MEMORANDUM AND ORDER
Because it replaces with federal regulation the vision of democratically elected state legislators as to what is best for their citizens, federal “[p]reemption is strong medicine, not casually to be dispensed.” Brown v. United Airlines, Inc.,720 F.3d 60 , 71 (1st Cir.2013) (quoting Grant’s Dairy-Maine, LEG v. Comm’r of Me. Dept. of Agric., Food, and Rural Res.,232 F.3d 8 , 18 (1st Cir.2000)). Moreover, the law of preemption is much of a muddle. See, e.g., In re Welding Fume Prods. Liab. Litig.,364 F.Supp.2d 669 , 681 n. 14 (N.D.Ohio 2005); Michael P. Moreland, Preemption as Inverse Negligence Per Se, 88 Notre Dame L.Rev. 1249, 1252-77 (2013); Ashutosh Bhagwat, Wyeth v. Levine and Agency Preemption: More Muddle or Creeping to Clarity ?, 45 Tulsa L.Rev. 197, 229 (2009). In some areas — e.g., ERISA — its sweep is so broad as to be overwhelmingly rejected by scholars, leaving obedient lower courts poking around the periphery and calling for change. See DiFelice v. Aetna U.S. Healthcare,346 F.3d 442 , 459-60 (3d Cir.2003) (Becker, J., concurring) (quoting Andrews-Clarke v. Travelers Ins. Co.,984 F.Supp. 49 , 52-53 (D.Mass.1997)). In others — e.g., airline deregulation — the need for uniform air transit regulation works in common-sense fashion to displace contrary local initiatives. See DiFiore v. Am. Airlines, Inc.,646 F.3d 81 , 88 (1st Cir.2011), cert. denied, — U.S. -,132 S.Ct. 761 ,181 L.Ed.2d 483 (2011); Brown,720 F.3d at 66 . This case falls somewhere in between.
I. INTRODUCTION
Joseph Henning (“Henning”) brought suit against Wells Fargo Mortgage, N.A. (“Wells Fargo”)
A. Procedural Posture
On or around May 15, 2009, Henning filed the original complaint against Wachovia Mortgage Corporation (“Wachovia”), now Wells Fargo, in the Massachusetts Superior Court sitting in and for the County of Middlesex. Notice Removal ¶ 1, ECF No. 4-1. Wachovia removed the case to this court on June 19, 2009, id. at 5, where it was initially referred to Judge Ponsor, Elect. Notation, ECF No. 2. Wachovia answered the complaint on July 17, 2009, Answer Affirm. Defense, ECF No. 7, and moved for summary judgment on October 20, 2009, Mot. Summ. J., ECF No. 24. Henning’s opposition was filed on November 1, 2009, Pl.’s Opp. Mot. Summ. J., ECF No. 33.
On the same day as the amended complaint was filed, Judge Wolf consolidated Henning’s case with another action stemming from mortgages “for which Wachovia was allegedly responsible.” Bettinelli v. Wells Fargo Home Mortg., Inc., No. 09-11079-MLW,
On August 19, 2010, United States Judicial Panel on Multidistrict Litigation transferred the case to the Northern District of California. Conditional Transfer Order (CTO-5), ECF No. 60. The consolidated case reached a settlement, and because Henning timely opted out of the May 17, 2011 class-action settlement in that district, Judge Fogel ordered the case transferred back to the District of Massachusetts on June 9, 2011. Order Granting PL’s Mot. Vacate J. Transfer Case, ECF No. 69.
Henning filed a third amended complaint in the District of Massachusetts on August 29, 2012. Third Compl. The case was assigned to this Session after Judge Wolf took senior status on January 2, 2013. Clerk’s Note, ECF No. 82. This Court heard the motion to dismiss at issue on January 29, 2013. Clerk’s Note, ECF. No. 94.
