NATHANIEL M. GORTON, District Judge.
In accordance with Docket No. [54] the Report and Recommendations re [51] Report and Recommendations are adopted.
DEIN, United States Magistrate Judge.
The plaintiffs, Sabah Akar ("Akar"), her daughter Sawusan I. Akar, and two of
At the heart of the plaintiffs' claims are their allegations that the foreclosure sale was unlawful because Wells Fargo was not the holder of the mortgage at the time it initiated the foreclosure proceedings, and their allegations that Wells Fargo failed to honor its repeated promises not to fore-close while Akar's application for a loan modification remained pending. By their Second Amended Verified Complaint, the plaintiffs have asserted thirteen causes of action, which include the following claims against Harmon and Northeast Abstract: claims of wrongful foreclosure (Counts III, IV and VII), intentional infliction of emotional distress (Count XI), and unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A (Count XII); and claims against Harmon only for violation of the Fair Debt Collection Practices Act (Count II), and civil trespass (Count X).
The matter is presently before the court on "Defendants, Harmon Law Offices, P.C.'s and North East Abstract Company Inc.'s Motion [to] Dismiss Under Fed. R.Civ.P. 12(b)(6)" (Docket No. 44), by which Harmon and Northeast Abstract are seeking the dismissal of all of the claims asserted against them for failure to state a claim upon which relief can be granted.
When ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the
Akar is a single woman over the age of 60 who has little knowledge of the English language. (Compl. ¶ 1).
The mortgage identified Akar as the "Borrower," Pride as the "Lender," and Mortgage Electronic Registration Systems, Inc. ("MERS"),
The plaintiffs allege that Akar entered into a second mortgage loan with Pride, which consisted of an $80,000 equity line with a fixed interest rate of 12%, and a balloon payment of $69,000 that was never disclosed by the lender. (Id. ¶¶ 43-44). Although the foreclosure at issue in this case does not concern the second mortgage, the plaintiffs claim that Pride never warned Akar about the true costs of the Property. (Id. ¶ 43). According to the plaintiffs, the two mortgages together had a loan to value ratio of 95%, and they did not qualify for private mortgage insurance that would have protected the lender. (Id.). However, the plaintiffs have not alleged that any of the defendants named in this action were involved with the origination of the loans or had any relationship with Pride.
The plaintiffs allege that in the fall of 2006, shortly after Akar purchased the Property, Akar was involved in an automobile accident that rendered her unable to work. (Id. ¶ 65). Akar did not receive disability insurance, and had no other source of income. (Id.). The plaintiffs claim that on about January 12, 2007, Akar received a notice stating that Ohio Savings Bank had transferred the servicing of her loan to Wells Fargo Home Mortgage. (Id. ¶ 45). The notice did not indicate whether ownership of the loan had been transferred at that time as well. (Id.).
On about April 22, 2008, Harmon allegedly sent a letter to Akar in which it informed her that it had been retained by Wells Fargo to foreclose on the Property, and that Wells Fargo was accelerating her loan. (Id. ¶ 46). Harmon is a Massachusetts Professional Corporation that is engaged in the practice of law, and it was acting as counsel to Wells Fargo when it sent the April 22 letter to Akar. (See id. ¶ 19). The plaintiffs claim that at the time of the letter, both Harmon and Wells Fargo knew or should have known that there had been no valid assignment of the mortgage to Wells Fargo. (Id. ¶ 46). Nevertheless, on about April 23, 2008, Harmon, acting on behalf of Wells Fargo, filed a Complaint to Foreclose Mortgage in the Massachusetts Land Court Department of the Trial Court for purposes of foreclosing on the Property.
The Land Court complaint was filed pursuant to the Servicemembers Civil Relief Act, and it provided that Wells Fargo was "the assignee and holder of a mortgage with the statutory power of sale given by Sabah Akar to [MERS] dated August 25, 2006[.]" (Compl., Ex.
