Nathaniel M. Gorton, United States District Judge.
This case involves an attempt by Robert P. Marley, II ("plaintiff" or "Marley") to discharge a mortgage encumbering his property in Lynnfield, Massachusetts. The Bank of New York Mellon ("defendant" or "BNY Mellon") successfully moved to intervene in the case while it was in state court and now seeks to dismiss plaintiff's petition.
Pending before the Court are defendant's motion to dismiss plaintiff's claims and plaintiff's motion to remand the case to state court. Also pending are plaintiff's motions for a stay or an extension of time to file a response to defendant's motion to dismiss and for a scheduling order. For the reasons that follow, 1) defendant's motion to dismiss will be allowed, 2) plaintiff's motion to remand will be denied and 3) plaintiff's motions for a stay or an extension of time and for a scheduling order will be denied as moot.
In January, 2016, Marley filed a petition, pursuant to M.G.L. c. 240, § 15(a)-(b), in the Massachusetts Superior Court for Essex County, to discharge a mortgage on real property that he owns at 18 Lakeview Drive in Lynnfield, Massachusetts. Initially, Marley listed no respondents to the case but, after a court order directing him to do so, Marley served several interested parties, including BNY Mellon, with notice of his petition.
Back in state court, in December, 2016, BNY Mellon successfully moved to intervene in the case because it had been assigned the subject mortgage. The Superior Court then directed the other interested parties who had been served to move to intervene on or before January 9, 2017. No other parties so moved and, as a result, BNY Mellon became the only respondent in the case.
On January 12, 2017, BNY Mellon again removed the case to this Court and it was assigned to this session. The following week, BNY Mellon moved to dismiss Marley's petition for failure to state a claim upon which relief can be granted. Marley did not oppose the motion but instead filed a motion to stay the case or, alternatively, to extend the time allotted for a response because he was recovering from surgery. Two weeks later, in March, 2017, Marley filed a motion for a scheduling order and a motion to remand the case. This memorandum addresses all four pending motions.
Plaintiff moves to remand the case, pursuant to 28 U.S.C. § 1446(b)(1), on grounds that the removal was untimely and that the order entered by Chief Judge Saris previously remanding the case prevents BNY Mellon from removing it a second time.
Plaintiff's first contention, that defendant's notice of removal was untimely, is unpersuasive. Defendant removed the case pursuant to 28 U.S.C. § 1446(b)(3) not, as plaintiff claims, 28 U.S.C. § 1446(b)(1).
Second, plaintiff asserts that defendant's instant attempt to remove is, in effect, an improper appeal of the first remand order in violation of § 1447(d). The Court disagrees.
28 U.S.C. § 1447(d) provides that:
Here, grounds for removal did not exist until January, 2017, when no other interested parties filed motions to intervene in the action filed in state court, leaving defendant as the sole opposing party in that case. The unanimity issue that jeopardized removal the first time was no longer viable. Therefore, defendant is permitted to remove the case a second time.
To survive a motion to dismiss for failure to state a claim under Fed. R.
When rendering that determination, a court may not look beyond the facts alleged in the complaint, documents incorporated by reference therein and facts susceptible to judicial notice.
Defendant moves to dismiss plaintiff's petition on grounds that plaintiff admits that he has not satisfied his mortgage obligations and that he has not been in possession of the property for at least one year after the time provided in the mortgage for full performance. Plaintiff has not responded to defendant's arguments.
Pursuant to M.G.L. c. 240, § 15(a), a mortgage can be discharged only if the mortgagor
In his petition, plaintiff admits that he "stop[ped] paying on the purported mortgage loan" in 2009. Therefore, he has not stated a claim to discharge his mortgage pursuant to M.G.L. c. 240, § 15(a).
Plaintiff has also failed to state a claim for discharge pursuant to M.G.L. c. 240, § 15(b). A mortgagor may have a mortgage discharged pursuant to § 15(b) if there is no "actual or direct evidence of full payment ... of the mortgage" and the mortgagor has been in "uninterrupted possession" of the property
M.G.L. c. 240, § 15(b).
Full payment on the subject mortgage is not, however, due until January 1, 2035 and thus, expiration of the time for full performance is a long way off.
In his petition, plaintiff submits that, because defendant sought to accelerate satisfaction of the mortgage in or about April, 2009, the one-year limitation period commenced at that time. There is, however, nothing in the statute that suggests that acceleration of a payment hastens the one-year period. Rather, the statute considers only the time period provided
Therefore, plaintiff has also not stated a claim for discharge under § 15(b).
Finally, plaintiff appears to imply that his mortgage should be discharged under M.G.L. c. 260, § 33 because it has been more than five years since defendant sought to accelerate payment of the loan.
That statute provides that a mortgage is subject to discharge five years after the expiration date listed in the mortgage.
Accordingly, defendant's motion to dismiss will be allowed.
Plaintiff has also filed motions to stay or extend the deadline to respond to defendant's motion to dismiss and to issue a scheduling order.
In his motion to stay, or, alternatively, extend the deadline to respond to defendant's motion to dismiss, plaintiff asked for 60 days to recover from recent back surgery. Two weeks after filing that motion, however, plaintiff filed two additional motions (to remand and for a scheduling order). Moreover, those 60 days have long since elapsed and plaintiff has not responded to defendant's motion. Therefore, the Court will deny plaintiff's motion, as moot.
Second, plaintiff's motion for a scheduling order will also be denied, as moot, because the Court will allow defendant's motion to dismiss.
In accordance with the foregoing,