United States District Court, D. Rhode Island
JULES S. ROMAIN and MIREILLE MAURICETTE, Plaintiffs,
U.S. BANK NATIONAL ASSOCIATION, as Trustee for CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., CSAB MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-3 and WELLS FARGO HOME MORTGAGE Defendants.
J. McConnell, Jr. United States District Judge
the Court is Wells Fargo Bank, N.A.'s and U.S. Bank
National Association's Motion to Dismiss Jules Romain and
Mireille Mauricette's Amended Complaint. ECF No. 13.
Plaintiffs bring two claims-one for breach of contract and
the second for breach of the covenant of good faith and fair
dealing. They allege that Defendants breached the mortgage
contract when it refused to accept partial mortgage payments
and failed to timely approve Plaintiffs for a short sale or
to engage in other loan modification. Defendants argue that
the Complaint fails to state a claim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure because the mortgage
contract does not require Defendants to do those things so
there is no breach.
own an investment property at 41 Maplehurst Avenue in
Providence, Rhode Island. They got a mortgage, which U.S.
Bank Trustee now owns and is the mortgage holder and Wells
Fargo is the servicer. Plaintiffs defaulted on the mortgage
in 2010. Plaintiffs allege that after the initial default,
they attempted to "catch up" by sending Wells Fargo
partial payments, but those payments were rejected. The
parties attempted to mitigate the loss through the loan
modification and short sale processes, but to no avail.
Plaintiffs filed this suit in an effort to stall a noticed
foreclosure. Defendants moved to dismiss, which the Court
denied in the face of Plaintiffs' motion to amend the
Complaint. This was not a substantive decision, one with a
preclusive effect, but one made under the liberal amendment
standard of Rule 15. Now that Plaintiffs have amended the
Complaint, the Court finds that it should be dismissed.
survive a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), plaintiffs
must present facts that make their claim plausible on its
face. See Bell Atl Corp. v. Twombly, 550 U.S. 544,
570 (2007). To determine plausibility, the court first looks
at the complaint and separates conclusory legal allegations
from allegations of fact. See Rodriguez-Reyes v.
Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir. 2013). Next,
the court must consider whether the remaining factual
allegations give rise to a plausible claim of relief. See
Id. A pleading that offers "labels and
conclusions" or "a formulative recitation of the
elements of a cause of action" will not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
allege that Defendants breached the mortgage contract by
rejecting partial loan payments and refusing to engage in
loss mitigation. The breach of the covenant of good faith and
fair dealing claim stems from this alleged breach. "To
succeed on a breach of contract claim under Rhode Island law,
a plaintiff must prove that (1) an agreement existed between
the parties, (2) the defendant breached the agreement, and
(3) the breach caused (4) damages to the plaintiff."
Barkan v. Dunkin' Donuts, Inc., 627 F.3d 34, 39
(1st Cir. 2010) (citing Petrarca v. Fid. & Cas. Ins.
Co., 884 A.2d 406, 410 (R.I. 2005)). While there is no
question that the mortgage contract spells out an agreement
between the parties, Defendants did not breach that agreement
because there is no provision in the mortgage that requires
Defendants to accept partial payments or engage in loss
mitigation. Plaintiffs acknowledge as much. ECF No. 19-1 at
6. Thus, Defendants' conduct in refusing partial payments
and abandoning its attempts at loss mitigation was
permissible under the mortgage and thus cannot be considered
breaches of the mortgage or of the duty of good faith and
Motion to Dismiss is GRANTED. ECF No. 13.
 In addition to the facts contained in
the Complaint, the Court considers the mortgage agreement,
which was contained in the state court record and is heavily
referenced in the Complaint. See Watterson v. Page,987 F.2d 1, 3 (1st Cir. 1993) (finding that, at motion to
dismiss stage, courts may consider "documents central to
plaintiffs' claim; or ...