The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
DEBORAH WAGNER, )
Plaintiff, )
)
v. ) CIVIL ACTION
) NO. 19-12301-WGY
FEDERAL HOME LOAN MORTGAGE )
CORPORATION, )
)
Defendant. )
___________________________________)
YOUNG, D.J. October 2, 2020
MEMORANDUM AND ORDER
I. INTRODUCTION
On November 19, 2018 Deborah Wagner (“Wagner”) entered into
a purchase and sales agreement and stipulation with Federal Home
Loan Mortgage Corporation (“Freddie Mac”) for the purchase of a
residence located at 55 Montgomery Drive, Plymouth, MA (the
“Property”). When Freddie Mac declined to go through with the
transaction, Wagner sued in the Massachusetts Southeast Housing
Court for specific performance, breach of contract, injunctive
relief and unfair and deceptive business acts and practices.
State Court Record (“State Record”) 29, ECF No. 20.
The amended complaint does not plausibly state a claim upon
which relief may be granted, and this Court therefore DENIES
Wagner’s motion for leave to file. See ECF No. 26.1
A. Factual Background
Wagner has lived at the Property for over 20 years, and
currently lives there with her teenage son. Pl.’s Proposed Doc.
(“Am. Compl.”) ¶ 1, ECF No. 1. On April 3, 2015 Freddie Mac
obtained title to the Property through foreclosure on David
Merola -- Wagner’s ex-boyfriend. Id. ¶ 2; State Record 43.
Freddie Mac initiated a summary process action for
possession and unpaid use and occupancy of the Property, winning
summary judgment on November 3, 2016, in the Southeast Housing
Court. Def.’s App. Ex. Special Mot. Dismiss, Ex. 1, Am. J.,
Federal Home Loan Mortg. Corp. v. Wagner (“Wagner I”), Summ.
Proc. A. No. 16-SP00739 (S.E. Hous. Ct. Nov. 3, 2016), ECF No.
10-1. In November 2018, Wagner and Freddie Mac signed a
stipulation in anticipation of Wagner’s intent to purchase the
Property. Aff. Deborah Wagner (“Aff. Wagner”) ¶ 3, ECF No. 29;
id., Ex. A, Stipulation of the Parties (“Stipulation”), ECF No.
29-1. The Stipulation set forth that Freddie Mac would provide
1 Massachusetts evictions and foreclosures procedures have
been temporarily modified due to the COVID-19 pandemic. Chapter
65 of the Acts of 2020, An Act Providing for a Moratorium on
Evictions and Foreclosures During the COVID-19 Emergency (April
20, 2020),
https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter65.
Regardless of the present Order, the parties must abide by State
regulations if Freddie Mac wishes to proceed with physical
eviction from the Property.
Wagner with a new purchase and sales agreement and that the
closing would occur within thirty days of both parties executing
the purchase and sale agreement “subject to reasonable extension
for good cause in the discretion of [Freddie Mac].” Stipulation
2; Aff. Wagner, Ex. B, Standard Purchase Sale Agreement (“P&S
Agreement”), ECF No. 29-1.2
Wagner signed the P&S Agreement on November 19, 2018, but
the document lacked Freddie Mac’s signature. Aff. Wagner ¶¶ 6-
7; P&S Agreement 7. Freddie Mac signed the P&S Agreement on
January 18, 2019 using the earlier closing date of November 30,
2018. Am. Compl. ¶ 8. On February 15, 2019 -- the final
business day of the thirty-day period -- Wagner secured a loan
subject to an extension, but Freddie Mac refused to grant this
extension, arguing lack of “good cause” under the terms of the
Stipulation, which allowed Freddie Mac “the discretion” to find
“good cause.” Id. ¶¶ 10-12; Stipulation 4. Thereafter, Freddie
Mac attempted to obtain an execution in the underlying summary
process action. Id. ¶ 13. The execution was stayed upon the
filing of this action. Id.
2 Wagner states that “the Housing Court would not otherwise
enforce the Stipulation as it had not been submitted to the
Court by the parties for approval in the Summary Process action
as an ‘Agreement for Judgement.’” Am. Compl. ¶ 13.
