Saade v. Wilmington Saving Fund Society et al

Filing 78

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER DENYING 74 Motion for Reconsideration; GRANTING Defendants Nelson Mullins and Polanskys 44 Motion to Dismiss; GRANTING Defendant Bendett & McHughs 75 Motion to Dismiss. See Attached Order. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JACQUES SAADE,
Plaintiff,
v.
WILMINGTON SAVINGS FUND SOCIETY,
CHRISTIANA TRUST, PNMAC
MORTGAGE CO. LLC, PENNY MAC
SERVICING LLC, PENNYMAC MORTGAGE
INVESTMENT TRUST HOLDINGS I, LLC,
CITI MORTGAGE, MORTGAGE LENDERS
NETWORK USA, INC., SLS LLC, DEUTSCHE
BANK TRUST COMPANY DELAWARE,
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., BENDETT AND MCHUGH,
EVA MASSIMINO, NELSON MULLINS LLP,
and KEVIN POLANSKY,
Defendants.

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Civil Action No. 16-cv-11982-IT

MEMORANDUM & ORDER
September 22, 2017
TALWANI, D.J.
Plaintiff Jacques Saade filed a Verified First Amended Complaint & Request for
Injunctive Relief Demand for Jury Trial [“Amended Complaint”] [#14], alleging multiple causes
of action against numerous Defendants. This order addresses Defendants Nelson Mullins Riley
& Scarborough LLP (“Nelson Mullins”) and Kevin Polansky’s Motion to Dismiss [#44],
Defendant Bendett & McHugh’s Motion to Dismiss [#75], and Plaintiff’s Motion for
Reconsideration [of] Entry of Default Against Bendett & McHugh [“Motion for
Reconsideration”] [#74]. Other pending motions will be addressed in separate orders. For the
reasons set forth below, Defendants Nelson Mullins and Polansky’s Motion to Dismiss [#44] and

Defendant Bendett & McHugh’s Motion to Dismiss [#75] are GRANTED. Plaintiff’s Motion for
Reconsideration [#74] is DENIED.
I.

Facts as Alleged in Plaintiff’s Amended Complaint
In 2006, Plaintiff executed a promissory note and granted a mortgage (the “Mortgage”) to

Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) “as nominee for
[Defendant Mortgage Lenders Network USA, Inc. (“MLN”)] and [MLN]’s successors and
assigns.” Am. Compl. ¶ 26 [#14]; Id. Ex. 2 [#14-2]. The Mortgage prescribed a three-year fixed
interest rate; after three years, the interest rate would adjust every six months to a rate of 2.25%
plus the 6-month LIBOR rate. Am. Compl. ¶ 28 [#14]. Plaintiff alleges that in 2009, after a
dispute with his mortgage servicer, Defendant CitiMortgage, Inc. (“CitiMortgage”), regarding
the correct interest rate, the parties agreed to a loan modification. Id. ¶ 29-32, 40. In April 2011,
CitiMortgage transferred servicing of the Mortgage to Defendant Specialized Loan Servicing
LLC (“SLS”). Id. ¶ 33. Thereafter, but also in April 2011, SLS notified Plaintiff that he was in
default, and that SLS was seeking to foreclose on his property. Id. ¶¶ 33, 40, 44. On May 2,
2011, CitiMortgage informed Plaintiff that it could not approve his loan modification request
because “the subject loan . . . was paid off on 29-APR-2011.” Id. Ex. 4 [#14-2].
On June 19, 2012, MERS assigned the Mortgage to Defendant PNMAC Mortgage Co.
LLC (“PNMAC”), and PNMAC assigned the Mortgage to PennyMac Loan Trust 2011-NPL1.
Am. Compl. ¶ 47 [#14]; Id. Ex. 9 [#14-2]. On or about January 15, 2015, PennyMac Loan Trust
2011-NPL1 assigned the Mortgage to Defendant Christiana Trust. Am. Compl. ¶ 50 [#14].
In March 2015, Plaintiff received a “Right to Cure” notice pursuant to Mass. Gen. Laws
ch. 244, § 35A from Bendett & McHugh, on behalf of its client, Defendant PennyMac Loan
Services, LLC (“PennyMac”). Id. ¶ 52. On February 16, 2016, PennyMac sent Plaintiff a letter

