Gelfgatt v. US Bank National Association

Filing 24

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER.For the foregoing reasons, the motion of defendant U.S. Bank to dismiss the complaint and lis pendens (Docket No. 5 ) is ALLOWED. The memorandum of lis pen dens filed by plaintiff Gelfgatt is hereby DISSOLVED. The motion of defendant U.S. Bank to dismiss (Docket No. 21 ) is ALLOWED. Plaintiff's motion for preliminary injunctive relief (Docket No. 16 ) is DENIED AS MOOT.So ordered. (Franklin, Yvonne)

Case 1:18-cv-10912-NMG Document 24 Filed 07/27/18 Page 1 of 8

United States District Court
District of Massachusetts
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)
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Plaintiff,
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v.
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U.S. Bank National Association; )
)
Defendant.
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)
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Leon I Gelfgatt,

Civil Action No.
18-10912-NMG

MEMORANDUM & ORDER

GORTON, J.

This case involves allegations by plaintiff Leon Gelfgatt
(“plaintiff” or “Gelfgatt”), who appears pro se, that his 2010
discharge in bankruptcy altered the stated maturity date of his
mortgage, assigned to U.S. Bank National Association
(“defendant” or “U.S. Bank”), thereby rendering it null and
void.

Gelfgatt contends that the defendant failed to foreclose

within the requisite time period required by the Massachusetts
Obsolete Mortgage Statute, M.G.L. c. 260, § 33, and thus
forfeited its interest in the subject property.
Before the Court are two motions to dismiss by defendant
and plaintiff’s motion for a preliminary injunction.

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A. Background
Leon Gelfgatt acquired title to real property located at 75
Garfield Street in Marblehead, Massachusetts, (“the property”)
in February, 2003.

In February, 2005, in connection with a

loan, he executed a promissory note for $343,500 in favor of
Homevest Mortgage Corporation (“Homevest”).

The same day, he

granted a mortgage lien to Mortgage Electronic Registration
System (“MERS”), as nominee for Homevest, to secure the note.
In July, 2010, MERS assigned the mortgage to U.S. Bank.
Plaintiff had previously defaulted on the loan in March, 2010,
and subsequently filed for Chapter 7 bankruptcy protection in
February, 2012.

He received a discharge of unsecured claims in

May, 2012.
Plaintiff filed a complaint related to the property in the
Massachusetts Superior Court for Suffolk County in December,
2010 (“Gelfgatt I”).

That court dismissed the complaint and the

Massachusetts Appeals Court denied his motion for injunctive
relief pending appeal and ultimately dismissed the appeal for
lack of prosecution.
Gelfgatt filed a second complaint with respect to the
property in September, 2012, this time in the Massachusetts
Superior Court for Essex County (“Gelfgatt II”).
summary judgment for defendant in March, 2015.

It granted

Plaintiff’s

subsequent appeal was dismissed for failure to prosecute in
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March, 2018.

Gelfgatt filed a third complaint in Suffolk County

Superior Court in April, 2018, along with an ex parte motion for
endorsement of a lis pendens (“Gelfgatt III”).

That court

allowed the ex parte motion and plaintiff recorded the lis
pendens in the Essex South County Registry of Deeds.
removed the case to this Court in May, 2018.

Defendant

He filed a fourth

complaint in Essex County Superior Court in June, 2018, which
defendant removed to this Court in July, 2018 (“Gelfgatt IV”).
That case was assigned to another session of this Court but,
because it is related to Gelfgatt III, on July 25, 2018, the
Court allowed plaintiff’s motion to consolidate Gelfgatt III and
Gelfgatt IV.
B. Legal Standard
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).

In considering the merits of

a motion to dismiss, the Court may look only to the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint and matters of which
judicial notice can be taken. Nollet v. Justices of Trial Court
of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248
F.3d 1127 (1st Cir. 2000).

Furthermore, the Court must accept

all factual allegations in the complaint as true and draw all
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reasonable inferences in the plaintiff's favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

If the

facts in the complaint are sufficient to state a cause of
action, a motion to dismiss the complaint must be denied. See
Nollet, 83 F. Supp. 2d at 208.
Although a court must accept as true all of the factual
allegations contained in a complaint, that doctrine is not
applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662
(2009).

Threadbare recitals of the legal elements which are

supported by mere conclusory statements do not suffice to state
a cause of action. Id. Accordingly, a complaint does not state a
claim for relief where the well-pled facts fail to warrant an
inference of any more than the mere possibility of misconduct.
Id. at 1950.
C. Analysis
In the Gelfgatt III complaint, plaintiff contends that U.S.
Bank has no right to foreclose on his property because the
statute of limitations imposed by the obsolete mortgage statute
has run.

He seeks a declaratory judgment to that effect.

Defendant responds that a discharge in bankruptcy does not alter
the maturity date of the mortgage and that the obsolete mortgage
statute does not provide to the contrary.

