Rose v. Bank of America as the Successor-in-Interest of Countrywide Mortgage et al

Filing 32

Judge F. Dennis Saylor, IV: ORDER entered denying 28 Motion to Dismiss for Failure to State a Claim. (Zaleski, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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BRUCE ROSE,
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Plaintiff,
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v.
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Civil Action No.
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16-11558-FDS
BANK OF AMERICA, N.A. as the
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successor-in-interest of COUNTRYWIDE
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MORTGAGE, OPTION ONE,
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AND EASTSIDE MORTGAGE
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Defendants.
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__________________________________________)
ORDER ON DEFENDANT BANK OF AMERICA, N.A.’S
RENEWED MOTION TO DISMISS
SAYLOR, J.
On June 23, 2016, plaintiff Bruce Rose filed this action against Bank of America, N.A.
(“BANA”) as the successor-in-interest of Countrywide Mortgage and other defendants in
Massachusetts state court. The complaint alleges multiple state-law claims concerning the loan
and mortgage issued to purchase Rose’s residence.
On April 17, 2017, the Court issued a memorandum and order granting in part and
denying in part defendant BANA’s motion to dismiss the complaint in its entirety. The order
denied the motion without prejudice as to the claim that BANA had failed to file an affidavit
certifying compliance with Mass. Gen. Laws ch. 244, § 35B in the relevant registry of deeds.
The motion was otherwise granted.
BANA has renewed its motion to dismiss the remaining claim in the complaint. It
contends that the claim should be dismissed as not ripe, because Mass. Gen. Laws ch. 244, §

35B(f) requires it to record an affidavit “[p]rior to publishing a notice of a foreclosure sale” and
that no notice of foreclosure sale has yet been published.
Of course, in considering a motion to dismiss, the Court may only take into account the
allegations in the complaint, not the representations of defense counsel. The complaint states
that defendant is “proceeding with a foreclosure without recording a certification as required
under [§ 35B].” (Compl. ¶ 79). While not a model of clarity, that allegation is sufficient to state
a plausible claim that BANA was required to file an affidavit at the relevant time and failed to do
so. To the extent that defendant is requesting that the Court consider facts drawn from outside of
the four corners of the complaint, consideration of such evidence must be left for summary
judgment or trial. If the issue is a simple as defendant represents, defendant may file for
summary judgment without undue delay.
Accordingly, the renewed motion to dismiss of defendant Bank of America, N.A. is
DENIED.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: June 15, 2016

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