Jones v. Ablitt Law Office, P.C. et al
Filing
77
Judge Rya W. Zobel: Memorandum of Decision entered granting 25 Motion to Dismiss for Failure to State a Claim; granting 25 Motion to Dismiss for Lack of Jurisdiction; granting 43 Motion to Dismiss for Failure to State a Claim; granting [69 ] Motion to Dismiss; granting 69 Motion to Dismiss for Failure to State a Claim; granting 76 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been gra nted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document.; granting 11 Motion to Dismiss for Failure to State a Claim; granting 13 Motion to Dismiss for Failure to State a Claim (Urso, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-11503-RWZ
PAUL M. JONES
v.
BANK OF NEW YORK, et al.
MEMORANDUM OF DECISION
July 12, 2013
ZOBEL, D.J.
This case arises out of the allegedly improper assignment and foreclosure of a
home mortgage. Defendants – entities and individuals involved in the assignment,
servicing, and foreclosure of the mortgage and resulting litigation – move to dismiss
under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds of claim and issue
preclusion, various procedural deficiencies, failure to state a claim upon which relief
can be granted, and lack of federal jurisdiction.
I. Background and Court Proceedings
On June 22, 2004, plaintiff Paul M. Jones (“Jones”) executed a promissory note
payable to defendant Optima Mortgage Loan Corporation (“Optima”) in the amount of
$274,550.00. To secure the note, Jones gave a mortgage on his residence located at
572 Park Street in Stoughton, Massachusetts (the “Property”) to defendant Mortgage
Electronic Registration Systems, Inc. (“MERS”) as nominee for Optima. The mortgage
was recorded in the Norfolk County Registry of Deeds on March 29, 2005.
MERS subsequently assigned the mortgage to defendant Bank of New York
(now BNY Mellon) (“BNY Mellon”) as Trustee for the Certificate Holders, CWABS, Inc.
Asset-Backed Certificates, Series 2004-7. The body of the assignment states only that
it was signed in 2006, without a specified date, but the notarization of the document
indicates that defendant Amanda Farrar signed the assignment as an Assistant Vice
President for MERS on November 20, 2006.
At some point Jones fell behind on his loan payments, and BNY Mellon filed a
complaint to foreclose in the Massachusetts Land Court on November 6, 2006. BNY
Mellon gave Jones written notice on January 12, 2007, of its intention to foreclose on
the mortgage and sell the Property. Jones filed for bankruptcy protection to stop the
foreclosure sale, but the Bankruptcy Court granted BNY Mellon relief from the stay and
leave to foreclose. The foreclosure sale took place on December 3, 2007, and BNY
Mellon purchased the Property.
A second assignment of the mortgage from MERS to BNY Mellon, dated October
10, 2006, was signed by defendant Tiffany Skaife as Assistant Secretary for MERS and
notarized on January 25, 2008, by defendant Sandra Robinson. This second
assignment was filed at the Norfolk County Registry of Deeds on February 25, 2008.
A third assignment of the mortgage, dated October 21, 2008, was filed at the
Norfolk Registry of Deeds on November 21, 2008. It was labeled “Confirmatory
Assignment of Mortgage” and stated that it confirmed and amended the second
assignment to clarify that the “correct effective date memorializing the assignment of
said Note and Mortgage is October 10, 2006.” This third assignment was signed by
2
defendant Mark Bishop as First Vice President of MERS and witnessed by defendant
Melissa Flanagan.
On March 20, 2009, Jones, represented by counsel, filed suit against BNY
Mellon and defendant Ablitt Law Offices, P.C. (“Ablitt”)1 in Norfolk Superior Court
challenging the validity of the foreclosure sale of the Property. In that action, Jones
alleged that BNY Mellon did not have a valid assignment of his mortgage and therefore
lacked the authority to foreclose. He also claimed that Ablitt, which represented BNY
Mellon in Land Court and subsequent proceedings, violated a duty of good faith to him
by making false statements to the Land Court on BNY Mellon’s behalf and failing to
comply with applicable law in instituting foreclosure proceedings. On September 28,
2009, the superior court allowed Ablitt’s motion to dismiss for failure to state a claim for
relief, holding that Jones failed to show Ablitt owed him a legal duty.
