MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On December 31, 2018, Stephen Luke Catarius, as the executor of his mothers estate, filed a complaint in the Superior Court against defendants Paula Carton and Newrez, LCC (d/b/a Shellpoint Mortgage Servicing) (Shellpoint). He alleged several causes of action, including fraud, “fraud in security transaction,” and a violation of G. L. c. 93A, based on a loan modification agreement entered into between Carton and Shellpoint without his knowledge or authorization. Shellpoint moved to dismiss the fraud claims and later moved for judgment on the pleadings on the 93A claim. A judge of the Superior Court granted the first motion, without prejudice, finding that the plaintiff failed to plead fraud with particularity, and a different judge allowed the second motion, holding that the plaintiff failed to state a plausible claim of unfair or deceptive practices. We affirm.
Background. Rose Marie Catarius died in March of 2011, leaving her estate, including a house in Bourne, to her nine children.
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In her will, she nominated two of her children, Stephen Luke Catarius and Paula Carton, as executors. Carton declined the role,
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leaving the plaintiff as the sole executor.
A mortgage encumbered the Bourne home. In August of 2017, despite having declined her role as executor, Carton entered into two agreements that, according to the plaintiff, altered the estates obligations to its detriment. Carton entered into a “Consent to Transfer and Non-Recourse Assumption Agreement” with Fannie Mae (transfer agreement), and a “Modification Agreement” with Shellpoint. The plaintiff learned of the agreements and reached out to Shellpoint via counsel seeking information about their validity without authorization from an executor.
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Shellpoint was initially unresponsive to the plaintiffs inquires, prompting the plaintiff to send a demand letter under G. L. c. 93A. Shellpoint then advised the plaintiff that it could not provide him with the requested information due to privacy laws. The plaintiff filed the present suit in response.
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Shellpoint filed a motion to dismiss all counts. After a hearing, the first judge allowed the motion as to the plaintiffs fraud claims. Shellpoint subsequently filed a motion for judgment on the pleadings, which the second judge allowed on the plaintiffs remaining c. 93A and breach of good faith and fair dealing counts. The plaintiff timely appealed.
Discussion. 1. Motion to dismiss fraud claims. The plaintiff challenges the dismissal of his fraud claims for their lack of particularity.
We review a motion to dismiss de novo. Buffalo-Water 1, LLC v. Fidelity Real Estate Co., LLC, 481 Mass. 13, 17 (2018). In determining whether a complaint can withstand a motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), “we accept as true the factual allegations in the plaintiffs complaint and attached exhibits” and “draw all reasonable inferences in the plaintiffs favor.” Id. “[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
When considering a rule 12 (b) (6) motion to dismiss a complaint alleging fraud, we must also ask whether the plaintiff has met the heightened pleading standard of Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974). See Equipment & Sys. for Indus., Inc. v. Northmeadows Constr. Co., 59 Mass. App. Ct. 931, 931-932 (2003). Under Mass. R. Civ. P. 9 (b), “the circumstances constituting fraud” must “be stated with particularity.” Jessie v. Boynston, 372 Mass. 293, 304 (1977). “At a minimum, a plaintiff alleging fraud must particularize the identity of the person(s) making the representation, the contents of the misrepresentation, and where and when it took place. In addition, the plaintiff should specify the materiality of the misrepresentation, its reliance thereon, and resulting harm.”
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Northmeadows Constr. Co., 59 Mass. App. Ct. at 931-932.
Count I of the plaintiffs complaint alleges fraud and asserts that Shellpoint and Carton “unlawfully executed” the mortgage modification despite knowledge that Carton lacked authority to act on behalf of the estate. Though he did not explicitly indicate so in his complaint, the plaintiffs brief suggests that this count is predicated on fraudulent concealment. Count II of the complaint alleges “fraud in security transaction” and asserts that Shellpoint and Carton “purposefully misrepresented material facts to the [p]laintiff” and “engaged in conduct designed to defraud, thwart and obscure the nature of the transaction.”
