Rosa v. PNC Mortgage
Judge George A. O'Toole, Jr: OPINION AND ORDER entered (Halley, Taylor)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-10739-GAO
SERGIA G. ROSA,
OPINION AND ORDER
September 21, 2017
Plaintiff Sergia Rosa has brought this action against PNC Bank, National Association, 1
which formerly held a mortgage on her home. The mortgage was apparently discharged in
completion of a short sale of the home. Although she has not clearly spelled out her intended legal
theories in the Complaint, Rosa alleges that the defendant acted in bad faith in refusing to help her
obtain a loan modification (Count I) and that she suffered severe emotional and financial distress
as a result of an unfair short sale (Count II). She claims that the defendant’s unfair conduct caused
her losses (Count III). PNC has moved to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6), arguing that the plaintiff has failed to include factual allegations sufficient to
support her conclusory assertions of harm (dkt. no. 8).
From documents referred or adverted to in the Complaint and properly attached to PNC’s
memorandum, it appears that in February 2008, the plaintiff obtained a residential mortgage loan
from National City Mortgage, a division of National City Bank, which has since merged with PNC,
In its motion to dismiss (dkt. no. 8), the defendant points out that the complaint has incorrectly
identified it as PNC Mortgage.
making the latter the successor-in-interest to the loan and mortgage. 2 The loan was secured by a
mortgage on the property located at 215-217 Park Street in Lawrence, Massachusetts. In October
2014, under an apparent short sale arrangement with the defendant, plaintiff entered into a purchase
and sale agreement with a third-party buyer, and subsequently conveyed her home. The summary
allegations of the Complaint do not spell out the details of the short sale arrangement.
Federal Rule of Civil Procedure 8 generally requires only “a short and plain statement of
the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and this Court
construes pro se complaints liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007). Still, plaintiffs
are required to allege sufficient facts to “state a claim to relief that is plausible on its face,” and
not just a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A complaint must “set forth factual allegations, either direct or inferential,
respecting each material element necessary to sustain recovery under some actionable legal
theory.” Lister v. Bank of Am., N.A., 790 F.3d 20, 23 (1st Cir. 2015).
Construing the plaintiff’s pleading liberally, it is conceivable that she intends to raise one
or more of the following claims common in mortgage-related cases: (1) breach of contract; (2)
violation of the implied covenant of good faith and fair dealing; (3) failure to comply with
Massachusetts General Laws Chapter 244, Section 35B; and (4) violation of Mass. Gen. Laws ch.
Although this Court generally decides 12(b)(6) motions on the basis of the complaint, the Court
may also consider “matters fairly incorporated within it and matters susceptible to judicial notice,”
In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003), such as a mortgage when
evaluating the alleged breach of a mortgagee’s obligations under a mortgage, Henning v.
Wachovia Mortg., FSB, 969 F. Supp. 2d 135, 147 (D. Mass. 2013). Here, the plaintiff’s mortgage
document and the purchase and sale agreement for the short sale attached to the defendant’s
Memorandum of Law in Support of Defendant PNC Bank, National Association’s Motion to
Dismiss Plaintiff’s Complaint (dkt. no. 9) are deemed fairly incorporated in the Complaint.
93A, § 9. Because the Complaint does not contain sufficient factual allegations to support a claim
for relief under any of these theories, the defendant’s motion to dismiss is granted.
Breach of Contract
To state a claim for breach of contract, “a plaintiff must allege, at a minimum, that there
was a valid contract, that the defendant breached its duties under the contractual agreement, and
that the breach caused the plaintiff damage.” Guckenberger v. Boston Univ., 957 F. Supp. 306,
316 (D. Mass. 1997). Here, the plaintiff simply alleges that the defendant refused to help her
through loan modification. However, the mortgage does not obligate the defendant to modify the
loan, nor does the plaintiff allege that there was any other contract under which the defendant had
such an obligation. Therefore, the plaintiff has failed to state facts sufficient to support a plausible
claim for breach of contract.
Violation of the Implied Covenant of Good Faith and Fair Dealing
Rosa may also intend to allege a violation of the implied covenant of good faith and fair
dealing. As a threshold matter, such a breach requires the existence of a contract between the
parties: “without a contract, there is no covenant to be breached.” Mass. Eye & Ear Infirmary v.
QLT Phototherapeutics, Inc., 412 F.3d 215, 230 (1st Cir. 2005). Additionally, the “plaintiff bears
the burden of presenting evidence to demonstrate a lack of good faith.” Clinical Tech., Inc. v.
Covidien Sales, LLC, 192 F. Supp. 3d 223, 237 (D. Mass. 2016)
The only “contract” with the defendant referred to in the Complaint is the mortgage. With
regard to that agreement, the plaintiff’s assertion of bad faith is not supported by any particular
factual allegation. It is simply a “formulaic recitation” of a legal conclusion, and for that reason it
does not meet the pleading standard set forth in Iqbal, 556 U.S. at 678.
Failure to Comply with Mass. Gen. Laws ch. 244, § 35B
Massachusetts law may require lenders holding “certain mortgage loans” to review
borrowers’ requests to pursue modified loans. M.G.L. ch. 244, § 35B. For a loan to fall within the
scope of the statute, it must have certain specified features. Additionally, nothing in § 35B prevents
“a creditor from offering or accepting an alternative to foreclosure, such as a short sale.” Id. In
sum, the statute does not provide mortgagors with a general provision for modification.
While the plaintiff alleges that the defendant refused to help her retain her home through a
loan modification, she provides no information to indicate whether any of the criteria outlined in
§ 35B were met, or that her loan even fit into the definition of “certain mortgage loans” under the
statute, or why the defendant’s offer or acceptance of the short sale was not an appropriate
alternative. See id.
Violation of Mass. Gen. Laws ch. 93A
Massachusetts consumer protection law provides a cause of action for plaintiffs that have
been injured by “unfair or deceptive acts or practices.” M.G.L. ch. 93A, § 2. To bring a claim
under this statute, a plaintiff must first send the defendant “a written demand for relief, identifying
the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the
injury suffered” at least thirty days prior to filing the action. Id. § 9. This statutory notice
requirement is an element of the cause of action and “must be alleged in the plaintiff’s
complaint.” Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 19 (1st Cir. 2004). A plaintiff’s failure
to plead such a notification is sufficient ground for dismissal on a Rule 12(b)(6) motion. Id. Here,
the plaintiff has not alleged that she complied with the notice requirement. Accordingly, this claim
cannot survive the defendant’s motion to dismiss.
For the foregoing reasons, Defendant PNC Bank, National Association’s Motion to
Dismiss Plaintiff’s Complaint (dkt. no. 8) is GRANTED. The action is DISMISSED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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