Louis et al v. Bank of America, N.A. et al

Filing 37

Judge Mark L. Wolf: MEMORANDUM & ORDER entered adopting Report and Recommendations re 34 Report and Recommendations. (Bono, Christine)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
CAROLE LOUIS and

MARIE MACDALA LOUIS,

Plaintiffs,

V.

C.A. No. 16-10859-MLW

BANK OF AMERICA, N.A.,
SPECIALIZED LOAN SERVICING

LLC, and BANK OF NEW YORK
MELLON,
Defendants.
MEMORANDUM AND ORDER

WOLF, D.J.

In

an

June 16, 2017

October

21,

2016

Report

and

Recommendation,

the

Magistrate Judge recommended that defendants' motion for judgment
on the pleadings be denied as to plaintiff's claim for quiet title
(Count I), and allowed as to plaintiffs' claims for inaccurate

credit reporting in violation of the Fair Credit Reporting Act
("FCRA")

(Count

II),

privacy (Count IV).

defamation

(Count

See Docket No. 29.

III),

and

invasion

of

The Magistrate Judge also

recommended that plaintiff Marie Macdala Louis ("Marie Louis") be
dismissed for lack of standing.

The defendants. Bank of New York

Mellon ("BNY Mellon") and Specialized Loan Servicing LLC ("SLS"),

filed

an

objection

Recommendation

objection.

and

concerning
submitted

Count
new

I

to

evidence

the

Report

concerning

and
that

Plaintiffs Carole and Marie Louis made no objection to

the Report and Recommendation.

Id.

The court adopted the Report

and Recommendation in part as to Counts II, III/ and IV, remanded

the Report and Recommendation in part to the Magistrate Judge as
to Count I, and dismissed plaintiff
standing.

Marie

Louis for lack of

See Docket No. 31.

As to Count I, the Magistrate Judge had recommended that the

motion

for

judgment

on

the

pleadings

be

denied

because

the

defendants did not present sufficient evidence to prove that they

gave notice of the foreclosure sale, as required by M.G.L. c. 244

§14.

In

their

objection

to

the

Report

and

Recommendation,

defendants submitted additional evidence, including certified mail

receipts and returned envelopes of the notices they sent, which
are the type of evidence that the Magistrate Judge suggested would
be sufficient to meet the notice requirements of M.G.L. c. 244

§14.

See Docket No. 29 at 6-7.

presented

by

appropriate

the
to

defendants,

have

the

In view of the additional evidence

the

court

Magistrate

recommendation concerning Count I.

found

Judge

that

it

was

reconsider

her

See Docket No. 31 at 3-4.

On March 31, 2017, the Magistrate Judge ordered plaintiff to
address the new evidence concerning Count I by April 21, 2017 and

defendants to file any response by April 28, 2017.
33.

Plaintiff did not respond to this Order.

See Docket No.

On April 25, 2017,

the Magistrate Judge issued a second Report and Recommendation.
See

Docket

No.

34.

In

that

Report and

Recommendation,

the

Magistrate Judge recommends that the court allow defendants'

motion for judgment on the pleadings as to Count I based on the

additional documentation presented with defendants' objections to
the October 21, 2016 Report and Recommendation.

See id. at 3-4.

The Magistrate Judge advised the parties that, pursuant to
the Federal Rule of Civil Procedure 72(b)(2), they had 14 days to

file

specific

written

objections

to

her

recommendation.

Accordingly, any such objections were due by May 9, 2017.

On May

9, 2017, plaintiff filed a motion for extension of time to May 16,
2017 to file objections to the Report and Recommendation.

See

Docket No. 35.

See

Docket No.

36.

The Magistrate Judge granted that motion.
Despite

being

granted an extension of

time,

plaintiff has not filed any objections.
Because

the

parties

have

not objected

to the

Report and

Recommendation, the court need not review the issues it addresses

de noyo. Waiver of ^ novo review by failing to file proper
objections does not entitle a party to "some lesser standard" of
review. Thomas v. Arn, 474 U.S. 140, 149-50 (1985); see also Costa

V. Hall, No. 00-12213-MLW, 2010 WL 5018159, at *17 (D. Mass. Dec.

2, 2010) ("Absent objections, the court may adopt the report and
recommendation of the magistrate judge.").