The plaintiffs contend that Akar subsequently made various attempts to avoid foreclosure. In particular, they allege that she requested a temporary forbearance of her mortgage obligations from Wells Fargo so that she could pursue the sale of the Property. (Id. ¶ 66). They also allege that Akar requested a moratorium or loan modification from Wells Fargo, and that she submitted a proposal for a short sale of the Property to Wells Fargo. (Id. ¶¶ 67-70). According to the plaintiffs, Wells Fargo rejected Akar's requests for a forbearance or restructuring of the loan. (Id. ¶¶ 66, 68). Moreover, although the defendant ultimately approved Akar's short sale proposal, the plaintiffs claim that Wells Fargo's delay in completing its approval process caused the short sale to fall through and deprived Akar of an opportunity to avoid foreclosure. (See id. ¶¶ 69-78). However, the plaintiffs do not allege that Harmon or Northeast Abstract participated in any of the negotiations between Akar and Wells Fargo, or advised Wells Fargo on any of these matters.
On August 22, 2008, the Land Court issued a notice to Akar informing her of Wells Fargo's pending complaint in the Land Court. (See Compl., Ex. 4). The notice provided in relevant part that Wells Fargo, "claiming to be the holder of a Mortgage" covering the Property, had filed a complaint for authority to foreclose on the mortgage, and that Akar had a right to object to such foreclosure if she was "entitled to the benefits of the Servicemembers Civil Relief Act as amended[.]" (Id.). The plaintiffs allege that at the time the Land Court issued the notice, both Harmon and Wells Fargo knew or should have known that Wells Fargo had no valid assignment of the mortgage, and therefore lacked the legal authority to foreclose on the Property. (See Compl. ¶¶ 50, 62).
Subsequently, on about September 18, 2008, Harmon, acting as the attorney for Wells Fargo, sent Akar a "Notice of Intention to Foreclose Mortgage and of Deficiency After Foreclosure of Mortgage." (Id. ¶ 52 and Ex. 5 thereto). Therein, Harmon informed Akar of "the intention of Wells Fargo Bank, NA, on or after October 21, 2008, to foreclose by sale under power of sale for breach of conditions, the mortgage held by it" on the Property. (Compl., Ex. 5 at 2). Although Harmon stated that Wells Fargo was the present holder of the mortgage, it provided no specific reference to an assignment of the mortgage to Wells Fargo. (Compl. ¶ 52 and Ex. 5 thereto). In any event, no foreclosure sale of the Property occurred on October 21, 2008. (See Compl. ¶ 59).
The record shows that on September 22, 2008, MERS assigned Akar's mortgage to Wells Fargo by executing an Assignment of Mortgage in favor of the defendant. (Compl. ¶ 63 and Ex. 9 thereto). The Assignment was recorded in the Norfolk County Registry of Deeds on September 24, 2008. (Compl., Ex. 9).
On October 15, 2008, the Land Court rendered a judgment on Wells Fargo's Complaint to Foreclose Mortgage. (Compl., Ex. 3). Therein, the Land Court determined that Akar was not entitled to the benefits of the Servicemembers Civil
The plaintiffs allege that Akar submitted a loan modification request to Wells Fargo on December 19, 2008. (Compl. ¶ 79). Following the submission, Akar's counsel made numerous calls to Wells Fargo to check on the status of the application. (Id. ¶ 80). According to the plaintiffs, Akar's counsel was told repeatedly that the file was under review, and that the reviewer was aware of the pending foreclosure. (Id. ¶ 80). The plaintiffs do not allege that Harmon or Northeast Abstract were involved in these discussions or that they had any knowledge of them.