Undeterred by the dismissal, Jones filed this federal action pro se on August 10,
2012, against Ablitt and one of its attorneys alleging violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, and unfair or deceptive trade
practices under Massachusetts law in connection with their representation of BNY
Mellon in foreclosure proceedings. Jones amended his complaint two months later on
October 10, 2012, to append a bevy of additional defendants and claims under both
federal and state law.
In the meantime, on October 22, 2012, the superior court granted BNY Mellon’s
1
Ablitt later changed its name to “Ablitt Scofield, P.C.” but is listed as “Ablitt Law Office” in
Jones’s amended complaint.
3
motion for summary judgment in the state case, finding that the 2006 assignment of
Jones’s mortgage from MERS to BNY Mellon was valid as a matter of law.2 All
defendants, save Optima3, thereafter filed motions to dismiss in this court (Docket ##
11, 13, 25, 43, and 69).
Jones continues to occupy the Property.
II. Legal Standard
“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, 556 U.S. 662, 678 (2009). Plausibility “is not akin to a probability requirement,
but [requires] more than a sheer possibility ....” Id. Thus, “[a] pleading that offers
‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action
will not do.’” Id. The inquiry is usually limited to the facts alleged in the complaint,
incorporated into the complaint, or susceptible to judicial notice, In re Colonial Mortg.
Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003), but the court may also consider other
documents the authenticity of which are not disputed by the parties, documents central
to the plaintiff’s claim, and documents sufficiently referred to in the complaint,
Watterson v. Page, 987 F. 2d 1, 3-4 (1st Cir. 1993).
III. Discussion
Comprised of 388 paragraphs spanning 64 pages, the sprawling and at times
2
Jones’s appeal of the superior court decision granting summary judgment to BNY Mellon is
currently pending. Jones chose not to appeal the superior court’s dismissal of his claims against Ablitt.
3
A default was entered against Optima pursuant to Fed. R. Civ. P. 55(a) on January 14, 2013.
4
disjointed amended complaint accuses over twenty separate defendants – BNY Mellon
as Trustee for the Certificate Holders, CWABS, Inc. Asset-Backed Certificates, Series
2004-7, CWABS, Inc. (“CWABS”)4, Bank of America, N.A. (“BANA”)5, MERS, Optima,
law firms Goodwin Procter LLP (“Goodwin”)5 and Ablitt, and various individuals
affiliated with them6 – of federal and state law violations in ten counts: (1) violation of
the FDCPA; (2) violation of Mass. Gen. Laws c. 93A and c. 185 § 67; (3) fraud; (4)
intentional infliction of emotional distress; (5) slander of title; (6) civil conspiracy; (7)
violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605 et
seq.; (8) violation of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.; (9)
willful noncompliance with the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et
seq.; and (10) abuse of legal process.
At the heart of Jones’s claims is the contention that BNY Mellon did not have a
4
It is unclear from the caption and body of the complaint whether CWABS, Inc. (“CWABS”), was
intended to be named independently as a defendant or grouped together with BNY Mellon as Trustee.
Jones later caused a summons to be served upon CWABS and communicated that CWABS was to be
named as a separate defendant.
5
BANA, the servicer for Jones’s mortgage, is listed as “Bank of America (Formally [sic]
Countrywide Home Loans, Inc.)” in the caption of the amended complaint.
5
Goodwin defended BNY Mellon against Jones’s lawsuit in Norfolk Superior Court.
6
Due to discrepancies in the amended complaint, there is some confusion regarding which
individuals are defendants in this case. The individuals identified as defendants in the caption are: Ann
Marie Cassano, Leon Daniels, Paul Connolly, Stephanie Whited, Richard A. Oetheimer, Erin M. Michael,
Matthew J. Thaler, Waltor Porr, Matthew R. Braucher, Tiffany Skaife, Melissa Flanagan, Sandra J.
Robinson, Amanda Farrar, and Mark Bishop.
M. Kelly Mitchie is not named as a defendant in the caption, but is listed as a defendant in the
“Parties” section of the complaint. Since Mitchie has filed a motion to dismiss, the court will treat him or
her as a defendant for the purposes of the present ruling.