However, review by the

court in such circumstances is not prohibited, and some level of

oversight, even if not ^ noyo, is encouraged. See Henderson v.
Carlson, 812 F.2d 874, 878 (3rd Cir. 1987).

The court has reviewed

the Report and Recommendation and finds it to be thorough and

persuasive.

It is, therefore, being adopted.

In view of the foregoing, it is hereby ORDERED that:

1.

The attached Report and Recommendation (Docket No. 34)

is ADOPTED and INCORPORATED in this Memorandum..

2.

For the reasons stated in the Report and Recommendation,

Defendant's Motion for Judgment on the Pleadings (Docket No. 14)
is ALLOWED as to Count I.

3.

This case is DISMISSED.

UNITED STATES DISTRICT JUDGE

Case l:16-cv-10859-MLW Document 34 Filed 04/25/17 Page 1 of 5

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CAROLE LOUIS,'
Plaintiff,

V.

CIVIL ACTION NO. 16-10859-MLW

BANK OF AMERICA,N.A.,

SPECIALIZED LOAN SERVICING, LLC,and
BANK OF NEW YORK MELLON,
Defendants.

REPORT AND RECOMMENDATION ON
RECONSIDERATION OF COUNT I.

KELLEY, U.S.M.J.
I. Introduction.

In a Report and Recommendation dated October 21,2016(#29), incorporated by
reference here, the court recommended dismissal ofall claims against the remaining defendants.

Specialized Loan Servicing, LLC and Bank ofNew York Mellon, save for Count I, which seeks
to quiet title and rescission ofthe foreclosure. See (#29.) Based on the record at the time the

Report and Recommendation issued, the court found that Count I should not be dismissed
because defendants had not demonstrated that they complied with the relevant Massachusetts

notice requirements.Id. at 5-7. In their objection to the court's Report and Recommendation
(#30), defendants submitted additional documentation(##30-1,30-2,30-3) in order to illustrate
^ Carole Louis is the sole remaining plaintiff in this action. See(#31 at 6(dismissing plaintiff Marie Louis
for lack ofstanding).)

Case l:16-cv-10859-MLW Document 34 Filed 04/25/17 Page 2 of 5

that they had in fact satisfied the statutory notice requirements. The district courtjudge to whom
this case is assigned, Judge Wolf, adopted the court's Report and Recommendation in part,
dismissing three ofthe four counts levied in the complaint. Counts II-IV, and remanded Count I
for further consideration in light ofthe additional evidence submitted by defendants in their
objection. See (#31.) Specifically, the district court remanded the matter for a determination as to

the propriety ofdefendants' submissions in the context ofa Rule 12(c), Fed. R. Civ. P., motion;
to afford plaintiffthe opportunity to make any objection to these submissions; and, ifthe
submissions are deemed within the court's purview, whether dismissal ofCount I is warranted.

Id. Plaintiff was given three weeks to respond to the district court's Order,see (#33), yet failed to
do so.

II. Discussion.

A. Consideration of Additional Documents.

In evaluating a Rule 12(c) motion, a court may "consider documents the authenticity of

which are not disputed by the parties" as well as "documents central to the plaintiffs claim" and
"documents sufficiently referred to in the complaint." Curran v. Cousins, 509 F.3d 36,44(1st
Cir. 2007); see also Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315,321-322

(IstCir. 2008); Watterson v. Page,987 F.2d 1, 3(1st Cir. 1993).

Here, plaintiff was afforded ample opportunity to contest the authenticity ofthe
documents submitted by defendants, but did not do so. As such, the court deems any argument

with respect to authenticity waived.^ Moreover, the documents in issue (described more fully
below)are central to plaintiffs claim, given that Count I is premised entirely on their nonexistence, i.e., that defendants never sent the notice offoreclosure. The court will consider the

^ For this reason alone, the court may consider the documents in its reconsideration ofCount I.
2

Case l:16-cv-10859-MLW Document 34 Filed 04/25/17 Page 3 of 5

documents attached to defendants' objection to the Report and Recommendation in its
reconsideration of Count 1.
B. Count I.

