Aleshire v. Wells Fargo Home Mortgage, Inc., n/k/a Wells Fargo Bank, N.A.

Filing 19

Judge Rya W. Zobel: ORDER entered granting 8 Motion to Dismiss; granting 18 Motion to Withdraw. The court will grant plaintiff leave to file a second amended complaint within 14 days of this order. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-12066-RWZ
BRADLEY ALESHIRE
v.
WELLS FARGO HOME MORTGAGE, INC., F/K/A/ WACHOVIA MORTGAGE FSB,
F/K/A/WORLD SAVINGS BANK, FSB
ORDER
September 30, 2011
ZOBEL, D.J.
I. Background
According to the First Amended Complaint, plaintiff, Bradley S. Aleshire, is a 29
year old college student who resides in Florida. In August 2004, he purchased real
property at 95 Chippy Lane, Methuen, MA and at the same time obtained a mortgage
from World Savings Bank, FSB.1 He paid the mortgage for several years. However, in
the fall of 2008, he rented the property and in the spring of 2009, his tenant ceased
paying the rent and at some point plaintiff ceased paying the mortgage. Between late
October/early November 2009 and September 2, 2010, a number of events occurred.
In September 2009, the Bank commenced a foreclosure proceeding in the Land Court.

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The complaint names as defendant Wells Fargo Home Mortgage, Inc., F/K/A
Wachovia Mortgage FSB, F/K/A World Savings Bank, FSB. As a result of several
mergers, the successor to World Savings Bank, FSB, and correct defendant, is Wells
Fargo Bank, N.A. (hereinafter collectively referred to as “the Bank”).

Although plaintiff was contacted by counsel for the Bank in late 2009, he alleges that
he learned of the commencement of the proceedings in February/March 2010, by
notice from the Land Court asking whether he was in the military. At about that time he
began to assemble documents necessary to a request for loan modification.
There followed many communiqués between plaintiff and his counsel on one
hand and the Bank and its counsel on the other, although, as is endemic to these
cases, the flow of calls, requests and notices appears to have been largely from
plaintiff’s side to defendant’s. Nonetheless, in May 2010, plaintiff did submit a request
for modification. In the meantime, defendant continued foreclosure proceedings. A
default judgment was entered in the Land Court which the Court vacated on June 7,
2010, because plaintiff had not been properly served. The Bank started over and on
August 6, 2010, the Land Court entered judgment for entry and sale. Plaintiff was
represented during this phase of the proceedings.
A foreclosure sale, scheduled for July 29, 2010, was postponed to September 2,
2010 by agreement of the parties to permit consideration of plaintiff’s application for
loan modification. The application was denied on September 1, 2010, and the
foreclosure sale took place on September 2, 2010, after the Superior Court declined to
act on plaintiff’s motion to enjoin the sale in view of the pending Land Court
proceedings. On November 15, 2010, plaintiff filed an amended complaint2 (Docket # 1
Ex. A) and on November 30, 2010, the Bank removed the case to this court (Docket #

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The original complaint was not a complaint, but a motion for an injunction.
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1). It has now moved to dismiss the First Amended and Verified Complaint under Fed.
R. Civ P. 12(b)(6) and 9(b) (Docket # 8).