B. Factual Allegations
Henning alleges the following facts. Henning executed a mortgage loan with
Henning further alleged that World failed to comply with certain statutory requirements during the application process. Specifically, he alleged that several forms required under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-17, are absent from his loan file, including a Good Faith Estimate (“GFE”), a Servicing Disclosure Statement, and a Notice of Assignment, Sale, or Transfer of Servicing Rights. Id. ¶ 9. Henning also alleged that the Initial Truth in Lending Statement & Itemization of Amount Financed form required under the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq., and its implementing regulations, 12 C.F.R. §§ 225.1 et seq. (“Regulation Z”), is also missing from the file. Id. Indeed, according to Henning’s allegations, World was unable to comply with TILA because the “subject loans are not actually indexed.” Id. ¶ 49.
Henning’s loan is of the Payment Option-Arm (“POA”) variety, known at World as the “Pick-A-Payment” program. Id. ¶ 15. By “mathematical manipulation of interest rates and ... back-ending most of the principle [sic],” lenders make the initial payments on these types of loans artificially low, allowing “almost anyone” to qualify. Id. ¶ 45. The adjustable rate note at issue allegedly fails adequately to disclose the possibility of negative amortization. Id. ¶ 29. Because of this negative amortization, Henning stated that he, among many other borrowers, faced initially low payments which would later be some three to four times higher, sometimes within a few months. Id. ¶ 46. Wells Fargo, as successor in interest to World, allegedly had “unlimited discretion” as to the index which determines the adjustable interest rate under the note. Id. ¶ 31.
Unsophisticated consumers like Henning were subject to purportedly aggressive and predatory marketing of POA loans. Id. at ¶ 45. World’s advertising was allegedly deceptive in that it focused on the low initial monthly payments without disclosing the risks of negative amortization and the adjustable rate. ' Id. ¶¶ 17-18. This purported deception was furthered by the loan documentation which used language that, according to Henning, World knew or
World approved Henning’s loan likely knowing, Henning alleges, that he did not qualify based on information he had provided to them. Id. ¶ 14. World incentivized such approval by offering commission pay to their underwriters and loan officers. Id. ¶48. World, Henning alleges, must have known that Henning would likely default, but proceeded to approve the loan anyway, without considering the falling real estate market and other loan products more appropriate for him. Id. ¶ 13.
Henning alleges that as a result of World’s actions, he has suffered the loss of equity, damage to his credit, and he faces impending foreclosure with resultant emotional' distress. Id. ¶ 10. He further alleges that because of World’s deceptive practices in advertising and the use of impenetrable language in mortgage documentation, Henning lost the opportunity to “comparison shop” for more appropriate loan alternatives, id. ¶ 33, and has incurred unlawful compound interest, id. ¶ 37.'
C. Federal Jurisdiction
Jurisdiction is proper under 28 U.S.C. section 1332(a) as the amount in controversy exceeds $75,000 and the parties are citizens of different states.
