EMMA THOMAS, plaintiff v. CITIZENS BANK NA a/k/a, CITIZENS CITIZENS ON HOME LOANS, f/k/a RBS CITIZENS NA, BROCK AND SCOTT PLLC, and 28 KITCHEN CABINET LLC

Procedural History

The Complaint was filed on June 3, 2020. The Plaintiff's Motion for Preliminary Injunction, Plaintiff's Motion/Notice of Lis Pendens Pursuant to M.G.L. c. 184, § 15, and the Affidavit of Plaintiff Emma Thomas (Thomas) were filed on June 4, 2020. Defendant 28 Kitchen Cabinet LLC (28 Kitchen) filed an Opposition to Plaintiff's Motion for Preliminary Injunction on June 10, 2020. The hearing on the motions for preliminary injunction and lis pendens was held on June 10, 2020. 28 Kitchen was ordered not to sell, transfer or otherwise encumber the property until further order of the court, and Thomas withdrew the Motion for Preliminary Injunction. On June 18, 2020, an Amended Complaint and Memorandum were filed. On June 30, 2020, Brock & Scott PLLC (Brock & Scott) filed a Motion to Dismiss, Statement of Issues Presented for Brock & Scott's Motion to Dismiss, Statement of Legal Elements, and Argument in Summary Form in Support of Brock & Scott's Motion to Dismiss. The defendant, Citizens Bank a/k/a Citizens One Home Loans, f/k/a RBS Citizens NA (Citizens), filed a Motion to Dismiss Plaintiff's Complaint and Memorandum in Support of Motion to Dismiss Plaintiff's Complaint on July 1, 2020. Thomas filed an Opposition to Motion to Dismiss Filed by Citizens Bank on July 2, 2020 and an Addition to Opposition to Motion to Dismiss filed by Citizens Bank on July 6, 2020. Affidavit of Plaintiff, Emma Thomas, was filed on July 8, 2020. On July 8, 2020, the case management conference was held. All claims against Brock & Scott were dismissed with prejudice. Thomas filed a Second Addition to Opposition to Motion to Dismiss on July 23, 2020. Citizens filed a Reply Memorandum in Support of Motion to Dismiss Plaintiff's Complaint on August 6, 2020. On August 7, 2020, the Motion to Dismiss Plaintiff's Complain was heard and taken under advisement. 28 Kitchen joined co-defendant Citizens in moving the court to dismiss the complaint but noted that no specific allegations are made against it. Citizens filed a Supplemental Memorandum in Support of Motion to Dismiss Plaintiff's Complaint on August 7, 2020. Thomas filed a Reply to Supplemental Memorandum in Support of Motion to Dismiss Plaintiff's Complaint on August 13, 2020.

Standard on Motion to Dismiss

Citizens' motion to dismiss seeks dismissal of the Amended Complaint under Mass. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. In considering a motion to dismiss for failure to state a claim, the court accepts as true 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) quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). 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), 12(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, 442 Mass. at 45 n.4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n. 2 (2008) (Long, J.). Therefore, in analyzing the motion to dismiss under rule 12(b)(6), the court will accept as true the allegations of the complaint for the purposes of the Motion to Dismiss, and will consider the various documents attached to the complaint and other documents referred to in the complaint.

Factual Allegations

The following facts are either undisputed or accepted as true, with inferences drawn in favor of Thomas, for the purposes of this Motion to Dismiss. [Note 1]

1. Thomas is an individual residing at 77 Cohasset Street, Worcester, Massachusetts 01604 (77 Cohasset Street). Amend. Comp. ¶ 1.

2. 77 Cohasset Street, Worcester, Massachusetts 01604 is the property listed as Thomas's address on the following documents: the mortgage between her and Citizens encumbering 77 Cohasset Street, dated August 8, 2008, and recorded with the Worcester Registry of Deeds (registry) in Book 43188, Page 1 (first mortgage); the note between Thomas and Citizens dated August 8, 2008; on Thomas's 2017 Form W2; and as part of her bankruptcy petition referenced in the Complaint. Reply Memo in Support Motion to Dismiss Plaintiff's Complaint Exhs. A-D.

3. Citizens is a corporate entity with a business address of 10561 Telegraph Road, Glen Allen, Virginia 23059. Amend. Comp. ¶ 2.

4. Brock & Scott is a law firm with a principal place of business at 1080 Main Street, Suite 200, Pawtucket, Rhode Island 02860. Amend. Comp. ¶ 3.

5. 28 Kitchen is an entity with a principal place of business at 28 Coolidge Street, Auburn, Worcester County, Massachusetts 01501. Amend. Comp. ¶ 4.