Two former employees of Ablitt, Deirdre Cavanaugh and Rachel D. Costa, are listed neither in
the caption nor the “Parties” section, yet are referred to as “defendants” in other parts of the amended
complaint. As Cavanaugh and Costa have neither been served with the complaint nor entered an
appearance, they will not be considered parties to this action.
5
valid assignment of his mortgage and thus lacked the legal authority to foreclose on the
Property. Jones alleges that the assignments were invalid due to numerous reasons,
including untimeliness, forgery, the use of robo-signers, and lack of compliance with
the pooling and servicing agreement that governs the CWABS Trust. He accuses
defendants of participating, to varying degrees, in the activities and events surrounding
the allegedly fraudulent foreclosure. He also faults defendants for their response, or
lack thereof, to recent correspondence from him regarding the validity of the mortgage
assignment and foreclosure. Because this court’s jurisdiction depends on the existence
of viable federal claims, 28 U.S.C. § 1331, I address the federal claims first.7
A.
FDCPA Violations (Count I) Against BANA, BNY Mellon, MERS, Ablitt,
and Goodwin
Jones asserts that defendants BANA, BNY Mellon, MERS, Ablitt, and Goodwin,
and their employees and agents, unlawfully attempted to collect and enforce his
“consumer mortgage debt” by foreclosure when they knew or should have known that
BNY Mellon lacked a valid assignment and in so doing violated several provisions of
the FDCPA. He also alleges, without much detail, that defendants failed to comply with
certain communication requirements in the statute.
To the extent that Jones complains of conduct by BNY Mellon and Ablitt in
connection with the assignment and foreclosure, such arguments are subject to claim
preclusion. Massachusetts law governs the preclusive effect of a prior state court
7
Though Jones purports to bring this action under diversity jurisdiction pursuant to 28 U.S.C. §
1332, he has failed to allege complete diversity of the parties and, in fact, indicates that several
defendants are, like himself, citizens of Massachusetts.
6
judgment. Giragosian v. Ryan, 549 F.3d 59, 63 (1st Cir. 2008). Claim preclusion, also
known as res judicata, prevents the relitigation of claims that a party “had the
opportunity and incentive to fully litigate . . . in an earlier action.” Id. There are three
essential elements: “(1) the identity or privity of the parties to the present and prior
actions; (2) identity of the cause[s] of action; and (3) a prior final judgment on the
merits.” McDonough v. City of Quincy, 452 F.3d 8, 16 (1st Cir. 2006). With respect to
the second element, causes of actions are identical if they derive “from the same
transaction or series of connected transactions,” id.; “thus, claims not actually raised [in
prior litigation] will be barred if they arise from the same common nucleus of facts as
the claims that were litigated.” Kucharski v. Tribeca Lending Corp., 620 F. Supp. 2d
147, 150 (D. Mass. 2009). Here, Jones, BNY Mellon, and Ablitt were all parties in the
prior superior court case. Both cases arise out of the same transaction and nucleus of
facts (the foreclosure of the Property by BNY Mellon and its authority to do so); claims
pertaining to defendants’ conduct and rights vis-à-vis the foreclosure could have been
raised and litigated in the original state case. See Kucharski, 620 F. Supp. 2d at 151
(barring plaintiff’s claims relating to defendant mortgagee’s alleged lack of disclosures
in loan transaction where she had previously litigated claims arising from the
refinancing and foreclosure of her home). Finally, the superior court’s dismissal of the
state case against Ablitt and grant of summary judgment to BNY Mellon were final
judgments on the merits.
Similarly, Jones’s FDCPA claims against BANA, BNY Mellon, MERS, Ablitt, and
Goodwin that are predicated on the invalidity of the assignment and foreclosure are
7
barred by issue preclusion. Issue preclusion, or collateral estoppel, prohibits
relitigation of any factual or legal issue that was decided in previous litigation and
applies where “(1) the issues raised in the two actions are the same; (2) the issue was
actually litigated in the earlier action; (3) the issue was determined by a valid and
binding final judgment; and (4) the determination of the issue was necessary to that
judgment.” Manganella v. Evanston Ins. Co., 700 F.3d 585, 591 (1st Cir. 2012). Count
I alleges that certain conduct by defendants was unlawful and deceptive precisely
because BNY Mellon did not have the right to foreclose on the property. Yet the
superior court upheld the foreclosure in a valid and binding final judgment, finding that
“[p]laintiff’s claim that the assignment of his Mortgage from MERS to BNY Mellon as
Trustee is invalid fails as a matter of law.” Jones v. Bank of New York, No. CV200900471 (Mass. Super. October 19, 2012); Docket # 12, Ex. 4. The validity of the
assignment and foreclosure of Jones’s mortgage is thus a closed issue, and he cannot
relitigate it here. Any claims that rest on alleged deficiencies in the assignment or
foreclosure process fail.
