Giroux v. U.S. Bank National Association, as Trustee for CSMC Mortgage-Backed Pass-Through Certificates, Series 2006-4
MEMORANDUM AND ORDER granting 4 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge William E. Smith on 8/7/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
TODD J. GIROUX,
C.A. No. 17-299 S
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR CSMC MORTGAGE)
BACKED PASS-THROUGH CERTIFICATES, )
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Association’s Motion to Dismiss filed pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. (ECF No. 4.) For the
reasons set forth below, Defendant’s Motion is GRANTED.
According to the Complaint, Plaintiff executed a mortgage
with Allied Mortgage Group, Inc.
that was later assigned to
Plaintiff was notified that his mortgage loan was in default.
(Compl. ¶ 14, Ex. B.) The notice was not sent by Defendant, but
named “America’s Servicing Co.” (Id.) The letter provided the
“loan number” of the mortgage at issue and notified Plaintiff,
among other things, that the “loan is in default.” (Id.)
“purportedly exercising the Statutory Power of Sale.” (Compl. ¶
Paragraph 22 of the mortgage agreement between Plaintiff
and Defendant provides that, prior to any statutory sale, the
“Lender shall give notice to Borrower prior to acceleration [of
the mortgaged indebtedness] following Borrower’s breach of any
covenant or agreement in this Security agreement.” (Compl. ¶
12.) Plaintiff alleges that Defendant violated this provision
because the notice of default was sent by America’s Servicing
Co., not the “Lender,” and “fails to identify either the lender
(Compl. ¶ 15.)
Defendant has filed a Motion to Dismiss (ECF No. 4) arguing
that the Complaint fails to state a claim on which relief may be
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v.
omitted). The Court finds that the Complaint does not meet this
The Court addressed essentially this same issue in Cornejo
v. Bank of New York Melon, C.A. No. 16-64 S, 2016 WL 4385895, at
*2 (D.R.I. Aug. 17, 2016). As the Court explained in that case,
under Rhode Island law, a mortgage contract that requires the
“Lender” to provide notice to a borrower does not prohibit the
“Lender” from providing such notice through an agent. Cornejo,
2016 WL 4385895, at *2 (“Under Rhode Island law . . . agents of
requisite foreclosure notices.”) (internal citations omitted);
see also Ingram v. Mortg. Elec. Registration Sys., Inc., 94 A.3d
lawfully noticed” where “OneWest, acting under power of attorney
for Deutsche Bank, properly mailed notice to plaintiffs”). As
notice of default, without more, does not establish a breach of
Paragraph 22 of the mortgage agreement.
In an attempt to get around this clear precedent, Plaintiff
alleges that the notice of default violated paragraph 22 of the
mortgage agreement not simply because it was sent by America’s
Servicing Co., but because America’s Servicing Co. “fail[ed] to
behalf it has been sent.” (Compl. ¶ 15.) But paragraph 22 does
not require that the notice of default identify “either the
lender or the mortgage holder” of the loan in default. It only
requires that the “Lender shall give notice to Borrower prior to
acceleration” (Compl. ¶ 12), and the Complaint readily concedes
that such notice occurred through the Lender’s agent, America’s
Servicing Co. (Compl. ¶ 14, Ex. B.) The Court also notes that
Number” of the loan in default and describes America’s Servicing
sufficient notice of the mortgage loan at issue. (Compl. Ex. B,
ECF No. 1-2.)
describe a breach of paragraph 22 of the mortgage agreement
under Rhode Island law, Plaintiff’s claim is not “plausible on
its face.” Iqbal, 556 U.S. at 678. Defendant’s Motion to Dismiss
(ECF No. 4) is therefore GRANTED. Final judgment will enter for
IT IS SO ORDERED.
William E. Smith
Date: August 7, 2017
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