Count I seeks to quiet title and rescission under the theory that defendants failed to
comport with Mass. Gen. Laws ch. 244,§ 14.(#1-1

25-28.)

A mortgage holder who forecloses by power ofsale must comply with the
notice requirements set forth in MGL ch. 244,§ 14.'Advance notice ofthe
foreclosure sale must be provided to the mortgagor by registered mail and other
interested parties by publication in a newspaper published or generally circulating
in the town where the mortgaged property lies.' Culhane [v. Aurora Loan Services
ofNebraska], 826 F.Supp.2d [352,] 362[(D. Mass. 2011)]; Mass. Gen. Laws ch.
244,§ 14.

In re Bailey, 468 B.R. 464,472(Bankr. D. Mass. 2012)(footnote omitted). The court, in its first
Report and Recommendation,concluded that defendants had not demonstrated that notice was
sent to the property at issue or to the address at which plaintiff resided during the relevant period.

(#29 at 6-7.)In reaching that conclusion, the court found the documents attached to defendants'
answer(#10) inadequate and offered several contrasting examples ofdocumentation sufficient to
evidence compliance with § 14. See id. (citing Lindsey v. First Horizon Home Loans, No-1110408-FDS, 2012 WL 689745, at *3(D. Mass. Mar. 1,2012)(defendants submitted a copy of

the postmarked envelope(#12-6 at 4)with the appropriate address); Branch Ave Capital, LLC v.
U.S. Bank Nat. Ass'n, No. 12-40140-TSH,2013 WL 5242121, at *3(D. Mass. Sept. 16,2013)

(defendants provided an affidavit ofsender along with documents containing certified article
numbers);In re Goulet, No. 13-41812-MSH,2015 WL 269269, at *2(Bankr. D. Mass. Jan. 21,
2015)(same)).

As the district court said in its March 30,2017 Order,see (#31 at 5), the additional

evidence submitted with defendants' objection to the Report and Recommendation could suffice

Case l:16-cv-10859-MLW Document 34 Filed 04/25/17 Page 4 of 5

to show defendants' compliance with § 14. The documents in question are: certified mail labels
(#30-1); certified mail receipts (#30-2); and certified mail returned notices (#30-3). These

documents demonstrate that defendants sent the requisite notice to the appropriate address(es),^
thus complying with the notice requirement of§ 14. See, e.g.. In re Bailey,468 B.R. at 472-473
("The law in Massachusetts is clear; the requirement that the notice be mailed to the owner ofthe

relevant property is satisfied by mailing and nonreceipt is irrelevant.^'(emphasis in original)
(internal citation and quotation marks omitted)). Therefore, the once fatal flaw in defendants'
argument has been rectified and Count I should be dismissed.
III. Conclusion.

For all ofthe reasons stated, I RECOMMEND that Defendants Bank ofNew York

Mellon and Specialized Loan Servicing, LLC's Motion for Judgment on the Pleadings(#14)be
ALLOWED as to Count I.

IV. Review bv District Court Judge.

The parties are hereby advised that any party who objects to this recommendation must

file specific written objections with the Clerk ofthis Court within 14 days ofthe party's receipt
ofthis Report and Recommendation. The objections must specifically identify the portion ofthe
recommendation to which objections are made and state the basis for such objections. The

parties are further advised that the United States Court of Appeals for this Circuit has repeatedly
indicated that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate
review.See Keating v. Secretary ofHealth & Human Servs., 848 F.2d 271 (1st Cir. 1988);
United States v. Emiliano Valencia-Copete,792 F.2d 4(1st Cir. 1986); Scott v. Schweiker,702

^ Defendants sent notices of foreclosure to both the property and plaintiffs then current address. See
(##30-1, 30-2,30-3.)

Case l:16-cv-10859-MLW Document 34 Filed 04/25/17 Page 5 of 5

F.2d 13, 14 (1st Cir. 1983); United States v. Vega,678 F.2d 376,378-379 (1st Cir. 1982);Park
Motor Mart, Inc. v. Ford Motor Co.,616 F.2d 603(1st Cir. 1980);see also Thomas v. Arn,474
U.S. 140(1985).

/s / M.Page Kellev

M.Page Kelley

April 25,2016

United States Magistrate Judge