That said, not all of Jones’s FDCPA claims are precluded by the prior state
judgment. The FDCPA prohibits attempts to collect an otherwise valid debt using
improper methods, and Jones makes several allegations to that effect. He charges
defendants with, inter alia, engaging in harassing, oppressive, or abusive conduct, 15
U.S.C. § 1692d; falsely representing the character, amount, or legal status of his debt,
id. § 1692e(2); communicating or threatening to communicate false credit information,
id. § 1692e(8); using false representation or deceptive means to collect debt or obtain
8
information, id. § 1692e(10); and using a name other than the true name of the debt
collector’s business, id. § 1692e(14). Jones also alleges that defendants failed to
disclose in written communications that they were debt collectors attempting to collect a
debt, 15 U.S.C. § 1692e(11), and that they failed to send him written notice about the
debt within five days after initial communication regarding its collection, id. § 1692(g).
Though not entirely clear from the amended complaint, the basis for these
claims appears to be defendants’ response, or lack thereof, to correspondence sent by
Jones in the fall of 2012. In August 2012, Jones wrote a letter to BNY Mellon
challenging the 2007 foreclosure sale of the Property on several grounds (including the
validity of the assignment) and requesting that it be set aside. An employee of BNY
Mellon replied by email on August 30, 2012, indicating that BNY Mellon, as “a
Trustee[,] . . . do[es] not physically own the loan or the property” and “do[es] not have
any say in how the property is disposed, loan modifications, code violations, etc.”
Compl. ¶ 25; see also Ex. 1. These matters, she noted, are “the responsibility of the
Servicer,” BANA, who is “the direct and only contact in regards to your request.” Id.
Jones took this response as a damning admission by BNY Mellon that it was never
validly assigned the mortgage and, armed with this “proof,” sent additional letters to
BNY Mellon, Countrywide Home Loans (BANA’s predecessor), Ablitt, and Goodwin.
Jones faults defendants for thereafter failing to “correct” their prior representations in
state and federal court regarding the assignment and ownership of the mortgage. Even
under a generous reading, the amended complaint does not sufficiently explain how
such alleged inaction violates the cited sections of the FDCPA. Insofar as he may be
9
complaining of other instances of wrongdoing, Jones offers very little, beyond
conclusory statements and recitations of statutory language, to make out his claims.
That is simply not enough.
Count I is dismissed.8
B.
RESPA Violations (Count VII) Against BANA, BNY Mellon, and MERS
The only provision of RESPA specifically cited in the amended complaint is 12
U.S.C. § 2605(e), which mandates that “[i]f any servicer of a federally related mortgage
loan receives a qualified written request from the borrower . . . for information relating
to the servicing of such loan, the servicer shall provide a written response
acknowledging receipt of the correspondence within 20 days” and must make
appropriate corrections to the borrower’s account or provide a written explanation or
clarification within 60 days. Id. at § 2605(e)(1)(A) and (2). To make out a claim under §
2605(e), a plaintiff must allege sufficient facts to “show: (1) that the servicer failed to
comply with the statute’s [qualified written request] rules; and (2) that the plaintiff
incurred ‘actual damages’ as a consequence of the servicer’s failure.” Okoye v. Bank
of New York Mellon, CIV. A. No. 10-11563-DPW, 2011 WL 3269686, at *17 (D. Mass.
July 28, 2011) (quoting Anokhin v. BAC Home Loans Servicing, LLP, No. 2:10-cv00395-MCE-EFB, 2010 WL 5393972, at *3 (E.D. Cal. Dec. 22, 2010)).
BNY Mellon and MERS are not loan servicers and fall outside the reach of this
provision. As for BANA, Jones alleges that it violated § 2605(e) by failing to properly
8
Some defendants also invoke FDCPA’s one-year statute of limitations. Because Jones’s
claims are precluded on other grounds, it is not necessary to address those arguments here.
