Pina v. Wells Fargo Bank, N.A.
| Maria F Pina |
| Wells Fargo Bank, N.A. doing business as Wells Fargo Home Mortgage |
| 1:2021cv10107 |
| January 21, 2021 |
| US District Court for the District of Massachusetts |
| Richard G Stearns |
| Consumer Credit |
| 28 U.S.C. ยง 1442 Notice of Removal |
| Plaintiff |
Docket Report
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| Filing 16 Judge Richard G. Stearns: ORDER entered. Order of Dismissal. (Pacho, Arnold) |
| Filing 15 Judge Richard G. Stearns: ELECTRONIC ORDER entered. Plaintiff having not filed an amended complaint by 4/15/2021, see dkt # 14, this case is dismissed WITH PREJUDICE. (Pacho, Arnold) |
| Filing 14 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #8 Motion to Dismiss for Failure to State a Claim. By way of a one-count class-action Complaint, plaintiff Maria Pina, on behalf of herself and other persons similarly situated, asserts that she was harmed by defendant Wells Fargo Bank's unfair or deceptive debt collection practices in violation of Mass. Gen. Laws ch. 93A, 2, and 940 CMR 7.04(1)(f). Pina alleges that she "incurred a financial obligation arising out of a home mortgage loan," Compl. para. 7, that the debt was alleged to be more than 30 days past due, id. para. 9, and that "[w]ithin the last four years, Wells Fargo [] called [her] cellular telephone in excess of two times within a seven-day period in an attempt to collect the debt," id. para. 13. Pina further alleges that she "became angry, frustrated and anxious, and suffered from emotional distress" as a result of the calls. Id. para. 14.Pursuant Fed. R. Civ. P. 12(b)(6), Wells Fargo moves to dismiss the Complaint for failure to state a claim upon which relief may be granted. Citing to public records, Wells Fargo notes, and Pina does not deny, that Pina's personal obligation to repay the note associated with her mortgage was extinguished through bankruptcy in 2012. Because the bankruptcy discharge erased any personal liability on Pina's part to repay the note, she was not a debtor nor was Wells Fargo a creditor. Pina asserts, and Wells Fargo acknowledges, that attempts to collect on a false allegation of debt can also offend the fair debt collection regulations. The court agrees with Wells Fargo, however, that the factual allegations of the Complaint do not support this theory of the case. Pina makes no mention of the bankruptcy discharge in her Complaint (just the opposite, the only reasonable inference to be drawn from the Complaint is that Pina has an active mortgage debt obligation), nor does she aver factually that the phone calls she received falsely alleged a debt. See Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 23-24 (1st Cir. 2002) ("Let us be perfectly clear. We recognize that a plaintiff may bring a claim under the FDCPA by pleading that a debt collector falsely alleged an obligation to pay money. But the complaint in this case fails to state a claim under that theory. The complaint never asserts that the lawyers told the [plaintiffs] that they were obligated to pay money on account of the discharged debts or otherwise, nor does it allege facts sufficient to support an inference that the lawyers acted so as to create this false impression.").Accordingly, the court ALLOWS Wells Fargo's motion without prejudice, but will also permit Pina, by 4/15/2021, to amend the Complaint consistent with a false debt allegation theory, to the extent such a theory can be asserted in good faith. Failure to do so within that time will result in a dismissal with prejudice. (Tang, Danni) |
| Filing 13 REPLY to Response to #8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Wells Fargo Bank, N.A.. (Attachments: #1 Exhibit A; Sullivan Complaint, #2 Exhibit B; Harrer Complaint, #3 Exhibit C; Roth Complaint)(Higgins, Sean) |
| Filing 12 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #11 Assented to MOTION for Leave to File Reply In Support of Motion to Dismiss. Reply to be filed no later than March 31, 2021. (Pacho, Arnold) |
| Filing 11 Assented to MOTION for Leave to File Reply In Support of Motion to Dismiss by Wells Fargo Bank, N.A..(Higgins, Sean) |
| Filing 10 MEMORANDUM in Opposition re #8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Maria F Pina. (Lemberg, Sergei) |
| Filing 9 MEMORANDUM in Support re #8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Wells Fargo Bank, N.A.. (Attachments: #1 Exhibit A; Mortgage, #2 Exhibit B; Assignment, #3 Exhibit C; Assignment, #4 Exhibit D; Assignment, #5 Exhibit E; Bankruptcy Docket, #6 Exhibit F; Bankruptcy Schedules, #7 Exhibit G; Proof Of Claim, #8 Exhibit H; Bankruptcy Discharge, #9 Exhibit I; Short Sale Deed, #10 Exhibit J; Mortgage Release)(Higgins, Sean) |
| Filing 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Wells Fargo Bank, N.A..(Higgins, Sean) |
| Filing 7 CORPORATE DISCLOSURE STATEMENT by Wells Fargo Bank, N.A. identifying Corporate Parent Wells Fargo & Company for Wells Fargo Bank, N.A... (Mikolinski, Edward) |
| Filing 6 STATE COURT Record. (Mikolinski, Edward) |
| Filing 5 NOTICE of Appearance by Edward James Mikolinski on behalf of Wells Fargo Bank, N.A. (Mikolinski, Edward) |
| Filing 4 WAIVER OF SERVICE Returned Executed by Wells Fargo Bank, N.A. Waiver sent on 12/23/2020, answer due 2/22/2021. (Pacho, Arnold) |
| Filing 3 Certified Copy of Notice of Removal Provided to Defense Counsel by Email (Vieira, Leonardo) |
| Filing 2 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 Donald L. Cabell. (Finn, Mary) |
| Filing 1 NOTICE OF REMOVAL by Wells Fargo Bank, N.A. ( Filing fee: $ 402, receipt number 0101-8601313 Fee Status: Filing Fee paid) (Attachments: #1 Civil Cover Sheet with Category Form, #2 Exhibit A; Class Action Complaint, #3 Exhibit B; Waiver of Summons, #4 Exhibit C; State Court Civil Cover Sheet)(Higgins, Sean) |
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| Defendant: Wells Fargo Bank, N.A. doing business as Wells Fargo Home Mortgage | |
| Represented By: | Sean R. Higgins |
| Represented By: | Edward James Mikolinski |
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| Plaintiff: Maria F Pina | |
| Represented By: | Sergei Lemberg |
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