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The obsolete mortgage statute provides, in relevant part,
that
A power of sale in any mortgage of real estate shall not be
exercised . . . nor proceeding begun for foreclosure of any
such mortgage after the expiration of, . . . in the case of
a mortgage in which the term or maturity date of the
mortgage is stated, 5 years from the expiration of the term
or from the maturity date, unless an extension of the
mortgage . . . is recorded before the expiration of such
period.
M.G.L. c. 260, § 33.
Thus, a mortgage becomes obsolete and is considered
discharged five years after the expiration of the stated term or
maturity date of the mortgage.

The statute contains no language

supporting plaintiff’s interpretation that the acceleration of
the maturity date of a note affects the maturity date of the
related mortgage.

The mortgage in this case has a stated

maturity date of April, 2025.

Pursuant to the obsolete mortgage

statute if, after that maturity date, defendant fails to record
an extension of its mortgage, it will be discharged in April,
2030, not May, 2017, as plaintiff asserts.
Plaintiff’s theory that the acceleration of the note
affects the expiration of the mortgage is unsupported by
Deutsche Bank Nat. Tr. Co. v. Fitchburg Capital, LLC, 471 Mass.
248 (2015), upon which he relies.

That case pertains to

mortgages that provide for terms or maturity dates of the
underlying debts. See id. at 249.

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It makes no mention of a

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purported relationship between an acceleration of payments and
the obsolete mortgage statute.

Plaintiff has failed to state a

claim upon which relief can be granted and his count I will
therefore be dismissed. Cf. Perreira v. Bank of New York Mellon,
No. 16-11467-LTS, 2016 WL 6963032, at *3 (D. Mass. Nov. 28,
2016) (allowing motion to dismiss where plaintiff sought a
declaratory judgment pursuant to the obsolete mortgage statute
based on the theory that acceleration of mortgage payments
alters the expiration date of mortgage obligations).
In Count II, Gelfgatt moves this Court to declare his
property free of any interest of the mortgagee bank.

For the

reasons stated above, that request is without merit.
Defendant’s motion to dismiss will be allowed as to Count II.
Finally, plaintiff has filed a memorandum of lis pendens.
The Massachusetts lis pendens statute provides that a special
motion to dismiss
shall be granted if the court finds that the action or
claim is frivolous because . . . it is devoid of any
arguable basis in law.
M.G.L. c. 184 § 15(c).
Also for the reasons already provided, plaintiff’s claim is
devoid of any arguable basis in law. See Sandoval v. Aurora Loan
Servs., Inc., No. CIV.A. 11-11994-RGS, 2011 WL 5970918 (D. Mass.
Nov. 29, 2011).

Defendant’s motion to dismiss the lis pendens

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will be allowed and the lis pendens recorded by plaintiff will
be dissolved.
In the Gelfgatt IV complaint, plaintiff avers that the
mortgage was not validly assigned and that defendant lacks the
requisite chain of title.

Those allegations are barred by the

doctrine of claim preclusion.

Under Massachusetts law, claim

preclusion applies when three elements are satisfied:
the parties to the prior and present actions must either be
identical or in privity; the causes of action must arise
out of the same nucleus of operative fact; and the prior
action must have produced a final judgment on the merits.
Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013) (citing
Kobrin v. Board of Registration in Med., 444 Mass. 837, 832
N.E.2d 628 (2005)).
Those requirements are fulfilled in this case. See Hudson
v. MacEachern, 94 F. Supp. 3d 59, 67 (D. Mass. 2015).

Gelfgatt

and U.S. Bank were parties to Gelfgatt I, Gelfgatt II, and
Gelfgatt III.

To the extent that the Gelfgatt IV complaint

alleges claims against Federal Home Loan Mortgage Corporation,
it was a party to Gelfgatt I.

Second, the claims in Gelfgatt IV

arise out of the same nucleus of operative fact, viz. the
mortgage pertaining to the property.

Third, because Gelfgatt I

was dismissed for failure to state a claim and Gelfgatt II was
dismissed on summary judgment, a prior action produced a final
judgment on the merits.

Accordingly, defendant’s motion to

dismiss the Gelfgatt IV complaint will be allowed.

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Finally, because the Court will allow each of defendant’s
motions to dismiss, plaintiff’s motion for a preliminary
injunction will be denied as moot.
ORDER
For the foregoing reasons, the motion of defendant U.S.
Bank to dismiss the complaint and lis pendens (Docket No. 5) is
ALLOWED.

The memorandum of lis pendens filed by plaintiff

Gelfgatt is hereby DISSOLVED.

The motion of defendant U.S. Bank

to dismiss (Docket No. 21) is ALLOWED.

Plaintiff’s motion for

preliminary injunctive relief (Docket No. 16) is DENIED AS MOOT.
So ordered.

_/s/ Nathaniel M. Gorton________
Nathaniel M. Gorton
United States District Judge
Dated July 27, 2018

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