MEMORANDUM & ORDER
William Aliberti and his wife Bonnie Aliberti (“the Aibertis”) bring suit against defendant GMAC Mortgage, LLC (“GMAC”) for various counts related to the modification of two loans secured by a mortgage on plaintiffs’ residence, located at 531-537 Lowell Street, Lawrence, Massachusetts (“the Property”).
I. Background
A. Factual Background
In June, 2006, plaintiffs refinanced with Mortgage Lenders Network USA, Inc. (“MLN”) two loans secured by a mortgage on the Property in the total principal amount of $450,000 ($360,000 at a fixed rate of 8.4% for two years and an adjustable rate for 28 years thereafter and $90,000 at a fixed rate of 11.6% for 20 years). MLN assigned its interest in the loans to two third-parties which then reassigned their interests to GMAC.
In 2008, the Aibertis began “having difficulty” making payments and defaulted under the terms of the notes. In January, 2010, the Aibertis and GMAC entered into an oral modification agreement for a two-month trial period while the parties continued working “to permanently modify” the loans. In June, 2010, GMAC notified the Aibertis that the modification agreement was denied because of “insufficient income” but that the account was being further reviewed for another “workout” option. Later that month, GMAC and the Aibertis entered into a Repayment Agreement which required the borrowers to make three monthly payments of $2,960 each in exchange for suspension of foreclosure activity.
The Aibertis returned the documentation and made three timely payments according to the Repayment Agreement. As a result, on October 6, 2010, GMAC approved the plaintiffs’ request for a permanent modification subject to certain conditions, including that the Aibertis return the signed loan modification agreement no later than October 13, 2010.
The Aibertis apparently received the letter and loan documents on October 14, 2010, when they returned from a vacation. Four days later, they called GMAC and spoke with a representative who informed them “to get the document in as soon as possible”. The Aibertis signed and mailed the document which was received by GMAC on October 29, 2010. GMAC subsequently denied the Aibertis’ loan modification request because the signed documents had not been received by the required date.
B. Procedural History
On January 6, 2011, the day before the scheduled foreclosure sale of the Property, plaintiffs filed suit in the Massachusetts Superior Court for Essex County. The Complaint alleges breach of contract (Counts I — III), fraud during the mortgage lending process in violation of Mass. Gen. Laws ch. 266, § 35A (Counts IV-VII), intentional misrepresentation (Counts VIII-XI) and negligent misrepresentation (Counts XII-XV). On that same day, plaintiffs also filed an ex parte motion for a temporary restraining order (“TRO”) *245 which was denied “upon finding no reasonable likelihood of success upon the merits of plaintiffs’ claims”.
The following day, the Massachusetts Supreme Judicial Court issued its decision in
U.S. Bank Nat’l
Assoc.
v. Ibanez,
Despite notice, GMAC failed to appear at the hearing held January 18, 2011, at which the state court noted that it “would not undo or redo” the denial of the TRO but would address plaintiffs’ motion to the extent it was based on the Ibanez decision. The state court issued a preliminary injunction to enjoin foreclosure “unless and until GMAC Mortgage, LLC is the holder of the mortgage on the property at the time of the foreclosure”.
Shortly thereafter, defendant removed the case to this Court on the basis of diversity jurisdiction and moved to dismiss the Complaint and dissolve the preliminary injunction issued by the state court. Plaintiffs moved to remand the case to state court on the ground that the amount in controversy is less than $75,000. The motions are pending before this Court.
II. Legal Analysis
Because the Court need not reach the motions to dismiss or to dissolve the injunction if it determines that the motion to remand to state court should be allowed, the Court first considers the motion to remand.
A. Motion to Remand
1. Legal Standard
Pursuant to 28 U.S.C. § 1446(b), a defendant may remove a case to federal court within thirty days after the receipt of the initial pleading or service of summons. If at any time before final judgment it appears that the Court lacks subject matter jurisdiction, the case shall be remanded to the state court. 28 U.S.C. § 1447(c). The Court has jurisdiction of all civil actions where the matter in controversy “exceeds the sum or value of $75,000, exclusive of interest and costs” and is between citizens of different states. 28 U.S.C. § 1332.
2. Application
The parties are citizens of different states because the plaintiffs are Massachusetts residents while defendant is a Delaware limited liability company with a principal place of business in Pennsylvania.
