Gaudet v. U.S. Bank, NA et al
Filing
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Judge Nathaniel M. Gorton: MEMORANDUM AND ORDER entered. Defendants motion to dismiss (Docket No. 5 ) is ALLOWED. Plaintiffs motion to stay execution (Docket No. 15 ) is DENIED. Plaintiff is permitted to file an amended complaint, if any, on or before Monday, October 8, 2018. So Ordered(McDonagh, Christina)
United States District Court
District of Massachusetts
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Plaintiff,
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v.
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U.S. Bank, N.A. as Trustee for
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Credit Suisse First Boston
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Mortgage Securities Corp., CSFB )
Mortgage-Backed Pass-Through
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Certificates, Series 2005-12;
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and Wells Fargo Bank, N.A.;
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Defendants.
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Daniel G. Gaudet;
Civil Action No.
18-10312-NMG
MEMORANDUM & ORDER
GORTON, J.
This case involves a mortgage dispute between Daniel Gaudet
(“Gaudet” or “plaintiff”), proceeding pro se, and U.S. Bank,
National Association (“U.S. Bank”) and Wells Fargo Bank, N.A.
(“Wells Fargo”, collectively “defendants”).
In August, 2005, plaintiff granted a mortgage on property
located on Nashua Street in Ayer, Massachusetts (“the property”)
in favor of Mortgage Electronic Registration Systems, Inc.
(“MERS”) to secure a promissory note.
That mortgage was
eventually assigned to U.S. Bank, the current mortgagee of
record and holder of the note.
Plaintiff defaulted on his
mortgage and applied for a loan modification without success.
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Gaudet filed a complaint against the mortgagee and others in
state court on January 30, 2018, a foreclosure sale proceeded on
February 2, 2018, and defendants removed the case to this Court
on February 18, 2018.
Pending before the Court are defendants’
motion to dismiss and plaintiff’s motion to stay execution.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Plaintiff’s barebones
complaint is devoid of facts sufficient to state a legal claim
for relief.
sentences.
The “Facts” section of the complaint contains three
The only substantial allegation is that:
About the last year applied for the loan modification plan,
the Defendant upon receiving his loan modification
application despite promise by the loan mitigation
department of the WELLS FARGO BANK, they schedule my home
for Auction on the date of the Thursday February first2018.
A complaint must provide the defendant “fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.”
Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61,
66 (1st Cir. 2004).
Gaudet’s complaint does do so, nor does it
even purport to state a cause of action.
The complaint alleges three “counts”: injunctive relief,
loan modification and damages.
not causes of action.
Those are remedies, however, and
Given that the foreclosure has already
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occurred, plaintiff’s request for injunctive relief is moot. See
Oakville Dev. Corp. v. FDIC, 986 F.2d 611, 613 (1st Cir. 1993).
The fact that a plaintiff files a complaint pro se
“militates in favor of a liberal reading,” Boivin v. Black, 225
F.3d 36, 43 (1st Cir. 2000), but even under that stricture,
plaintiff’s complaint is deficient.
The Court will, however,
afford Mr. Gaudet the opportunity to amend his complaint. See
Fed. R. Civ. P. 15(a)(2).
The amended complaint must contain
more facts and must provide defendants notice of the specific
claim (or claims) he is bringing.
For instance, if plaintiff is alleging that defendants
breached a contract, he must specify how defendants breached it.
If he alleges that he relied on a misrepresentation made by
defendants, he must specify
(1) the allegedly fraudulent statements; (2) the identity
of the speaker; (3) where and when the statements were
made; and (4) [how] the statements were fraudulent.
See Suna v. Bailey Corp., 107 F.3d 64, 68 (1st Cir. 1997).
If the “promise by the loan mitigation department of Wells
Fargo Bank” was made in writing, plaintiff should attach that
letter to his amended complaint.
Plaintiff’s amended complaint need not present every detail
of his interactions with Wells Fargo and U.S. Bank.
A “short
and plain statement of the claim” will suffice, see Fed. R. Civ.
P. 8(a)(2), but the plaintiff must state “with particularity the
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circumstances constituting fraud or mistake.” Fed. R. Civ. P.
9(b).
In any event, the complaint must give defendants notice
of the claims against them and the factual allegations in
support of those claims.
Because plaintiff fails to allege facts sufficient to state
a claim upon which relief can be granted, defendants’ motion to
dismiss will be allowed.
For the same reason, plaintiff’s
motion to stay execution will be denied.
ORDER
Defendants’ motion to dismiss (Docket No. 5) is ALLOWED.
Plaintiff’s motion to stay execution (Docket No. 15) is DENIED.
Plaintiff is permitted to file an amended complaint, if any, on
or before Monday, October 8, 2018.
So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated September 7, 2018
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