Pittner v. Selene Finance, LP et al
Filing
67
Judge Rya W. Zobel: Memorandum and Order entered denying 58 Motion for Judgment on the Pleadings (Urso, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-CV-11009-RWZ
DUSAN PITTNER
v.
CASTLE PEAK 2012-1 LOAN TRUST and
SELENE FINANCE LP
MEMORANDUM & ORDER
January 31, 2020
ZOBEL, S.D.J.
Plaintiff, Dusan Pittner, complains that the defendants, Castle Peak 2012-1 Loan
Trust (“Castle Peak”) and Selene Finance LP (“Selene Finance”) have breached their
contract with him and violated Chapter 93A of the Massachusetts General Laws and the
Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e). He now
moves for judgment on the pleadings (Docket # 58).
I.
Background
Castle Peak owns the mortgage on a Florida property that Mr. Pittner and his
then-wife, Ludmila Pittnerova, bought in 2007; Selene Finance is the servicer thereof.
Mr. Pittner and Ms. Pittnerova both signed that mortgage, but only Ms. Pittnerova
signed the promissory note for the loan used to buy the property.
1
A. Bankruptcy Proceedings
In March 2012, Mr. Pittner filed for bankruptcy under Chapter 11 of the United
States Bankruptcy Code. 1 11 U.S.C. §§ 1101–1195. He submitted multiple Chapter 11
“plans” to that court, which ultimately confirmed the “Second Amended Plan” and
directed Mr. Pittner to submit a formal order within a week at a hearing on July 17,
2013.
Both defendants actively participated in the Chapter 11 process. After the July
17, 2013 hearing, Selene Finance and Mr. Pittner further negotiated and agreed to raise
the interest rate on the loan from 4% to 4.25%. The bankruptcy court allowed this
amendment on July 25, 2013.
Mr. Pittner never submitted the form of order requested by the court, which,
therefore, never entered a final order. The case was closed on April 7, 2014.
B. Mr. Pittner’s Dealings with Selene Finance 2
For approximately one year after the plan confirmation, Mr. Pittner made
payments to Selene Finance in accordance with the plan. He alleges that the company
then rejected his attempts to make further payments (exactly when is unclear), which
the defendants deny.
In May 2014, Selene Finance allegedly sent Ludmila Pittnerova a “Notice of
Default and Intent to Accelerate.” Mr. Pittner claims that he thereafter attempted to
1
Mr. Pittner had earlier, in 2009, filed for bankruptcy under Chapter 7 of the United States Bankruptcy
Code. 11 U.S.C. §§ 701–784.
2 Although both defendants, Selene Finance and Castle Peak, participate in this litigation, the relevant
actions were taken by the former. I therefore refer to Selene Finance individually when discussing the
underlying facts of the case and to “the defendants” when considering the entire litigation.
2
communicate with Selene Finance about the account on three different occasions,
which the defendants deny.
C. Reopening the Bankruptcy Proceedings
In October 2015, the bankruptcy court reopened the Chapter 11 proceedings.
On August 1, 2016, it finally entered the order confirming the Second Amended Plan,
retroactive to July 17, 2013, the date it had been approved. After Selene Finance
allegedly stopped accepting his payments, Mr. Pittner commenced an adversary
proceeding in the bankruptcy court against both defendants in which he accused them
of 1) contempt of the Chapter 11 confirmation order; 2) breach of contract; 3) violation of
Chapter 93A of the Massachusetts General Laws; and 4) violation of the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e). Castle Peak and Selene
Finance moved to dismiss the complaint for lack of subject matter jurisdiction in the
bankruptcy court. On appeal from the bankruptcy court’s denial, this court allowed the
motion to dismiss counts two through four for lack of subject matter jurisdiction.
Regarding count one, the bankruptcy court subsequently ruled that the defendants had
not acted in contempt of the confirmation order. The Bankruptcy Appellate Panel
affirmed that decision, and Mr. Pittner appealed to the First Circuit, which has not yet
acted on that appeal.
D. This Proceeding
After the breach of contract, Chapter 93A, and RESPA counts were dismissed in
the bankruptcy proceedings, Mr. Pittner commenced this case in which he asserts those
same claims. The matter is now before me on his motion for judgment on the pleadings.
3
II.
Discussion
Under Federal Rule of Procedure 12(c), the court may grant judgment on the
pleadings when the nonmovant can prove no set of facts in support of a claim that
would entitle it to relief. Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988).
Thus, judgment on the pleadings can only be granted when the material facts are
undisputed. Britt v. Colvin, 125 F. Supp. 3d 349, 357 (D. Mass. 2015). And in
examining those facts, the court “must accept all of the nonmoving party's well-pleaded
factual averments as true and draw all reasonable inferences in [its] favor.” Feliciano v.
State of R.I., 160 F.3d 780, 788 (1st Cir. 1998).
A. Breach of Contract
Massachusetts law3 requires that the plaintiff establish four elements to prove a
breach of contract: “1) the existence of a valid and binding contract, (2) the plaintiff's
willingness to perform or performance … (3) a breach by the defendant of the terms of
the contract[, and (4)] …causation and the amount of damages” to the plaintiff. Amicas,
Inc. v. GMG Health Systems, Ltd., 676 F.3d 227, 231 (1st Cir. 2012).
“Although the issue of contract formation is typically a question for the factfinder
… where the evidentiary foundation for determining the formation of the parties' contract
is either undisputed or consists of writings, contract formation is instead a question of
law for the court.” TLT Const. Corp. v. RI, Inc., 484 F.3d 130, 135 (1st Cir. 2007)
(citations omitted). Here, the parties do not dispute that they all participated in the
3
Although the Chapter 11 plan itself chooses Florida law for questions regarding the property at issue in
this case, both parties appear to agree that the plaintiff’s breach of contract claim is governed by
Massachusetts law.
4
Chapter 11 plan, and the only question is whether that plan is a contract, a question of
law appropriately decided at the judgment on the pleadings phase.
I decline to reach that question, however, because other factual disputes
concerning the payments allegedly proffered by Mr. Pittner and allegedly rejected by
Selene dictate denial of the motion as to this claim.
B.
Massachusetts General Laws ch. 93A
“[U]nfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce” are unlawful in Massachusetts. Mass. Gen. Laws
ch. 93A § 2. In this case, however, the facts underlying the alleged practice are
seriously in dispute. Thus, whether the practice is “unfair” is disputed. Because the
unfairness of a practice is a matter of fact, see Spence v. Boston Edison Co., 459
N.E.2d 80, 87 (1983), this claim is not amenable to judgment on the pleadings.
C. The Real Estate Settlement Procedures Act
The Real Estate Settlement Procedures Act (“RESPA”) requires servicers of
federally related mortgage loans to respond to “qualified written requests” (“QWR’s”) by
borrowers on the loan. 12 U.S.C. § 2605(e). Mr. Pittner claims three separate letters he
sent to Selene Finance constituted QWR’s, although he only provides a copy of one
such letter. In their response, the defendants deny these claims. Because this
disagreement leaves essential facts unresolved, the motion for judgment on the
pleadings is denied as to this count as well.
5
III.
Conclusion
Given the outstanding factual disputes, Plaintiff’s motion for judgment on the
pleadings (Docket # 58) is DENIED.
January 31, 2020
DATE
/s/ Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?