On about January 8, 2009, Harmon, acting in its capacity as the attorney to Wells Fargo, sent Akar a second "Notice of Intention to Foreclose Mortgage and of Deficiency After Foreclosure of Mortgage." (Id. ¶ 53 and Ex. 6 thereto). Therein, Harmon informed the plaintiff of Wells Fargo's intent to foreclose on the Property, pursuant to the statutory power of sale, on or after February 10, 2009. (Compl., Ex. 6 at 2). It also stated that Wells Fargo was the present holder of the mortgage, but provided no specific reference to the assignment of the mortgage to Wells Fargo. (Compl. ¶ 53 and Ex. 6 thereto). As detailed above, Wells Fargo had obtained an assignment of the mortgage from MERS by the time Harmon sent the second Notice to Akar in January 2009.
In its capacity as counsel to Wells Fargo, Harmon also arranged for a Notice of Mortgagee's Sale of Real Estate to be published in the Stoughton Journal on January 16, 23 and 30, 2009. (Compl. ¶ 56 and Ex. 7 thereto). The Notice identified Wells Fargo as the holder of the mortgage for the Property, and provided that a public auction of the Property would take place on February 10, 2009 for the purpose of foreclosure. (Id.). The plaintiffs contend that as a result of the publication of the Notice in the newspaper, and the defendants' listing of the Property on a website of "bank-owned" property, numerous individuals entered the Property without permission, took photographs and peered into the windows of Akar's home. (Id. ¶¶ 174-76). They also allege that on more than one occasion, individuals rang the doorbell and asked to enter the home. (Id. ¶ 176).
On about January 21, 2009, Harmon allegedly sent Akar a letter in which it offered the plaintiff "certain opportunities to avoid foreclosure," including an opportunity to seek a loan modification. (Id. ¶ 57). At that time, however, Akar's application for a loan modification had already been submitted to Wells Fargo. (See id. ¶¶ 79-80). Accordingly, Harmon was notified that the matter was pending before Wells Fargo. (Id. ¶ 57).
The plaintiffs claim that Wells Fargo mishandled Akar's application for a loan modification, and that Wells Fargo representatives repeatedly made false representations, on which Akar relied, that the foreclosure sale scheduled for February 10, 2009 would be postponed if no decision had been made on Akar's application. (See id. ¶¶ 79-85, 121). However, the plaintiffs have alleged no facts indicating that Harmon or Northeast Abstract had any involvement with Akar's loan modification application. Nor have they alleged any facts which would indicate that Harmon or Northeast Abstract was responsible for any statements regarding the postponement of the foreclosure sale.
Despite Wells Fargo's alleged representations, a foreclosure sale of the Property
The plaintiffs also allege that in connection with the foreclosure sale, an attorney for Wells Fargo entered the Property pursuant to a Certificate of Entry, but without permission from Akar. (Id. ¶¶ 61,177). Allegedly, the Certificate of Entry provided that Wells Fargo was the current holder of the mortgage for the Property, but made no reference to an assignment of the mortgage to Wells Fargo. (Id. ¶ 61). Notwithstanding their allegations regarding the assignment of the mortgage to Wells Fargo in September 2008, the plaintiffs contend that Wells Fargo had no "validly assigned mortgage and therefore no valid right of entry under a power of sale." (Id. ¶ 177).
Allegedly, Wells Fargo transferred ownership of the Property to Fannie Mae on February 20, 2009. (Id. ¶ 59). On February 26, 2009, plaintiffs' counsel allegedly contacted Harmon to inform it that an independent third party was interested in purchasing the Property. (Id. ¶ 86). However, on April 15, 2009, Harmon notified Akar that Fannie Mae was presently unwilling to entertain any offers to purchase the Property, and that it did not intend to place the Property on the market until it was vacant. (Id. ¶ 87). Shortly thereafter, on April 27, 2009, the plaintiffs were served with a 72 Hour Notice to Quit and Vacate the Premises, which was signed by an attorney at Harmon. (Id. ¶ 88).