B. Procedural History
In February 2016 Freddie Mac brought the summary process
action in Southeast Housing Court for possession of the
Property. Wagner I 6. The Housing Court on November 3, 2016,
granted summary judgment on Freddie Mac’s possession claim. Id.
at 1. The Housing Court issued an execution for possession of
the Property on September 20, 2019 which was subject to a
thirty-day stay to allow Wagner to file an action for specific
performance. Def.’s App. Ex. Special Mot. Dismiss, Ex. C,
Housing Court Docket 15, ECF No. 10-1; Am. Compl. ¶ 13.
On October 11, 2019, Wagner filed the present action in
Housing Court, seeking to enforce specific performance of the
contract to purchase the Property. Notice Removal, Wagner v.
Federal Home Loan Mortg. Corp. (“Wagner II”), Action No.
19H83CV00306, ECF No. 1. On November 6, 2019, Freddie Mac
removed the case to this Court. Notice Removal (“Notice
Removal”), ECF No. 1. Freddie Mac also brought a special motion
to dismiss under Massachusetts General Laws chapter 231, section
59H -- the so-called anti-SLAPP statute -- in response to
Wagner’s claims for breach of contract and unfair and deceptive
business practices. ECF Nos. 7-8. The parties fully briefed
the issues, and at a hearing on February 11, 2020 this Court
granted the motion to dismiss without prejudice to Wagner moving
for leave to file an amended complaint. ECF Nos. 19, 24, 25.
Wagner now moves for leave to file an amended complaint, which
Freddie Mac opposes. ECF Nos. 26, 27, 32.
The parties here dispute whether the complaint states a
claim for breach of contract and violation of Chapter 93A.
Pl.’s Mem. Supp. Mot. Leave File Am. Compl. (Pl.’s Mem.”), ECF
No. 27; Def.’s Mem. Opp’n Pl.’s Mot. Leave File Am. Compl.
(“Def.’s Opp’n”), ECF No. 32.
II. ANALYSIS
Freddie Mac contends that the proposed amended complaint
fails to state a claim for breach of contract, since it does not
allege that Wagner is ready, willing and able to purchase the
Property nor that Freddie Mac breached a material term of either
the P&S Agreement or the Stipulation. Def.’s Opp’n 3-8.
Freddie Mac also argues that the complaint fails to state a
claim for violation of chapter 93A since the claim exceeds the
scope of the pre-litigation demand letter and fails to allege
that Freddie Mac engaged in unfair or deceptive conduct or that
Wagner suffered any damages. Id. at 8-14. Lastly, Freddie Mac
seeks dismissal on the theory that the amended complaint is
advanced in bad faith and is the result of Wagner’s dilatory
motives. Id. at 14-17.
This Court concludes that Freddie Mac is correct in its
argument that Wagner has failed to state a claim for breach of
contract or violation of chapter 93A. Since these conclusions
decide the case, this Court does not reach the arguments
regarding Wagner’s motives.
A. Standard of Review
Federal Rule of Civil Procedure 15(a)(2) states that a
party may amend a pleading “with the court's leave . . . when
justice so requires.” Grounds for denying leave include “bad
faith,” “dilatory motive” or “futility of amendment.” Kader v.
Sarepta Therapeutics, Inc., 887 F.3d 48, 60-61 (1st Cir. 2018)
(quoting ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55-
56 (1st Cir. 2008))
“An amended complaint is futile ‘if the pined-for amendment
does not plead enough to make out a plausible claim for
relief.’” President & Fellows of Harvard College v. Micron
Tech., Inc., 230 F. Supp. 3d 46, 48 (D. Mass. 2017) (quoting
HSBC Realty Credit Corp. (USA) v. O' Neill, 745 F.3d 564, 578
(1st Cir. 2014). The district court applies the same
sufficiency standard when reviewing for futility as for a
Federal Rule of Civil Procedure 12(b)(6) challenge. Tharp v.
Acacia Communs., Inc., 321 F. Supp. 3d 206, 217-218 (D. Mass.
2018) (citing Glassman v. Computervision Corp., 90 F.3d 617, 623
(1st Cir. 1996). “In order for the Plaintiffs to survive a
motion to dismiss, their complaint must contain sufficient
factual matters, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Id. at 218 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). It is insufficient
to engage in “a mere recital of the legal elements supported
only by conclusory statements.” Id. The plaintiff need not
prove that he or she will prevail at trial, but at a minimum the
complaint “must establish more than simply a possibility of
entitlement to relief.” Micron Tech., 230 F. Supp. 3d at 48.
