Juárez v. Select Portfolio Servicing, Inc.
708 F.3d 269
1st Cir.2013Background
- Juárez, pro se, sued U.S. Bank National Association as Trustee and SPS in Massachusetts alleging illegal foreclosure.
- Complaint concerns the first of two 2005 loans secured by a mortgage on Juárez's home; foreclosure occurred in 2008.
- Plaintiff alleges the loan was assigned into a REMIC trust after January 1, 2006 in violation of the PSA, rendering the foreclosees powerless to foreclose.
- A purported Corporate Assignment of Mortgage dated 2007 was recorded after foreclosure (2008) and Juárez questions its timing and effect.
- Juárez asserts four counts: lack of standing under Section 14, improper entry under Section 2, fraud, and Chapter 93A unfair/deceptive practices.
- District court dismissed for failure to state a claim and for futility of amendment; JUárez appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Section 14 claim viability | Juárez contends defendants lacked power of sale at foreclosures. | SPS and U.S. Bank argue pre-foreclosure assignment valid; no standing issues need be reached. | Section 14 claim plausibly stated; remanded to consider pre-foreclosure timing and possible confirmatory assignment. |
| Standing to challenge PSA assignment | Juárez may challenge assignment to trust despite not being a party or beneficiary. | Mortgagor lacks standing to challenge PSA assignments. | Court notes standing not necessary to decide on Section 14 at this stage; remand not limited to standing question. |
| Fraud claim particularity | Fraud statements about ownership were material and relied upon by Juárez. | Fraud claim pleaded without requisite particularity under Rule 9(b). | Fraud claim properly dismissed for lack of particularity; lack of specifics adequate to sustain claim. |
| Chapter 93A claim viability | Defendants' foreclosure conduct constitutes unfair/deceptive acts. | No obvious unfair/deceptive acts beyond contract breach; merits lack. | Chapter 93A claim inadequately pled; district court erred in relying on Section 14 analysis to bar amendment. |
| Section 2 (entry) claim viability | Certificate of Entry improperly executed/records missing two witnesses. | Certificate valid; power of attorney not required to be recorded with certificate; two witnesses present. | Section 2 claim properly dismissed; certificate meets statutory requirements. |
Key Cases Cited
- U.S. Bank Nat'l Ass'n v. Ibáñez, 941 N.E.2d 40 (Mass. 2011) (confirmatory assignment doctrine; pre-foreclosure assignments matter for power of sale)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading plausibility standard; reject speculative claims)
- United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720 (1st Cir. 2007) (Rule 9(b) particularity requirements applied to fraud claims)
- Doyle v. Hasbro, Inc., 103 F.3d 186 (1st Cir. 1996) (fraud elements and particularity requirements)
- Kenda Corp. v. Pot O'Gold Money Leagues, 329 F.3d 216 (1st Cir. 2003) (unfair/deceptive acts; case-specific inquiry under 93A)
- Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47 (1st Cir. 1998) (fact-specific approach to 93A liability)