Akar continued to negotiate with Harmon and Fannie Mae concerning the possibility of selling the Property to an independent third party. (Id. ¶ 89). As of October 2009, when the third-party offer was submitted, the Property allegedly had an appraised value of $280,000. (Id. ¶ 91). However, the plaintiffs claim that Fannie Mae refused to sell the Property for less than the full amount owed on the loan, which was $361,831.49 as of December 10, 2009. (Id. ¶ 89). According to the plaintiffs, neither Wells Fargo nor Fannie Mae has explained the basis for Fannie Mae's assertion as to the amount that remains owing on the loan. (Id. ¶ 90).
Additional factual details relevant to this court's analysis are provided below where appropriate.
Harmon and Northeast Abstract have moved, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss each of the claims asserted against them in the Second Amended Verified Complaint. Those claims include claims against both defendants for wrongful foreclosure in violation of Mass. Gen. Laws ch. 244, § 14 and the duty of good faith and reasonable diligence (Counts III-IV), wrongful foreclosure based on bad faith (Count VII), intentional infliction of emotional distress (Count XI), and unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A (Count XII). They also include claims against Harmon for violation of the Fair Debt Collection Practices Act (Count II) and civil trespass (Count X). For the reasons that follow, this court recommends that all of these claims be dismissed, except for Count II against Harmon under the Fair Debt Collection Practices Act.
Motions to dismiss under Rule 12(b)(6) test the sufficiency of the pleadings. Thus, when confronted with a motion to
Two underlying principles must guide the court's assessment as to the adequacy of the pleadings to support a claim for relief. Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.2009). "`First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' Such conclusory statements are `not entitled to the assumption of truth.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (internal citations omitted). "`Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.'" Id. (quoting Ashcroft, 129 S.Ct. at 1950). "This second principle recognizes that the court's assessment of the pleadings is `context-specific,' requiring `the reviewing court to draw on its judicial experience and common sense.' `[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not show[n] — that the pleader is entitled to relief.'" Id. (quoting Ashcroft, 129 S.Ct. at 1950) (internal quotations and citation omitted; alterations in original).
In Count II, the plaintiffs are seeking to hold Harmon liable under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). That statute "prohibits `debt collector[s]' from making false or misleading representations and from engaging in various abusive and unfair practices." Heintz v. Jenkins, 514 U.S. 291, 292, 115 S.Ct. 1489, 1490, 131 L.Ed.2d 395 (1995) (alteration in original). The plaintiffs claim that Harmon is a debt collector within the meaning of the FDCPA, and that it violated several provisions of the FDCPA "[b]y sending communications on behalf of an entity that was not the proper holder of an assignment at that time[.]" (Compl. ¶¶ 98, 102-04).
Harmon has moved to dismiss this claim on the ground that it is barred by the litigation privilege. Additionally, Harmon contends that the FDCPA claim must fail because its communications were proper, and because the foreclosure was legally valid. For the reasons that follow, Harmon's arguments do not support the dismissal of the plaintiffs' claim against it under the FDCPA. Accordingly, this court recommends that the motion to dismiss be denied with respect to Count II.
Harmon argues, as an initial matter, that it is protected from liability under the FDCPA by the litigation privilege. That privilege provides "`that statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding.'" Visnick v. Caulfield, 73 Mass.App.Ct. 809, 812, 901 N.E.2d 1261, 1263 (2009) (quoting Sriberg v. Raymond, 370 Mass. 105, 108, 345 N.E.2d 882 (1976)). "`The [litigation] privilege extends to circumstances where the statements are made preliminary to a proposed or contemplated judicial proceeding as long as they bear some relation to the proceeding.'" Id. at 812, 901 N.E.2d at 1264 (quoting Fisher v. Lint, 69 Mass.App.Ct. 360,
While the litigation privilege may be relied on to bar state common law claims based on statements that relate to judicial proceedings, Harmon has not shown that it can be invoked to preclude claims under the FDCPA. Cf. Visnick, 73 Mass.App.Ct. at 813, 901 N.E.2d at 1264-65 (finding that litigation privilege barred common law claims). "All circuits to consider the issue, except for the Eleventh, have recognized the general principle that the FDCPA applies to the litigation activities of attorneys who qualify as debt collectors under the statutory definition." Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 232 (4th Cir.2007) (citing cases). Additionally, "[t]he statutory text makes clear that there is no blanket common law litigation immunity from the requirements of the FDCPA." Id. at 230. See also Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 369 (3d Cir.2011) (finding that "the FDCPA does not contain an exemption from liability for common law privileges[,]" and that a state law "litigation privilege does not absolve a debt collector from liability under the FDCPA"). Accordingly, Harmon has not demonstrated that the litigation privilege warrants the dismissal of the plaintiffs' claim against it under the FDCPA.
