Lai et al v. U.S. Bank National Association, As Successor Trustee to Bank of America et al

Filing 15

Judge Richard G. Stearns: ORDER entered granting 13 Motion to Dismiss for Failure to State a Claim. "For the foregoing reasons, defendant Doonan, Graves & Longoria's motion to dismiss is ALLOWED." (RGS, int2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-13311-RGS
WENDY KO LAI and KOON-HUNG LAI
v.
US BANK NATIONAL ASSOCIATION; BAC HOME LOANS SERVING, LP;
NATIONSTAR MORTGAGE LLC; DOONAN, GRAVES & LONGORIA, LLC;
GUAETTA AND BENSON, LLC; CARRINGTON PROEPRTY
SERVICES/CARRINGTON REAL ESTATE SERVICES, LLC
MEMORANDUM AND ORDER ON DEFENDANT
DOONAN, GRAVES & LONGORIA’S MOTION TO DISMISS
September 25, 2015
STEARNS, D.J.
In their Amended Complaint, plaintiffs Wendy Ko Lai and Koon-hung
Lai allege that defendants US Bank National Association (US Bank); BAC
Home Loans Servicing, LP (BAC); Nationstar Mortgage LLC (Nationstar);
Doonan, Graves & Longoria, LLC (Doonan); Guaetta and Benson, LLC
(Guaetta); and Carrington Property Services/Carrington Real Estate
Services, LLC (Carrington) failed to offer a good faith modification of the
mortgage on their property at 4-4A Bryon Rd, Newton, MA, and foreclosed
(if indeed a foreclosure has taken place) on the mortgage without giving the
proper notice. Doonan moves to dismiss for failure to state a claim upon
which relief may be granted. See Fed. R. Civ. P. 12(b)(6).

The facts, as alleged, are as follows. The Lais obtained a mortgage for
the property in 2006 and defaulted on the loan in and about May of 2010.
Between 2010 and 2015, the Lais repeatedly submitted HAMP loan
modification applications to BAC and subsequently US Bank (the successor
in interest to the original mortgagee) and Nationstar (which became the
successor servicer) to no avail. The Lais allege that these entities failed to
properly process their applications despite numerous representations of
doing so. In June of 2015, plaintiffs learned from Nationstar, Guaetta, and
Doonan that the property had been foreclosed. Subsequently, Carrington
placed a “for sale” sign on the property, and contacted plaintiffs’ tenants (the
property is a multi-family residence) to inform them that plaintiffs were no
longer the owners of the building, offering the tenants a new lease or the
opportunity to relocate.

Plaintiffs assert fifteen claims1 – Wrongful

Foreclosure (Count I); Violations of Mass. Gen. Laws ch. 183, §§ 5B, 21
(Count II); Violations of Mass. Gen. Laws ch. 244, §§ 14, 35A, 35B, 35C
(Count XIII); Violation of the Fair Debt Collection Practices Act (Count IV);
Violation of Truth in Lending (Count V); Breach of Implied Covenant of
Good Faith and Fair Dealing (Count VI); Fraud and Fraudulent

There is no Count III in the Amended Complaint. For ease of
reference, the court will adopt the numbering of the claims used in the
Amended Complaint.
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Misrepresentation (Count VII); Trespass (Count VIII); Interference with
Contractual Relationships (Count IX); and Negligent Misrepresentation
(Count X); Negligence (Count XI); Intentional Infliction of Emotional
Distress (Count XII); Unjust Enrichment/Conversion (Count XIV); Slander
of Credit (Count XV); and Violations of the Massachusetts Consumer
Protection Act (Count XVI).
The Amended Complaint contains a single factual allegation
concerning Doonan – that in or about June 10, 2015, plaintiffs received a
certified letter from Doonan informing them of the foreclosure.

This

allegation is, without more, incapable of supporting the three claims
conceivably lodged against Doonan (the Amended Complaint does not
identify the targeted defendants for each claim). A mere notice of foreclosure
cannot sustain claims for fraudulent (Count VII) or negligent (Count X)
misrepresentation where plaintiffs do not allege any detrimental reliance on
a representation. See Masingill v. EMC Corp., 449 Mass. 532, 540 (2007).
Plaintiffs admit that they still reside at the property, and the Amended
Complaint alleges that it was Carrington that contacted plaintiffs’ tenants.
The foreclosure notice letter also cannot sustain the claim for
intentional infliction of emotional distress (Count XII). To make out such a
claim, plaintiffs must allege that
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(1) that the actor intended to inflict emotional distress or that he
knew or should have known that emotional distress was the likely
result of his conduct, (2) that the conduct was “extreme and
outrageous,” was “beyond all possible bounds of decency” and
was “utterly intolerable in a civilized community,” (3) that the
actions of the defendant were the cause of the plaintiff's distress,
and (4) that the emotional distress sustained by the plaintiff was
“severe” and of a nature “that no reasonable man could be
expected to endure it.”
Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976) (internal
citations omitted).

Under the circumstances – where plaintiffs have

admitted to being in default, Am. Compl. ¶ 10, and further, being aware that
US Bank had initiated foreclosure in 2012, Am. Compl. ¶ 20 – the court
cannot conclude as a matter of law that a notice of foreclosure, even if
inaccurate, is so “extreme and outrageous” as to be “beyond all possible
bounds of decency.” Moreover, plaintiffs do not allege any facts to suggest
that they have suffered such severe distress “that no reasonable man could
be expected to endure it.”
ORDER
For the foregoing reasons, defendant Doonan, Graves & Longoria’s
motion to dismiss is ALLOWED.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE
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