As to the amount in controversy, the face value of the loan well exceeds $75,000, id.. ¶ 3, and Henning originally pled $80,000 in damages, Commw. Mass Superior Ct. Dep’t. Trial Ct. Woburn, Ex. 3, Civil Action Cover Sheet, ECF No. 4-3. Complete diversity exists because Henning is a citizen of Massachusetts, Third Compl. ¶ 1, and Wachovia, the relevant party at the time this action was filed, is a federal savings bank with its home office in Nevada,
II. ANALYSIS
A. Legal Standard
A pleading must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). In order to survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead sufficient factual matter, accepted as true, “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
While a probability that the defendant is liable is not required, a plausible claim poses facts that, taken as true, give rise to a “reasonable expectation that discovery will reveal” liability. Twombly,
B. Federal Preemption
Wells Fargo urges that the Court should dismiss all of Henning’s substantive state-law claims because they are preempted by
1. Statutory Background
As a response to the Great Depression, when nearly half of all home loans were in default and credit was scarce, Congress enacted HOLA as “a radical and comprehensive response to the inadequacies of the existing state systems” of mortgage regulation. See Fidelity Fed. Sav. and Loan Ass’n v. de la Cuesta,
Under this broad grant of authority, OTS issued regulations which purport to preempt state law in the areas of federal savings regulation. Under 12 C.F.R. section 545.2, OTS declared its exclusive authority “to regulate all aspects of the operations of Federal savings associations,” which was “preemptive of any state law” addressing the same. Under 12 C.F.R. section 560.2(a) (“section 560.2(a)”), OTS signaled its authority to “occup[y] the entire field of lending regulation,” in order to “facilitate the safe and sound operation of federal savings associations,” and with the intent to give them “maximum flexibility to exercise their lending powers in accordance with a uniform federal scheme.” Id. § 560.2(a)
' The OTS regulations set forth a test to determine if HOLA preempts a state law. Id. § 560.2. A court must first consider whether the state law at issue is one of the illustrative examples which are definitively preempted under 12 C.F.R. section 560.2(b) (“section 560.2(b)”). Id. Preempted claims under paragraph (b) are numer
If not preempted by paragraph (b), the Court must consider whether the law in question “affects lending.” Dixon,
After the mortgage meltdown, however, Congress rethought the wisdom of the sweeping preemptive power it had conferred on the OTS. Dodd-Frank “significantly diminished the extent to which HOLA and its implementing regulations may preempt state law.” Id. at 91 n. 9 (citing Dodd-Frank §§ 1044, 1046 (limiting HOLA preemption to conflict, rather than field, preemption)); see also Roderick M. Hills, Jr., Exorcising McCulloch: The Conflict-Ridden History of American Banking Nationalism and Dodd-Frank Preemption, 161 U. Pa. L.Rev. 1235, 1287 (2013) (noting that Dodd-Frank likely repudiates field preemption). Courts have uniformly held, however, that the provisions of Dodd-Frank are not retroactive, and HOLA preemption applies to mortgages originated before either July 21, 2010 or July 21, 2011. Compare, e.g., id. at 1291 (effective date of July 21, 2011); Molosky v. Washington Mut., Inc.,
2. Count VII: Breach of Contract
Henning alleges that World breached its obligations under the relevant mortgages and notes by failing “to pay principal on the subject loans” as Henning made his biweekly payments. See Third Compl.-¶ 73; see also id. ¶ 46. While HOLA does not preempt Count VII, this Court dismisses it as Henning has failed plausibly to state a breach of contract.
Contract law does not necessarily “impose requirements” on lenders, and thus does not fall within the ambit of section 560.2(b). E.g., Sturgis,
The presumption of preemption is rebutted in this case. Contract law is not preempted so long as it only “incidentally affect[s] ... lending operations.” 12 C.F.R. § 560.2(c). Many courts have held that breach of contract claims are not preempted where they do not seek to impose requirements on lenders regarding the substance of the contract, but only hold the lender true to its word. E.g., Sturgis,
Here, Henning seeks only to hold Wells Fargo to obligations its predecessor in interest purportedly agreed to: the payment of principal coincident with Henning’s biweekly payments. See Third Compl. ¶ 73. Seeking to hold a contracting party to its word is not unique to the mortgage-lending realm. See Dixon,
While not preempted by HOLA, Henning fails to state a plausible breach of contract claim. Henning’s allegation that World breached an obligation to apply his monthly payment to the principal loan amount is flatly contradicted by the terms of the mortgage and note.
In the absence of fraud, a signatory to a contract is bound by its terms whether he has read and understood it or not. See Willens v. Univ. of Mass.,
In Davis v. World Sav. Bank, F.S.B., the court dismissed a breach of contract claim predicated on the defendant-lender’s failure to apply any portion of the plaintiff-borrower’s initial monthly payments to the principal of the subject POA-mortgage loan.
