Emile v. Wells Fargo Bank, N.A.

Filing 53

ORDER granting 35 Motion to Dismiss for Lack of Jurisdiction- So Ordered by District Judge John J. McConnell, Jr. on 6/11/2019. (Barletta, Barbara)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

CLAUDE EMILE,
Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.

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C. A. No. 15-077-M-LDA

ORDER
Claude Emile's home mortgage has traveled a long and winding road. It first
went into default in early 2010, was modified in the spring of that year, and Mr. Emile
defaulted again. Wells Fargo sent several letters, reaching out about curing the
default, but to no avail. Mr. Emile filed this complaint in state court in February
2015 to enjoin the foreclosure scheduled for March 3, 2015. Wells Fargo removed the
case to this Court, where the parties have engaged in multiple mediations through
the Special Master Program.

None of those sessions resulted in a successful

resolution. It is undisputed that the scheduled foreclosure never occurred.
Before the Court is Wells Fargo Bank, N.A.'s Motion to Dismiss for Lack of
Subject Matter Jurisdiction or, in the alternative, for Summary Judgment. ECF No.
35. Wells Fargo argues that this Court does not have subject matter jurisdiction
because the foreclosure never happened so there is no case or controversy. Mr. Emile
objects, arguing that the Court does have jurisdiction because he has damages rooted

in the foreclosure process even though it was never completed.! Wells Fargo breached
the mortgage contract by accelerating it and initiating a foreclosure without
complying with the mediation and loss mitigation requirements. In the alternative,
he asks the Court to allow him to amend his complaint to add justiciable claims for
breach of contract and breach of the covenant of good faith and fair dealing2 or to
remand the case to state court instead of dismissing it.
"In considering the fitness prong of the ripeness inquiry, [the First Circuit]
ha[s] emphasized that a 'claim is not ripe for adjudication if it rests upon contingent
future events that may not occur as anticipated, or indeed may not occur at all."'

Labor Relations Div. ofConstr. Indus. ofMass., Inc. v. Healey, 844 F.3d 318, 326 (1st

Mr. Emile cites Dan Hany v. PNC Bank, N.A., as dispositive on this issue
because the court declined to dismiss an action rooted in a defendant's failure to give
a homeowner a face·to·face meeting. C.A. No. 17·136 WES, 2018 WL 1083581, at *4
(D.R.I. Feb. 27, 2018). The facts and status of that case are very different from
Mr. Emile's case. In Dan Hany, the foreclosure actually occurred, and the plaintiff
pled breach of contract claims. Both of those facts were important to the court's
disposition of that motion and are not present here.
2 Mr. Emile's complaint is four years old and was filed in an effort to stop the
scheduled foreclosure. It is for declaratory and injunctive relief only. On Wells
Fargo's motion, he asks to file an amended complaint "to correct any deficiencies ...
which the Court may find." ECF No. 47 at 24. "While courts may not deny an
amendment solely because of delay and without consideration of the prejudice to the
opposing party, ... it is clear that 'undue delay' can be a basis for denial." Hayes v.
New England Millwork Distlibutors, Inc., 602 F.2d 15, 19 (1st Cir. 1979) (citations
omitted) (motion to amend the complaint was denied when made more than two years
after the suit was filed); see also Tiernan v. Blyth, Eastman, Dillon & Co., 719 F.2d
1, 4 (1st Cir. 1983); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 896 (1st Cir. 1979).
Because Mr. Emile offers no justification for his delay, his original complaint has
stood for four years, and is so tailored to his request for a temporary restraining order
on the foreclosure that never happened, the Court denies Mr. Emile's request to
amend his complaint.
1

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Cir. 2016) (quoting City ofFall River v. Fed. Energy Regulatory Comm'n, 507 F.3d 1,
6 (1st Cir. 2007)) .
Mr. Emile filed his complaint in 2015, alleging a claim for declaratory and
injunctive relief based on technical defects leading up to the March 2015 scheduled
foreclosure. ECF No. 1·1 at

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5. That foreclosure never happened so that claim is

moot. Nash v. GMACM01·tg., LLC, No. CA 10·493 S, 2011 WL 2470645, at *13 (D.R.I.
May 18, 2011), report and recommendation adopted, No. CA 10·493 S, 2011 WL
2469849 (D.R.I. June 20, 2011); Arac1i v. Washington Mut. Bank NA., No. NC 2011·
0420, 2015 WL 4600807, at *2 (R.I. Super. July 27, 2015) ("The Uniform Declaratory
Judgments Act cannot be used by a plaintiff to obtain an advisory opinion, as there
must be a present case or controversy for the Court to entertain issuing a declaratory
ruling."). Because the Court finds that there is no case or controversy at this stage,
Wells Fargo's Motion to Dismiss is GRANTED. ECF No. 35.

John J. McConnell, Jr.
United States District Judge
June 11, 2019

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