Harmon argues that Count II nevertheless must be dismissed because the communications at issue were proper. In particular, Harmon contends that any communications it sent to Akar prior to the assignment of the mortgage to Wells Fargo "predate the decision rendered by the Land Court in U.S. Bank Nat'l Ass'n v. Ibanez, 2009 WL 795201 (Land Court, 2009)." (Def. Mem. (Docket No. 45) at 10). In that case the Land Court held that foreclosure sales were invalid because neither of the foreclosing entities "had been assigned the mortgages at the time notice was published and sale took place." U.S. Bank Nat'l Ass'n, 2009 WL 795201, at *2. Harmon argues that prior to Ibanez, "as a general practice, assignments of mortgage were routinely executed after the foreclosure sale was conducted[.]" (Def. Mem. at 10). Therefore, Harmon asserts, its communications were proper and cannot give rise to a claim of misrepresentation under the FDCPA.
Harmon's argument is unpersuasive. The issue raised by the plaintiffs' claim under the FDCPA is not whether the communications at issue were consistent with common practice or not clearly unlawful under Massachusetts law at the time they were sent. Rather, the issue is whether those communications, through which Harmon allegedly was attempting to collect a debt on behalf of an entity that had not yet been assigned the mortgage, violated the provisions of the FDCPA. Because the defendant has not attempted to address that issue, it has not shown that the claim should be dismissed at this stage in the litigation.
Harmon's argument that the foreclosure sale was valid is similarly insufficient to support the dismissal of Count II. The question whether the foreclosure itself was
In Counts III, IV and VII of their complaint, the plaintiffs have asserted claims against Harmon and Northeast Abstract for wrongful foreclosure. Specifically, in Count III, they claim that "Harmon/Northeast Abstract" conducted an unlawful foreclosure sale of the Property because neither Wells Fargo nor Harmon possessed a written assignment of Akar's mortgage at the time the foreclosure proceedings commenced. (See Compl. ¶¶ 107-112). Similarly, in Count IV, the plaintiffs claim that "Harmon/Northeast Abstract" breached a duty of good faith and reasonable diligence by commencing the foreclosure proceedings before there was a valid assignment of the mortgage to Wells Fargo, (see id. ¶¶ 114-119), and in Count VII, they claim that the foreclosure sale was conducted in bad faith because it was "wrongful under Massachusetts law[.]" (Id. ¶ 144). As described below, this court finds that the claims against Northeast Abstract should be dismissed because the plaintiffs have not alleged any facts implicating that defendant in the challenged foreclosure proceedings. This court also finds that because Wells Fargo had the legal authority to foreclose on the Property on February 10, 2009, the plaintiffs' wrongful foreclosure claims against Harmon must fail as well.
This court finds, as an initial matter, that the plaintiffs have failed to state a
In a footnote contained in the complaint, the plaintiffs state as follows:
(Compl. ¶ 47 n. 6). However, there are no facts set forth in the body of the complaint to substantiate the plaintiffs' suggestion that the defendants are "alter-ego[s] of each other" or are involved in any kind of "incestuous" relationship. Nor have the plaintiffs identified any documents that identify Northeast Abstract as having been involved in the foreclosure of the Property. Accordingly, this court recommends that the wrongful foreclosure claims asserted against Northeast Abstract in Counts III, IV and VII be dismissed.
