Pittner v. Selene Finance, LP et al

Filing 26

Judge Rya W. Zobel: ORDER entered. MEMORANDUM OF DECISION on Motion to Dismiss for Failure to State Claim. Plaintiff has sufficiently alleged defendants' violation of the plan and has standing thereunder to bring his claims. Defendants' motion is therefore denied, and a scheduling conference is set for June 19, 2018, at 2:00 pm.(McKillop, Matthew)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NOS. 17-11009-RWZ, 17-11129-RWZ, 16-10844-RWZ

DUSAN PITTNER
v.
CASTLE PEAK 2012-1 LOAN TRUST and SELENE FINANCE LP

MEMORANDUM OF DECISION
May 29, 2018

ZOBEL, S.D.J.
Pursuant to a plan entered in a Chapter 11 bankruptcy on July 17, 2013, plaintiff
made regular payments to mortgagee defendants. Plaintiff co-signed the mortgage with
his ex-wife, but she alone signed the note. Accordingly, defendants have taken the
position that the ex-wife is the sole borrower, and plaintiff is not entitled to information
about the loan. He thus did not receive defendants’ notices of default concerning
escrow amounts for taxes and insurance beyond the principal amounts plaintiff was
paying, and filed a three-count complaint essentially seeking to compel defendants to
accept his payments and communicate with him about the loan.
Defendants move to dismiss plaintiff’s complaint, arguing that he lacks standing
to enforce rights regarding a loan for which he was never a borrower and for which his
personal liability was discharged in bankruptcy. They further contend that no contract
exists because the bankruptcy court never confirmed the Chapter 11 plan. Although
confirmation was not initially entered properly, the court confirmed the plan on August 1,
1

2016, retroactive to July 17, 2013. Case No.12-bk-12438, Docket # 191. Defendants
point to the terms of a plan, Docket # 9-8, superseded by the modified plan which the
bankruptcy court confirmed. Case No.12-bk-12438, Docket # 184. That modified plan
contains the following language:
Pittner will pay Selene, as servicer, its successors or assigns, $2,012.12
per month for 23 years. Hereafter, Mr. Pittner will be solely responsible for
paying taxes and insurance on the property unless otherwise agreed. The
original proposed fixed interest rate was 4%, but Selene requested an
increase to 4.25%, to which Pittner agreed. On that basis, Selene assented
to confirmation.
Id. at 7.
Plaintiff has sufficiently alleged defendants’ violation of the plan and has standing
thereunder to bring his claims. Defendants’ motion is therefore denied, and a
scheduling conference is set for June 19, 2018, at 2:00 pm.

_______May 29, 2018

_________/s/Rya W. Zobel_________

DATE

RYA W. ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

2