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Lister v. Bank of America, N.A.

United States Court of Appeals, First Circuit

June 12, 2015

DEBORAH A. LISTER; LEON ALAN BLAIS, Plaintiffs, Appellants,
v.
BANK OF AMERICA, N.A., in its own right and as successor by merger to BAC Loan Servicing, Inc.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; HOMEWARD RESIDENTIAL, INC., in its own rights and as successor to American Home Mortgage Servicing, Inc.; OCWEN LOAN SERVICING, LLC, Defendants, Appellees, NEIL F. LURIA, in his capacity as Liquidating Trustee of Chapter 11 Estate of Mortgage Lenders Network, USA, Inc., Defendant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. John J. McConnell, Jr., U.S. District Judge.

Leon A. Blais, with whom Blais & Parent was on brief, for appellants.

Maura K. McKelvey, with whom Marissa I. Delinks and Hinshaw & Culbertson LLP were on brief, for appellees Mortgage Electronic Registration Systems, Inc.; Homeward Residential Inc., in its own right and as successor to American Home Mortgage Servicing, Inc.; and, OCWEN Loan Servicing, LLC.

Joseph F. Yenouskas, with whom George R. Schneider and Goodwin Procter LLP were on brief, for appellee Bank of America, N.A.

Before Howard, Selya, and Stahl, Circuit Judges.

OPINION

Page 21

HOWARD, Circuit Judge.

Claiming uncertainty as to which entity holds an enforceable mortgage on their home, Deborah Lister and Leon Blais filed suit against numerous potential mortgagees.[1]

Page 22

The district court subsequently granted defendants' motions to dismiss for failure to state a claim. See Lister v. Bank of America, N.A., 8 F.Supp.3d 74 (D.R.I. 2014). Lister and Blais timely appealed, asserting several claims of error. We affirm the dismissal, although for different reasons than those offered by the district court.

I.

As we are reviewing the grant of a motion to dismiss, we recite the facts as alleged in the complaint and documents incorporated therein by reference.[2] Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012). In October 2000, Lister purchased a parcel of property in Lincoln, Rhode Island, and recorded her interest in the Town of Lincoln's Land Evidence Records. In 2006, Lister refinanced and secured a new mortgage with Mortgage Lenders Network (" MLN" ). Lister alleges that neither the note nor the mortgage were executed, witnessed, or notarized, and that she does not have any recollection of signing the mortgage. Nevertheless, she began making payments to the address listed on a document entitled " First Payment Notice." After MLN filed for bankruptcy in Delaware, Lister received notice to forward her mortgage payments to Bank of America, and she did so.

In 2008, Lister " grew suspicious" about the handling of the note and mortgage so she " slowed" her payments. In November 2008, Countrywide Home Loans contacted Lister and threatened to foreclose. Shortly thereafter, Harmon Law Offices contacted Lister and informed her that it represented Countrywide and reiterated the foreclosure threat. On November 5, 2008, Blais demanded verification from Harmon under the Fair Debt Collection Practices Act and requested an accounting of funds previously paid. Almost two years later, on September 10, 2010, under continued threats of foreclosure, Blais again requested verification and an accounting. Each request was ignored and Harmon pressed forward with foreclosure proceedings until Mr. Blais threatened to initiate a lawsuit against Harmon and its attorneys. On November 4, 2010, Harmon " put on hold" the scheduled foreclosure sale. The parties agree that there is no foreclosure currently pending.

Eventually, defendant Homeward began to communicate with Lister, but ignored Blais's requests for verification. Lister's most recent communication regarding the mortgage (at least before this suit was initiated) came from defendant OCWEN, which ...


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