ALEX VAZ and JOAQUINA VAZ v. KEYBANK, N.A., and MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC.

This quiet title action centers on the mortgage given by Alex and Joaquina Vaz ("the Vazs") to Mortgage Electronic Registration System, Inc. ("MERS") as nominee for KeyBank N.A. ("KeyBank"), as security for a loan to purchase the Vazs' residence at 240 Torrey Street in Brockton ("Property"). Plaintiffs assert that they are entitled to a discharge of the mortgage although they concede that they have not paid back the promissory note for which the mortgage serves as security. The plaintiffs appear to assert as a basis for their claim that the note and mortgage constitute an unconscionable contract, and further, that the defendants have breached a fiduciary duty to the plaintiffs, although the factual basis for these claims is not apparent from a reading of the amended complaint.

On February 19, 2019, Alex Vaz filed a complaint seeking to quiet the title to the Property by the discharge of the mortgage. On March, 13, 2019, the defendants KeyBank and MERS filed a motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12(b)(6). Following a hearing on March 29, 2019, this court, treating defendants' motion to dismiss as a motion for a more definite statement pursuant to Mass. R. Civ. P. 12(e), granted the motion and ordered Alex Vaz to file an amended complaint with specific allegations complying with Mass. R. Civ. P. 8 by April 30, 2019, and which must include his wife, who was a signatory to the subject note and mortgage, as an additional plaintiff. On April 17, 2019, plaintiffs filed an amended complaint, which named Joaquina Vaz as an additional plaintiff. The amended complaint purports to make claims pursuant to G. L. c. 240 §§ 6-10 and 15, and to request the court to discharge the mortgage or declare that the mortgage has been fully paid so that the plaintiffs can hold the title free of the mortgage.

On April 29, 2019, the defendants filed a motion to dismiss the amended complaint pursuant to Mass. R. Civ. P. 12(b)(6). Defendants argue in the new motion that plaintiffs' amended complaint fails to meet the "short, plain statement" requirements of Rule 8(a) and further fails to state any claim which plausibly suggests an entitlement to relief that can be granted by this court.

On May 21, 2019, plaintiffs filed a motion to strike defendants' motion to dismiss.

On May 30, 2019, defendants filed an opposition to plaintiffs' motion to strike defendants' motion to dismiss.

On June 5, 2019, plaintiffs filed an opposition to defendants' opposition to plaintiffs' motion to strike defendants' motion to dismiss plaintiffs' amended complaint.

On June 10, 2019, plaintiffs filed an amended opposition to defendants' opposition to plaintiffs' motion to strike defendants' motion to dismiss plaintiffs' amended complaint.

For the reasons set forth below, the defendants' motion to dismiss will be ALLOWED.

FACTS

For the purposes of this motion, the court accepts as true the discernable allegations in the amended complaint. The court considers various recorded instruments submitted with the motion to dismiss, and other undisputed materials outside the pleadings. Based on these documents, the court accepts as true the following facts for the purposes of consideration of the motion to dismiss:

1. Plaintiffs are the owners of the Property, which is a rectangular-shaped parcel of land is shown on a survey plan entitled "Plan of Land 240 Torrey Street," located in Brockton, Massachusetts. The plan was recorded with the Plymouth County Registry of Deeds ("Registry") in Book 62, Page 1175. The Property is improved by a single-family dwelling.

2. On or about October 10, 2017, plaintiffs purchased the Property, by a quitclaim deed recorded with the Registry in Book 49030, Page 26, for consideration of $335,500.00.

3. In connection with their purchase of the Property, plaintiffs obtained a loan from KeyBank in the amount of $318,725.00 to purchase the Property. The loan was evidenced by a promissory note dated October 10, 2017 in the original principal amount of $318,725.00 and was secured by a first position mortgage given by plaintiffs to MERS as nominee for KeyBank and recorded with the Registry in Book 49030, Page 29.

4. As of the date of the hearing on the motion to dismiss, the plaintiffs were current in their obligations to make payments on the note and mortgage to KeyBank.

