-Cash-For-Keys
-Attorney Eviction Fees
-Securing/Rekeying
-Foreclosure Expense
-Eviction Fee Costs
In 2014, Thuot, who was unaware that the foreclosure had not taken place, made an offer on a residence in Auburn, Massachusetts. In connection with this purchase, Thuot applied for a mortgage. Thuots application for a mortgage was declined, due to his ownership of the Property.
Deutsche Bank filed the following documents in the Worcester Registry of Deeds in 2016 and 2017:
-Affidavit Regarding Compliance with Mass. Gen. Laws Ch. 244 § 35B (April 28, 2016)
-Affidavit Regarding Note Secured By Mortgage To Be Foreclosed, in accordance with Mass. Gen. L., Ch. 244 § 35C (April 28, 2016)
-Affidavit Regarding Note Secured By Mortgage Being Foreclosed (April 26, 2017)
-Foreclosure Deed, including an Affidavit of Sale in compliance with Mass. Gen. Law, Ch. 244 § 14 (April 25, 2017)
Thuot does not believe any summary process action was ever filed in regards his tenancy at the Property. To date, Thuot has not reacquired possession of the Property. Thuot believes that Property has suffered significant damage and waste.
Discussion
Deutsche Bank asserts that: Thuots negligence claims (Count I-IV) must be dismissed because it owed him no duty, the economic loss doctrine bars recovery, the claims are based on false allegations and/or are barred by the statute of limitations. Deutsche Bank further assets that Thuots fraud claims (Counts V and VI) fail because they are barred by the statute of limitations, fail to plead the elements of fraud, and fail to plead fraud with particularity. As to Thuots Chapter 93A claim (Count VII), Deutsche Bank asserts it fails as a matter of law.
The Negligence Claims
Thuot asserts that Deutsche Bank is liable to him for negligence as a result of its failure to file affidavits with the registry of deeds certifying that it had complied with Mass. Gen. L. Ch. 244 § 35B (requiring public notice of intent to foreclose), Mass. Gen. L. Ch. 244, § 14 (requiring notice be filed in registry of deeds where entity claims interest in the mortgage through assignment), Mass. Gen. L. Ch. 244, § 35C (requiring filing with the registry of deeds certifying compliance with the statute, including that the creditor foreclosing attest that it is the actual mortgagee), and Mass. Gen. L. Ch. 244, § 15A (requiring that mortgagee who takes possession of property notify all residential tenants of such property).
Regarding Counts I-III, it is not necessary to address whether Deutsche Bank owed a duty to Thuot, or whether his claims are barred by the economic loss doctrine. Given the posture of Thuots allegations, I will focus instead on Deutsche Banks assertion that the claims are inherently incorrect, or are barred by the statute of limitations. Thuots claims are premised not on Deutsche Banks alleged failure to comply with its substantive obligations under various statutory requirements, but on its alleged failure to comply with a procedural obligation to file affidavits and/or certificates of compliance. The long and short of it is that Deutsche Bank has submitted copies of the affidavits and/or certificates of compliance that it filed with the Worcester Registry of Deeds. More specifically, Deutsche Bank has submitted copies of the following: (1) an Affidavit Regarding Compliance With Mass. Gen. L. Ch. 244, § 35B, (2) an Affidavit Regarding Note Secured By Mortgage To be Foreclosed Mass. Gen. L. Ch. 244, § 35C, (3) an Affidavit Regarding Note Secured By Mortgage being Foreclosed (indicating that Deutsche Bank was the holder of the Note secured by the Mortgage), and (4) the Foreclosure Deed and affidavit of compliance with Mass. Gen. L. Ch. 244, § 14. Since Thuots negligence claims asserted in Counts I-III are based on Deutsche Banks alleged failure to file the specified affidavits and/or certificates of compliance with the Worcester Registry of Deeds, I find, as a matter of law, that he has failed to state a plausible claim for negligence on these Counts.
Thuots claim for violation of Mass. Gen. L. Ch. 244, § 15A also fails, albeit on different grounds. Thuot asserts that Deutsche Bank violated Section 15A by failing to notify him, in his capacity as a residential tenant, within 30 days of having taken possession of the Property following his surrender. Thuots claim is based on Deutsche Banks alleged failure to notify him and the appropriate governmental agencies that it was taking possession of the Property in 2010. This claim is barred by the applicable three year statute of limitations. ,
Fraud Claims
In order to state a claim for fraud under Massachusetts law, a complaint must plead:
(1) that the statement was knowingly false; (2) that [defendant] made the false statement with the intent to deceive; (3) that the statement was material to the plaintiff[s] decision ...; (4) that the plaintiff[ ] reasonably relied on the statement; and (5) that the plaintiff[ ] w[as] injured as a result of [his] reliance.
