Giroux v. U.S. Bank National Association, as Trustee for CSMC Mortgage-Backed Pass-Through Certificates, Series 2006-4
Filing
7
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,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 17-299 S
)
U.S. BANK NATIONAL ASSOCIATION,
)
AS TRUSTEE FOR CSMC MORTGAGE)
BACKED PASS-THROUGH CERTIFICATES, )
SERIES 2006-4,
)
)
Defendant.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before
the
Court
is
Defendant
U.S.
Bank
National
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.
Defendant.
(Compl.
¶¶
7-8,
ECF
that was later assigned to
No.
1-2.)
On
May
10,
2009,
Plaintiff was notified that his mortgage loan was in default.
(Compl. ¶ 14, Ex. B.) The notice was not sent by Defendant, but
instead
by
a
self-identified
“Loan
Service
Representative[]”
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.)
Several
years
later,
Defendant
foreclosed
on
the
mortgage,
“purportedly exercising the Statutory Power of Sale.” (Compl. ¶
9.)
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
or
the
mortgage
holder
on
whose
behalf
it
has
been
sent.”
(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
granted.
“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.” Ashcroft v.
Iqbal,
556
U.S.
662,
678
(2009)
(citations
and
quotations
omitted). The Court finds that the Complaint does not meet this
standard.
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
2
“Lender” from providing such notice through an agent. Cornejo,
2016 WL 4385895, at *2 (“Under Rhode Island law . . . agents of
the
lenders[]
can
lawfully
provide
the
borrower
with
the
requisite foreclosure notices.”) (internal citations omitted);
see also Ingram v. Mortg. Elec. Registration Sys., Inc., 94 A.3d
523,
529
(R.I.
2014)
(holding
that
a
“foreclosure
sale
was
lawfully noticed” where “OneWest, acting under power of attorney
for Deutsche Bank, properly mailed notice to plaintiffs”). As
such,
Defendant’s
use
of
America’s
Servicing
Co.
to
provide
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
identify
either
the
lender
or
the
mortgage
holder
on
whose
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
the
notice
of
default
letter
clearly
identifies
the
“Loan
Number” of the loan in default and describes America’s Servicing
3
Co.
as
a
loan
servicer,
thereby
providing
Plaintiff
with
sufficient notice of the mortgage loan at issue. (Compl. Ex. B,
ECF No. 1-2.)
Given
that
the
facts
alleged
in
the
Complaint
do
not
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
Defendant.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: August 7, 2017
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