Gaudet et al v. Rushmore Loan Management Services, LLC et al
| Lincoln J. Gaudet and Deanne M Gaudet |
| Rushmore Loan Management Services, LLC and U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust |
| 1:2023cv10667 |
| March 28, 2023 |
| US District Court for the District of Massachusetts |
| Richard G Stearns |
| Real Property: Foreclosure |
| 12 U.S.C. § 191 Bank Foreclosure |
| Plaintiff |
Docket Report
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| Filing 19 ANSWER to Complaint by U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust.(Manchini, Steven) |
| Filing 18 ANSWER to Complaint by Rushmore Loan Management Services, LLC.(Manchini, Steven) |
| Filing 17 Judge Richard G. Stearns: ELECTRONIC ORDER entered. The court having denied the dispositive motion, and an Answer being due in fourteen days, the court enters the following pretrial schedule:Initial disclosures required by Fed. R. Civ. P. 26(a)(1) must be completed by 6/16/23; motions to amend the pleadings and/or joinder of parties should be filed by 8/4/23. Without leave of court, the parties are permitted 30 interrogatories, 30 requests for admissions, and 30 document requests, to be served on the other party (not with the court) within the 30 days of initial disclosures (by 7/17/23). The court expects responses to be made in thirty days, unless a request for additional time is granted. A party may not notice more than three deponents without leave of court on a showing of good cause. If all parties would like to participate in the court's mediation program, they must notify our docket clerk Arnold Pacho (617-748-9812) by 11/3/23 (it may take several weeks to get a mediation date). All fact discovery must be completed no later than 11/17/23.Dispositive Motions are due by 12/8/23, with Oppositions to dispositive motions due 12/29/23. Reply, if any, by leave of court. If a party intends to utilize an expert, they must file a notice on the docket no later than 10/20/23, in order for the court to consider whether an expert is appropriate and, if so, to alter the existing schedule.(RGS, law3) |
| Filing 16 Judge Richard G. Stearns: ELECTRONIC ORDER entered denying #7 Motion to Dismiss.The first two arguments raised by defendants -- (1) that the language in the redemption statement is "completely proper" and, in fact, required by Mass. Gen. Laws ch. 244, 35A, see Mot. (Dkt # 8) at 5-6; and (2) that the partial payment notice provision is not subject to the strict compliance standard and thus did not need to "match the wording of the Mortgage verbatim," see Mot. at 7-8; see also Reply (Dkt # 12) at 2-3 -- are targeted to a fundamentally different claim than what is asserted here. Plaintiffs do not suggest that the Notice of Default is deficient because it includes the redemption language or because it fails to accurately describe the terms of the partial payment provision of the Mortgage. Instead, Count I alleges the Notice of Default fails to strictly comply with Paragraph 22 because it does not accurately inform plaintiff of the right to reinstate the loan after acceleration -- the theory being that, because the only other use of "total amount due" in the Notice of Default refers to the accelerated balance of the loan, the statement that defendants may "accept or reject a partial payment of the total amount due" implies that defendants may reject a full reinstatement payment after acceleration on the grounds that it is less than the "total amount due." Notice of Default (Dkt # 8-2) at 5; see also Compl. (Dkt # 1) paras. 