10
and timely respond to a qualified written request (“QWR”) he sent on or about July 9,
2012. BANA, through counsel, sent Jones a letter dated September 27, 2012, in which
it addressed his requests and inquiries. It appears BANA did not send
acknowledgment of receipt of Jones’s QWR within 20 days as required by §
2605(e)(1)(A), although the servicer did provide a written response to him within 60
days (excluding holidays and weekends) pursuant to § 2605(e)(2). Nonetheless, Jones
cannot recover on this count because he fails to plead any actual damages from
BANA’s failure to respond. See, e.g., Williams v. Litton Loan Servicing, CA 10-11866MLW, 2011 WL 3585528, at *4 (D. Mass. Aug. 15, 2011) (“Without such a showing [of
pecuniary damages], a RESPA claims is not actionable.”) (dismissing RESPA claim
where complaint did not allege that defendant’s failure to respond to QWR resulted in
actual damages); Okoye, 2011 WL 3269686, at *17 (same) (listing cases).
Accordingly, the RESPA claim is dismissed.9
C.
TILA Violations (Count VIII) Against BANA and BNY Mellon
The complaint appears to allege that BANA and BNY Mellon violated TILA in two
ways: by failing to provide Jones with accurate material disclosures in the origination of
his loan,10 15 U.S.C. § 1601 et seq., and by failing to comply with new creditor notice
requirements, 15 U.S.C. § 1641(g).
9
Elsewhere in the amended complaint, Jones refers broadly to violations of RESPA stemming
from defendants’ alleged failure to timely notify him of the mortgage assignment. However, he neither
identifies the RESPA provisions implicated nor provides any elaboration regarding how defendants
violated them.
10
For example, Jones refers to requirements “to fully inform home buyers of the pros and cons
of adjustable rate mortgages” and “to offer other loan products that might be more advantageous for the
borrower under the same qualifying matrix.” Compl. ¶ 367.
11
To the extent Jones complains of TILA disclosure violations in connection with
the origination of the mortgage, BANA and BNY Mellon argue that such claims cannot
be asserted against them since they, as the servicer and subsequent assignee,
respectively, played no role in that process and cannot be held liable for any possible
violations by Optima. The amended complaint neither identifies what required
disclosures were not made nor addresses whether BANA and BNY Mellon are creditors
within the meaning of the statute. “While a servicer of a loan has the obligation to
provide certain information to borrowers under the Act, ‘liability for violations of TILA
rests squarely and solely with creditors.’” Shaw v. BAC Home Loans Servicing, LP,
CIV.A. 10-11021-DJC, 2013 WL 789195, at *7 (D. Mass. Mar. 1, 2013) (quoting Ording
v. BAC Home Loans Servicing LP, No. 10-10670-MBB, 2011 WL 99016, at *3 (D.
Mass. Jan. 10, 2011)) (dismissing TILA claims where defendant was servicer and not a
creditor). Assignees may be held liable for the loan originator’s failure to make
disclosures required by TILA, but only if such violations are “apparent on the face of
the disclosure statement” or the assignment was involuntary. 15 U.S.C. § 1641(a);
Akar v. Fed. Nat. Mortgage Ass’n, 845 F. Supp. 2d 381, 393-94 (D. Mass. 2012).
Jones does not allege facts showing that any violations of TILA were apparent on the
face of the loan documents and does not claim that the assignment to BNY Mellon was
involuntary. The TILA disclosure claims against both BANA and BNY Mellon fail.
Jones fares no better under § 1641(g). That provision, which requires a new
owner or assignee of a debt to notify the borrower of the transfer, was added to the Act
in 2009, see Helping Families Save Their Homes Act of 2009, Pub. L. No. 111-22 §
12
404, 123 Stat. 1632, 1658, and does not apply retroactively to conduct occurring before
its effective date of May 20, 2009. See, e.g., Bradford v. HSBC Mortg. Corp., 829 F.
