Marley v. The Bank of New York Mellon

Filing 25

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing, 1) defendants motion to dismiss (Docket No. 7) is ALLOWED,2) plaintiffs motion to stay or, alternatively, for an extension of ti me to respond to defendants motion to dismiss (Docket No. 15) is DENIED, as moot,3) plaintiffs motion for a scheduling order (Docket No. 19) is DENIED, as moot and4) plaintiffs motion to remand (Docket No. 20) is DENIED. So ordered.(Caruso, Stephanie) .

United States District Court
District of Massachusetts
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Robert P. Marley, II,
Plaintiff,
v.
The Bank of New York Mellon,
Defendant.

Civil Action No.
17-10056-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves an attempt by Robert P. Marley, II
(“plaintiff” or “Marley”) to discharge a mortgage encumbering
his property in Lynnfield, Massachusetts.

The Bank of New York

Mellon (“defendant” or “BNY Mellon”) successfully moved to
intervene in the case while it was in state court and now seeks
to dismiss plaintiff’s petition.
Pending before the Court are defendant’s motion to dismiss
plaintiff’s claims and plaintiff’s motion to remand the case to
state court.

Also pending are plaintiff’s motions for a stay or

an extension of time to file a response to defendant’s motion to
dismiss and for a scheduling order.

For the reasons that

follow, 1) defendant’s motion to dismiss will be allowed,
2) plaintiff’s motion to remand will be denied and

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3) plaintiff’s motions for a stay or an extension of time and
for a scheduling order will be denied as moot.
I.

Background
In January, 2016, Marley filed a petition, pursuant to

M.G.L. c. 240, § 15(a)-(b), in the Massachusetts Superior Court
for Essex County, to discharge a mortgage on real property that
he owns at 18 Lakeview Drive in Lynnfield, Massachusetts.
Initially, Marley listed no respondents to the case but, after a
court order directing him to do so, Marley served several
interested parties, including BNY Mellon, with notice of his
petition.
After accepting service, BNY Mellon and other interested
parties removed the case to this Court and it was assigned to
the session of Chief District Judge Patti B. Saris (“Judge
Saris”).

In September, 2016, Judge Saris remanded the case to

Essex Superior Court because one of the interested parties had
not consented to its removal.1
Back in state court, in December, 2016, BNY Mellon
successfully moved to intervene in the case because it had been
assigned the subject mortgage.

The Superior Court then directed

the other interested parties who had been served to move to
intervene on or before January 9, 2017.

1

No other parties so

Although BNY Mellon’s standing to remove the case was tenuous,
that issue was not addressed by the parties.
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moved and, as a result, BNY Mellon became the only respondent in
the case.
On January 12, 2017, BNY Mellon again removed the case to
this Court and it was assigned to this session.

The following

week, BNY Mellon moved to dismiss Marley’s petition for failure
to state a claim upon which relief can be granted.

Marley did

not oppose the motion but instead filed a motion to stay the
case or, alternatively, to extend the time allotted for a
response because he was recovering from surgery.

Two weeks

later, in March, 2017, Marley filed a motion for a scheduling
order and a motion to remand the case.

This memorandum

addresses all four pending motions.
II.

Plaintiff’s Motion to Remand
Plaintiff moves to remand the case, pursuant to 28 U.S.C.

§ 1446(b)(1), on grounds that the removal was untimely and that
the order entered by Chief Judge Saris previously remanding the
case prevents BNY Mellon from removing it a second time.
Plaintiff’s first contention, that defendant’s notice of
removal was untimely, is unpersuasive.

Defendant removed the

case pursuant to 28 U.S.C. § 1446(b)(3) not, as plaintiff
claims, 28 U.S.C. § 1446(b)(1).
Second, plaintiff asserts that defendant’s instant attempt
to remove is, in effect, an improper appeal of the first remand
order in violation of § 1447(d).

The Court disagrees.

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28 U.S.C. § 1447(d) provides that:
[a]n order remanding a case to the State court from
which it was removed is not reviewable on appeal or
otherwise, except that an order remanding a case to
the State court from which it was removed pursuant to
section 1442 or 1443 of this title shall be reviewable
by appeal or otherwise.
It is well-established that
[s]uccessive attempts at removal are permissible where
the grounds for removal become apparent only later in
the litigation.
Amoche v. Guar. Tr. Life Ins. Co., 556 F.3d 41, 53 (1st Cir.
2009) (citing FDIC v. Santiago Plaza, 598 F.2d 634, 636 (1st
Cir. 1979) (per curiam))).
Here, grounds for removal did not exist until January,
2017, when no other interested parties filed motions to
intervene in the action filed in state court, leaving defendant
as the sole opposing party in that case.