The parties disagree as to whether the amount-in-controversy requirement under 28 U.S.C. § 1332 has been met. Plaintiffs contend that they seek specific performance, rather than monetary damages, and thus the amount-in-controversy is less than $75,000 and remand is required. By contrast, defendant asserts that the amount-in-eontroversy in an action for specific performance is measured by the pecuniary value of the object sought in the litigation. In this case, defendant contends the object is a claimed entitlement to a permanent loan modification which would effectively reduce plaintiffs’ debt by- approximately $124,500.
Where the plaintiff seeks equitable relief, the amount-in-controversy is “measured by the value of the object of the litigation.”
Hunt v. Wash. State Apple Adver. Comm’n,
B. Motion to Dismiss
1. Legal Standard
In order to survive a motion to dismiss for failure to state a claim under Fed. R.Civ.P. 12(b)(6), a complaint must contain factual allegations sufficient “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly,
Although a court must accept as true all of the factual allegations contained in a complaint, that doctrine is not applicable to legal conclusions.
Ashcroft v. Iqbal,
2. Application
a. Breach of contract (Counts I — III)
If a contract is unambiguous, its interpretation is a question of law.
See, e.g., Seaco Ins. Co. v. Barbosa,
Plaintiffs first allege that GMAC breached the January, 2010 oral modification agreement by concluding that the plaintiffs had insufficient income and ultimately denying a permanent loan modification (Count I). The January 30, 2010 letter regarding the oral loan modification states:
During your trial payment period, I will continue to work with the Lender to permanently modify your loan.
The letter unambiguously indicates that no permanent modification agreement had been reached yet. GMAC, therefore, did not breach the January, 2010 agreement by subsequently determining that the plaintiffs were not eligible for a permanent modification. Count I will, therefore, be dismissed.
Plaintiffs further allege that GMAC breached a June, 2010 Repayment Agreement by “unilaterally and maliciously placing unreasonable time constraints” on the plaintiffs to return the executed documents and stating that GMAC had not received the documents (Count II). The Repayment Agreement states:
Once all scheduled payments have been received, your situation will be reviewed *247 to determine the best option for resolving the remaining delinquency.
It is evident that, pursuant to the Repayment Agreement, no permanent modification agreement had been reached yet because further review to determine the remaining delinquency would be performed. GMAC did not breach the Repayment Agreement by subsequently determining that the plaintiffs were not eligible for a permanent modification or by ultimately offering a loan modification subject to certain conditions. It is unclear how GMAC’s statement that it had not received the permanent loan modification document could constitute a breach of the June, 2010 Repayment Agreement. Count II will, therefore, be dismissed.
Finally, plaintiffs allege that GMAC breached an October, 2010 contract by likewise imposing an unreasonable time constraint and stating that GMAC had not received the documents (Count III). An offeror may impose a deadline for acceptance of an offer and indeed, an offeree’s power of acceptance “vanishes at the time specified in the offer”.
Mathewson Corp. v. Allied Marine Industries, Inc.,
The contribution and executed loan modification documents are due back by October 13, 2010.
The offer, thus, was deemed withdrawn if not accepted by the deadline and the plaintiffs’ power of acceptance vanished at the time specified. The October, 2010 permanent loan modification could not, therefore, have been accepted by the subsequent execution of documents by the plaintiffs and there was no contract for GMAC to breach. Moreover, it is unclear how GMAC’s statement that it had not received the permanent loan modification document could constitute a breach of an agreement that had never been formed. Count III will, therefore, be dismissed.
b. Mass. Gen. Laws ch. 266, § 35A (Counts IV-VII)
Plaintiffs allege in Counts IV-VII that GMAC violated Mass. Gen. Laws ch. 266, § 35A by making materially false statements in connection with the plaintiffs’ loan modification request.
Pursuant to Mass. Gen. Laws ch. 266, § 35A(b):
Whoever intentionally: (1) makes or causes to be made any material statement that is false or any statement that contains a material omission, knowing the same to be false or to contain a material omission, during or in connection with the mortgage lending process, with the intent that such statement be relied upon by a mortgage lender, borrower or any other party to the mortgage lending process ... shall be punished by imprisonment [and/or a fine].
