332 F. Supp. 3d 481
D. Mass.2018Background
- Plaintiffs (the McManns) sued defendants (Selene and Korde) over a foreclosure of a Crescent Street property and related consumer-law claims, asserting violations of M.G.L. c. 244 § 35B, 209 C.M.R. § 56.07, RESPA, TILA, FDCPA and M.G.L. c. 93A, and a breach of contract.
- Plaintiffs did not occupy the foreclosed property at the time of foreclosure and listed a different address in filings and bankruptcy schedules. The mortgage was listed in Mr. McMann’s Chapter 13 filings.
- Defendants moved to dismiss various counts; the court previously addressed an emergency motion and considered whether Korde contacted a third party (Ms. McMann’s sister).
- At hearing, Korde produced a response to plaintiffs’ Qualified Written Request (QWR) though not all original attachments; plaintiffs conceded defaults and long-standing delinquency on the loan dating to 2009.
- Defendants represented Wilmington’s credit bid did not exceed total secured debt; Wilmington agreed not to record the foreclosure deed while litigation proceeds; no escrow funds were available.
- Court granted plaintiffs leave to amend for certain claims but dismissed some counts with prejudice and denied appointment of an escrow agent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of M.G.L. c. 244 § 35B / 209 C.M.R. § 56.07 (Counts 4 & 5) | Selene published foreclosure notice without taking reasonable steps to avoid foreclosure | § 35B applies only to owner-occupied residential property; Property was not residential | Dismissed with prejudice — § 35B inapplicable because plaintiffs did not occupy the property |
| Breach of contract (Count 6) | Defendants breached contractual obligations related to loan/servicing | Plaintiffs never alleged a contract with Selene or Korde | Dismissed — no plausible contract alleged; Count 6 dismissed (without prejudice to amendment) |
| FDCPA (Count 7) | Korde contacted Ms. McMann’s sister in debt-collection context | Contact alleged; defendants challenged sufficiency but did not deny contact | Survives — motion to dismiss denied as to FDCPA claim |
| RESPA QWR claim (Count 8) | Selene/Korde failed to respond to QWR, violating RESPA | Defendants contend response and asserted no actionable damages from any deficiency | Dismissed without prejudice — plaintiffs fail to allege actual damages causally linked to QWR deficiency |
| TILA (Count 9) | Defective disclosure in 2002 mortgage closing | Defendants assert statute of limitations | Dismissed with prejudice — claim time-barred by TILA’s 3-year damages period |
| M.G.L. c. 93A (Count 10) | FDCPA and related conduct constitute unfair/deceptive acts under c. 93A | Defendants argued other underlying claims fail | Partially survives — c. 93A claim stands to the extent it tracks the surviving FDCPA (and any viable RESPA) allegations; otherwise dismissed |
Key Cases Cited
- Coady Corp. v. Toyota Motor Distributors, Inc., 346 F. Supp. 2d 225 (D. Mass. 2003) (elements of a breach of contract claim)
- EventMonitor, Inc. v. Leness, 473 Mass. 540 (Mass. 2016) (what constitutes a material breach)
- Pruell v. Caritas Christi, 678 F.3d 10 (1st Cir. 2012) (pleading standard: nonconclusory allegations required)
- McDermott v. Marcus, Errico, Emmer & Brooks, P.C., 775 F.3d 109 (1st Cir. 2014) (FDCPA violations can supply Chapter 93A claims)
- Rodi v. Southern New England School of Law, 389 F.3d 5 (1st Cir. 2004) (liberal construction of pro se complaints)
- Boivin v. Black, 225 F.3d 36 (1st Cir. 2000) (pro se filings construed liberally)