16, 20-24, 32, 36-38; Opp'n (Dkt # 10) at 8, 10-11. The arguments accordingly fail.The third argument raised by defendants is premised on the assumption that the Notice of Default satisfies Paragraph 22 merely because it states, "You have the right to reinstate the loan after acceleration." Mot. at 10; see also Mot. at 9 (distinguishing Marroquin on the grounds that it "dealt with provisions of the default notice required by" paragraph 22 "and, therefore, clearly f[e]ll under Pinti's 'strict compliance' legal standard"); Reply at 6 (arguing that the notice "on its face fully complies with paragraph 22 by reciting verbatim all notice content required therein"). But precedent establishes that subsequent language in a notice of default can cause an otherwise compliant disclosure of rights to become inaccurate or misleading, see Aubee v. Selene Fin. LP, 56 F.4th 1, 6-7 (1st Cir. 2022), and that is exactly what plaintiffs allege here. As defendants fail to meaningfully engage with this theory of liability and explain why a reasonable consumer would not misunderstand the right to accelerate based on subsequent language, the court declines to dismiss the claim. See Mot. at 11 (arguing that "[n]owhere does the Defendants' Default Notice state or imply that the total post acceleration amount of the Mortgage loan would need to be paid to cure the default" without addressing the allegedly inaccurate/deceptive language cited by plaintiff); Reply at 6 (same). (RGS, law3) |
| Filing 15 SUR-REPLY to Motion re #7 MOTION to Dismiss filed by Deanne M Gaudet, Lincoln J. Gaudet. (Dion, Todd) |
| Filing 14 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #13 Motion to Dismiss. Count II is dismissed. (RGS, law3) |
| Filing 13 Joint MOTION to Dismiss Count II with Prejudice by U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust.(Willis, John) |
| Filing 12 REPLY to Response to #7 MOTION to Dismiss Defendants' Repy Brief filed by Rushmore Loan Management Services, LLC, U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust. (Attachments: #1 Supplement Es. of Orre case, #2 Supplement Diplomat Prop case)(Manchini, Steven) |
| Filing 11 Judge Richard G. Stearns: ELECTRONIC ORDER entered re #8 Motion to Dismiss. Plaintiffs' opposition provides important clarification as to the nature of the remaining claim against defendants. As the court is not convinced that, without this clarification, the Complaint sufficiently gives defendants reason to construe the claim as plaintiffs now explain it, the court will allow defendants to file a Reply brief of no more than 6 pages addressing the argument that the Notice of Default failed to strictly comply with Massachusetts law because it allegedly creates the impression defendants may reject payment of the total past due amount on the theory that it is only a partial payment of the total loan amount. This Reply brief is due on April 26, 2023.The court will allow plaintiffs to file a Surreply of no more than 6 pages responding to any Reply brief filed by defendants. The Surreply is due on May 4, 2023. (RGS, law3) |
| Filing 10 Opposition re #7 MOTION to Dismiss WITH SUPPORTING MEMO filed by Deanne M Gaudet, Lincoln J. Gaudet. (Dion, Todd) |
| Filing 9 STATE COURT Record. (Manchini, Steven) |
| Filing 8 MEMORANDUM in Support re #7 MOTION to Dismiss filed by U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust. (Willis, John) (Additional attachment(s) added on 4/4/2023: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C) (Pacho, Arnold). Modified on 4/4/2023 to attach exhibits to memorandum. Duplicate filing of memorandum deleted. (Pacho, Arnold). |
| Filing 7 MOTION to Dismiss by U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust.(Willis, John) |
| Filing 6 NOTICE of Appearance by John F. Willis on behalf of U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust (Willis, John) |
| Filing 5 Certified Copy of Notice of Removal Provided to Defense Counsel by Email. (Pacho, Arnold) |
| Filing 4 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 3 NOTICE OF REMOVAL by Rushmore Loan Management Services, LLC, U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust ( Filing fee: $ 402, receipt number AMADC-9780056 Fee Status: Filing Fee paid) (Attachments: #1 Civil Cover Sheet, #2 Category Form, #3 Exhibit A, #4 Exhibit B, #5 Exhibit C, #6 Exhibit d)(Manchini, Steven) |
| Filing 2 CORPORATE DISCLOSURE STATEMENT by Rushmore Loan Management Services, LLC. (Manchini, Steven) |
| Filing 1 CORPORATE DISCLOSURE STATEMENT by U.S. Bank Trust National Association, not in its individual capacity but solely as trustee of the Truman 2021-SC9 Title Trust. (Manchini, Steven) |
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