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stating that it had approved the Mortgage for a Trial Plan Period (“TPP”). Id. ¶ 58, 60; Id. Ex. 6
[#14-2]. On April 2, 2016, PennyMac sent Plaintiff a notice requesting that, due to a change in
flood requirements, Plaintiff obtain insurance coverage for flood hazard. Am. Compl. ¶ 56 [#14];
Id. Ex. 5 [#14-2]. In response to these notifications, Plaintiff sent multiple demand letters to
PennyMac. Am. Compl. ¶¶ 53-55, 59, 62 [#14].
Plaintiff alleges that sometime in the summer of 2016, he and Polansky, an attorney at
Nelson Mullins, entered into negotiations to resolve the dispute over the Mortgage. Id. ¶¶ 64-67.
While negotiations were ongoing, Eva Massimino, an associate attorney at Bendett & McHugh,
initiated an action in Massachusetts Land Court relating to the Mortgage on behalf of Bendett &
McHugh’s client Christiana Trust. Id. ¶¶ 66-70.
II.

Procedural History Related to the Instant Motions
Plaintiff filed his Complaint on October 3, 2016, and attempted to serve the summons and

complaint on Bendett & McHugh on October 5, 2016, by way of a package addressed to
Massimino at Bendett & McHugh’s Farmington, Connecticut location. Proof of Service Upon
Def. Bendett & McHugh [#40]. On October 12, 2016, he filed and mailed to Bendett & McHugh
his Amended Complaint [#14].
On February 14, 2017, Plaintiff filed a Request for Entry of Default Against Defendant
Bendett & McHugh [#67]. Plaintiff stated that default judgment should enter against Bendett &
McHugh for its failure to plead or otherwise defend against the action. Id. He stated that he had
“caused the summons and complaint to be mailed to defendant Bendett & McHugh” on or about
October 5, 2016. He also provided his proof of service, which showed that a package addressed
to Massimino at Bendett & McHugh’s Farmington, Connecticut location had been signed for on
October 6, 2016. In response, Bendett & McHugh filed an Objection to Plaintiff’s Request for

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Default and Motion for Leave to File Out-of-Time Response to Plaintiff’s Amended Complaint
[#71]. Bendett & McHugh stated that default judgment should not enter because Plaintiff’s
service was faulty for two reasons. First, although Massimino received the mail addressed to her,
it did not include a summons. Id. Ex. A, Aff. Of Eva M. Massimino, Esq. [“Massimino Aff.”]
¶¶ 2-3 [#71-1]. Further, Massimino was not an officer of the firm and was not otherwise
authorized to accept service on behalf of the firm. Id. ¶¶ 4-5. The court denied Plaintiff’s request
for entry of default, explaining that service of Bendett & McHugh was not proper because
Massimino was not authorized to accept service on its behalf. Order [#72]. As a result of the
defective service, the court granted Bendett & McHugh’s request to file a late answer or other
response. Id.
On March 20, 2017, Plaintiff filed the pending motion asking the court to reconsider its
Order [#72] denying his request for entry of default. Mot. for Reconsideration [#74]. On March
24, 2017, Bendett & McHugh filed the pending Motion to Dismiss [#75], which Plaintiff
opposed. Opp’n to Def. Bendett & McHugh’s Mot. to Dismiss [#77].
Meanwhile, Defendants Nelson Mullins and Polansky filed a Motion to Dismiss [#44] on
December 28, 2016, which Plaintiff opposed on January 11, 2017. Opp’n Defs.’ Dec. 28th Mot.
Dismiss [#51].
III.

Causes of Action
The Amended Complaint contains the following causes of action1 against Defendants

Nelson Mullins, Polansky, and/or Bendett & McHugh:


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Count 1: Violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and
209 C.M.R. § 18.16(6), with respect to the parties’ loan modification negotiations and the
filing of a Servicemembers Action, against, among others, Polansky. Am. Compl. ¶¶ 74-100
[#14].
Saade mis-numbered the counts in the amended complaint. The court will refer to the counts as listed above.

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

Count 3: Laches, against all defendants. Id. ¶¶ 109-115.



Count 22: Violations of Mass. Gen. Laws ch. 244, §§ 35A & 35B, and Chapter 93A, with
respect to filing the Servicemembers Action, against Bendett & McHugh. Id. ¶¶ 266-277.



Count 23: Violations of Mass. Gen. Laws ch. 244, §§ 35A & 35B, and Chapter 93A, with
respect to filing the Servicemembers Action, against Nelson Mullins. Id. ¶¶ 278-291.



