Saade v. PennyMac Loan Services, LLC et al

Filing 30

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ADOPTING the 25 Report and Recommendation; DENIYING Plaintiff's 19 Motion to Remand; ALLOWING Kirkwood's 13 Motion to Dismiss.The court defers ruling on the 26 Report and Recommendation, and allows Plaintiff 14 days to file any objections to the Magistrate Judges recommendation that the court grant PennyMac Defendants' 17 Motion to Dismiss. See Attached Order. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JACQUES SAADE,
Plaintiff,
v.
PENNYMAC LOAN SERVICES, LLC,
PENNYMAC MORTGAGE INVESTMENT
TRUST HOLDINGS I, LLC, PNMAC
MORTGAGE CO. LLC, DEUTSCHE
BANK AS TRUSTEE OF PENNYMAC
LOAN TRUST 2011-NPL1, MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC., CHRISTIANA TRUST,
WILMINGTON SAVINGS FUND SOCIETY,
FSB, SPECIALIZED LOAN SERVICING, LLC,
JENNIFER KIRKWOOD,
CITIMORTGAGE, INC., MORTGAGE
LENDERS NETWORK, INC.,

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Civil Action No. 15-cv-13611-IT

Defendants.
MEMORANDUM AND ORDER
October 20, 2016
TALWANI, D.J.
Presently before the court is the Magistrate Judge’s Report and Recommendation [#25] that
recommends denying Plaintiff Jacques Saade’s Motion to Remand [#19] and granting Defendant
Jennifer Kirkwood’s (“Kirkwood”) Motion to Dismiss [#13]. Also before the court is the Magistrate
Judge’s Report and Recommendation [#26] that recommends granting the Motion to Dismiss [#17] filed
by the PennyMac Defendants.1 For the reasons that follow, the court ADOPTS the Report and

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PennyMac Defendants refers to PennyMac Loan Services, LLC , PennyMac Mortgage Investment
Trust Holdings I, LLC, PNMAC Mortgage Co. LLC, Deutsche Bank as Trustee of PennyMac Loan

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Recommendation [#25], DENIES the Motion to Remand [#19], and GRANTS Defendant Kirkwood’s
Motion to Dismiss [#13]. The court defers ruling on Report and Recommendation [#26], and allows
Plaintiff additional time to file any objections to the Report and Recommendation [#26] as to PennyMac
Defendants’ Motion to Dismiss. [#17].
On October 21, 2015, PennyMac Defendants filed a notice of removal, pursuant to 28 U.S.C.
§§ 1441 and 1446, to this court of a civil action commenced in the Suffolk Superior Court by pro se
Plaintiff Jacques Saade. Kirkwood moved to dismiss the complaint on October 28, 2015 [#13], and the
PennyMac Defendants moved to dismiss the complaint on November 10, 2015. [#17]. Shortly thereafter,
Plaintiff moved to remand the case to state court based on the apparent lack of diversity between the
parties. [#19].2
PennyMac Defendants, joined by Kirkwood, oppose Plaintiff’s Motion to Remand, on the basis
of fraudulent joinder. Defs.’ Opp’n Pl’s Mot. Remand [#20]; Jennifer Kirkwood Opp’n Pl’s Mot.
Remand [#21]. Plaintiff did not seek leave to file a reply to Defendants’ oppositions to his motion, and
has not addressed the fraudulent joinder issue in his response to the Magistrate Judge’s Report and
Recommendation. See Pl.’s Letter [#28].
“[I]t is generally recognized that, under the doctrine of fraudulent joinder, removal is not
defeated by the joinder of a non-diverse defendant where there is no reasonable possibility that the
state’s highest court would find that the complaint states a cause of action upon which relief may be
granted against the non-diverse defendant.” Universal Truck & Equip. Co. v. Southworth-Milton, Inc.,

Trust 2011-NPL1, Mortgage Electronic Registration Systems, Inc., Christiana Trust, a Division of
Wilmington Savings Fund Society, FSB, not in its individual capacity, but solely as separate trustee for
PennyMac Loan Trust 2011-NPL1, Wilmington Savings Fund Society, FSB, and Specialized Loan
Servicing, LLC.
2
Both Plaintiff and Defendant Jennifer Kirkwood are citizens of Massachusetts.

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765 F.3d 103, 108 (1st Cir. 2014).
Plaintiff alleges that Kirkwood’s violation of the Massachusetts Fair Debt Collection Practices
act, Mass. Gen. Laws. ch. 93 § 49, was a per se violation of Mass. Gen. Laws c. 93A. Plaintiff states that
a letter sent by Kirkwood, which was sent in response to Plaintiff’s c. 93A demand letter, threatened
Plaintiff in violation of the Fair Debt Collection Practices Act. Compl. ¶¶ 59-62, 139-143, 226-228 [#11]. Plaintiff alleged the same set of operative facts against Kirkwood in a related action in this court, 15cv-12275-IT. There, over Plaintiff’s Opposition [#85] and Objection [#106], the court granted
Kirkwood’s Motion to Dismiss [#82], on the basis that the complaint failed to allege a cause of action
against Kirkwood under both the Massachusetts Fair Debt Collection Practice Act and the federal Fair
Debt Collection Practices Act. Here, Plaintiff has also failed to allege a colorable claim against
Kirkwood. Kirkwood’s letter states that her clients will vigorously defend themselves in any proceeding
initiated by Plaintiff. Such a statement does not violate any of the prohibitions listed under the
Massachusetts Fair Debt Collection Practices Act.
Furthermore, the letter was sent in response to Plaintiff’s demand letter. Mass. Gen. Laws ch.
93A requires a plaintiff to send a demand letter so that a respondent can tender a settlement offer before
suit may be filed. Mass. Gen. Laws. ch. 93A, § 9(3); Thorpe v. Mut. of Omaha Ins. Co., 984 F.2d 541,
544 (1st Cir. 1993) (one reason for the demand letter requirement is “to encourage negotiation and
settlement.”). To impose liability on an attorney for sending a letter in response to a Chapter 93A
demand would vitiate the very purpose of demand requirement. For the foregoing reasons, the court
finds that there is no reasonable possibility that the state’s highest court would find that the complaint
states a cause of action upon which relief may be granted against Kirkland, and Plaintiff’s motion to
remand is barred by the doctrine of fraudulent joinder.
Plaintiff asserts that he should be entitled to file an opposition to the motions to dismiss after the

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remand issue is decided. As to Kirkland, no purpose would be served by allowing additional filings.
“[A] finding of fraudulent joinder bears an implicit finding that the plaintiff has failed to state a cause of
action against the fraudulently joined defendant . . .” Polyplastics, Inc. v. Transconex, Inc., 713 F.3d
875, 877 (1st Cir. 1983).
As to the PennyMac Defendants, the court will allow Plaintiff additional time to file any
objections to the Magistrate Judge’s Report and Recommendation [#26]. The claims asserted here
against the PennyMac Defendants are slightly different than those alleged against the PennyMac
Defendants in the related case, and Plaintiff is proceeding pro se.
For the foregoing reasons, the court ADOPTS the Report and Recommendation [#25] of the
Magistrate, DENIES Plaintiff’s Motion to Remand [#19], and GRANTS Kirkwood’s Motion to Dismiss
[#13]. The court defers ruling on the Report and Recommendation [#26], and allows Plaintiff 14 days to
file any objections to the Magistrate Judge’s recommendation that the court grant PennyMac
Defendants’ Motion to Dismiss [#17].
IT IS SO ORDERED.
Date: October 20, 2016

/s/ Indira Talwani
United States District Court

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