Lemelson v. U.S. Bank Nat'l Ass'n

• Decision Date: 01 July 2013
• Docket Number: No. 12–2275.,12–2275.
• Citation: 721 F.3d 18
• Parties: Rev. Fr. Emmanuel LEMELSON, f/k/a Gregory M. Lemelson; Anjeza Lemelson, Plaintiffs, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, Trustee, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

721 F.3d 18

Rev. Fr. Emmanuel LEMELSON, f/k/a Gregory M. Lemelson; Anjeza Lemelson, Plaintiffs, Appellants,

v.U.S. BANK NATIONAL ASSOCIATION, Trustee, Defendant, Appellee.

No. 12–2275.

United States Court of Appeals, First Circuit.

July 1, 2013.

James T. Ranney. for appellants.

Peter Francis Carr, II, with whom Eckert Seamans Cherin & Mellott, LLC, was on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD and KAYATTA, Circuit Judges.

LYNCH, Chief Judge.

Petitioners Gregory and Anjeza Lemelson filed this action under the Massachusetts try title statute, Mass. Gen. Laws ch. 240, §§ 1–5, seeking an order invalidating a March 2011 assignment of the mortgage loan on their Southborough, Massachusetts home to defendant U.S. Bank National Association (“U.S. Bank”), and enjoining U.S. Bank from commencing foreclosure proceedings pursuant to that assignment. The Lemelsons have not made a mortgage payment since April 2010.

After removing the action to federal court, U.S. Bank moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim under the try title statute, which the district court granted. The dismissal was without prejudice. See Lemelson v. U.S. Bank Nat'l Ass'n, Civ. No. 12–10677–PBS, 2012 WL 4527527, at *2 (D.Mass. Sept. 28, 2012). Relying primarily on the decision of the Supreme Judicial Court of Massachusetts (“SJC”) in Bevilacqua v. Rodriguez, 460 Mass. 762, 955 N.E.2d 884 (2011), the district court held that: (i) to state a claim under the Massachusetts try title statute, a petitioner must allege, inter alia, that an adverse claim clouds his record title, Lemelson, 2012 WL 4527527, at *1; and (ii) U.S. Bank's mere efforts to foreclose on the Lemelsons' home did not amount to an adverse claim under Massachusetts law, id. at *2.

The Lemelsons now appeal, saying that both determinations were made in error. We affirm.

I.

On March 28, 2012, the Lemelsons jointly filed this try title action in the Commonwealth of Massachusetts Land Court, challenging the authority of U.S. Bank to foreclose on their home pursuant to the March 2011 assignment. ¹ A try title petitionis a specialized form of action that seeks to compel an adverse claimant to bring an action trying its title to the disputed property. SeeMass. Gen. Laws ch. 240, §§ 1– 5. In relevant part, section 1 of the try title statute provides:

If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land claiming an estate of freehold therein ... may file a petition in the land court stating his interest, describing the land, the claims and the possible adverse claimants so far as known to him, and praying that such claimants may be summoned to show cause why they should not bring an action to try such claim.

Id. Additionally, if an adverse claimant is notified of the petition and fails to file an action asserting its claims to the property, the Land Court is authorized to “forever bar[ ] [the defendant] from having or enforcing any such claim adversely to the petitioner.” Id. § 2; see28 Mass. Prac., Real Estate Law § 31A.4. Try title actions are subject to a number of limitations, see, e.g., Bevilacqua, 955 N.E.2d at 888–91, which we take up later.

The relevant facts as alleged in the Lemelsons' petition to try title were as follows. On August 10, 2006, Gregory Lemelson purchased a home, located at 4 Wyndemere Drive in Southborough, Massachusetts, where he and his wife currently reside (the “Property”). To finance that purchase, Lemelson executed a mortgage loan, composed of a promissory note and a mortgage, in the principal amount of $1.6 million.

Initially, the mortgage was held by Mortgage Electronic Registration Systems, Inc. (“MERS”), the promissory note was payable to Mortgage Master, Inc., and the mortgage loan servicer was Thornburg Mortgage, Inc. At some time after origination, the promissory note and mortgage were sold.² Additionally, on May 1, 2009, Thornburg's parent company filed for bankruptcy and the mortgage loan servicer changed twice, first to Censlar, FSB, and then, in June 2010, to Select Portfolio Servicing, Inc.