Absent from both counts is specificity about the information that Shellpoint allegedly misrepresented and concealed. See Northmeadows Constr. Co., supra at 931-932. And although less critical, both counts also lack specificity about the estates reliance on such misrepresentations and omissions and its resulting harm. See id. As the plaintiff failed to provide specific facts to support his allegations, the judge did not err in dismissing both counts.
2. Judgment on the pleadings on G. L. c. 93A claim. Second, the plaintiff challenges the entry of judgment on the pleadings in favor of Shellpoint on the c. 93A, § 9 claim.
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Count IV of the plaintiffs complaint asserts that Shellpoint “disregarded provisions of the [w]ill which ma[de] it clear that there were two executors of the [e]state” and that it had knowledge of the will because it referenced it in the transfer agreement. The plaintiff also alleges that Shellpoint “compound[ed]” its deception when it declined to provide the plaintiff with information about the modification.
We review a decision to grant judgment on the pleadings de novo. Jinks v. Credico (USA) LLC, 488 Mass. 691, 707 (2021). A defendants motion for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), is a request for dismissal of the complaint because it “fails to state a claim upon which relief can be granted.” Jarosz v. Palmer, 436 Mass. 526, 529 (2002), citing J.W. Smith & H.B. Zobel, Rules Practice § 12.16 (1974). The court may consider the complaint and any attached exhibits. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). We also assume that “all of the well-pleaded factual allegations of the nonmoving party are [ ] true.” Champa v. Weston Pub. Schs., 473 Mass. 86, 90 (2015).
The plaintiffs claim that Shellpoint knew of and disregarded his status as an executor under the will has no basis in the record. The plaintiff finds evidence of Shellpoints knowledge in its reference to the will in the transfer agreement. However, the record reveals that Carton entered into this agreement with Fannie Mae, not Shellpoint.
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Furthermore, the transfer agreement does not reference Rose Maries will, but rather her husband Edward Catariuss will.
As for the plaintiffs allegations regarding Shellpoints failure to divulge information related to the modification, the complaint is once again belied by the attachments to the complaint. Correspondence between the plaintiffs counsel and Shellpoint show that Shellpoint declined to provide the information plaintiff requested due to privacy law restrictions. Because the allegations in the complaint fail to demonstrate that Shellpoint knew about Stephens existence or status as executor, the plaintiffs claim that such behavior constituted an unlawful and deceptive “pattern of misconduct designed to thwart and obfuscate” the allegedly improper agreement, therefore, fails as well.
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We agree with the motion judge that the complaint and exhibits fail to show that Shellpoint engaged in an unfair or deceptive act or practice as required by G. L. c. 93A, § 9.
Judgments entered November 3, 2020, affirmed.
FOOTNOTES
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. She left the first $10,000 from the sale of the Bourne home to the plaintiff and divided the remainder of the estate equally between her children.
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. Due to an error, Cartons declination was not docketed until February of 2018.
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. As he alleges, he “sought answers as to how the [b]ank could modify, alter or amend a mortgage held on the [p]roperty without lawful authorization to do so by the [e]states executor, Stephen Luke Catarius.”
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. The complaint alleged the following causes of action: fraud, “fraud in security transaction,” breach of the covenant of good faith and fair dealing, and a violation of 93A. In an additional count, the plaintiff moved for special orders allowing the sale of the property. Only the fraud and 93A claims are at issue on appeal.
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. “Malice, intent, knowledge, and other conditions of a person may be averred generally.” Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974).
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. The defendants complaint did not specify the applicable section of G. L. c. 93A, however, his attached exhibits suggest that he sought relief under § 9.
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. The loan servicer listed on the agreement is Seterus, Inc.
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. The plaintiff focuses his arguments on the judges finding that the parties lacked privity because the estate was not a party to the agreement. Because our decision does not rest on this conclusion, we need not address the claim.