Supp. 2d 340, 353 (E.D. Va. 2011) (“Nothing in TILA indicates that this provision
should be applied retroactively.”); Eng v. Dimon, No. 11-3173 MMC, 2012 WL
2050367, at *1 (N.D. Cal. June 6, 2012); Connell v. CitiMortgage, Inc., CIV.A. 11-0443WS-C, 2012 WL 5511087, at *1 (S.D. Ala. Nov. 13, 2012). Since BNY Mellon was
assigned Jones’s mortgage in 2006, years prior to the enactment of § 1641(g), it had
no obligation to provide notice of the transfer to him.
Moreover, a civil action for a TILA violation must be brought within one year of
the violation. 15 U.S.C. § 1640(e). The loan transaction took place in 2004, and the
mortgage was assigned in 2006, but Jones did not bring this action until October 2012.
Jones claims that the statute of limitations is tolled due to defendants’ failure to provide
the required disclosures and notices. He also asserts that it was “impossible” for him to
prove his case until after he learned of a large fraud settlement between several major
banks and state attorneys general in 2012 and after he had received the August 2012
email from BNY Mellon. But “the mere existence of TILA violations and lack of
disclosure does not itself equitably toll the statute of limitations,” Garcia v. Wachovia
Mortg. Corp., 676 F. Supp. 2d 895, 906 (C.D. Ca. 2009), and Jones fails to show that
he was “in some extraordinary way . . . prevented from asserting his rights,” Corcoran v.
Saxon Mortg. Servs., Inc., CIV.A. 09-11468-NMG, 2010 WL 2106179, at *3 (D. Mass.
May 24, 2010) (citation omitted). See also Okoye, 2011 WL 3269686, at *15
(“Equitable tolling is inappropriate in this case because [plaintiffs] were aware – or
13
should have been aware – of the lack of disclosure within [ ] one year of closing.”);
Hubbard v. Fidelity Federal Bank, 91 F.3d 75, 79 (9th Cir. 1996) (rejecting plaintiff’s
equitable tolling argument where “nothing prevented [her] from comparing the loan
contract, [defendant’s] initial disclosures, and TILA’s statutory and regulatory
requirements.”).
Because Jones’s TILA allegations do not state a claim for relief and are timebarred, Count VIII is dismissed.
D.
FCRA Violation (Count IX) Against BANA
Jones accuses BANA of willfully violating the FCRA by obtaining his consumer
report without a permissible purpose, 15 U.S.C. § 1681b(f). The amended complaint,
however, lacks “factual content that allows the court to draw the reasonable inference
that [BANA] is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678; Jones provides
no explanation, beyond a single conclusory allegation, of BANA’s actions and how they
violated the FCRA.
Jones also claims that BANA falsely reported having foreclosed on the Property
and that it continues to report inaccurate information on his credit report despite the
fact that the information is in dispute, all presumably in violation of 15 U.S.C. § 1681s2. As a furnisher of information to consumer reporting agencies, BANA has a duty to
provide accurate information, § 1681s-2(a), and a duty to undertake an investigation
upon receipt of notice of dispute from a consumer reporting agency, § 1681s-2(b). See
also Gibbs v. SLM Corp., 336 F. Supp. 2d 1, 11 (D. Mass. 2004). But BANA correctly
notes that there is no private right of action under § 1681s-2(a), which is enforced
14
exclusively by governmental agencies and officials. Id. As for claims of negligent
reporting under § 1681s-2(b), a private cause of action exists “only if the furnisher
received notice from a consumer reporting agency, as opposed to the plaintiff alone,
that the credit information was disputed.” Id. (citations omitted). Here, Jones “has not
alleged that he contacted any credit reporting agency or that the agency, in turn, got in
touch with [BANA],” thereby triggering its BANA’s duty to investigate. Id. He therefore
fails to state a claim under the FCRA, and Count IX is dismissed.
E.
Remaining Claims
As all the federal claims have been dismissed, I decline to retain supplemental
jurisdiction over the remaining claims, which arise under Massachusetts statutory and
common law.
IV. Conclusion
Defendants’ motions to dismiss the amended complaint (Docket ## 11, 13, 25,
43, and 69) are ALLOWED with prejudice as to Counts 1, 7, 8 and 9, and without
prejudice as to Counts 2, 3, 4, 5, 6 and 10. Ablitt’s motion for leave to file a
supplemental memorandum of law (Docket # 76) in connection with its motion to
dismiss is ALLOWED.
July 12, 2013
/s/Rya W. Zobel
15
DATE
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE
16
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