The Lemelsons stopped making payments on their mortgage loan in April 2010, and shortly thereafter, in November 2010, they received a Notice of Default letter from Select Portfolio. On March 11, 2011, MERS filed a Corporate Assignment of Mortgage in the Worcester County Registry of Deeds (the “March 2011 assignment”), which purported to assign both the promissory note and the mortgage to U.S. Bank.

The petition to try title asserted that, by way of the March 2011 assignment, U.S. Bank possessed a claim to the Property adverse to the Lemelsons' record title. Moreover, it alleged a host of deficiencies in the execution and notarization of the March 2011 assignment, which were said to render it “fraudulent, invalid, void and/or legally inoperative.” ³ As relief, the petition sought an order compelling U.S. Bank to bring a try title action, expunging the March 2011 assignment from the land records, and enjoining any party from proceeding with foreclosure during the pendency of litigation.

After removing the case to federal court, on May 11, 2012, U.S. Bank filed a motion to dismiss the petition under Fed.R.Civ.P. 12(b)(6), which the Lemelsons opposed. In addition, the Lemelsons filed a motion seeking leave to serve additional parties and to amend their petition accordingly. On September 28, 2012, the district court issued a memorandum and order granting U.S. Bank's motion to dismiss without prejudice and denying the Lemelsons' motion to amend. Lemelson, 2012 WL 4527527, at *2.

Judgment of dismissal without prejudice was entered on October 1, 2012, and this timely appeal followed.

II.

We review an order of dismissal for failure to state a claim de novo, Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir.2011), and may affirm on any basis apparent in the record, Freeman v. Town of Hudson, 714 F.3d 29, 35 (1st Cir.2013). In conducting this review, we disregard “statements in the complaint that merely offer ‘legal conclusion[s] couched as ... fact[ ]’ or ‘[t]hreadbare recitals of the elements of a cause of action.’ ” Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir.2011) (alterations in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal quotation marks omitted). The complaint's “remaining, non-conclusory allegations are entitled to a presumption of truth, and we draw all reasonable inferences therefrom in the pleader's favor.” Rodríguez–Ramos v. Hernández–Gregorat, 685 F.3d 34, 40 (1st Cir.2012) (citing Ocasio–Hernández, 640 F.3d at 12).

Dismissal for failure to state a claim is appropriate “if the complaint does not set forth ‘factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.’ ” United States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 384 (1st Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 815, 181 L.Ed.2d 525 (2011) (quoting Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008)). In other words, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

III.

The Lemelsons raise two challenges on appeal to the district court's order granting U.S. Bank's motion to dismiss. First, they argue that the district court erred in holding that an adverse claim is a necessary element in a cause of action under the Massachusetts try title statute. In the alternative, petitioners argue that even if the district court's construction of the statute was correct, it erred in concluding that the petition's allegations concerning U.S. Bank's efforts to foreclose were insufficient to show an adverse claim under Massachusetts law. We consider and reject these challenges in turn.

A.

We begin by disposing of the Lemelsons' contention that the district court erred in construing the Massachusetts try title statute to require the pleading of an adverse claim to survive a motion to dismiss. See Lemelson, 2012 WL 4527527, at *1. Specifically, the Lemelsons argue that the SJC's decision in Bevilacqua, 955 N.E.2d 884, establishes that a try title petitioner need only allege “two jurisdictional facts at the pleading stage: (1) possession; and (2) a record title.” And where, as here, these facts have been conceded, see Lemelson, 2012 WL 4527527, at *2, the petitioners argue that the burden shifts to the respondent ( i.e., U.S. Bank) either to disclaim the interest alleged in the petition or to bring an action asserting that interest against the petitioners. See, e.g.,Mass. Gen. Laws ch. 240, § 3 (providing that respondents in a try title action may “appear and disclaim all right and title adverse to the petitioner,” or, “[i]f they claim title, ... show why they should not be required to bring an action to try such title”); Bevilacqua, 955 N.E.2d at 889.

This argument rests on a mischaracterization of the SJC's holding in Bevilacqua, which concerned the factual allegations necessary to establish standing under the Massachusetts try title statute. In Bevilacqua, the petitioner was granted a quitclaim deed to the respondent's home following an invalid foreclosure sale and sought to compel the respondent to try his title to the property. 955 N.E.2d at 886–88. The Land Court dismissed the petition sua sponte, apparently under Mass. R. Civ. P. 12(h)(3), which authorizes dismissal “[w]henever it appears ... that the court lacks jurisdiction of the subject matter ” (emphasis added), finding that the petitioner “holds no title to the property ... and thus lacks standing to bring a try title action.” Bevilacqua, 955 N.E.2d at 886;see ...