Gideon v. Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates et al
Plaintiff: Deborah Gideon, f/k/a Deborah Shaninga and Deborah Gideon
Defendant: Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates, XYZ Unknown 1-100, Herman Owoussou, Carrington Mortgage Services, LLC and Wilshire Credit Corporation
Case Number: 1:2019cv12094
Filed: October 9, 2019
Court: US District Court for the District of Massachusetts
Presiding Judge: Richard G Stearns
Nature of Suit: Real Property: Foreclosure
Cause of Action: 28:1332
Jury Demanded By: Plaintiff
Docket Report

This docket was last retrieved on December 16, 2019. A more recent docket listing may be available from PACER.

Date Filed Document Text
December 16, 2019 Filing 29 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #28 Assented to MOTION for Extension of Time to 12/30/2019 to file response to #14 Motion to Dismiss. (Pacho, Arnold)
December 14, 2019 Filing 28 Assented to MOTION for Extension of Time to 12/30/2019 to serve Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint with certificate of service by Deborah Gideon.(Gannett, Richard)
December 4, 2019 Filing 27 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #26 Assented to MOTION for Extension of Time to December 16, 2019 to serve Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint. (Pacho, Arnold)
December 3, 2019 Filing 26 Assented to MOTION for Extension of Time to 12/16/2019 to serve Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint with certificate of service by Deborah Gideon.(Gannett, Richard)
November 27, 2019 Filing 25 Judge Richard G. Stearns: ELECTRONIC ORDER entered regarding plaintiff's Motion Dkt #23, noting that plaintiff previously filed a Reply to Opposition (see Dkt #20) and it was considered and referenced in the court's Order on the Motion to Remand.(Zierk, Marsha)
November 27, 2019 Filing 24 Judge Richard G. Stearns: ELECTRONIC ORDER entered finding as moot #21 Motion for Leave to File Sur-Reply. (Pacho, Arnold)
November 26, 2019 Filing 23 Assented to REPLY to Response to #11 Amended MOTION to Remand with certificate of service filed by Deborah Gideon. (Gannett, Richard)
November 25, 2019 Filing 22 Judge Richard G. Stearns: ELECTRONIC ORDER entered denying #7 Motion to Remand; denying #11 Motion to Remand. On October 9, 2019, then-served defendants timely removed this action to the federal district court. See 28 U.S.C. 1441(a) and 1446. In their Notice of Removal, defendants Carrington Mortgage Services, LLC (Carrington) and Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates (Wells Fargo) assert that Herman Owoussou, a Massachuetts resident, was improperly joined in order to defeat diversity jurisdiction in this court. Defendants contend that Owoussu is alleged to have executed in 2005 a quitclaim deed transferring the property at 19 Millstone Road, Boston, and, beyond that, has no connection to the subject matter of the Complaint which concerns the terms and servicing of Gideon's mortgage loan. In the Complaint, Gideon simply avers that Owoussou sold her the property "on July 12, 2005, for $1 [and] [i]t is unclear if this transfer was for value or for other purposes." Compl. 10. In a count for "Recission and Reformation," the only count naming Owoussou, Gideon contends that, in selling the property to her for $1, Owoussou "participated with other defendants to defraud [her] by inducing [her] to sign a usurious loan which was financially harmful to her." Id. at 49. After the removal, Gideon filed this motion to remand the case to the Massachusetts Superior Court, asserting that, with Owoussou included as a defendant, this court lacks diversity jurisdiction over her claims. Under the doctrine of fraudulent joinder, removal is not defeated by the inclusion of a non-diverse defendant where there is no reasonable possibility that the state's highest court would find that the complaint states a cause of action upon which relief may be granted against the non-diverse defendant.See Universal Truck & Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103, 108 (1st Cir. 2014), citing Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992) ( "[T]he federal court must engage in an act of prediction: is there any reasonable possibility that a state court would rule against the non-diverse defendant?"); McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987) ("If