Harmon argues that the wrongful foreclosure claims against it also must fail because there was a valid foreclosure of the Property pursuant to the statutory power of sale. This court agrees for the reasons that follow.
"Where a mortgage grants a mortgage holder the power of sale, as did ... the [Akar] mortgage[], it includes by reference the power of sale set out in G.L. c. 183, § 21, and further regulated by G.L. ch. 244, §§ 11-17C." U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 646, 941 N.E.2d 40, 49 (2011). Pursuant to the statutory scheme,
Id. (quoting Mass. Gen. Laws ch. 183, § 21). Due to the "substantial power that the statutory scheme affords to a mortgage holder to foreclose without immediate judicial oversight," Massachusetts law requires that "`one who sells under a power [of sale] must follow strictly its terms. If he fails to do so there is no valid execution
"One of the terms of the power of sale that must be strictly adhered to is the restriction on who is entitled to foreclose." Id. at 647, 941 N.E.2d at 50. Under Mass. Gen. Laws ch. 183, § 21, "[t]he `statutory power of sale' can be exercised by `the mortgagee or his executors, administrators, successors or assigns.'" Id. (quoting Mass. Gen. Laws. ch. 183, § 21). Similarly, under Mass. Gen. Laws ch. 244, § 14,
Id. (quoting Mass. Gen. Laws ch. 244, § 14) (alteration in original). Thus, "only a present holder of the mortgage is authorized to foreclose on the mortgaged property[.]" Id. at 648, 941 N.E.2d at 50.
"A related statutory requirement that must be strictly adhered to in a foreclosure by power of sale is the notice requirement articulated in G.L. c. 244, § 14." Id. at 647, 941 N.E.2d at 50. Pursuant to that provision,
Id. (quoting Mass. Gen. Laws ch. 244, § 14). "Because only a present holder of the mortgage is authorized to foreclose on the mortgaged property, and because the mortgagor is entitled to know who is foreclosing and selling the property," the holder of the mortgage must be identified in the notice of sale, and any failure to do so "may render ... the foreclosure sale void." Id. at 648, 941 N.E.2d at 50. The key, therefore, "is that the foreclosing entity must hold the mortgage at the time of the notice and sale in order accurately to identify itself as the present holder in the notice and in order to have the authority to foreclose under the power of sale...." Id. at 651, 941 N.E.2d at 53.
In the instant case, the plaintiffs have alleged that Wells Fargo was the holder of Akar's mortgage at the time of the notice and subsequent foreclosure sale of the Property. Specifically, the plaintiffs allege that Akar's mortgage was assigned to Wells Fargo on September 22, 2008 and recorded on September 24, 2008. (Compl. ¶ 63 and Ex. 9 thereto). They also allege that subsequent to the assignment, in January 2009, Harmon notified Akar of Wells Fargo's intent to foreclose on the Property on February 10, 2009 by way of a public auction. (Compl., Ex. 6). Harmon also arranged for notices of the foreclosure auction to be published in the local newspaper. (Compl. ¶ 56 and Ex. 7). Those notices properly identified Wells Fargo as the holder of the mortgage for the Property. (Compl., Ex. 7).
