Barricello v. Wells Fargo Bank, N.A., et al

Filing 63

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. (Bartlett, Timothy)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHELLE BARRICELLO,
Plaintiff

v.
WELLS
FARGO
BANK,
N. A. ,
AS
SUCCESSOR TRUSTEE ON BEHALF OF
THE HOLDER OF THE HARBORVIEW
MORTGAGE
LOAN
TRUST
MORTGAGE
LOAN PASS THROUGH CERTIFICATE
SERIES 2006-12, BANK OF AMERICA,
N.A.,
and
SELECT
PORTFOLIO
SERVICING, INC.,
Defendants.

C.A. No. 13-12795-MLW

MEMORANDUM AND ORDER
WOLF, D.J.
I.

INTRODUCTION
In

home.
of

March 22, 2016

2006,

Michelle

Barricello

Four years later,

the

United

States

discharged,

but

she

Fargo Bank,

N. A.,

took

out

a

mortgage

Bankruptcy

did

not

Code.

regain

Her

title

mortgage
to

her

any

debt

home.

was

Wells

the current holder of the note and mortgage,

has brought this action to dispute Wells
enjoin

her

she declared bankruptcy under Chapter 7

has now begun the preliminary steps of foreclosure.

home,

on

future

foreclosure

Fargo's

Barricello

title to her

proceedings,

and

recover

damages.
Barricello
subprime,

describes

variable

loan product,

rate,

her

mortgage

negative

"a

high

interest

amortization

type

mortgage

commonly referred to as a

as

'toxic loan. '" Complaint

("Compl. ")

~5.

She

further

contends

that

her

mortgage

was

fraudulently,

or at least erroneously, assigned between multiple

mortgagees.

See

id.

implausible.

As

both

Massachusetts
predatory

the

Attorney

lending,

These

~~6-7.

Department

General's

fraudulent

allegations
of

Office

securitization,

Justice
have

are

not

and

the

recognized,

and other

unfair

practices were rampant in the housing market around the time of
Barricello executed her mortgage.
However,
be decided.
of

a

l

Barricello' s wrongful assignment claim cannot now
The court lacks

foreclosure

that

has

jurisdiction to address the merits
not

occurred.

Similarly,

Barricello

lacks standing to challenge assignments that are voidable by a
defendant,
ratify.

but

which

Therefore,

the

defendant

Barricello's

has

claims

nevertheless
for

title,

chosen to
declaratory

judgment, and injunctive relief are being dismissed.

See, e. g., Press Release, "U. S. Attorney General Holder, State
and Federal Officials Announce Collaboration to Investigate
Residential Mortgage-backed Securities Market," United States
Department
of
Justice
(Jan.
27,
2012),
available
at
https://www.justice.gov/opa/pr/us-attorney-general-holder-state­
and-federal-officials-announce-collaboration-investigate;
Press
Release, "Attorney General Martha Coakley Reaches $10 Million
Settlement with Subprime Lender Fremont Investment and Loan,"
Massachusetts
Attorney
General's
Office
(June
9,
2009),
available
at
http://www.mass.gov/ago/news-and-updates/press­
releases/2009/ag-coakley-reaches-10m-settlement-with.html.
1

2

Barricello's
Her

claim

cannot

be

claims

under

Mass.

that

Chapter.

required
defendants

Laws

relief

Chapter

she did not

are

93A

also

barred.

("Chapter

send a

demand

93A")
letter

which is a procedural requirement of §9 (3)

Her

specificity
have

monetary

Gen.

litigated because

before filing suit,
of

for

contract

claims

which

breached.

fail

to

contractual

Therefore,

state

with

obligations

these

claims

are

the
the

being

dismissed as well.
Barricello has filed several motions and letters pro se in
the past year. The court has examined these documents carefully
and

construed

proceeds

them

without

liberally,

as

representation

is
in

warranted
federal

when

court.

a

party

Although

Barricello raises a number of factual and legal issues in these
filings,

none

are

sufficient

to

overcome

the

jurisdictional

barriers to her claims.
In summary,

the court finds that it lacks the authority to

address many of Barricello' s claims at this time,

and that the

remaining claims as pled fail to state a claim on which relief
can be granted. Accordingly,

the defendants' motions to dismiss

are being allowed, Barricello's pro se motions are being denied,
and this case is being dismissed.

3

II.

BACKGROUND

A. Facts
The

following

facts

where otherwise noted.
loan

from Countrywide

are

drawn

In 2006,
Bank,

from

the

Complaint,

except

Barricello obtained a mortgage

N. A.

("Countrywide").

The mortgage

was secured against Barricello's home in Brewster, Massachusetts
(the

"Property") .

Electronic

The

Registration

mortgage
Systems,

granted

was
Inc.

("MERS")

to
as

Mortgage

nominee

for

Countrywide.
Shortly after

the mortgage was

executed,

Countrywide

sold

its interest in Barricello's loan to Greenwich Capital Markets,
Inc.

("Greenwich").

the

HarborView

( "HarborView
subsequently

Greenwich

Mortgage

Trust") .
acquired

September 26,

2011,

securi ti zed

See
by

Bank

<][15.