The unanimity issue

that jeopardized removal the first time was no longer viable.
Therefore, defendant is permitted to remove the case a second
time.
III. Defendant’s Motion to Dismiss
A.

Legal Standard

To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”

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Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
B.

Application

Defendant moves to dismiss plaintiff’s petition on grounds
that plaintiff admits that he has not satisfied his mortgage
obligations and that he has not been in possession of the
property for at least one year after the time provided in the
mortgage for full performance.

Plaintiff has not responded to

defendant’s arguments.

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Pursuant to M.G.L. c. 240, § 15(a), a mortgage can be
discharged only if the mortgagor
claim[s] that the mortgage has been fully paid or the
conditions or obligations secured thereby have been
fully satisfied.
In his petition, plaintiff admits that he “stop[ped] paying
on the purported mortgage loan” in 2009.

Therefore, he has not

stated a claim to discharge his mortgage pursuant to M.G.L. c.
240, § 15(a). See Lima v. Holder, 758 F.3d 72, 79 (1st Cir.
2014) (“[A] party’s assertion of fact in a pleading is a
judicial admission by which it normally is bound throughout the
course of the proceeding.” (quoting Schott Motorcycle Supply,
Inc. v. Am. Honda Motor Co., 976 F.2d 58, 61 (1st Cir. 1992))).
Plaintiff has also failed to state a claim for discharge
pursuant to M.G.L. c. 240, § 15(b).

A mortgagor may have a

mortgage discharged pursuant to § 15(b) if there is no “actual
or direct evidence of full payment . . . of the mortgage” and
the mortgagor has been in “uninterrupted possession” of the
property
for any period of 1 year after the expiration of the
time limited in the mortgage for the full performance
of the condition thereof . . . .
M.G.L. c. 240, § 15(b).

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Full payment on the subject mortgage is not, however, due
until January 1, 2035 and thus, expiration of the time for full
performance is a long way off.
In his petition, plaintiff submits that, because defendant
sought to accelerate satisfaction of the mortgage in or about
April, 2009, the one-year limitation period commenced at that
time.

There is, however, nothing in the statute that suggests

that acceleration of a payment hastens the one-year period.
Rather, the statute considers only the time period provided in
the mortgage, which is January 1, 2035. Cf. Hayden v. HSBC Bank
USA, No. 16-2274, 2017 WL 3392677, at *2 (1st Cir. Aug. 8, 2017)
(concluding that, pursuant to M.G.L. c. 260, § 33, a mortgage is
only “discharged five years after the expiration of the stated
term . . . [in] the mortgage” because nothing in the statute
supports the idea that acceleration affects the expiration date
included in the mortgage).
Therefore, plaintiff has also not stated a claim for
discharge under § 15(b).
Finally, plaintiff appears to imply that his mortgage
should be discharged under M.G.L. c. 260, § 33 because it has
been more than five years since defendant sought to accelerate
payment of the loan.
That statute provides that a mortgage is subject to
discharge five years after the expiration date listed in the

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mortgage. Deutsche Bank Nat’l Tr. Co. v. Fitchburg Capital, LLC,
28 N.E.3d 416, 420-21 (Mass. 2015).

As noted above, M.G.L. c.

260, § 33 only refers to the expiration date of the mortgage.
Hayden, 2017 WL 3392677, at *2.

Because that date is January 1,

2035, plaintiff’s mortgage is not subject to discharge pursuant
to M.G.L. c. 260, § 33.
Accordingly, defendant’s motion to dismiss will be allowed.
IV.

The Remaining Motions
Plaintiff has also filed motions to stay or extend the

deadline to respond to defendant’s motion to dismiss and to
issue a scheduling order.
In his motion to stay, or, alternatively, extend the
deadline to respond to defendant’s motion to dismiss, plaintiff
asked for 60 days to recover from recent back surgery.

Two

weeks after filing that motion, however, plaintiff filed two
additional motions (to remand and for a scheduling order).
Moreover, those 60 days have long since elapsed and plaintiff
has not responded to defendant’s motion.

Therefore, the Court

will deny plaintiff’s motion, as moot.
Second, plaintiff’s motion for a scheduling order will also
be denied, as moot, because the Court will allow defendant’s
motion to dismiss.

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ORDER
In accordance with the foregoing,
1)

defendants’ motion to dismiss (Docket No. 7) is
ALLOWED,

2)

plaintiff’s motion to stay or, alternatively, for an
extension of time to respond to defendant’s motion to
dismiss (Docket No. 15) is DENIED, as moot,

3)

plaintiff’s motion for a scheduling order (Docket
No. 19) is DENIED, as moot and

4)

plaintiff’s motion to remand (Docket No. 20) is
DENIED.

So ordered.
/s/ Nathaniel M. Gorton
d
Nathaniel M. Gorton
United States District Judge
Dated September 7, 2017

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