STANDARD OF REVIEW

Legal Standard on Rule 12(b)(6) Motion to Dismiss.

In considering a motion to dismiss filed pursuant to Mass. R. Civ. P. 12(b)(6), the court accepts as true the well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008). The plaintiff is required to plead "factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief[.]" Id., at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), (c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 n.4 (2004); Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550 , 555 (2008).

Pleading requirements of Rule 8(a), (e).

Mass. R. Civ. P. 8(a) requires that "[a] pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled." Mass. R. Civ. P. 8(e) requires that "[e]ach averment of a pleading shall be simple, concise, and direct."

DISCUSSION

The defendants seek dismissal of the amended complaint, contending that: the amended complaint fails to 1) meet the Mass. R. Civ. P. 8(a) and (e) requirement of a short and plain statement of claims showing entitlement to relief, with averments that are simple, concise and direct; or to 2) allege facts that articulate any claim of any right enforceable by the plaintiffs, or any cognizable wrongdoing by the defendants necessitating relief that can be granted by the court.

1. Plaintiffs' Amended Complaint Fails to Meet the Mass. R. Civ. P. 8(a) Requirement of a Short and Plain Statement of Claims Showing Entitlement to Relief

"[A] judge must consider whether the amended complaint is so verbose and confusing that it fails to give the defendants 'fair notice of what the plaintiff's [claims are] and the grounds upon which [they rest].'" Mmoe v. Commonwealth, 393 Mass. 617 , 621 (1985) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). See Noel v. Eversource Energy, 91 Mass. App. Ct. 1113 (2017) ("[T]he factual allegations [in the amended complaint], as a matter of both plausibility and law, [do not] support entitlement to relief."). "[A]lthough some leniency is appropriate in determining whether a pro se complaint meets the requirement of the Massachusetts Rules of Civil Procedure, the rules bind a pro se litigant as they bind other litigants." Mmoe v. Commonwealth, supra, 393 Mass. at 620; Pidge v. Superintendent, Massachusetts Correctional Inst., Cedar Junction, 32 Mass. App. Ct. 14 , 15 (1992) ("[T]he diffuse averments of the plaintiff's complaint were far from the 'short and plain statement' called for by the rules.").

Although the Vazs are pro se litigants, they are still expected and required to adhere to the requirements of the Massachusetts Rules of Civil Procedure that their complaint include an understandable, short and plain statement of their claims. See Mmoe v. Commonwealth, supra, 393 Mass. at 620; Pidge, 32 Mass. App. Ct. at 15. The court treated the motion to dismiss the original complaint in this matter as a motion for a more definite statement because the complaint consisted of a disjointed series of unrelated statements of legal jargon that together did not state any discernable claim. The court gave the plaintiffs an opportunity to file an amended pleading that clearly states relevant facts pertaining to this mortgage and states the basis in law of the relief they are looking for, which is the discharge of the mortgage. However, the amended complaint, like the initial complaint, fails to convey to the court any factually-defined claim showing an entitlement to relief. Like the initial complaint, the amended complaint consists largely of confusing, unrelated statements that appear to be bits of legal jargon that do not relate to any coherent claim. For instance, under the heading, "Notice of Discharge," the plaintiffs allege: "19. In United States neither paper currency nor deposits have value as commodities. In fact, a dollar bill is just a piece of paper, and deposits merely book entries. 20. It is evident that sound money has been suspended, and what we have today is merely an accessory promise to pay on various instruments with the limited capacity to only discharge debts." These statements of the plaintiffs' evident beliefs in the lack of validity of the current monetary system in the United States have nothing to do with an appropriate statement of whatever claim they intend to make with respect to the relative rights and obligations between the parties to the present action. The rest of the amended complaint offers no more clarity with respect to the plaintiffs' potential claims than do the two paragraphs quoted above. Accordingly, the amended complaint fails to present its claims by the required short and plain statement of claims showing an entitlement to relief.