Compl.
of

America,

MERS assigned its

loan

2006-12

Trust

Loan

the

as

part

asset

group

Countrywide
N. A.

interest

of

was

("BANA").

On

in Barricello's

mortgage to BANA. See id. Ex. B (the "MERS-BANA assignment"). On
December
Bank,

26,

N.A.

assignment").
the

2012,
("Wells

Fargo").

Wells Fargo is,

HarborView

("SPS"),

BANA assigned that

acted

Trust.
as

See

id.

See

interest

id.

Ex.

C

to

(the

and was at the time,
Select

attorney-in-fact

for Wells Fargo. See id.

4

for

Portfolio
BANA

and

Wells

Fargo

"BANA-WF

trustee for

Service,
loan

Inc.

servicer

In 2010, Barricello filed for bankruptcy under Chapter 7 of
Ti tle

11

of the

United States Code.

order of discharge on February 15,

Barricello was granted an
2011.

See id.

Ex.

D.

BANA,

which held the mortgage at the time, was listed as a creditor in
the bankruptcy filing. Compl.

~20.

B. Procedural History
On or about August 23,
for

determination

of

Servicemembers Civil
"SCRA"),

2013,

Wells Fargo filed a petition

Barricello's

Relief Act,

50

status

U.S.C.

in the Massachusetts Land Court.

under
~

§3901 et
Id.

Ex.

the

E.

(the

The Land

Court notified Barricello of the petition on August 27, 2013.
Barricello
indication

construed

that

Wells

foreclosure

was

Fargo's
impending.

as

an

September

30,

petition
On

2013, she filed the complaint in this case in the Land Court. In
the

complaint,

signed

by

she

an

assignments.

alleges

employee

See

id.

that

the

without

~6.

She

MERS-BANA

the

also

assignment

authority

alleges

that

was

to

execute

the

BANA-WF

assignment was executed by an individual who was not an officer
of

BANA.

See

id.

the

BANA-WF

assignment violated the terms of the HarborView Trust.

See id.

~7.

She

further

alleges

that

Based on these allegations, Barricello seeks to try title to the
Property,

declare

the

assignments

foreclosure proceedings. See id.

void,

~~23-24,

5

and enj oin
28.

any

future

Barricello is also seeking damages.

She alleges that BANA

conspired with investment banks to offer subprime loans for the
purpose

of

securitization.

alleges that

See

19.

She

BANA repeatedly refused her attempts

Property for fair market value,
agreement.

~~15-17,

id.

~18.

See id.

to

sell the

again due to the securitization

Finally,

she alleges that Wells Fargo IS

Servicemembers petition will damage her credit rating.
~21.

and

Barricello

asserts

intentional

unfair

under Chapter 93A.

that

these

business

See id.

actions

practices,

for

breach

of

willful

and

damages

seeks

She also asserts that these

~~25-26.

contract

See id.

constitute

actions violated the terms of the mortgage contract,
damages

further

and

breach

of

covenant of good faith and fair dealing. See id.

and seeks

the

implied

~27.

The defendants were served on or about October 14, 2013. On
November 5, 2013, Wells Fargo and BANA, with the consent of SPS,
removed this

case

to

motions for remand,

federal

court.

Barricello

which the court denied.

filed multiple

See March 16,

2015

Memorandum and Order.
After removing the case, BANA and Wells Fargo filed a joint
motion to dismiss.
All

three

SPS

defendants

jurisdictionally
unmeritorious.

later filed its own motion to dismiss.
argue

barred,

that

untimely,

Barricello filed a

both motions to dismiss.
6

Barricello's
and,

in

claims
any

are

event,

single omnibus opposition to

One month after the motions to dismiss were fully briefed,
Barricello's

attorney moved to

disputes with his client.
that

"[aJ s

[Barricello]

withdraw,

citing

irreconcilable

The court allowed the motion,

adding

is unable to retain successor counsel,

the court will decide the motions dismiss without oral argument
and, if one or both is denied, she will be required to represent
herself." March 16, 2015 Order.
Over the following year,
pro se. On July 15,
three

defendants

December

3,

2015,

filed

2015,

Barricello filed several documents

she moved to amend her complaint. All

timely

she

moved

oppositions
for

to

default

the

motion.

judgment

and

On

quiet

title. Again, all three defendants responded in a timely manner.
Finally,

on January 7,

2016,

she

filed a

non-motion letter in

which she expands on the points raised in the prior two filings.
Barricello has included seventeen attachments and exhibits with
her pro se filings, all of which the court has reviewed.
III. DEFENDANTS' MOTIONS TO DISMISS
A. Legal Standard
Federal
complaint

Rule

include

of

Civil

a

"short

Procedure
and

plain

8 (a) (2)

requires

statement

of

the

that

a

claim

showing that the pleader is entitled to relief." The complaint
"must
'state

contain
a

sufficient

claim to

relief

factual
that

is

matter,

accepted as

plausible

on

its

true,
face.'

to
A

claim has facial plausibility when the plaintiff pleads factual
7

content that allows the court to draw the reasonable inference
that

the

defendant

Ashcroft

v.

Atlantic

Corp.

pleading

is

Iqbal,

556

v.

conclusions,

and

does

a

the

not

(2009)

544,

Bell

(2007)) .

This

"detailed

"more

recitation

alleged."

(quoting

570

require

require

formulaic

misconduct

678

u.s.

550

does

but

for
662,

U. S.

Twombly,

standard

allegations,"

liable

than

of

the

factual

labels
elements

and
of

a

cause of action will not do." Twombly, 550 U.S. at 555.
Where

a

standard,
Federal

claim

the

or

complaint

opposing

Rule

of

party

Civil

fails

may

Procedure

motion under Rule 12 (b) (6),

to

move

meet
for

12(b) (6).

this

pleading

dismissal
In

under

considering

a

the court must "construe all factual

allegations in the light most favorable to the non-moving party
to determine if there exists a plausible claim upon which relief
may be granted." Woods v. Wells Fargo Bank, N. A.,
353

(1st Cir. 2013).

733 F. 3d 349,

The court "neither weighs the evidence nor

rules on the merits because the issue is not whether plaintiffs
will ultimately prevail,
evidence to

support

but whether they are entitled to offer

their claims."

Plan, Inc., 917 F. Supp. 72, 75
"Under
consider

Rule

only

incorporated
Turabo,

Inc.,

12 (b) (6),

facts

into
575

the
F.3d

and

v.

Fallon Cmty.

Health

(D. Mass. 1996).

the

district

documents

complaint."
10,

Day

15
8

that

Rivera

(1st

court

Cir.

are

v.

may
part

Centro

2009);

properly
of

or

Medico

de

Watterson

v.

Page,

987 F.2d 1,

exceptions
disputed

for
by

documents

3

(1st Cir.

documents

the

the

parties;

central

to

1993).

However,

authenticity

for

official

plaintiff['s]

there are "narrow
of

which

claim;

or

not

records;

public

are

for

for

documents

sufficiently referred to in the complaint." Watterson,
at

3-4.

linked

When

"a

to--and

authentici ty

complaint's
admittedly

of

which

is

into

the

effectively merges

factual

allegations

dependent
not

upon--a

and the

expressly

document

challenged) ,

pleadings

are

987 F. 2d

that

(the

document

trial

court

can

review it in deciding a motion to dismiss under Rule 12 (b) (6) . "
Beddall v. State Street Bank and Trust Co.,
Cir.

(1st

1998). When such documents contradict an allegation in the

complaint,
P.R. v.
2000)

137 F.3d 12, 17

the

document

trumps

the

allegation.

See

Proctor & Gamble Consumer Co., 228 F.3d 24,

32

(citing Northern Indiana Gun & Outdoor Shows,

of South Bend, 163 F.3d 449, 454

Clorox Co.
(1st Cir.

Inc. v. City

(7th Cir. 1998)).

B. Analysis
1. Count I

(Try Title)

Barricello seeks to challenge the defendants'
Property under the Massachusetts try title
Laws c.

240,

§§1-5.

title to the

statute,

Mass.

Gen.

The defendants argue that this claim fails

as a matter of law because no adverse claim clouds Barricel1o's
title in the Property.

9

A

proceeding

under

involves two steps.
766

(2011) .

the

Massachusetts

See Bevilacqua v.

First,

the

jurisdictional facts:

title

Rodriguez,

petitioner

record title

try

must

statute

460 Mass.

establish

in the property,

762,
three

possession

of the property, and an actual or possible adverse claim against
the property.
826-28

See Abate v.

Fremont Inv.

&

Loan,

470 Mass.

(2015). The first two elements, title and possession, are

required to assert standing in a try title action.
830.

821,

The

third,

subject-matter

an

adverse

claim,

jurisdiction.

See

is

id.

jurisdictional facts are established,
"ei ther

[]

required
at

See id.

to

establish

If

834.

all

three

the adverse claimant must

disclaim the relevant interest in the property or

bring an action to assert

the

at

claim in question."

[]

Bevilacqua,

460 Mass. at 766.
"In
parts:

Massachusetts,

the legal title,

equitable

title,

90

(1990)).

complementary."

two

App.

Ct.

775.

retains. '"
Corp. ,

interests

two
In

other

not

"adverse"

to

Lemelson

v.

U.S.

Bank Nat.

Ass'n,

to

in

774

is

mortgagee

title

at

mortgagor

BancBoston Mtge.

at

the

the

interest

2013). Therefore,

splits

and the

These

Id.

'mortgage

which becomes the mortgagee's,

which

(quoting Maglione v.
88,

a

the

29 Mass.

"separate

are

words,

the

mortgagor's
721

F.3d

Id.

18,

but

mortgagee's

interest.
24

(1st

See
Cir.

"where a mortgagor challenges the right of the

foreclose,

the

'adverse
10

claim'

element

of a

try

title

action

is

sufficiently

alleged

already has occurred." Abate,

only

470 Mass.

if

the

foreclosure

at 834. A mortgagor may

challenge a mortgagee's title prior to foreclosure only if "the
very existence of a mortgage is called into question." Id.
Barricello

does

not

dispute

that

mortgage on the Property. See Compl.
an

adverse

claim,

discharged.

See

she must
Abate,

allege

470

she

MERS

a

Therefore, to establish

~5.

that

Mass.

granted

at

the mortgage
835

has been

(allegation

that

mortgage has been discharged is sufficient to establish "adverse
claim").

Barricello asserts that the mortgage was discharged in

bankruptcy. See Compl.
[Chapter 7]
note,

but

535 B.R.

However,

~20.

"bankruptcy discharge under

discharges the Debtor's personal liability under the
not the mortgagee's

488,

501

the mortgage was
Compl.

~~6-7.

right

to

(Bankr.

title

D. Mass.

interest."

2015).

She also alleges that

2013).

Fargo.

However, these allegations involve the defendants'
not

the

validity

of

Lemelson v. U.S. Bank Nat. Ass'n, C.A. No.

Cir.

Shubert,

improperly assigned to BANA and Wells

foreclose,

4527527, at *2

In re

the

mortgage.

12-10677-PBS, 2012 WL

(D. Mass. Sept. 28, 2012) aff'd, 721 F.3d 18

Therefore,

alleged sufficient

See

(1st

the court finds that Barricello has not

facts

to

challenge

the

"very existence"

of

the mortgage. Abate, 470 Mass. at 834.
Because

Barricello

has

not

satisfied

the

jurisdictional

"adverse claim" element of the try title statute, Count I of the
11

Complaint

is

prej udice

to

being

dismissed.

any claim Barricello may

mortgage is foreclosed.
dismissal

This

without

See Lemelson,

prejudice

for

dismissal
assert

is

if

and when the

721 F. 3d at 25

failure

to

without

(affirming

establish

adverse

claim in try title action) .
2. Count II (Declaratory Judgment)
Barricello also seeks a declaratory judgment that the MERS­
BANA and BANA-WF assignments

are unenforceable.

The defendants

respond that Barricello lacks standing to challenge the validity
of

the

"that

assignments.
her

claim

They

is

argue

premised

that
on

Barricello

[her]

own

has

legal

not

shown

rights

(as

opposed to those of a third party)." Pagan v. Calderon, 448 F.3d
16, 27

(lst Cir. 2006).

An

assignment

is

Shawmut Woodworking
Under

&

Massachusetts

a

form

Supply,
law,

a

of

contract.
445 Mass.

Inc.,

See
675,

plaintiff

has

Spellman
681

standing

rights under a contract only if she is a party to,
party beneficiary of,
Ctr.,

Inc.,

Monahan

203

v.

Therefore,
beneficiary

F.

Town
a

of

that contract.
Supp.

an

52,

Methuen,

plaintiff
of

2d

who

assignment

67

408
is

Grell v.
(D.

neither
ordinarily

challenge the validity of that assignment.

12

381,
a

(2006).
assert

or a third­

UMass Mem' 1 Med.

Mass.

Mass.

to

v.

2002)
391

party
lacks

(citing
(1990)).

to

nor

standing

a
to

As the First Circuit recognized in Culhane v.
Servs.

of Nebraska,

708

F.3d 282,

289

(1st Cir.

Aurora Loan

2013),

strict

application of standing doctrine would deprive mortgagors of the
ability

to

defend

against

foreclosure

by

"challenging

the

validity of an assignment that purports to transfer the mortgage
to

a

[the

foreclosing

Id.

entity]."

at

291.

Finding

"no

principled basis for employing standing doctrine as a sword to
deprive mortgagors of legal protection conferred upon them under
state

law,"

the

First

Circuit

held

that

"a

mortgagor

has

standing to challenge the assignment of a mortgage on her home
to the extent that

such a challenge is necessary to contest a

foreclosing entity's status qua mortgagee." Id.
However,

Culhane

provides

mortgage assignment as invalid,
mortgage assignment is void,
fact,

only

"standing

ineffective,

9

challenge

or void." Id.

a

If a

"the purported assignee is not,

in

the mortgagee and therefore lacks any right to foreclose

on the mortgage." Wilson v. HSBC Mortgage Servs.,
1,

to

(1st

Cir.

2014).

If

the

mortgage

Inc., 744 F.3d

assignment

voidable at the election of one of the parties,

is

merely

it is effective

to pass legal title to the assignee unless it is voided by that
party.

See id.

Only a party whose rights have been injured may

declare a voidable assignment void. See id. at 9-10 (noting that
assignment
mistake).

may

be

voidable

Accordingly,

a

for

mortgagor
13

duress,
does

not

fraud,
have

or

mutual

standing

to

challenge

a

mortgage

assignment

that

is

merely

voidable.

See

assignment

is

Culhane, 708 F.3d at 291; Woods, 733 F.3d at 354.
Barricello
defective
Oriard,
[MERS]

asserts

because

that

"[t]he

Countrywide."
assignments

as

<][6.

for

the

[MERS]

Oriard

"Assistant

on

Assignment,

Kathy

[s] he now an authorized officer of

assignments

Compl.

MERS-BANA

signatory

was not then nor is
to execute

the

is

Secretary"

or

for

[BANA]

listed

on

the

for

MERS.

See

or

for

MERS-BANA
id.

Ex.

B.

Under Massachusetts law:
assignment of mortgage
if executed before a
notary public
by a person purporting to hold
the position of president, vice president, treasurer,
clerk,
secretary,
cashier,
loan
representative,
principal,
investment,
mortgage or other officer,
agent, asset manager, or other similar office or
posi tion, including assistant to any such office or
posi tion, of the entity holding such mortgage
shall be binding upon such entity[.]
M.G.L.

c.

183,

§54B

is binding on MERS,
execute
BANA

it.

law".

Therefore,

regardless of Oriard' s

Barricello has

assignment]

cornmon

(emphasis added).

is

"alleged,

potentially

Wilson,

744

executed by non-employee

at

actual authority to

most,

voidable

F.3d

at

not void).

that

under

the

a

result,

[MERS­

Massachusetts

(assignment

13
As

the assignment

allegedly

she does not

have standing to challenge the MERS-BANA assignment. See id.
Barricello
is void because
who

was

not

similarly
it

then

contends

that

the

BANA-WF assignment

"was allegedly executed by a

nor

is

he

now
14

an

officer

of

one Greg Ott,
[BANA]

for

the

purpose of assigning the mortgage to WF as Trustee." Compl.
The

BANA-WF

assignment

states

that

Ott

was

at

the

time

lJI7.
Vice

President of SPS, which was acting as attorney-in-fact for BANA.
Id. Ex. C. An assignment executed by a party "acting under such
power of attorney on behalf of
shall

be

§54B.

binding

upon

Therefore,

such

[an entity holding a mortgage]

entity."

Barricello

lacks

Mass.

Gen.

c.

183,

to

bring

this

for

standing

Laws

voiding

challenge as well. See id.
Barricello

asserts

BANA-WF assignment.
was made five
Trust,
lJI7.

al ternati ve

ground

the

She alleges that "[t] he recorded Assignment

(5) years after the closing date of the HarborView

in breach of the master purchase agreement terms." Compl.

The

master

purchase

Complaint.

However,

her

fails.

claim

Culhane

an

standard,

agreement

was

not

filed

with

the

even taking Barricello's assertion as true,
The

First

"claims

Circuit
that

has

held

that

assert

merely

infirmities in the assignment of a mortgage,

under

the

procedural

such as a failure

to abide by the terms of a governing trust agreement, are barred
for lack of standing." Woods, 733 F.3d at 354.
The court finds that Barricello lacks standing to challenge
the MERS-BANA and BANA-WF assignments.
be

dismissed.

Ordinarily,

dismissal

Therefore,
for

lack

of

Count II must
standing

without prejudice to relitigation of the underlying claim.
Osediacz v. City of Cranston,

414 F.3d 136, 143
15

is
See

(1st Cir. 2005);

Brereton v.

Bountiful City Corp.,

Cir.

However,

2006).

434

F.3d 1213,

1218-19

in analyzing the issue standing,

(10th

the court

has necessarily had to consider the merits of Barricello's claim
that the MERS-BANA and BANA-WF assignments are void,
merely voidable.
Therefore,
Abate,

It has

Count

470 Mass.

II

is

at 836

found
being

this

rather than

claim to be unmeritorious.

dismissed

with

prejudice.

See

(dismissal with prejudice proper where

court must consider merits to resolve jurisdictional question);
Sullivan v.
171

(D.

Bank of New York Mellon Corp.,

Mass.

2015)

91 F.

Supp.

3d 154,

(dismissing wrongful foreclosure claim with

prejudice where mortgage assignment was merely voidable) .
3. Count I I I (Chapter 93A)

Barricello also asserts two claims for money damages.

The

first alleges that the defendants have violated Chapter 93A. The
defendants respond that Barricello's claim is barred because she
failed to make a written demand for relief before filing suit as
required by §9(3)
allegation.
required

of Chapter 93A.

Instead,

since

the

she

defendants,

Petition to be filed with
Compl.

asserts

Barricello does not deny that
that

.. [n]

0

collectively,

[the Land Court]

demand
caused

letter

is

a

[SCRA]

on August 23,

2013."

~26.

Barricello cites no legal authority for her position.

She

appears to be relying on the statutory exception for Chapter 93A
claims "asserted by way of counterclaim or cross-claim." M. G. L.
16

c.

93A,

§9 (3).

However,

Barricello did not assert her claims as

counterclaims to Wells Fargo's petition under the SCRA.
it appears she could not have done so.
v.

Matt,

file
has

464

claims

Mass.
in

held that

Bank,

a

demand

N.A.,

plaintiff
a

begun.

(2013)

requirement

693

F.3d

See

Matt,

See HSBC Bank USA, N.A.

(nonservicemembers may not
Moreover,

"asserting her

foreclosure

equally applies where,
yet

196

SCRA proceedings).

defensi vely against
written

193,

§9(3).

218

(1st

as here,
464

the

McKenna
Cir.

First

[Chapter

action" must

of

207,

Indeed,

Circuit

93A]

claims

comply with the
v.

2012).

Wells
That

Fargo
holding

foreclosure proceedings have not

Mass.

at

204

(liThe

servicemember

proceeding is not part of the foreclosure process. ").
"The demand letter requirement
procedural nicety, but, rather,
McKenna,
Law,

389

693 F.3d at 217-18
F.3d

5,

19

[of §9 (3)]

'is not merely a
I II

a prerequisite to suit .

(quoting Rodi v. S. New Eng. Sch. of

(1st

Cir.

2004)).

Because

Barricello's

Chapter 93A claim is barred because of a procedural defect,
court is not deciding it on the merits.

Therefore,

the

Count III is

being dismissed without prej udice to refiling if Barricello is
able

to

Sullivan,

comply
369

with

Mass.

the
157,

requirements
165

(1975)

of

§9 (3).

(dismissal

See

for

York

v.

failure

to

comply with §9(3) requirements should be without prejudice).

17

4. Count IV (Breach of Contract)

In her
the

second claim for

defendants

breached

damages,

both

the

Barricello alleges

mortgage

contract

implied covenant of good faith and fair dealing. Compl.

that

and

the

~27.

The

defendants argue that Barricello has not pled sufficient facts
to state a plausible claim for relief.
"An

indispensable element

in the pleading and proof of a

breach of contract claim is the promise that the plaintiff seeks
to enforce." Artuso v.

Vertex Pharm.,

Cir.

breach

2011).

To

plead

of

Inc.,

637

6

(1st

the

contract,

F.3d I,

plaintiff

must

describe "the nature of the alleged contract[,] what obligations
were imposed on each of the parties by the alleged contract [,
and]

the damages attributable to the breach."

Doyle v.

Hasbro,

Inc., 103 F.3d 186, 195 (1st Cir. 1996). The plaintiff must also
"describ [e] ,

wi th

substantial

certainty,

the

specific

contractual promise the defendant failed to keep." Brooks v. AIG
SunAmerica Life Assur.

Co.,

480

F.3d 579,

586

(1st Cir.

2007)

(internal quotations omitted) .
Barricello
issue.

See

identifies

Compl.

~27.

the

mortgage

However,

she

as

does

the
not

contract
identify

specific terms that the defendants allegedly breached.
fails

to

contract,

explain

which

defendants

allegedly

at
the

She also

breached

the

or when they did so. All she offers is the conclusory

statement that

"by the above-stated actions"--referring to the
18

entirety

of

mortgage

contract].

pleading

the

complaint--"the

requirements

8 (a) (2). See Doyle,
I

Id.

II

[defendants]

This

of

defendants
is

insufficient

Federal

Rule

103 F.3d at 195

failed

to

meet

have

of

breached
to

[the

satisfy

Civil

the

Procedure

("Conclusory statements that

their

contractual

requirement,'

are insufficient to satisfy the pleading requirements. ") .
Moreover,

even after the defendants

in

motions

their

to

dismiss,

basis of this claim.

raised lack of specificity

Barricello

See Docket No.

41.

did

not

clarify

Therefore,

the

Count IV is

being dismissed as to Barricello's breach of contract claim.
Barricello also
covenant
faith

of

and

fails

good faith
fair

to

and

dealing

fair
is

contract. See T.W. Nickerson,
562,

569-70

"injur [ing]

(2010).
the

otherwise

terms

However,

implied
Inc. v.

in

defendants,

breach of the

covenant

every

of good

Massachusetts

Fleet Nat. Bank,

of the

[party]

contract.

II

Id.

[i] t

cannot

456 Mass.

to reap the benefits
II

Id.

for
(quoting

does

allegedly

not

in

the

Uno

570

411 Mass.

(quoting
451,

471­

the

19

contractual

existing

Restaurants,

specify which

breached

at

'create rights and duties not

Kenmore Realty Corp., 441 Mass. 376, 385
Barricello

The

Inc. v. HBC Associates,

provided

relationship. '"

claim for

It prohibits any party to the contract from

Anthony's Pier Four,
(1991)).

a

dealing.

rights of another

prescribed by the

72

state

Inc.

v.

Boston

even

which

(2004)).
actions,

implied

or

covenant

of

good

faith and fair dealing. See Compl.

~27.

The only alleged conduct

that may have denied her the benefit of the mortgage is BANA' s
refusal to authorize a short sale of the Property.
However,

Barricello

contractual
covenant

obligation

is

particular
support

has

only

as

not

to

do

broad

relationship,"

Barricello' s

443 Mass.

367,

F.3d 486,

493

385

alleged

so.
as

claim.

Because

the

this

BANA

"[t] he

contract

allegation

Ayash v.

scope

that

is

had

~18.

any

of

the

governs

the

insufficient

Dana-Farber Cancer

(2005); MacKenzie v.

(1st Cir. 2013)

that

See id.

Flagstar Bank,

to

Inst.,

FSB,

738

(absent specific contractual duty,

mortgagee's refusal to modify loan did not breach covenant).
Barricello's allegations do not plausibly state a claim for
breach

of

contract

fai th

and

claim

under

fair

or breach of

dealing.

Fed.

R.

"A

Civ.

1994).

P.

for

12(b) (6)
Hernandez,

Count

Therefore,

implied covenant

dismissal

meri ts." Acevedo-Villalobos v.
Cir.

the

IV

is

is
22

failure
a

to

decision

F. 3d 384,

being

of

good

state
on
388

dismissed

a

the
(1st
with

prejudice.
5. Count V (Inj uncti ve Relief)
In Count V, Barricello states that "[u]nless the defendants
are preliminary enjoined from holding a foreclosure sale on the
Property, the plaintiff will be irreparably harmed." Compl.
An injunction is a remedy,
733

F.3d

at

353

n.3;

~28.

not a freestanding claim. See Woods,

Payton

v.
20

Wells

Fargo

Bank,

N.A.,

No.

CIV.A.

12-11540-DJC,

2013)

2013 WL

(collecting cases).

782601,

Therefore,

at

*6

(D.

Mass.

Feb.

28,

Count V is being dismissed

to the extent that it attempts to assert an independent claim.
However,

this

dismissal

does

not

preclude

Barricello

from

seeking injunctive relief on the basis of any future claim that
is not otherwise barred.
IV.

PLAINTIFF'S PRO SE MOTIONS
A. Legal Standard
"A document

and

'a

pro

se

held to less

"The

se

complaint,

(quoting
policy

behind
is

that
the

if

correct

to

comply

law.'"
Cir.

with

Andrews

1985)

Bechtel

(quoting

of

Rosenblatt,

rules

of

89,

U.S.

Faretta

v.

21

be

(2007)

(per

106

(1976)).

plaintiffs

se

liberal

sufficient
action,
118

780

California,

n.46 (1975)).

94

97,

facts,

even

if

F.3d 886,

procedural

Power Corp.,

must

pleadings drafted

"self-representation is not

relevant
v.

u.S.

present

cause

pleaded,

formal

429

pro

they

imperfectly pled." Ahmed v.
However,

551

Gamble,

affording

liberally construed,'

inartfully

Pardus,

Estelle v.

court may intuit

1997).

'to be

however

Erickson v.

interpretation

Cir.

is

stringent standards than

by lawyers. '"
curiam)

filed pro

it was

890

(1st

'a license not
and

substantive

F.2d 124,
422

the

U.S.

140

(1st

806,

835

B. Analysis
The

court

has

filings

to

relief.

carefully

Construing

favor,
seeks

determine

considered

whether

the

she

is

pleadings

Barricello's

entitled

liberally

to

in

any

the

pro

se

form

of

plaintiff's

the court finds no basis on which the relief Barricello
can be granted.

Therefore,

her

three pro se motions are

being denied.
1. Motion for Default Judgment
. Federal Rule of Civil
default

where

defend"

against

consistently
assertions,
motions

the

defendant

an

"has

action.

defended
they

Procedure 55 (a)

adequately

Wells

this

have

failed

action.

addressed

and

Fargo,

in

to plead or otherwise
BANA,

and

Contrary

her

to

claims

and

timely

a

Barricello's motion for default

permits an entry of

SPS

have

Barricello's
her

manner.

pro

se

Therefore,

judgment against the defendants

is being denied.
2. Motion for Quiet Title
The court construes Barricello's motion for quiet title as
a

motion to

title

amend her

under Mass.

Gen.

complaint
Laws

action for quiet title,

cloud

Daley,

from

the

240,

include
§§6-10.

a

claim for
To

quiet

succeed in an

the plaintiff must hold legal title to

the property in question.
Daley v.

c.

to

See Bevilacqua,

300 Mass.

17,

title

land

to

21

22

(1938)

affected

460 Mass.

at 767 n.5;

("A bill to
cannot

be

remove a

maintained

unless both actual possession and the legal title are united in
the plaintiff.").
property

is

Therefore,

In Massachusetts,

held

by

the

legal

mortgagee.

under Massachusetts law,

title
See

to a mortgaged

supra

§III.B.1.

a mortgagor cannot bring an

action to quiet title in a mortgaged property, because she lacks
legal title.
Barricello does not dispute that she mortgaged the Property
in 2006.
2010

She

contends

bankruptcy

mistaken.

As

that

the mortgage was discharged in the

proceedings.

explained earlier,

discharge a mortgage debt,
itself.

See

Docket

No.

53

at

3.

She

is

bankruptcy under Chapter 7 may

but does not discharge the mortgage

See supra §I I I. B. 1.

Therefore,

Barricello' s mortgage is

still in effect and she may not bring an action for quiet title
at this time.
3. Motion for Leave to Amend
Barricello has moved to amend her complaint to include new
factual
5-6.

allegations

However,

she

theories are or how
filed

a

failure

proposed
to

and

legal

has

not

they will

amended

explain

the

of

Co.,

leave

288
to

F.3d 895,

amend where

explained

basis

906

See

Docket

what

these

support her claims.

complaint.

reason to deny leave to amend.
Mach.

theories.

for

Ordinarily,
amendment

is

No.

facts
Nor has

a

plaintiff
23

2002)

"never

at
and
she

plaintiff IS
a

sufficient

See Roskam Baking Co.
(6th Cir.

53

v.

Lanham

(affirming denial

submitted a

proposed

amendment for the court to review,

and he did not indicate what

allegations his amended complaint would contain to support
claim] ") .
herself,

However,

because

Barricello

is

now

[his

representing

the court has reviewed her pro se filings to determine

whether it can "intuit" a proper basis for amendment. Ahmed, 118
F.3d at 890. It cannot. 2
Barricello asserts several reasons that the defendants lack
the authority to foreclose on the Property. She argues that they
cannot meet the requirements of the recently-amended Mass.
Laws

Chapter 244.

See

Docket No.

53

at

2-3.

She also asserts

that the statute of limitations on foreclosure has run.
at

3-5.

Finally,

she

argues

that,

for

Gen.

equitable

See id.

reasons,

the

defendants should not be allowed to foreclose after engaging in
what

she characterizes as

fraudulent

and unscrupulous

tactics.

See Docket No. 57 at 9-13.
As explained earlier,
to

consider

occurred.

the

merits

the court does not have jurisdiction
of

See supra §III. B.1.

a

foreclosure
Therefore,

that

has

Barricello' s

not

yet

arguments

2 Although only Docket No. 53 was styled as a motion for leave to
amend, the court has considered all of Barricello's pro se
filings in reaching this conclusion. This includes Barricello's
motion for default judgment and quiet title, Docket No. 57, and
her January 7, 2016 letter, Docket No. 62. The court has not
considered Barricello's May 14, 2014, letter, Docket No. 47,
which she filed while still represented by counsel and, in any
event, makes essentially the same arguments as her later pro se
submissions.

24

on this point

are premature.

For the

same

reason,

her concern

that the defendants are using the court to "legi timi ze" illegal
conduct,
and

Docket No.

indeed

57

cannot,

at 13,

is unfounded.

"legitimize"

a

The court has not,

foreclosure

that

is

now

support

of

her

hypothetical.
Barricello
argument
First,

that

also
the

alleges

MERS-BANA and

the

term

facts

in

BANA-WF assignments

are

void.

she alleges that the assignments were "robo-signed" and,

therefore, fraudulent.
As

new

Docket No.

57 at 5; Docket No.

First Circuit explained in Wilson,

"robo-signing"

is

a

colloquial

significance under Massachusetts

744

F.3d at

term with

law.

62 at 2-3.

no

Accordingly,

13,

clear

the

legal

Barricello' s

"bare allegation of 'robo-signing' does nothing to undermine the
validity

of

[MERS-BANA

the

or

(affirming dismissal of wrongful

BANA-WF]

rd.

Assignment."

foreclosure

claim for

lack of

standing) .
Second,

Barricello

alleges

that

Countrywide

assigned

her

mortgage to Greenwich as part of the HarborView Trust in 2006,
then purported to
later.

See

Countrywide

assign the

Docket
had no

No.

57

at

interest

standing

to

pursue

Culhane,

708

F. 3d at

this
291

same mortgage
6-9,
to

11.

assign

claim.

See

(mortgagor

to

BANA five

Therefore,
to

BANA.

Wilson,
has

she

years

argues,

Barricello has

744

F.3d

standing to

at

challenge

assignment on ground that "assignor had nothing to assign").
25

9;

However, Exhibit B to the Complaint shows that it was MERS,
not

Countrywide,

When

a

that

documen t

assigned

attached

the mortgage

to

to

complaint

a

BANA in

2011. 3

contradicts

an

allegation in the complaint, the document trumps the allegation.
See Clorox, 228 F.3d at 32
finds

that

assigned

MERS

the

(1st Cir. 2000). Therefore, the court

assigned

mortgage

to

the

mortgage

Wells

Fargo.

to
For

BANA,
the

which

reasons

then
stated

earlier, see supra §III.B.2, these assignments were effective to
transfer

whatever

interest

question of whether that
Fargo to

foreclose

MERS

held

interest is

on the

to

Wells

Fargo.

The

sufficient to allow Wells

Property is

not

now

properly before

the court. See supra §III.B.1.
After careful consideration of Barricello's pro se filings,
the court finds no allegations that would entitle her to relief
at this time. Therefore, amendment would be futile.

See Hatch v.

Dep't for Children, Youth & Their Families, 274 F.3d 12, 19 (1st
Cir. 2001)

(amendment in response to motion to dismiss is futile

3
The First Circuit recently explained the operation of "the
mysterious entity known as MERS." Culhane, 708 F.3d at 287.
Briefly, when MERS acts as nominee for a lender, MERS holds
title to the mortgage, but the lender holds the mortgage note.
See
id.
at
291-92.
Under
Massachusetts
law,
"[t]he
two
instruments exist on separate planes, and the transfer of the
note does not automatically transfer the mortgage." Id. at 292.
Therefore, MERS can assign bare title to a mortgage even if the
lender has assigned the note to another entity. See id. at 293.
From the documents in the record, this appears to be precisely
what happened to Barricello's mortgage.

26

unless

"the

proposed

scenario which,

amended

if proven,

complaint

sets

forth

a

general

would entitle the plaintiff to relief

against the defendant on some cognizable theory").

Accordingly,

Barricello's motion for leave to amend is denied.

v.

ORDER
In view of the foregoing,
1.

The

defendants'

it is hereby ORDERED that:

Motions

to

Dismiss

for

Failure

to

State a Claim (Docket Nos. 34, 37) are ALLOWED. Counts I and III
of

the

Complaint

are

dismissed

without

prejudice.

All

other

Counts are dismissed with prejudice.
2.

Barricello's

for

Motion

Leave

to

File

Amended

Complaint (Docket No. 53) is DENIED.
3.

Barricello's Motion for Default Judgment and Motion to

Quiet Title (Docket No. 57) is DENIED.
4.

This case is DISMISSED.

27