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Gilbert v. Fed. Nat'l Mortg. Ass'n

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 10, 2012
11-P-1165 (Mass. Apr. 10, 2012)

Opinion

11-P-1165

04-10-2012

STEPHEN M. GILBERT v. FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After the plaintiff, Stephen M. Gilbert's, home was foreclosed upon by the defendant banks, Washington Mutual Bank (WMB), and J.P. Morgan Chase, N.A. (Chase), he filed a complaint in the Superior Court, naming both banks, the Federal National Mortgage Association (FNMA), and Harmon Law Offices, P.C. The defendants moved to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), which the motion judge granted. The plaintiff appealed, and we affirm.

Background. In January, 2006, the plaintiff borrowed $370,000 from American Mortgage Network, Inc. (AMN) and granted it a promissory note for that amount. The note was secured by a mortgage in favor of Mortgage Electronic Registration System (MERS), as nominee for AMN. According to the MERS website, FNMA was the investor behind the loan. A few months later, servicing of the loan was transferred to Washington Mutual Bank (WMB). AMN indorsed the promissory note in blank, and on May 31, 2008, MERS executed an assignment of the mortgage and note to WMB, with an effective date of September 10, 2007. WMB failed in September, 2008, and the FDIC was appointed as its receiver. The FDIC then sold to Chase all right, title, and interest in WMB's assets.

Meanwhile, the plaintiff developed cancer in late 2006 and fell behind in his mortgage payments. WMB commenced foreclosure proceedings in September 17, 2007, which were forestalled, first by the plaintiff's filing for bankruptcy, then by WMB's failure. In April, 2009, Chase successfully moved for relief from the bankruptcy stay and, through its attorney, the defendant Harmon Law Offices, foreclosed on the property on February 4, 2010. Chase was the successful bidder, but immediately assigned its bid to FNMA and conveyed the property to it.

We note that the assignment from MERS to WMB was executed and recorded some eight months after WMB commenced the foreclosure proceedings in which it represented that it was the owner and holder of the mortgage. The assignment contains a notation of an 'effective date' of September 10, 2007, one week prior to the commencement of the foreclosure action in the Land Court. The plaintiff raises no argument regarding the MERS notation on appeal.

The plaintiff thereafter commenced this action, alleging multiple claims against FNMA, Chase, WMB, and Harmon, seeking damages and an injunction in relation to the pending summary process action. Each of the plaintiff's claims is grounded in his assertion that at all relevant times, FNMA, listed by MERS as the 'investor' for the plaintiff's note and mortgage, was the true owner of the property. Thus, according to the plaintiff, neither WMB, which commenced the foreclosure proceedings in the Land Court, nor Chase, which executed the sale, had the authority to do so, and the sale is void. See U.S. Bank Natl. Assoc. v. Ibanez, 458 Mass. 637, 647 (2011). In response, the defendants moved to dismiss the complaint pursuant to rule 12(b)(6). In granting the motion in favor of the defendants, the judge noted that the conclusory allegations of the plaintiff's complaint are contradicted by the exhibits attached to it, which 'demonstrate a chain of title to the mortgage that is consistent with the right of the defendants to conduct the mortgage sale and the representations made in connection therewith.' This appeal followed.

The judge also rejected contentions that the defendants failed to comply with the notice requirements of G. L. c. 244, § 35A, as the statute's effective date occurred after the plaintiff's loan was accelerated. The plaintiff does not pursue this argument on appeal.

Discussion. In order to withstand a motion to dismiss brought under rule 12(b)(6), a complaint must contain enough factual allegations 'to raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true . . . .' Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In its review of a rule 12(b)(6) motion, the court considers not only the face of the complaint, but also any materials incorporated by reference or attached thereto. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).

We agree with the motion judge that the exhibits attached to the plaintiff's complaint completely undermine his allegation that FNMA was the holder of the mortgage for the relevant period of time. The documents clearly establish a chain of title from AMN to WMB and Chase, giving those entities the authority to foreclose on the property. Because the entire complaint rests on this allegation, it was properly dismissed.

The plaintiff's claims on appeal are accordingly without merit. He first argues that the judge erroneously viewed as speculative the allegations in his complaint, as they concerned matters peculiarly within the knowledge and control of the defendants. To the contrary, the judge found the allegations to be speculative because they contradicted the exhibits attached to the complaint. We agree.

Also, the plaintiff argues that the judge erred because the documents attached to his complaint support his assertions. He cites in support of his argument a 'MERS ServicersID printout' indicating that FMLA was the 'investor,' and the deed showing the foreclosure sale from Chase to FMLA. Again, the plaintiff is simply wrong. Exhibit F is a notification to the plaintiff of the assignment of his loan from AMN to WMB; exhibit W establishes that MERS executed an assignment of the mortgage and note to WMB; exhibit M establishes that the FDIC was appointed the receiver of the failed WMB; exhibit N, a purchase and assumption agreement between the FDIC and Chase, establishes that Chase purchased from the FDIC 'all right, title, and interest' in WMB's assets; and exhibit X, the attached foreclosure deed from Chase to FNMA supports the defendants' assertion that Chase, who had foreclosed on the property, was the owner of the mortgage. Any further arguments fail for the same reason.

We deny Harmon Law Office's request for attorney's fees for its defense of the plaintiff's appeal.

Judgment affirmed.

By the Court (Cypher, Smith & Fecteau, JJ.),


Summaries of

Gilbert v. Fed. Nat'l Mortg. Ass'n

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 10, 2012
11-P-1165 (Mass. Apr. 10, 2012)
Case details for

Gilbert v. Fed. Nat'l Mortg. Ass'n

Case Details

Full title:STEPHEN M. GILBERT v. FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 10, 2012

Citations

11-P-1165 (Mass. Apr. 10, 2012)