United States District Court, D. Rhode Island
STEPHEN B. CUOMO, Plaintiff,
U.S. BANK, N.A., as trustee for BEAR STEARNS ASSET BACKED SECURITIES I, LLC, 2006-HE5; SELECT PORTFOLIO SERVICING, INC.; AMERIQUEST MORTGAGE COMPANY; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; JPMORGAN CHASE BANK, N.A., Defendants.
WILLIAM E. SMITH, Chief Judge.
Judge Patricia A. Sullivan filed a Report and Recommendation
(ECF No. 15) in this case, recommending the Court grant
JPMorgan Chase Bank’s Motion to Dismiss (ECF No. 9).
careful review of the papers attending JPMorgan’s
Motion, and of the R. & R., and having heard no
objection, the Court ACCEPTS the R. & R. and adopts its
recommendations and reasoning. JPMorgan’s Motion is
therefore GRANTED. Count II of Cuomo’s Complaint -
insofar as it concerns JPMorgan - is dismissed, without leave
to amend, and JPMorgan is dismissed from the case.
A. SULLIVAN, United States Magistrate Judge.
Stephen B. Cuomo originally filed his two-count complaint in
state court to challenge the foreclosure sale of property
located in West Warwick, Rhode Island. Count I of the
complaint alleges that Defendants U.S. Bank, N.A., as trustee
for Bear Stearns Asset Backed Securities I, LLC 2006-HE5
(“U.S. Bank”), and Select Portfolio Servicing,
Inc. (“SPS”) breached their mortgage contract
with Plaintiff. Count II challenges a series of assignments
of the mortgage to Defendants Ameriquest Mortgage Company
(“Ameriquest”), Mortgage Electronic Registration
Systems, Inc. (“MERS”), JPMorgan Chase Bank, N.A.
(“Chase”), and U.S. Bank. Based on the allegation
that each of the assignments is void, Plaintiff contends that
U.S. Bank’s foreclosure sale is a legal nullity.
matter is now before the Court on Chase’s motion to
dismiss the claims against it in Count II, pursuant to Fed. R
Civ. P. 12(b)(1) and 12(b)(6). ECF No. 9. The other
defendants have answered and do not join in Chase’s
motion. For the reasons explained below, I recommend that
Chase’s motion to dismiss Count II be granted.
complaint, Plaintiff alleges that, on February 23, 2006, he
executed a mortgage and note to Town and Country Credit Corp.
(“T&C”) on property located at 10 Sweet Briar
Lane, West Warwick, Rhode Island (“the
property”), in the amount of $292,000. ECF No. 1-1 at
¶¶ 14, 61. On February 21, 2008, two assignments of
the mortgage were executed, one from T&C to Ameriquest,
and the other from Ameriquest to MERS. Id. at
¶¶ 17, 19, 62, 64. These assignments were both duly
recorded in “Town of West Warwick Clerk’s Office
Land Evidence Records” (“Land Records”) on
the same day, April 1, 2008. Id. Based on the
pagination of the Land Records, the first to be recorded
assigned the mortgage from Ameriquest to MERS, on page 276;
while the second, recorded on page 281, is the assignment
from T&C to Ameriquest. Chase has attached to its motion
copies of the pertinent pages from the Land
Records. ECF Nos. 9-2, 9-3. The time-stamps on
these undisputed public documents reveal that these two
assignments were recorded two minutes and four seconds apart.
Apart from his challenge based on the sequence of recording,
Plaintiff does not allege that either of these assignments
fails to conform to statutory requirements; nor does he argue
that the execution of the assignments was faulty in any way.
years later, on September 16, 2014, MERS assigned the
mortgage to Chase; like the two prior assignments, it was
duly recorded in the Land Records and there is no allegation
that it fails to conform to the requirements for a proper
assignment. ECF No. 1-1 at ¶¶ 20, 65. On the same
day, Chase assigned the mortgage to U.S. Bank; again, this
fourth assignment has the indicia of being in proper form and
was appropriately recorded. Id. at ¶¶ 22,
67. After U.S. Bank took over the mortgage following the
assignment by Chase, SPS became the servicer. Id. at
¶ 26. In 2017, SPS, acting on behalf of U.S. Bank, sent
Plaintiff a Notice of Mortgage Foreclosure Sale; the property
was sold at foreclosure on May 3, 2017. Id. at
Count II, Plaintiff seeks a declaratory judgment as to
Ameriquest, MERS and Chase that all four assignments,
starting with the one first recorded – from Ameriquest
to MERS – are void “as Ameriquest had nothing to
assign in the first place.” Id. at ¶ 71.
The gravamen of Count II is Plaintiff’s argument that
the assignment from Ameriquest to MERS (and, consequently,
all subsequently recorded assignments, including the
assignment by MERS to Chase) is void because it was recorded
in the Land Records moments before, rather than after, the
foundational T&C assignment to Ameriquest. Id.
at ¶ 18. In addition to a declaration that all four
assignments are void, Plaintiff also asks the Court to
require these Defendants, including Chase, to restore his
legal title to the property and pay him actual and punitive
money damages. Id. at ¶¶ 72, 75.
STANDARD OF REVIEW
to Fed. R. Civ. P. 12(b)(1) and (b)(6), Chase moves to
dismiss Plaintiff’s claims based on lack of standing
and for failure to state a claim upon which relief may be
granted. In considering a motion under either prong of Fed.
R. Civ. P 12(b), a court must accept as true the
complaint’s plausible factual allegations and draw all
reasonable inferences from those factual allegations in the
plaintiff’s favor. Ho ...