II. Analysis
A pleading must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (internal quotation marks omitted). The facts pleaded must allow the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.
Id. A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not suffice. Id. When ruling on a motion to dismiss,
the court may consider documents incorporated by reference in the complaint, matters
susceptible to judicial notice, and matters of public record, such as documents from
prior state court adjudications. Giragosian v. Ryan, 547 F.3d 59, 65-66 (1st Cir. 2008)
(internal quotation marks omitted).
The complaint spans 76 pages with 185 paragraphs and asserts 17 counts. The
two underlying factual charges are that the Bank failed to send its notices to plaintiff’s
Florida address although he repeatedly advised the Bank thereof,3 and that it was
Much of the conduct described occurred prior to June 7, 2010, when the Land
Court vacated a default judgment against plaintiff for lack of proper service, and after
which the foreclosure sale was postponed, first to July 29 and then to September 2,
2010. Thus, plaintiff has suffered no injury from the Bank’s alleged failure to send
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unresponsive to his notices, requests, applications, and demands. In the end, this is a
far less complex case than the prolix and fanciful complaint suggests; counsel serves
neither the interest of the client nor the court by such an excessive and improper
pleading.
Given the complaint’s length and redundancy, it is not necessary to recite the
specific failings of each count. Several examples suffice to demonstrate the
complaint’s myriad deficiencies.
Counts 1, 2, and 3 rely on the same alleged conduct by the Bank and purport to
assert, respectively, claims for breach of contract, negligent breach of contract,4 and
breach of the covenant of good faith and fair dealing. Each count alleges that the
Bank had a duty under the mortgage to “permit [plaintiff] every opportunity available to
salvage the Mortgage” (Docket # 1 Ex. A at ¶¶ 82, 90, 97) through reinstatement, loan
modification, and refinancing, among other things. No such duty exists, either at
common law5 or by the terms of the loan or mortgage (Docket # 9 Ex. A and B).
Count 17, which purports to state a claim for “statutory violations,” merely
incorporates every allegation in the preceding 181 paragraphs, states plaintiff’s

notices to plaintiff’s Florida address prior to June 2010.
4
At least one Massachusetts court has held that negligent breach of contract is
not a recognized cause of action in Massachusetts. See Ross v. Raytheon Co., No.
99-5530, 2001 WL 1455863, at *5 (Mass. Super. Ct. Nov. 1, 2001).
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See e.g., Schwanbeck v. Federal-Mogul Corp., 31 Mass. App. Ct. 390, 396
(1991) (“In the absence of an express undertaking to “negotiate in good faith,” courts
have been reluctant to impose a common law duty to do so.”), rev’d on other grounds,
412 Mass. 703 (1992).
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“belie[f]” that the Bank has violated several laws, and then reserves the right to assert
such claims after discovery. 6
Counts 6-10 are styled as claims for “mortgage services fraud” for, among other
things, “preying on the ignorance of the court and [plaintiff]” (Count 6), “manipulating
account records” (Count 7), and “creating additional false deficiencies through a
variety of questionable practices” (Count 8). At most, these counts—each of which is
premised on the same alleged conduct by the Bank—state conclusory allegations;
none meets the heightened pleading standard for fraud under Fed. R. Civ. P. 9(b).7
Counts 12 and 16, for fraudulent representations and fraud, respectively, are similarly
deficient.
III. Conclusion
Defendant’s Motion to Dismiss (Docket # 8) is ALLOWED without prejudice. The
court will grant plaintiff leave to file a Second Amended Complaint within 14 days of this
order; however, the court reminds plaintiff’s counsel of her obligations under Fed. R.
Civ. P. 11(b). Any complaint that is filed must comply with Rules 8 and 9 of the Federal

Among the “statutory violations” plaintiff cites are 209 CMR 18.16(15) and
Mass. Gen. Laws ch. 258, neither of which are viable causes of action here. There is
no private right of action under 209 CMR 18.19(15). Ishaq v. Wachovia Mortgage,
FSB, No. 09-11422, 2010 WL 1380386, at *4 (D. Mass. Apr. 2, 2010). Mass. Gen. Laws
ch. 258 governs claims against a public employer, which the Bank is not. Mass. Gen.
Laws ch. 258, §§ 1-2.
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“In alleging fraud . . . a party must state with particularity the circumstances
constituting fraud . . . .” Fed. R. Civ. P. 9(b). See also Watkins v. Life Science, Inc.,
692 F.Supp.2d 170, 177 (D. Mass. 2010) (“[A]ny claim sounding in fraud must satisfy
the requirements of the heightened pleading standard regardless of what label the
pleader assigns to it.”) (internal quotation marks omitted).
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Rules of Civil Procedure and must only assert claims that are legally and factually
viable. A lawsuit is not a game.

/s/Rya W. Zobel

September 30, 2011
DATE

RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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