Mitrano v. JPMorgan Chase Bank, National Association et al

Filing 28

Judge Richard G. Stearns: ORDER entered granting 24 Motion to Dismiss. "For the foregoing reasons, the motion to dismiss is ALLOWED. The Clerk will enter the dismissal with prejudice and close the case." (RGS, int2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-14167-RGS
PETER P. MITRANO
v.
JPMORGAN CHASE BANK, N.A.; SANTANDER BANK, N.A.; SOVEREIGN
BANK, N.A.; 1 and ORLANS/MORAN, PLLC2
MEMORANDUM AND ORDER
ON DEFENDANTS JPMORGAN CHASE BANK, N.A. and
SANTANDER BANK N.A.’S JOINT MOTION TO DISMISS
April 16, 2015
STEARNS, J.
Plaintiff Peter Mitrano filed this pro se complaint against, inter alia,
JPMorgan Chase Bank and Santander Bank (the Banks) claiming that the
Banks are in breach of the fiduciary duty that each owed him as a
mortgagor. At issue is Mitrano’s former home in Hanover, NH, which was
sold by the Banks at a November 14, 2008 foreclosure sale. Mitrano alleges
that the Banks (1) failed to provide him prior notice of sale, and (2) sold the
home at auction for an unreasonably low price. The Banks jointly move to
dismiss Mitrano’s claims as time barred.
1

Sovereign Bank became Santander Bank in 2013.

The court previously dismissed Orlans/Moran because it did not
owe Mitrano, a non-client, a fiduciary duty. See Dkt. No. 9.
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, 556 U.S. 662, 678 (2009), quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Two basic principles guide
the court’s analysis in this case. “First, the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. “Second, only a complaint that states
a plausible claim for relief survives a motion to dismiss.” Id. at 679.
“Affirmative defenses, such as the statute of limitations, may be
raised in a motion to dismiss under Fed. R. Civ. P. 12(b)(6), provided that
the facts establishing the defense [are] clear on the face of the plaintiff's
pleadings.” Trans-Spec Truck Serv. v. Caterpillar, Inc., 524 F.3d 315, 320
(1st Cir. 2008) (internal quotations omitted). “Where the dates included in
the complaint show that the limitations period has been exceeded and the
complaint fails to “sketch a factual predicate” that would warrant the
application of either a different statute of limitations period or equitable
estoppel, dismissal is appropriate.” Id. Under New Hampshire law, 3 which

In choice of law matters, Massachusetts follows the Afunctional@
approach of Restatement (Second) of Conflict of Laws ' 142 (1971). See
Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631 (1985). Under
this approach, a forum will apply its own statute of limitations unless no
substantial interest of the forum would be served or unless the action
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applies in this case, “[n]o claim challenging the form of notice, manner of
giving notice, or the conduct of [a] foreclosure sale shall be brought by the
mortgagor . . . after one year and one day from the date of the recording of
the foreclosure deed for such sale.” N.H. Rev. Stat. § 479:35, II-a. New
Hampshire provides a 3-year limitations period for the filing of a claim of
breach of fiduciary duty. See N.H. Rev. Stat. § 508:4.
Both of Mitrano’s claims are time barred. Mitrano’s Complaint states
that foreclosure of the Hanover property occurred on November 14, 2008,
six years prior to the filing of this action. Compl. ¶ 11. The Foreclosure
Deed was recorded on December 12, 2008, in the Grafton County Registry
of Deeds,4 and as a public record, was available to Mitrano for inspection
anytime after it was filed. (The statute of limitations bars actions of which a
plaintiff knew or should have known). Consequently, the latest Mitrano
could have timely filed a claim challenging notice of the foreclosure sale
was December 13, 2009. Further, Mitrano admits he had knowledge of the
foreclosure sale on January 13, 2009, and thus any claim for breach of
would be barred by the statute of limitations of a forum having a more
significant relationship to the parties and the occurrence. Anderson v.
Lopez, 80 Mass. App. Ct. 813, 815 (2011). New Hampshire, where the
property is in situ, clearly has the superior interest in the litigation.
In resolving a motion to dismiss, a court may look to official public
records. See Alt. Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d
30, 33 (1st Cir. 2001).
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fiduciary duty should have been brought, at the latest, within three years of
that date. Compl. ¶ 27.
ORDER
For the foregoing reasons, the motion to dismiss is ALLOWED. The
Clerk will enter the dismissal with prejudice and close the case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

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