Count 25: Injunctive relief, requesting that this court order Defendants to terminate the
Servicemembers Action. Id. ¶¶ 299-308.

IV.
A.

Analysis
Motion for Reconsideration
The court first addresses Plaintiff’s Motion for Reconsideration [#74]. A court has

discretion to reconsider an interlocutory order, see Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42
(1st Cir. 1994), but should “be loathe to” do so “in the absence of extraordinary circumstances
such as where the initial decision was clearly erroneous and would work a manifest injustice,”
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). In considering a motion
for reconsideration, courts “must balance the need for finality against the duty to render just
decisions.” Davis v. Lehane, 89 F. Supp. 2d 142, 147 (D. Mass. 2000). To complete such a
balancing test, courts look to whether the moving party has shown (1) an intervening change in
the law, (2) newly discovered evidence not previously available, or (3) a clear error of law. Id.;
see also United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009).
Plaintiff does not point to any intervening change in the law. Instead, he bases his motion
for reconsideration on what he asserts is newly discovered evidence and a resulting error in this
court’s legal analysis. Specifically, Plaintiff raises the fact that Massimino, the associate to
whom the service package was addressed, is herself a defendant in this action, and he argues that
addressing Bendett & McHugh’s service of the summons and original complaint to her was
therefore proper. Although Plaintiff did not name Massimino in the original complaint, she is

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named in the body of the First Amended Complaint (which was filed after the attempted service
occurred). Plaintiff did not previously raise this fact with the court, though it was known and
available to him at the time he filed his motion for default judgment.
Further, even if Plaintiff had pointed out that Massimino was named in the First
Amended Complaint, that fact would not have changed this court’s analysis. Service upon
Massimino still does not constitute service upon Bendett & McHugh for the reasons previously
identified in the court’s prior Order [#72]—namely, she is neither authorized to receive service
on Bendett & McHugh’s behalf, nor the person in charge of Bendett & McHugh’s principal place
of business. Id. at 1-2. That Plaintiff subsequently named her in the Amended Complaint after
service purportedly took place does not elevate her position at Bendett & McHugh. Thus, this
court’s prior order is not a clear error of law, and Plaintiff’s Motion for Reconsideration [#74] is
DENIED.
B.

Motions to Dismiss
To survive a motion to dismiss, a complaint must include factual allegations that, taken as

true, demonstrate a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58
(2007). A plausible claim is one containing “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). To assess a complaint, the court first “must separate the complaint’s
factual allegations (which must be accepted as true) from its conclusory legal allegations (which
need not be credited).” Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 24 (1st Cir. 2016)
(citation omitted). The court must then “determine whether the remaining facts allow it to ‘draw
the reasonable inference that the defendant is liable for the misconduct alleged.’” Id.

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The Amended Complaint asserts Counts 3, 22, and 252 against Defendant Bendett &
McHugh, Am. Compl. ¶¶ 109-115 (Count 3), ¶¶ 266-277 (Count 22), ¶¶ 299-308 (Count 25)
[#14], and Counts 1, 3, 23, and 25 against Defendants Nelson Mullins and/or Polanksy, id. ¶¶ 74100 (Count 1), ¶¶ 109-115 (Count 3), ¶¶ 278-291 (Count 23), ¶¶ 299-308 (Count 25).
With respect to Count 3, Plaintiff alleges that “defendants waited until the statute of
limitation lapsed and then proceeded with unlawful foreclosure proceedings on a disputed
alleged debt and voided mortgage.” Id. ¶ 110. He alleges that, as a result, “Defendants are
precluded to proceed in such foreclosure proceedings under the doctrine of laches.” Id. ¶ 111.
The doctrine of laches is inapplicable, however. “The equitable doctrine of laches is an
affirmative defense that serves as a bar to a claim for equitable relief ‘where a party’s delay in
bringing suit was (1) unreasonable, and (2) resulted in prejudice to the opposing party.’” Murphy
v. Timberlane Reg’l Sch. Dist., 973 F.2d 13, 16 (1st Cir. 1992) (quoting K-Mart Corp. v.
Oriental Plaza, Inc., 875 F.2d 907, 911 (1st Cir. 1989)). In other words, laches is a shield, not a
sword. While Plaintiff may be able to use laches as an affirmative defense to a lawsuit brought
against him, he cannot use laches as the basis for a claim against a defendant. Count 3 must be
dismissed.
Counts 1, 22, 23, and 25 relate to the filing of a servicemember action in Massachusetts
Land Court in August 2016. The Massachusetts Soldiers’ and Sailors’ Civil Relief Act
(“SCRA”) “provides a procedural framework for ascertaining whether mortgagors are entitled to
protections under the [Federal] SCRA.” HSBC Bank USA, N.A. v. Matt, 981 N.E.2d 710, 713-