6. In 2008, Thomas granted two mortgages to Citizens. Amend. Comp. ¶ 9.

7. There was $176,964.57 due for a balance on the first mortgage with arrears of $40,544.07 and $53,364.49 on a second mortgage with arrears of $9,001.45. Amend. Comp. ¶ 10; Exh. A; Exh. B.

8. 28 Kitchen purchased 77 Cohasset Street via foreclosure auction held on or about November 5, 2019 for $297,000 (foreclosure sale). Amend. Comp. ¶ 11.

9. The balances of both mortgages were paid off with all costs from the foreclosure auction, according to the foreclosure deed dated January 28, 2020 recorded in the registry in Book 62024, Page 393 (foreclosure deed). Amend. Comp. ¶¶ 5, 10

10. Citizens sent notice of foreclosure to Thomas at 77 Cohasset Street, Worcester, MA, via certified mail, on October 1, 2019. Reply Memo in Support Motion to Dismiss Plaintiff's Complaint Exh. E; Amend. Comp. ¶ 28.

11. That same day, Citizens also sent notice of foreclosure to Thomas at 77 Cohasset Street, Apt. 1 and 77 Cohasset Street, Apt. 3. Reply Memo in Support Motion to Dismiss Plaintiff's Complaint Exh. F; Amend. Comp. ¶ 28.

12. No signed receipts of any certified mail were given. Amend. Comp. ¶ 28. 13. The notice was left around 1:00 p.m. Amend. Comp. ¶ 29.

Discussion

In the Amended Complaint, Thomas seeks to void the foreclosure sale and the foreclosure deed on the grounds that she did not receive notice of the foreclosure sale as required by G.L. c. 244, § 14 (the foreclosure statute). For the purposes of the Motion to Dismiss, the court accepts that Thomas did not receive notice of the foreclosure sale. In its Motion to Dismiss, Citizens asserts that, notwithstanding that Thomas did not receive notice of the foreclosure sale, the activity listed in the Amended Complaint as violating the foreclosure statute is actually in strict conformity with the language of the foreclosure statute. Under the foreclosure statute, Citizens must have provided notice of the sale "by registered mail to the owner or owners of record of the equity of redemption as of 30 days prior to the date of sale, said notice to be mailed by registered mail at least 14 days prior to the date of sale to said owner or owners . . . to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage." Id. The foreclosure statute does not require that notice be signed by the property owner, or that a service processor be retained by the foreclosing party. Id. "It is well settled that the notice of sale letter required by ch. 244, § 14 need only be sent, and that a mortgagor's actual receipt of the letter is not required." Hawkes v. BSI Fin., Inc., 444 F. Supp. 3d 260, *3 (D. Mass. 2020); see G.L. c. 244, § 14; Dooling v. James B. Nutter & Co., 139 F. Supp. 3d 505, 512 (D. Mass. 2015) ("The law in Massachusetts is clear; the requirement that the notice be mailed to the owner of the relevant property is 'satisfied by mailing and nonreceipt is irrelevant.'"); Hull v. Attleboro Sav. Bank, 33 Mass. App. Ct. 18 , 24-25 (1992) ("The fourteen day registered mail notice requirement is satisfied by mailing and nonreceipt is irrelevant.").

Here, Citizens provided the required notice, via certified mail, to Thomas at 77 Cohasset Street, Worcester, MA on October 1, 2019. Reply Memo in Support Motion to Dismiss Plaintiff's Complaint Exh. E; Amend. Comp. ¶ 28. Additionally, Citizens also sent notice of foreclosure to Thomas at 77 Cohasset Street, Apt. 1 and 77 Cohasset Street, Apt. 3. Reply Memo in Support Motion to Dismiss Plaintiff's Complaint Exh. F; Amend. Comp. ¶ 28. 77 Cohasset Street is the property listed as Thomas's address on multiple documents, including the first mortgage, the note between Thomas and Citizens dated August 8, 2008, Thomas's 2017 Form W2, and Thomas's bankruptcy petition referenced in the Complaint. Reply Memo in Support Motion to Dismiss Plaintiff's Complaint Exhs. A-D. The foreclosure statute requires that notice of sale be sent, not that the mortgagor actually receive the notice, sign the notice, or that a service processor be retained. G. L. c. 244, § 14; Dooling, 139 F. Supp. 3d at 512; Hull, 33 Mass. App. Ct. at 24-25. Citizens provided notice to the last address of Thomas that appeared on record, and it was not required to go above and beyond what is provided for in the foreclosure statute. Citizens did not violate the notice requirements of the foreclosure statute. Because that is the only claim of the Amended Complaint, it must be dismissed. [Note 2]

Conclusion

For the foregoing reasons, Citizens' Motion to Dismiss is ALLOWED. Judgment shall enter dismissing the complaint with prejudice.

SO ORDERED.