the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent." (citing Moore's Federal Practice (1986) O.161 #2 )). Defendant bears the burden of proof. In her Reply to defendants' Opposition, Gideon ignores the accusations of fraudulent joinder and focuses instead on non-party Union Trust Mortgage Corporation (Union), a company doing business in Massachusetts. Union appears on Gideon's original HUD-1 as receiving a $6,4400 payment at the closing. Gideon proposes naming Union as a defendant in a new attempt to defeat diversity. Gideon argues that, in the Complaint, she names XYZ Unknown 1-100 as "possible defendants" and that Union "could be deemed an additional defendant given that it charged [Gideon] significant fees to obtain a loan from Freemont Investment & Loan, an entity the Massachusetts Supreme Judicial Court clearly disapproved of." Reply at 2. However, this newly minted argument carries no weight as the right to remove is "to be determined according to the plaintiff's pleading at the time of the petition for removal." Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939). Moreover, under 28 U.S.C. 1441(b)(1), "the citizenship of defendants sued under fictitious names shall be disregarded for diversity purposes." See also Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 426 n.10 (1st Cir. 2007) ("The presence of John Does does not destroy diversity jurisdiction in cases removed to federal court."). Thus, the inclusion in the Complaint of defendants referred to as "XYZ Unknown 1-100" does not destroy diversity.With regard to Gideon's claim of fraud against Owoussu, it is barred by the statute of limitations. In Massachusetts, fraud, misrepresentation, and other tort claims "shall be commenced only within three years next after the cause of action accrues." Mass. Gen. Laws ch. 260, 2A. Gideon purchased the property from Owoussou on July 12, 2005. She makes no assertion of fraudulent concealment. Also to the point, her Complaint fails to allege any facts supporting a cause of action attributable to wrongdoing on Owoussou's part. For these reasons, the motion to remand is DENIED. Gideon has fourteen days, until December 9, 2019, to file her Opposition to Carrington and Wells Fargo's Motion to Dismiss. (Zierk, Marsha)
November 25, 2019 Filing 21 MOTION for Leave to File Sur-Reply by Carrington Mortgage Services, LLC, Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates.(Stephens, Christian)
November 19, 2019 Filing 20 First REPLY to Response to #11 Amended MOTION to Remand with certificate of service filed by Deborah Gideon. (Attachments: #1 Exhibit HUD-1, #2 Exhibit Carrington response to request for loan file, #3 Exhibit Corporate records of Union Trust Mortgage Corporation, #4 Exhibit Corporate records of Union Trust Mortgage Corporation)(Gannett, Richard)
November 11, 2019 Filing 19 Opposition re #11 Amended MOTION to Remand with certificate of service filed by Carrington Mortgage Services, LLC, Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates. (Attachments: #1 Exhibit A, #2 Exhibit B)(Stephens, Christian)
November 4, 2019 Filing 18 WAIVER OF SERVICE Returned Executed by Wilshire Credit Corporation. Wilshire Credit Corporation waiver sent on 10/31/2018, answer due 12/30/2018. (Shireman, Justin)
November 1, 2019 Filing 17 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting in part and denying in part #16 Motion for Extension of Time until November 19, 2019, to oppose the plaintiff's amended motion to remand. The court is puzzled by the defendants argument that it needs to respond to two pending motions to remand. The amended motion to remand simply adds several exhibits to lend support to her original motion. The court provides defendants fourteen days from the date of the amendment to oppose the motion. The court will provide defendants twelve days from today -- until November 12, 2019, to file their Opposition to the remand motion. However, in light of the extension, the court will stay defendants' pending motion to dismiss until it has ruled on the motion for remand. If the court denies the remand motion, plaintiff will file her opposition to the motion to dismiss twenty-one (21) days after the court's ruling. (Zierk, Marsha)
October 31, 2019 Filing 16 MOTION for Extension of Time to November 19, 2019 to Extend Deadline to Respond to Plaintiff's Motion and Amended Motion to Remand by Carrington Mortgage Services, LLC, Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates.(Stephens, Christian)