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Bendett & McHugh, Nelson Mullins, and Polansky do not construe Count 3 (laches) or Count 25 (injunctive relief)
against themselves. However, Saade did not specify the defendants against whom Count 3 and Count 25 were
asserted. Further, the facts referenced as giving rise to Count 3 and Count 25 stem from actions taken by Bendett &
McHugh, Nelson Mullins, and Polansky surrounding the filing of the servicemembers action. Therefore, this court
will consider Count 3 and Count 25 as alleged against Bendett & McHugh, Nelson Mullins, and Polansky.

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14 (Mass. 2013). The purpose of the SCRA is to protect servicemembers from “judicial and
administrative proceedings and transactions that may adversely affect the civil rights of
servicemembers during their military service,” including foreclosures conducted without a court
order or agreement between the parties. Id. at 714. Thus, “in Massachusetts, a mortgagee seeking
to assure compliance with the SCRA prior to commencing foreclosure proceedings could bring
an action to obtain an appropriate court order.” Id. Such proceedings are commonly referred to as
“servicemember proceedings” or “servicemember actions” and they “occur independently of the
actual foreclosure itself and of any judicial proceedings determinative of the general validity of
the foreclosure.” Id. at 715 (citation omitted). Thus “a servicemember proceeding is neither a
part of nor necessary to the foreclosure process; it simply ensures that a foreclosure will not be
rendered invalid for failure to provide the protections of the SCRA to anyone so entitled.” Id.
In Count 1, Plaintiff alleges that Polansky violated the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et seq., by negotiating a potential resolution to the dispute with Plaintiff while
the servicemembers action was ongoing. Am. Compl. ¶¶ 91-100 [#14]. To show a violation of
the FDCPA, a plaintiff must establish “(1) that []he was the object of collection activity arising
from consumer debt, (2) defendants are debt collectors as defined by the FDCPA, and (3)
defendants engaged in an act or omission prohibited by the FDCPA.” O’Connor v. Nantucket
Bank, 992 F. Supp. 2d 24, 30 (D. Mass. 2014). A “debt collector” is defined as a person engaged
in business, “the principal purpose of which is the collection of any debts, or who regularly
collects or attempts to collect, direct or indirectly, debts.” 15 U.S.C. § 1692a(6). Plaintiff has not
alleged any facts indicating that Polansky meets this definition, and therefore, his conclusory
statements that Polansky is a “debt collector” are insufficient. Further, even if Polansky was a
debt collector under the FDCPA, Plaintiff has not tied Polansky to the filing of the

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servicemember action. And even if Polansky was involved in filing a servicemember action,
Plaintiff has offered no facts to suggest the filing of a servicemember action is prohibited by the
FDCPA. Count 1 must be dismissed.
With respect to Count 23, Plaintiff alleges that Nelson Mullins violated Mass. Gen. L. ch.
244, § 35A (“Section 35A”). Am. Compl. ¶¶ 278-291 [#14]. Section 35A provides that a
mortgagor “shall have a 90-day right to cure a default”3 of a mortgage, during which time the
mortgagee is prohibited from accelerating the “maturity of the unpaid balance of such mortgage
obligation or otherwise enforce the mortgage because of a default.” Id. § 35A(b), (g). To the
extent Plaintiff complains about the right to cure notice he received in March 2015, Am. Compl.
¶ 52 [#14], Plaintiff has not alleged any facts tying Nelson Mullins (or Polansky) to that notice,
which he states he received from Bendett & McHugh. To the extent Plaintiff complains about the
filing of the servicemember action, he has not alleged that Nelson Mullins (or Polansky) had any
role in such filing. The remaining conduct about which he complains—Polansky’s negotiations
with Plaintiff while the servicemember action was pending—is neither controlled by Section
35A nor improper. Count 23 must be dismissed.
Plaintiff alleges in Count 22 that Bendett & McHugh violated Section 35A, Mass. Gen.
L. ch. 244, § 35B (“Section 35 B”), and Mass. Gen. L. ch. 93A (“Chapter 93A”), by filing a
servicemember action while Plaintiff was negotiating a potential resolution to the disputed debt.
Id. ¶¶ 267-268. With respect to Section 35A, Plaintiff challenges the sufficiency of the right to
cure notice he received from Bendett & McHugh in March 2015, stating that it “failed to provide
the required information.” Id. ¶ 270. But he does not explain what information was excluded
from the notice. Further, nothing in Section 35A or elsewhere prohibited Bendett & McHugh

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At the time Plaintiff received a right to cure notice, Section 35A provided 150 days to cure the default.