2. Plaintiffs' Amended Complaint Fails to State a Claim Upon Which Relief Can Be Granted.

"[U]nder Mass. R. Civ. P. 8(a), a complaint must show not merely a grievance but a violation of legal right which belongs to plaintiff, and which defendant has breached." Donnelly v. Suffolk University, 3 Mass. App. Ct. 788 (1975). To the extent that it is possible to discern from the amended complaint what the plaintiffs are asking of the court, the plaintiffs appear to claim that the promissory note and the mortgage are unconscionable contracts and are therefore unenforceable, and also that there was a fiduciary relationship between the parties, which the defendants have breached.

"To prove that the terms of a contract are unconscionable, a plaintiff must show both substantive unconscionability (that the terms are oppressive to one party) and procedural unconscionability (that the circumstances surrounding the formation of the contract show that the aggrieved party had no meaningful choice and was subject to unfair surprise)." Storie v. Household Int'l, Inc., No. 03-40268, 2005 WL 3728718, at *9 (D. Mass. Sept. 22, 2015) (quoting Zapatha v. Dairy Mart, Inc., 381 Mass. 284 , 293 (1980)). To the extent they can be discerned at all, the facts as alleged by the plaintiffs do not show that the promissory note and mortgage had the potential for unfair surprise or that the plaintiffs had no meaningful choice as to whether to enter into a contractual relationship with the defendants. As the plaintiffs agreed at the hearing on the motion to dismiss, they simply applied for a mortgage loan with the defendant KeyBank, were approved, and completed the mortgage loan transaction in which KeyBank loaned them the money necessary to purchase their home and they granted KeyBank a mortgage to secure the payment of the promissory note. The plaintiffs agree that they accepted the loan and that the funds were used to purchase their home. The plaintiffs do not allege any facts that would support a finding that they were subject to unfair surprise or that they were left with no choice other than to accept the terms of the loan, as opposed to, for instance, considering another lender, or otherwise choosing not to enter into the transaction. Nor do the plaintiffs allege that they had insufficient time to consider the mortgage; they signed the promissory note voluntarily and used the loan to purchase the Property. Because the contract cannot be found to have been procedurally unconscionable, the court does not reach the issue of substantive unconscionability.

The plaintiffs also claim that KeyBank owes them a fiduciary duty which, by its conduct, it has breached. However, the plaintiffs allege no facts from which the court could conclude that there was a fiduciary relationship between the parties. The plaintiffs allege facts from which the court could conclude only that the relationship between the plaintiffs and the defendants was that of debtors and creditors. Without more, and where, as here, only facts showing a creditor to debtor business relationship are shown, there is no basis for finding that there was a fiduciary relationship between the parties. See Nat'l Shawmut Bank of Boston v. Hallett, 322 Mass. 596 , 602 (1948), and cases cited (creditor to debtor relationship was a business relationship, and even "existence of mutual respect and confidence did not make it a fiduciary."); "[T]he general rule (is that) a lender owes no fiduciary duty to a borrower…Our cases recognize an exception to this rule where the borrower reposes trust and confidence in the lender and where the lender acquires 'knowledge of the plaintiff's reliance upon him.'" Pacheco v. PNC Bank, N.A., 88 Mass. App. Ct. 1112 (Rule 1:28 Decision), quoting in part Broomfield v. Kosow, 349 Mass. 749 , 755 (1965). The plaintiffs have alleged no facts in the amended complaint from which the court could find that the plaintiffs reposed their trust and confidence in the defendants or that the defendants acquired knowledge of such reliance of the plaintiffs' reliance on the defendants.

CONCLUSION

The court has provided the plaintiffs ample opportunity to properly allege a claim showing that they are entitled to relief. However, the plaintiffs have twice failed to meet the requirements of Mass. R. Civ. P. 8(a) and 12(b)(6). The factual allegations in the amended complaint remain mostly incomprehensible, and to the extent they are comprehensible, they fail to state a claim for any relief that this court has the authority to grant.

For the foregoing reasons, the defendants' motion to dismiss is ALLOWED.

Judgment will enter dismissing the amended complaint.