B. Breach of Contract
Massachusetts law determines the elements of the parties'
claims because the case is properly before this Court based on
diversity jurisdiction. Notice Removal ¶ 7; Edlow v. RBW, LLC,
688 F.3d 26, 31 (1st Cir. 2012).
To prevail on a breach of contract claim in
Massachusetts a plaintiff must ‘demonstrate that there
was an agreement between the parties; the agreement
was supported by consideration; the plaintiff was
ready, willing, and able to perform his or her part of
the contract; the defendant committed a breach of the
contract; and the plaintiff suffered harm as a
result.’
Haven Real Estate Group, LLC v. Bell Atl. Mobile of Mass. Corp.,
236 F. Supp. 3d 454, 462-63 (D. Mass. 2017) (Gorton, J.)
(quoting Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690
(2016)).
Freddie Mac contends that the complaint does not
sufficiently alleges that Wagner was “ready, willing, and able
to perform,” nor that it engaged in a “breach of the contract.”
Haven Real Estate Group, 236 F. Supp. 3d 454 at 463; Def.’s
Opp’n 3-8. In particular, Freddie Mac argues that the amended
complaint contains only a formulaic recitation that Wagner is
ready, willing, and able to perform, but she has not provided
any “substantial and convincing evidence” of such assertion.
Id. at 4. It further contends that Wagner is not now able to
tender payment because, as the amended complaint states, she has
not obtained approval for the transaction subsequent to February
2019. Id. at 5. Since Wagner’s financial ability is an
essential element of her breach of contract claim and because
she does not have funds to consummate the transaction, Freddie
Mac insists, her claim must fail. Id.
In order for a seller to be in default, the buyer must
manifest that he [or she] is ‘ready, able, and willing
to perform by setting a time and place for passing
papers or making some other concrete offer of
performance.’ ‘The weight of authority in this
country is that the financial ability of a prospective
buyer of property is a material issue in his action
for damages against a repudiating defendant for breach
of an agreement to sell that property for an
established price.’
Pierce v. Clark, No. BACV2001-00496, 2005 Mass. Super. LEXIS
142, at *21-22 (Mass. Sup. Ct. Mar. 18, 2005) (internal
quotations omitted). A buyer is ready, willing, and able to pay
the agreed-upon price when the buyer presents evidence of
sufficient funds available or sources “from which he [or she]
readily could have borrowed the available funds.” Id. at *23
(quoting Hastings v. Gay Mass. App. Ct. 157, 165 (2002)).
According to the terms of the Stipulation, the closing was
to occur 30 days after the execution of the P&S Agreement.
Stipulation 2. The P&S Agreement was fully executed on January
18, 2019,3 which means that the closing date would take place on
or before February 18, 2019.4 Am. Compl. ¶ 8. Wagner asserts
that on February 15, 2019 she was able to procure an “approval”
from Eastern Bank, subject to an extension of the P&S Agreement
date. Id. ¶¶ 10-11. Wagner then requested an additional
extension, which Freddie Mac “refused to consider.” Id. ¶ 12.
If Wagner’s “latest approval” was on February 15, 2019 -- on or
before the expiration of the closing date -- and yet she
requested additional time to close the sale, this Court -- even
3 Wagner signed the P&S Agreement on November 19, 2018 while
Freddie Mac signed it on January 18, 2019. Am. Compl. ¶¶ 4, 8.
4 The amended complaint refers to the January 18, 2019 P&S
Agreement as the latest agreement between the parties. See Am.
Compl. ¶ 8. The record shows, however, that the actual latest
closing date agreed to by the parties was much later: May 20,
2019. See Statement Undisputed Material Facts Supp. Def.’s Mot.
Dismiss (“SOF”) ¶ 102, ECF No. 9; Aff. Michelle C. Kern ¶¶ 70,
72, ECF No. 11; Aff. Marie Russell ¶ 28, ECF No. 12; Aff. Reneau
J. Longoria, Esq. ¶ 56, ECF No. 13; Def.’s Appx. Ex. Mot.
Dismiss, Ex. M., Am. Real Estate Purchase Contract, ECF No. 10-
2.