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from filing a servicemember proceeding on behalf of its client Christiana Trust during the
pendency of the right to cure period, or at any time thereafter. Thus, to the extent Count 22 is
based on Section 35A, it fails.
Section 35B provides that “a creditor shall not cause publication of notice of a
foreclosure sale, as required by section 14, upon certain mortgage loans unless it has first taken
reasonable steps and made a good faith effort to avoid foreclosure.” Id. § 35B(b). Plaintiff
alleges that the servicemember action filed by Bendett & McHugh on Christiana Trust’s behalf
constituted a foreclosure publication, in violation of Section 35B. See, e.g., Am. Compl. ¶ 67
[#14]. But as explained above, a servicemember action is separate from the foreclosure process,
and thus filing such action cannot constitute foreclosure publication. On this ground too, Count
22 fails.
Chapter 93A declares unlawful any “unfair or deceptive acts or practices in the conduct
of any trade or commerce.” Mass. Gen. L. ch. 93A, § 2(a). Individuals have a private right of
action via Chapter 93A, Section 9. To prove a claim under Chapter 93A, a plaintiff must show
“that a person who is engaged in trade or business committed an unfair or deceptive trade
practice and that the [plaintiff] suffered a loss of money or property as a result.” Morris v. BAC
Home Loans Servicing, L.P., 775 F. Supp. 2d 255, 259 (D. Mass. 2011). Conduct is considered
deceptive when it has “[t]he capacity to mislead consumers, acting reasonably under the
circumstances, to act differently from the way they otherwise would have acted. Foley v. Wells
Fargo, N.A., No. 1:13-cv-12107-LTS, 2017 WL 1591835, at *8 (D. Mass. May 1, 2017)
(quotation omitted). To determine whether conduct is unfair, courts look to “(1) whether the
practice . . . is within at least the penumbra of some common-law, statutory or other established
concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3)

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whether it causes substantial injury to consumers (or competitors or other businessmen).” Id.
(quotation omitted).
Plaintiff alleges that Bendett & McHugh’s filing of the servicemember action constituted
an unfair or deceptive act or practice. Beyond failing to show how such filing resulted in any loss
of money or property, Plaintiff also fails to articulate in other than conclusory fashion how such
filing—intended to ensure the preservation of the rights of any servicemembers—rose to the
level of wrongful conduct, let alone “immoral, unethical, oppressive, or unscrupulous” conduct.
As a result, Count 22 fails to state a claim under any statutory scheme Plaintiff has articulated.
Finally, in Count 25, Plaintiff seeks injunctive relief ordering Bendett & McHugh,
Nelson Mullins, and Polansky to dismiss the servicemember action. Am. Compl. ¶ 308 [#14].
But “injunctive relief is not a stand-alone cause of action under Massachusetts or federal law.”
Payton v. Wells Fargo Bank, N.A., No. Civ. A. 12-11540-DJC, 2013 WL 782601, at *6 (D.
Mass. Feb. 28, 2013). And, as noted above, there is no underlying stand-alone cause of action to
support such relief. Thus, Count 25 fails.
Because all counts against Nelson Mullins, Polansky, and Bendett & McHugh must be
dismissed, Nelson Mullins’ and Polansky’s Motion to Dismiss [#44] and Bendett & McHugh’s
Motion to Dismiss [#75] are therefore GRANTED.
V.

Conclusion
For the foregoing reasons, Plaintiff’s Motion for Reconsideration [#74] is DENIED and

Defendants Nelson Mullins and Polansky’s Motion to Dismiss [#44] and Defendant Bendett &
McHugh’s Motion to Dismiss [#75] are GRANTED.
IT IS SO ORDERED.
September 22, 2017

/s/ Indira Talwani
United States District Judge

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