Of course, the complaint must also pass muster under Fed.R.Civ.P. 9(b), which imposes a so-called particularity requirement. A complaint must, therefore, include specifics about "the time, place, and content of the alleged false representations.
Juarez v. Select Portfolio Servicing, Inc. , 708 F.3d 269, 279-80 (1st Cir. 2013).
A protracted discussion of Thuots fraud claim asserted in Count VI is not warranted. Thuot specifies one alleged instance [a]mong others of a concerted pattern of actions designed to fraudulently confuse and obfuscate [its] actions and Plaintiffs rights and responsibilities. See Verified Complaint , at ¶¶ 71-72 (emphasis supplied). He does not allege materiality, reasonable reliance or even injury. Id. , at ¶¶ 70-75. Suffice to say, he has failed to allege the essential elements of a claim for fraud and has failed to plead fraud with particularity.
Arguably, Thuots fraud claims asserted in Count V suffers from the same deficiencies. However, it is not necessary for me to make this determination. The allegations asserted in Count V all relate to conduct which occurred in 2010. The statute of limitations for fraud is three years. See Mass. Gen. L. Ch. 260, § 2A. The latest such cause of action can have said to accrue is 2013 when Thuot became aware he was still the owner of record with respect to the Property. Accordingly, the claim is barred by the statute of limitations.
The Chapter 93A Claim
As pled, Thuots Chapter 93A claim is based on the same alleged facts and theories on which he relied to support his negligence and fraud claims-that is, his Chapter 93A claim is entirely derivative of his other claims. Deutsche Bank asserts that since those claims fail, as a matter of law, his Chapter 93A claims must be dismissed. I agree. In so finding I note that Chapter 93A has a four year statute of limitations rather than the three year statute of limitations which applies to Thuots negligence and fraud claims. Nonetheless, Thuots Chapter 93A claims based on unfair and deceptive acts and practices which occurred in 2010 would also be barred under the longer statute of limitations applicable to Chapter 93A claims.
Conclusion
Defendants Motion To Dismiss (Docket No. 10) is granted.
Defendant has submitted the following extrinsic materials with their motion to dismiss, see Mem. Of L. In Supp. Of. Defs Mot. Dism. (Docket No. 11)(Defs Mot.): (1) a copy of the Assignment of Mortgage, see Defs Mot, at Ex. E ; (2) a copy of the Corrective Assignment, id. , at Ex. F ; (3) a copy of the Affidavit Regarding Compliance with Mass. Gen. L. Ch. 244, § 35B at Ex. G ; (4) a copy of the Affidavit Regarding Note Secured by Mortgage To Be Foreclosed Mass. Gen. L. Ch. 244, § 35C, id. , at Ex. H ; (5) a copy of the Affidavit Regarding Note Secured by Mortgage Being Foreclosed, id. at Ex. I ; and (6) a copy of the Foreclosure Deed, Affidavit of Sale and Foreclosure Publication Notice, id. at Ex. J. Parties are generally barred from including extrinsic material with a Rule 12(b)(6) motion to dismiss. Watterson v. Page , 987 F.2d 1, 3 (1st Cir. 1993) ; see Fed.R.Civ.P. 12(d) (if on motion under Rule 12(b)(6) matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56). However, courts may consider those documents the authenticity of which are not in dispute, such as public records, or documents substantially incorporated into a complaint by reference. Id. at 3-4 (internal citations omitted). All of the documents submitted by the Defendant are incorporated into the Complaint by reference and/or constitute public records. Therefore, the Court may consider all such documents without converting the motion into one for summary judgment.
The Foreclosure Deed filed by the Defendant includes an Affidavit of Sale and a copy of the Mortgagees Notice of Sale of Real Estate published in the Worcester Telegram and Gazette. The requisite assignments of the Mortgage to Defendant were also recorded in the Worcester Registry of Deeds.
As noted by Defendant, Thuots claim would have accrued at the latest in 2013 when, based on his own factual assertions, he became aware that no foreclosure had ever taken place and that he still was the record owner of the Property. He did not file his Complaint until April 2017.
In Flores v. OneWest Bank, F.S.B. , 886 F.3d 160 (1st Cir. 2018), the plaintiffs challenged the district courts finding that their claim that the foreclosure must be vacated due to a Section 15A violation was barred by the three year statute of limitations. The plaintiffs argued that under the Supreme Judicial Courts ruling in Bevilacqua v. Rodriguez , 460 Mass. 762, 955 N.E.2d 884 (2011), the three year statute of limitations did not apply because the foreclosure sale was a nullity. The First Circuit declined to address the statute of limitations issue, instead finding that failure to comply with Section 15A does not invalidate a foreclosure and therefore, plaintiffs failed to state a claim. Although it did not do so expressly, the First Circuit by implication confirmed that the three year statute of limitations set forth in Mass. Gen. L. Ch. 260, § 2A applies.