October 30, 2019 Filing 15 MEMORANDUM in Support re #14 MOTION to Dismiss filed by Carrington Mortgage Services, LLC, Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J)(Stephens, Christian)
October 30, 2019 Filing 14 MOTION to Dismiss by Carrington Mortgage Services, LLC, Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates.(Stephens, Christian)
October 28, 2019 Filing 13 First Errata by Deborah Gideon to #11 Amended MOTION to Remand with certificate of service . (Attachments: #1 Exhibit Certificate of Service)(Gannett, Richard)
October 23, 2019 Filing 12 STATE COURT Record. (Stephens, Christian)
October 22, 2019 Filing 11 Amended MOTION to Remand with certificate of service by Deborah Gideon. (Attachments: #1 Exhibit Land Court document, #2 Exhibit Land Court document, #3 Exhibit News Article, #4 Exhibit Served Summons by Suffolk County Sheriff, #5 Exhibit Suffolk County Deeds, #6 Exhibit Certificate of Service)(Gannett, Richard)
October 22, 2019 Filing 10 NOTICE by Wilshire Credit Corporation re #1 Notice of Removal, Consent of Defendant Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, successor by merger to Wilshire Credit Corporation to Removal (Shireman, Justin)
October 22, 2019 Filing 9 CORPORATE DISCLOSURE STATEMENT by Wilshire Credit Corporation identifying Corporate Parent BAC North America Holding Company, Corporate Parent Bank of America, N.A., Corporate Parent Bank of America Corporation, Corporate Parent NB Holdings Corporation for Wilshire Credit Corporation.. (Shireman, Justin)
October 22, 2019 Filing 8 NOTICE of Appearance by Justin J. Shireman on behalf of Wilshire Credit Corporation (Shireman, Justin)
October 17, 2019 Filing 7 First MOTION to Remand with certificate of service by Deborah Gideon. (Attachments: #1 Exhibit Certificate of Service, #2 Exhibit Deeds, #3 Exhibit Served summons by Suffolk County Sheriff)(Gannett, Richard)
October 17, 2019 Filing 6 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #5 MOTION for Extension of Time to October 30, 2019 to File Answer to Complaint. (Pacho, Arnold)
October 16, 2019 Filing 5 MOTION for Extension of Time to October 30, 2019 to File Answer to Complaint by Carrington Mortgage Services, LLC, Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates.(Stephens, Christian)
October 10, 2019 Filing 4 NOTICE of Appearance by Nicole Joyce Cocozza on behalf of Carrington Mortgage Services, LLC, Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates (Cocozza, Nicole)
October 9, 2019 Filing 3 ELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Jennifer C. Boal. (Finn, Mary)
October 9, 2019 Filing 2 CORPORATE DISCLOSURE STATEMENT by Carrington Mortgage Services, LLC identifying Corporate Parent Carrington Capital Management, LLC, Corporate Parent Carrington Holding Company, LLC, Corporate Parent The Carrington Companies, LLC, Corporate Parent Carrington Investment Partners, L.P. for Carrington Mortgage Services, LLC.. (Stephens, Christian)
October 9, 2019 Filing 1 NOTICE OF REMOVAL by Carrington Mortgage Services, LLC, Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates ( Filing fee: $ 400, receipt number 0101-7917086 Fee Status: Filing Fee paid) (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Civil Cover Sheet, #7 Civil Category Form)(Stephens, Christian)

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Defendant: Wells Fargo Bank, N.A., as Trustee for Carrington Mortgage Loan Trust, Series FRE1 2006 Asset-Backed Pass-Through Certificates
Represented By: Christian B.W. Stephens
Represented By: Nicole Joyce Cocozza
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Defendant: XYZ Unknown 1-100
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Defendant: Herman Owoussou
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Defendant: Carrington Mortgage Services, LLC
Represented By: Christian B.W. Stephens
Represented By: Nicole Joyce Cocozza
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Defendant: Wilshire Credit Corporation
Represented By: Justin J. Shireman
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Plaintiff: Deborah Gideon, f/k/a Deborah Shaninga
Represented By: Richard W. Gannett
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Plaintiff: Deborah Gideon
Represented By: Richard W. Gannett
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