The allegations and express terms at issue here are strikingly similar to those the court considered in Davis. In the original mortgage, World promised to apply Henning’s bi-weekly payments to the principal amount only after applying it to: (1) prepayment charges under secured notes; (2) advances owed to the lender; (3) amounts due under the “Escrow Accounts” provision in the mortgage agreement; (4) interest due under secured notes; and (5) deferred interest due under secured notes. Aff. Lisa Beens Supp. Mot. Summ. J. (“Aff. Lisa Beens”), Ex. B, Mortgage ¶ 3, EOF No. 27-2. The note states that Henning’s initial bi-weekly payments “may not be sufficient to pay the entire amount of interest accruing on the unpaid [principal balance.” Aff. Lisa Beens Supp. Mot. Summ. J., Ex. A, Adjustable Rate Mort. Note ¶ 3(B), ECF No. 27-1. The note also states that when bi-weekly payments are insufficient to cover accrued interest, unpaid interest will be rolled into the principal to itself accrue interest. Id. ¶ 3(E).
These same express terms were present in Davis,
3. Count III: Breach of Implied Covenant of Good Faith and Fair Dealing
Henning bases his claim for breach of the implied covenant on World’s “piggy-back[ing]” an additional line-of-credit on his 2006 mortgage, using up all of the remaining equity in his property. PL’s Mem. Opp’n 6. According to Henning, this fact increased the likelihood of default and decreased his eligibility for refinancing. Id. Because Henning’s claim would effectively impose regulations on a lender, its effect on lending is more than incidental, it is inconsistent with the policy underlying section 560.2(a), and it is preempted by HOLA.
The implied covenant is present in every contract made in Massachusetts and requires that no party to a contract undertake actions which would prejudice the others in their enjoyment
Section 560.2(b) provides that HOLA preempts state law seeking to impose requirements regarding “[processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.” 12 C.F.R. § 560.2(b)(10). With his implied covenant claim, Henning essentially seeks to regulate whether a lender may offer additional loan products to a borrower after consummating a first mortgage. See PL’s Mem. Opp’n 6. A favorable ruling would have a greater than incidental effect on lenders regarding what may be offered to potentially over-leveraged borrowers and when. See 12 C.F.R. § 560.2(c); Remo v. Wachovia Mortg., No. C11-02935 TEH,
While not expressly preempted, Henning fails to rebut the presumption of preemption with respect to his implied covenant claim, which is accordingly dismissed.
4. Count I: Unjust Enrichment
“The doctrine of unjust enrichment exists in the hazy realm of quasi-contract and restitution.” Brown v. United Airlines, Inc.,
The first step in the HOLA preemption analysis is to determine whether a state-law claim is expressly preempted by section 560.2(b), and if it is, the analysis ends there. 61 Fed.Reg. 50,951, 50,966.
In Dixon, this Court considered whether HOLA preempted a state law claim for promissory estoppel. In that case, the plaintiff-borrower alleged that the defendant-lender promised that if plaintiff defaulted and provided certain financial information, the defendant would consider a loan modification in the plaintiffs behalf. Dixon,
The Court concluded that the claim was not expressly preempted by section 560.2(b) because it “s[ought] not to attack Wells Fargo’s underlying loan servicing policies and practices, but rather to hold the lender to its word, on which the Dixons relied to their detriment.” Id. at 357. The claim “relate[dj to” federal lending regulation, but did not “purport! ] to impose requirements” on the lender other than “to hold the lender to its word.” See id. at 357 (quoting 12 C.F.R. § 560.2(b)) (alteration in original).
The Court explained that because HOLA does not give rise to a private right of action, id. at 360, Congress could not have intended to preempt all state claims against lenders, but only those brought as a “clandestine way of imposing requirements on lenders.” Id. at 356; see Sturgis,
The next step requires an analysis whether Henning’s claim affects lending only incidentally, or if it is “otherwise consistent with the purposes of [section 560.2(a) ].” 12 C.F.R. § 560.2(c).
Undergirding Henning’s claim are allegations of conscious failure to disclose regarding negative amortization, shifting interest rates, deceptive use of impenetra
Section 560.2(b)(9) explicitly preempts matters of “[disclosure and advertising,” which appear to constitute the bulk of Henning’s allegations. See Silvas v. E*Trade Mortg. Corp.,
To say, for example, that the amount of information disclosed by World in this case was insufficient such that retention of any payments received is unjust would effectively be to “impose [disclosure] requirements” on a federal lender by, at minimum, delineating the impermissible level. Cf. Haehl,
Henning’s unjust ' enrichment claim is not “otherwise consistent with the purposes' of [section 560.2(a)].” Id. The OTS has expressed concern that inconsistent and conflicting requirements imposed on federal lenders by the application of differing state laws’ affecting lending runs counter to Congress’s intention that such requirements be uniform. 61 Fed.Reg. at 50,965. This was the original purpose behind HOLA’s enactment. de la Cuesta,
Count I, Henning’s unjust enrichment claim, is therefore dismissed as preempted by HOLA.
5. Count II: Equitable Relief
Henning claims equitable relief including “rescission oh reformation of his loan note and modification,” and an injunction removing the. loan from his credit history as well as stopping foreclosure on his home. Third Compl. ¶ 58. “[Allegations [that] actually describe the remedies sought by plaintiff ... do not constitute actionable claims.” Linton v. N.Y. Life Ins. & Annuity Corp.,
6. Count VI: Negligence Based on Federal Statutory Duties
Henning alleges that World violated RESPA and TILA through Regulation Z by failing to provide him with certain disclosure documents relevant to his loans. Third Compl. ¶¶ 9, 69-70. These violations, Henning asserts, constitute negligence under Massachusetts law, with the requisite duty established by federal statute. See id. ¶ 69-70. This claim is dismissed as preempted by HOLA.
Again, tort law is not expressly preempted under section 560.2(a) because it does not specifically attempt to impose requirements on lenders, but is of general applicability. See 12 C.F.R. § 560.2(a). It is exempted from HOLA preemption under section 560.2(c) if it only incidentally affects lending operations, or is “otherwise consistent with the purposes of [section 560.2(a) ].” Id.
Courts diverge in their treatment of state law actions based on TILA or RES-PA violations. Specific to negligence claims, many bypass the question of preemption, but dismiss the claim because TILA and RESPA, in and of themselves, do not establish a cognizable duty owed by lender to borrower. See, e.g., Broderick v. PNC Mortg. Corp., No. 11-10047-JLT,
The Ninth Circuit and its lower district courts have considered primarily consumer protection claims predicated on TILA or RESPA violations. Courts in that circuit have reasoned that such claims predicated on federal law are preempted by HOLA where allowing the claim would supplement the remedies available under the federal law by, for example, effectively extending the statute of limitations. Reyes,
This Court finds the Ninth Circuit’s approach to state law claims predicated on TILA and RESPA violations persuasive.
Common-law negligence has its own statute of limitations unique to Massachusetts, which could potentially extend the time in which TILA or RESPA based claims could be brought.
Henning’s negligence claim based on federal statutory duties is accordingly dismissed as preempted by HOLA and its implementing regulations.
7. Count V: Negligence Based on Massachusetts Statutory Duties
Henning claims that Wells Fargo and its agents have violated Massachusetts statutory duties and are thus negligent.
Tort law is state based and generally applicable, meaning that section 560.2(b) does not expressly preempt Henning’s negligence claim. See 12 C.F.R. § 560.2(b). Indeed, tort is listed in section 560.2(c) as an area of law specifically- exempted from HOLA preemption. Id. § 560.2(c)(4). The question of preemption, then, turns on whether Henning’s negligence claim has an incidental effect on lending or if it is “otherwise consistent with the purposes of [section 560.2(a)].” Id. § 560.2(c).
To establish negligence, a plaintiff must show that the defendant owed him or her a legal duty. Jorgensen v. Mass. Port Auth.,
Henning broadly alleges that Wells Fargo has violated a duty established by the Massachusetts Consumer Credit Cost Disclosure Act (“MCCCDA”), Mass. Gen. Laws ch. 140D, §§ 1-35, which regulates credit disclosures as its name suggests. Henning also cites Code of Massachusetts Regulations, title 940, section 8.05(2), which purports to regulate the disclosure practices of lenders, making it unfair and deceptive for a lender to fail to disclose facts which might influence a borrower’s decision. Id. Henning further attempts to establish duty based on Code of Massachusetts Regulations, title 940, section 8.06(1), which essentially mandates truthful disclosures by lenders and brokers, and Code of Massachusetts Regulations, title 940, section 8.06(17), which makes unfair and deceptive the issuance of a loan which is “not in the borrower’s interest” because the lender has an undisclosed conflict of interest with the borrower. 940 Mass.Code Regs. § 8.06(17).
While mindful of citizens’ rights under their own state’s laws, “courts must be wary of artfully pleaded attempts to use common-law claims as a clandestine way of imposing requirements on lenders that states otherwise could not enact through legislation or regulation.” Dixon,
The same result attaches with respect to the Massachusetts regulations with which Henning seeks to establish duty. All essentially purport to impose disclosure requirements on lenders by defining unfair or deceptive practices under chapter 93A. See infra Part II.B.8; United Cos. Lending Corp. v. Sargeant,
Henning’s negligence claim would have a greater than incidental effect on lenders because he attempts to impose requirements under the guise of state common law. See Jones,
8. Count IV: Violation of Massachusetts General Laws chapter 93A
While not expressly preempted under section 560.2(b), Henning’s chapter 93A claim affects lending, and fails to rebut the presumption of preemption under section 560.2(c) as its effect is more than incidental. Insofar as it is based on predatory lending as a deceptive practice, Pl.’s Mem. Opp’n 7, Henning’s chapter 93A claim is preempted and therefore dismissed.
Under Massachusetts consumer protection law, “unfair or deceptive acts or practices in the conduct of any trade or commerce” are unlawful. Mass. Gen. Laws ch. 93A, § 2(a). A victorious plaintiff is entitled to reasonable attorney’s fees under chapter 93A, and may receive treble damages if the defendant’s violation was willful or knowing. Id. § 9(3), (4). An aggrieved consumer must send a demand letter to a potential defendant at least thirty days prior to filing a complaint “identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered.” Id. § 9(3).
A session of this court has stated that “[s]tate laws prohibiting deceptive acts and practices in the course of commerce are not included in the illustrative list of preempted laws in § 560.2(b).” Sturgis,
Henning’s chapter 93A claim, however, appears to be based primarily on World’s predatory lending practices, Pl.’s Mem. Opp’n 7, meaning it affects lending, thus giving rise to a rebuttable presumption of preemption under section 560.2(c). Dixon,
As to state consumer protection laws, a court must consider “the relationship between federal and state laws as they are interpreted and applied, not merely as they are written.” Id. at 97 (quoting Carolyn J. Buck, Office of Thrift Supervision, California Unfair Competition Act, P-99-3 (Mar, 10, 1999), available at
Henning argues that World’s lending activity was predatory based on its similarity to the lending in Commonwealth v. Fremont Inv. & Loan,
Even if World’s lending was a chapter 93A violation under Massachusetts law, courts must be wary of attempts to use state law claims to impose regulations on federal lending institutions when such regulations would be preempted had the state done so through legislation. Dixon,
While chapter 93A is a state law of general applicability not dealing specifically with lending activity, the substance of Henning’s chapter 93A claim would have greater than an incidental effect on federal lenders. Courts must not allow litigants to regulate federal lenders under the guise of state law claims. See Dixon,
III. CONCLUSION
And so, Wells Fargo wins on a technicality. The Court never addresses the merits of this case and expresses no opinion thereon. Still, it is appropriate to point out that, were Henning to prove his case on the merits, the conduct of Wells Fargo would be shown to be nothing short of outrageous. On the other hand, perhaps if Wells Fargo addressed the merits, its conduct would be vindicated by fair-minded American jurors. A quick visit to Wells Fargo’s website confirms that it vigorously promotes itself as consumer friendly, Loans and Programs, page within Home Lending, wellsfargo.com, https://www. wellsfargo.com/mortgage/loan-programs/ (last visited September 17, 2013); a far cry from the hard-nosed win-at-any-cost stance it has adopted here.
The technical (and now obsolete) preemption defense upon which Wells Fargo relies is an affirmative defense which can be waived. See, e.g., Tompkins v. United Healthcare of New England,
ACCORDINGLY, it is ORDERED that Wells Fargo, within 30 days of the date of this order, shall submit a corporate resolution bearing the signature of its president and a majority of its board of directors that it stands behind the conduct of its skilled attorneys and wishes to avail itself of the technical preemption defense to defeat Henning’s claim.
Should it do so, judgment will enter for Wells Fargo. If no such resolution is filed, the Court will deem the preemption defense waived and both Wells Fargo and Henning will have the opportunity to address the merits (i.e., what really happened) at a trial before an American jury.
SO ORDERED
Notes
. Although Henning brought this action against Wachovia, F.S.B., "Wells Fargo, N.A. is the successor by merger to Wells Fargo Bank Southwest, N.A., fik/a Wachovia Mortgage, FSB., fyk/a World Savings Bank, F.S.B. ...” In re Currie, No. 11-17349-JNF,
. Wachovia filed a reply to Henning’s response on November 9, 2009, Reply Br. Supp. Mot. Summ. J., ECF No. 39, and Henning, in return, filed a sur-reply one week later, Pl.’s Sur-Reply Def.’s Mot. Summ. J., ECF No. 42.
. Stated income loans do not require the borrower to provide "documentation of his or her income.” Commonwealth v. Fremont Inv. & Loan,
. Diversity jurisdiction is determined by considering "the state of facts that existed at the time of filing.” Grupo Dataflux v. Atlas Global Group, L.P.,
. The loans at issue in this case originated in 2006 by World which was chartered as a federal savings bank, and was thus subject to OTS authority. Aff. Billie Charles Supp. Mot. Summ. J., Ex. B, Charter World Sav. Bank, F.S.B. §§ 1-4 ("Charter”), ECF No. 28-2; Aff. Billie Charles Supp. Mot. Summ. J., Ex. A, Certificate of Corporate Existence, ECF No. 28-1.
. Though there appears to be a dearth of circuit precedent on the issue, this Court need not weigh in on the debate regarding whether Dodd-Frank became effective as to mortgages on July 21, 2010 or 2011 because the loans at issue in the case originated in 2006, and the modification was in 2008. Third Compl. ¶¶ 3, 50.
. Henning urges that "in substance, all of [his] claims are based on misrepresentations by [World]. Pl.’s Mem. Opp’n 15. The complaint, however, is bereft of reference to any affirmative misrepresentations by World. See Third Compl. Also, to the extent his unjust enrichment claim is based on TILA or RESPA violations, these are essentially further disclosure requirements governed by federal law. Silvas v. E*Trade Mortg. Corp.,
. While this Court does not employ the same "as applied” approach to HOLA preemption that the Ninth Circuit uses, see Silvas,
. Though the Court need not reach the issue, there is some suggestion that Henning's claims would be time-barred under RESPA and TILA. Def.’s Mem. Supp. 8.
.As an aside, this Court is generally skeptical of imposing negligence duties based on statutes except under circumstances not present here. See Islam v. Option One Mortg. Corp.,
. Henning also alleges that World violated chapter 93A by "fail[ing] to make a reasonable settlement offer in response” to Henning’s written demand. Third Compl. ¶ 65. Henning's claim is dismissed insofar as it is based on this assertion because the response to a potential plaintiff’s written demand is permissive under the statute. Mass. Gen. Laws ch. 93A § 9(3) (“Any person receiving such a demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of. settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner.”).