On December 3, 2007, BNY completed a foreclosure sale of the property. (First. Am. Compl. ¶ 24). However, at some point, the foreclosure appears to have been rescinded. (Id. ¶ 26).

On October 21, 2008, MERS and BNY executed a confirmatory assignment of the mortgage. (See First Am. Compl. ¶¶ 26, 58 (referring to the confirmatory assignment); Defs. Ex. B at 1). That assignment stated that the effective date of the assignment to BNY was October 10, 2006. (Id. ). There is also a third assignment of the mortgage from MERS to BNY that appears the same as the confirmatory assignment of mortgage, except that, among other items, the October 10, 2006 date has been crossed out and handwritten instead as January 25, 2008. (First Am. Compl. ¶¶ 26, 58; Compl., Ex. 8 at 1). Tiffany Skaife, the assistant secretary of MERS, signed the third assignment. (Id. ). It was notarized by Robinson, who swore that Skaife personally appeared before her on January 25, 2008. (Id. ; see also First Am. Compl. ¶ 60). The complaint alleges that Skaife crossed out the date on the assignment and added in the date of January 25, 2008. (First Am. Compl. ¶¶ 45, 60).

At some point, SPS became the servicer of the mortgage. (Id. ¶ 85). On April 26, 2017, SPS sent Jones a mortgage statement stating that he had defaulted on his loan and that his account had been accelerated. (Id. ¶ 30; Defs. Ex. C at 1). On April 9, 2018, following that notice, BNY foreclosed on the property. (Id. ¶ 37).

Paragraph 19 of the mortgage addresses the borrower's right to reinstate after acceleration. As relevant here, it states:

Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earliest of: (a) five days before the sale of the Property pursuant to any power of sale contained in this Security Instrument, (b) such other period as Applicable Law might specify for the termination of Defendant's right to reinstate; or (c) entry of a judgment enforcing this Security Instrument.

(Compl., Ex. 1, ¶ 19).

Paragraph 22 of the mortgage addresses acceleration and remedies. (Compl., Ex. 1, ¶ 22). As relevant here, it states that the "Lender shall give notice" of a default and:

If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the STATUTORY POWER OF SALE and any other remedies permitted by Applicable Law ....

If Lender invokes the STATUTORY POWER OF SALE, Lender shall mail a copy of a notice of sale to Borrower, and to other persons prescribed by Applicable Law, [i]n the manner provided by applicable law. Lender shall publish the notice of sale, and the Property shall be sold in a manner prescribed by applicable law.

(Id. ).

On May 9, 2019, Jones filed a complaint in this Court against defendants Dolan Connly, P.C,; Orlans, P.C.; BNY; SPS; and various attorneys and employees of those firms. (Jones v. Dolan Connly P.C. , 19-cv-11076-FDS, Dkt No. 1). On December 16, 2019, that action was dismissed without prejudice. (Id. , Dkt. No. 56 at 1).

Jones filed the complaint in this action on April 24, 2020, and an amended complaint on July 27, 2020. (Compl.; Dkt No. 14, Am. Compl.). On July 30, 2020, he filed a second amended complaint. (First Am. Compl.).³ Defendants BNY and SPS have moved to dismiss that complaint.

The amended complaint alleges that the 2018 foreclosure was void because it failed to comply with (1) the statutory power of sale in Mass. Gen. Laws ch. 183, § 21 (Count One); (2) certain notice requirements pursuant to Mass. Gen. Laws ch. 244, § 15A (Count Two); and (3) paragraph 19 of the mortgage agreement (Count Four). It further alleges that several of defendants’ actions in connection with the 2007 and 2018 foreclosures violated Mass. Gen. Laws ch. 93A (Count Three).

II. Legal Standard

On a motion to dismiss, the court "must assume the truth of all well-plead[ed] facts and give ... plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp. , 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino , 175 F.3d 75, 77 (1st Cir. 1999) ). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955 (citations and footnote omitted). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted...