Okafor v. Statebridge Company LLC et al

Filing 54

Chief Judge Patti B. Saris: ORDER entered. MEMORANDUM and ORDER of Dismissal with prejudice. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
)
)
Plaintiff,
)
) Civil Action No. 14-13605-PBS
v.
)
)
STATEBRIDGE COMPANY LLC, as
)
Servicer for Waterfall Victoria
)
Mortgage Trust 2011-1; WATERFALL )
VICTORIA MORTGAGE TRUST 2011-1,
)
DEUTSCHE BANK NATIONAL TRUST
)
COMPANY; QUANTUM LOAN SERVICING
)
CORPORATION; WELLS FARGO NATIONAL )
ASSOCIATION as Trustee of
)
Waterfall Victoria Mortgage Trust )
2011-1 and Ocwen Loan Servicing
)
LLP,
)
)
Defendants.
)
)
NKEM OKAFOR,

July 2, 2015
Saris, U.S.D.J.
MEMORANDUM AND ORDER
Plaintiff Nkem Okafor brought suit against Defendant
Statebridge Company LLC and others, alleging fraudulent, unfair,
and deceptive conduct concerning the management and modification
of his mortgage and the pending foreclosure upon his home (Docket
No. 28). Okafor sought both damages and injunctive relief on the
basis of these claims. For the following reasons, I DISMISS the
case in its entirety with prejudice.
First, the plaintiff’s attorney, Kenneth Onyema, was
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substantially late to one court proceeding and entirely absent
from another without justification. During the first hearing on
the defendants’ motion to dismiss on November 5, 2014, Mr. Onyema
arrived nearly forty-five minutes late and stated only that there
had been a miscommunication in his office regarding whether the
case was, in fact, set to proceed. Docket No. 31, Hrg. Tr. 4-5.
During the second hearing, nearly eight months later, Mr. Onyema
simply did not show up, although the Court and counsel waited for
one hour after argument was set to begin and reached out to Mr.
Onyema by both telephone and email in the interim. Mr. Onyema
subsequently contacted the courtroom clerk, inquiring as to the
location of the Courthouse and stating that he was unclear which
case the hearing concerned. Mr. Onyema offered no reason for his
failure to attend the hearing, of which he had received ample
advance notice.
In addition, the plaintiff has persistently failed to meet
his discovery obligations and file requisite pleadings. Okafor
did not appear at a scheduled deposition, despite the fact that
counsel for the defendants had spoken to Mr. Onyema the previous
evening. Nor has Okafor submitted a letter to the Court,
detailing his employment status and ability to pay off his
mortgage, as required at the scheduling conference. Furthermore,
although the parties dispute whether Okafor ever submitted any
discovery requests or interrogatories to the defendants, no such

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documents appear on the CM/ECF online docket. Okafor also did not
respond to Defendant Quantum’s motion to dismiss, which the Court
subsequently allowed without opposition. Docket No. 45. Only
after entry of that judgment did Mr. Onyema contact the Court
seeking leave to vacate the order, explaining that he “mistook”
Quantum’s motion for a previous motion to dismiss filed by other
defendants, and that his failure to file an opposition was
“totally out of inadvertence.” Docket No. 49.
Finally, after a review of the pleadings, it is unlikely
that any of Okafor’s claims have merit. For one thing, Okafor’s
various allegations of fraud do not approach the level of
particularity required by Fed. R. Civ. P. 9(b), and to the extent
that Okafor characterizes the defendants’ transfers of his
mortgage as fraudulent, he may lack standing to challenge the
foreclosure. See Culhane v. Aurora Loan Servs. of Nebraska, 708
F.3d 282, 291 (1st Cir. 2013) (mortgagor lacks standing to
challenge validity of mortgage assignment where conveyance is
fraudulent and merely voidable, not void). For another, the Court
also reviewed the mortgage assignment documentation, which does
not support a claim of fraudulent transfer. And although Okafor’s
allegation that the defendants strung him along with false offers
of loan modifications might hold some water, he has not provided
any evidence to support this claim, and the record as it stands
betrays no such bad faith.

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Due to counsel’s repeated tardiness, Okafor’s delinquence
regarding his discovery obligations, and the weakness of his
allegations on the merits, all claims against the defendants are
DISMISSED with prejudice based on failure to prosecute pursuant
to Fed. R. Civ. P. 41(b).
/s/ PATTI B. SARIS
PATTI B. SARIS
United States District Judge

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