The statute provides for criminal penalties only. Id. Although other sections of the Mass. Gen. Laws provide an individual borrower with a private cause of action, e.g. Mass. Gen. Laws ch. 140D, the statute cited by plaintiffs in this action does not provide an individual borrower with a private cause of action or even refer to a civil suit for a violation of that section. Counts IV-VII will, therefore, be dismissed.
c. Intentional and negligent misrepresentation (Counts VIII-XV)
Plaintiffs allege intentional misrepresentation (Counts VIII-XI) and negligent misrepresentation (Counts XII-XV) with respect to statements made by GMAC in connection with the plaintiffs’ loan modification request.
*248
To prevail on a claim for misrepresentation under Massachusetts law, a plaintiff must allege and prove that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon and that plaintiff reasonably relief upon the representation to his or her detriment.
See, e.g., Int’l Floor Crafts, Inc. v. Adams, 477
F.Supp.2d 336, 341 (D.Mass.2007) (citations omitted);
Masingill v. EMC Corp.,
Counts VIII, XI, XII and XV are based on statements made by GMAC in letters dated June 9, 2010 and November 1, 2010 that the plaintiffs’ request for a loan modification had been denied. Because the Alibertis claim that the loan modification should have been allowed, it is unclear how they could have relied on statements made by GMAC that denied the modification request. Similarly, it is unclear how the plaintiffs could have relied on the October 13, 2010 deadline set by GMAC in its correspondence, the purported misrepresentation on which Counts IX and XIII are premised. Plaintiffs do not allege how they reasonably relied on those statements.
Counts X and XIV are based on the statement made on the phone by the GMAC representative to the Alibertis. An offeree’s power of acceptance “vanishes at the time specified in the offer”.
Mathewson,
Counts VII-XV will, therefore, be dismissed for failure to plead with particularity the reasonable reliance element of each misrepresentation claim.
In sum, the defendant’s motion to dismiss will be allowed with respect to all counts of the Complaint. To the extent plaintiffs’ opposition may be construed as a motion for leave to file a motion to amend, any amendment would be futile and will, therefore, be denied.
C. Motion to Dissolve Injunction
Because the defendant’s motion to dismiss will be allowed, the preliminary injunction would ordinarily be lifted as a matter of course. Here, however, the procedural posture of the case in the state court led to the issuance of a preliminary injunction based not on the merits of the case but rather solely on the recent Ibanez decision. The state court’s January 18, 2011 Order enjoined the foreclosure “unless and until GMAC Mortgage, LLC is the holder of the mortgage on the property at the time of the foreclosure”. This Court, therefore, examines whether GMAC is the holder of the mortgage on the Property such that it has standing to foreclose.
On June 29, 2006, the plaintiffs executed a mortgage on the Property to secure the loans from MLN. The mortgage identifies Mortgage Electronic Registration Systems, Inc. (“MERS”) as the mortgagee and nominee for MLN. Under the terms of the mortgage, the plaintiffs agreed to
mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale [the Property].
*249 The mortgage was recorded in the Essex County (Northern District) Registry of Deeds. On September 25, 2009, MERS assigned the mortgage on the Property to GMAC (“the Assignment”). The Assignment was recorded in the same registry of deeds on October 26, 2009.
The parties agree that MERS assigned the mortgage to GMAC. Plaintiffs’ sole contentions are that 1) GMAC must also hold the note in order to foreclose and 2) the assignment “may be invalid” due to a conflict of interest because it was executed by Jeffrey Stephan (“Stephan”), Vice President of MERS and GMAC employee.
A mortgagee can foreclose on a property by exercise of the statutory power of sale if such a power is granted by the mortgage itself.
Ibanez,
Plaintiffs argue that their “preliminary investigation [ ] conducted in an informal setting [raises] serious questions about the legitimacy” of the Assignment. Plaintiffs contend that the Assignment is invalid because Stephan, who executed the Assignment, is both a Vice President of MERS and GMAC employee. Through formal corporate resolutions, MERS typically authorizes employees of MERS member firms to execute assignments on its behalf.
Kiah v. Aurora Loan Servs., LLC,
In sum, GMAC is the mortgagee of the mortgage executed by the Alibertis and has standing to foreclose upon the Property. The preliminary injunction will be dissolved.
ORDER
In accordance with the foregoing,
1) plaintiffs’ motion to remand (Docket No. 7) is DENIED;
2) defendant’s motion to dismiss (Docket No. 3) is ALLOWED; and
3) defendant’s motion to dissolve the injunction (Docket No. 5) is ALLOWED.
So ordered.