As described above, "Massachusetts law requires only that the assignment of mortgage be executed and recorded prior to the publication of the notice of sale." Kiah v. Aurora Loan Servs., LLC, Civil Action No. 10-40161-FDS, 2011 WL 841282, at *6 (D.Mass. Mar. 4, 2011). Because Wells Fargo had a valid assignment of Akar's mortgage at the time of the notice of sale,
The fact that Harmon filed a Complaint to Foreclose Mortgage in the Land Court in April 2008 does not alter this court's conclusion that the foreclosure proceedings were valid. The Land Court proceeding was filed pursuant to the Servicemembers Civil Relief Act ("Servicemembers Act"), "which restricts foreclosures against active duty members of the uniformed services." U.S. Bank Nat'l Ass'n, 458 Mass. at 642, 941 N.E.2d at 47. Under Massachusetts law, "actions taken to comply with the [Servicemembers Act]... are not in themselves mortgage foreclosure proceedings in any ordinary sense. Rather, they occur independently of the actual foreclosure itself and of any judicial proceedings determinative of the general validity of the foreclosure." Beaton v. Land Court, 367 Mass. 385, 390, 326 N.E.2d 302, 305 (1975). See also U.S. Bank Nat'l Ass'n, 458 Mass. at 642 n. 13, 941 N.E.2d at 47 n. 13 (explaining that "a mortgage holder is required to go to court to obtain a judgment declaring that the mortgagor is not a beneficiary of the Servicemembers Act before proceeding to foreclosure" (emphasis added)). As the Supreme Judicial Court of Massachusetts has further explained, the Servicemembers Act, as amended,
Beaton, 367 Mass. at 390, 326 N.E.2d at 305 (citations omitted). Accordingly, the Land Court action did not mark the commencement of foreclosure proceedings, and the fact that Wells Fargo did not obtain a valid assignment of Akar's mortgage until September 2009, five months after the Land Court action was filed, does not render the foreclosure sale unlawful.
In Count X, the plaintiffs are seeking to hold Harmon liable for civil trespass. Specifically, the plaintiffs claim that Harmon committed the alleged trespass on February 10, 2009, when its representative entered the Property to conduct the foreclosure sale "without having a validly assigned mortgage and therefore no valid right of entry under a power of sale." (Compl. ¶ 177). Additionally, they claim that Harmon should be held liable for trespass because its actions in advertising the foreclosure sale in the newspaper and listing
"To support an action of trespass... it is necessary to prove the actual possession of the plaintiff, and an illegal entry by the defendant." New England Box Co. v. C & R Constr. Co., 313 Mass. 696, 707, 49 N.E.2d 121, 128 (1943) (quotations and citations omitted). As described above with respect to the plaintiffs' wrongful foreclosure claims, Wells Fargo had a valid assignment of the mortgage and the legal authority to conduct the foreclosure sale February 10, 2009 under Massachusetts law. Therefore, Harmon's entry onto the Property for the purpose of carrying out the sale on behalf of Wells Fargo was legal and did not constitute a trespass. Furthermore, under Massachusetts law, Wells Fargo was required to provide advance notice of the foreclosure sale, and to publish such notice in the newspaper. See U.S. Bank Nat'l Assoc., 458 Mass. at 647, 941 N.E.2d at 50 (describing statutory notice requirements set forth in Mass. Gen. Laws ch. 244, § 14). Accordingly, Harmon's actions in advertising the foreclosure sale were legal and do not support a claim for trespass based on the theory that its advertisements on behalf of Wells Fargo caused third parties to enter onto the Property.
Harmon and Northeast Abstract also have moved to dismiss the plaintiffs' claims, asserted in Count XI of the complaint, for intentional infliction of emotional distress. In order to state a claim for intentional infliction of emotional distress, the plaintiffs must allege "`(1) that the defendant intended to cause, or should have known that his conduct would cause, emotional distress; (2) that the defendant's conduct was extreme and outrageous; (3) that the defendant's conduct caused the plaintiff[s'] distress; and (4) that the plaintiff[s] suffered severe distress.'" O'Neil v. Daimlerchrysler Corp., 538 F.Supp.2d 304, 320 (D.Mass.2008) (quoting Sena v. Commonwealth, 417 Mass. 250, 263-64, 629 N.E.2d 986, 993 (1994)). Moreover, "`[t]o be considered extreme and outrageous, the defendant's conduct must be beyond all bounds of decency and ... utterly intolerable in a civilized community. Liability cannot be founded upon mere insults, threats, or annoyances.'" Id. (quoting Sena, 417 Mass. at 264, 629 N.E.2d at 993). This court finds that the plaintiffs have failed to state such a claim against either of the defendants.
With respect to Northeast Abstract, this court finds that the plaintiffs have failed to allege any facts that would support a claim against that defendant for intentional infliction of emotional distress. As described above, the plaintiffs have not alleged any facts implicating Northeast Abstract in the foreclosure proceedings. Nor have they alleged any facts to suggest that Northeast Abstract participated in any other conduct that could have caused the plaintiffs to suffer emotional distress. Therefore, this court recommends that the claim asserted against Northeast Abstract in Count XI be dismissed. The plaintiffs' claim against Harmon is similarly insufficient to survive the defendants' motion to dismiss. As set forth above, in order to state claim for intentional infliction of emotional
In Count XII of their complaint, the plaintiffs claim that Harmon and Northeast Abstract, "[b]y engaging in the conduct complained of in this complaint, ... engaged in unfair and deceptive acts or practices in violation of [Mass. Gen. Laws] c. 93A §§ 2 and 9." (Compl. ¶ 187). This court finds that the plaintiffs have failed to state a claim against Harmon or Northeast Abstract under Mass. Gen. Laws ch. 93A.
Harmon argues that the plaintiffs' claim against it under Chapter 93A must fail because "Harmon's conduct in this matter does not constitute `trade or commerce' within the meaning of the statute." (Def. Mem. at 17). This court agrees. Chapter 93A prohibits "`unfair or deceptive acts or practices in the conduct of any trade or commerce.'" Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436, 439, 689 N.E.2d 774, 778 (1998) (quoting Mass. Gen. Laws ch. 93A, § 2(a)). "A party is engaging in `trade or commerce,' as required under c. 93A, when it acts in a `business context.'" Id. (quoting Lantner v. Carson, 374 Mass. 606, 611, 373 N.E.2d 973 (1978)). Thus, "Chapter 93A claims can be brought against an attorney or a law firm," but only when the attorney or law firm is "acting in a business context vis-a-vis the plaintiffs." Tomaselli v. Beaulieu, Civil Action No. 08-CV-10666-PBS, 2010 WL 2105347, at *8 (D.Mass. May 7, 2010) (slip op.).
Because the plaintiffs have not identified any conduct by Northeast Abstract that could give rise to a claim against it under Chapter 93A, the plaintiffs' claim against that defendant should be dismissed as well. In order to state a claim under Chapter 93A, "some form of deceptive or unfair conduct must be alleged." States Res. Corp. v. The Architectural Team, Inc., 433 F.3d 73, 84 (1st Cir.2005). "`[A] practice or act will be unfair under [Chapter 93A] if it is (1) within the penumbra of a common law, statutory, or other established concept of unfairness; (2) immoral, unethical, oppressive, or unscrupulous; or (3) causes substantial injury to competitors or other business people.'" Morrison v. Toys "R" Us, Inc., 441 Mass. 451, 457, 806 N.E.2d 388, 392 (2004) (quoting Heller Fin. v. Ins. Co. of N. Am., 410 Mass. 400, 408, 573 N.E.2d 8 (1991)). "A practice may be deceptive if it reasonably could be found to have caused the plaintiff to act differently than he otherwise would have acted." Duclersaint v. Fed. Nat'l Mortg. Ass'n, 427 Mass. 809, 814, 696 N.E.2d 536, 540 (1998). Here, however, the plaintiffs have not alleged any facts indicating that Northeast Abstract was even involved in the circumstances giving rise to this litigation. Accordingly, they have failed to allege that Northeast Abstract engaged in any unfair or deceptive conduct in violation of Chapter 93A.
For all the reasons described above, this court recommends to the District Judge to whom this case is assigned that "Defendants, Harmon Law Offices, P.C.'s and North East Abstract Company Inc.'s Motion [to] Dismiss Under Fed.R.Civ.P. 12(b)(6)" (Docket No. 44) be ALLOWED IN PART and DENIED IN PART. Specifically, this court recommends that the motion be denied with respect to Count II, in which the plaintiffs have asserted a claim against Harmon under the Fair Debt Collection Practices Act, but that the motion otherwise be allowed.
December 1, 2011