Even taking May 20, 2019 as the closing date, the amended
complaint does not plausibly allege that Wagner was ready,
willing and able to perform. The amended complaint clearly
states that Wagner was unable to perform on May 20, 2019 since
“[t]he latest approval [Wagner] received was from ‘Eastern
Bank’, dated February 15, 2019.” Am. Compl. ¶ 11.
making all the inferences on her favor, -- can only find than
she was unable to perform.5
Additional reasons also support this Court’s findings.
Wagner’s argument that Freddie Mac breached the agreement
because it refused to offer an extension of the closing date is
meritless. First, Freddie Mac renewed the P&S Agreement several
times, allowing for the extension of the closing date at least 6
times. See SOF ¶¶ 26-121. The Stipulation indicates that the
closing shall occur within 30 days of the execution of the P&S
Agreement and such term can be extended, for “good cause” and
“in the discretion of [Freddie Mac].” Stipulation 2. The
amended complaint does not plausibly allege a good cause for the
extension of the agreement, nor that Freddie Mac abused the
“discretion” in its determination not to extend the closing
date.
Second, Freddie Mac was entitled to cancel the P&S
Agreement since Wagner did not have a “prequalified” loan within
7 business days from the execution of the P&S Agreement. See
Addendum #1 Contract Sale 46 ¶ 15 (“Addendum”), ECF No. 29-1.
5 It is irrelevant whether Wagner currently has the
financial ability to purchase the Property. The inquiry whether
she was ready, willing and able to perform is made as of the
date set for closing, since the parties agreed that time was of
the essence. See Curley v. Mobil Oil Corp., 860 F.2d 1129, 1133
(1st Cir. 1988); See P&S Agreement ¶ 5.
Taking as true the amended complaint’s representation that the
P&S Agreement was executed on January 18, 2019, it would mean
that Wagner had until January 29 to obtain loan
prequalification. Wagner obtained loan approval on February 15,
2019, outside this time period, allowing Freddie Mac to cancel
the P&S Agreement at its discretion.6 See Def.’s Opp. 6-7;
Addendum (“[t]he Contract of Sale may be cancelled by Seller in
the event Purchaser is not ‘prequalified’ by a lender within
seven (7) business days from the final execution date of the
Contract of Sale”).7
C. Chapter 93A
Chapter 93A prohibits “unfair or deceptive acts or
practices in the conduct of any trade or commerce.” M.G.L. ch.
93A, § 2(a). A plaintiff must demonstrate the following to
6 This Court would reach the same conclusion even had the
P&S Agreement been executed after February 26, 2019 (7 business
days after February 15, 2019 -- the latest date when Wagner
obtained loan approval. See Am. Compl. ¶ 11.
7 Ordinarily, “courts may not consider any documents outside
of the complaint, or not expressly incorporated therein, without
converting the motion into one for summary judgment.” Carrero-
Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 716 (1st
Cir. 2014) (citation and internal quotation marks omitted). The
First Circuit has recognized “a narrow exception for documents -
- the authenticity of which is not challenged -- that are
central to the plaintiff’s claim or sufficiently referred to in
the complaint, even if those documents are not physically
attached to the pleading.” Id. at 717. This is the case here.
The parties do not dispute the authenticity of the P&S Agreement
or Addendum, which are central to the complaint.
successfully claim a violation under Chapter 93A: “(1) a
deceptive act or practice on the part of the defendant; (2) an
injury or loss suffered by the plaintiff, and (3) a causal
connection between the defendant's deceptive act or practice and
the plaintiff's injury.” Crosby Legacy Co., LLC v. Technipfmc
Plc, Civ. A. No. 18-10814-MLW, 2019 U.S. Dist. LEXIS 193268, at
*33-35 (D. Mass. Sep. 13, 2019) (Boal, M.J.). “Although whether
a particular set of acts, in their factual setting, is unfair or
deceptive is a question of fact, the boundaries of what may
qualify for consideration as a [Chapter] 93A violation is a
question of law.” Id. at 34 (quoting Arthur D. Little, Inc. v.
Dooyang Corp., 147 F.3d 47, 55 (1st Cir. 1998)).
Not just any breach of contract is sufficient to constitute
an unfair or deceptive trade practice under Chapter 93A; a
simple intentional or negligent breach does not qualify. Id.
“In order to transform a breach of contract into a Chapter 93A
claim, ‘the breach must be both knowing and intended to secure
'unbargained-for benefits' to the detriment of the other
party.’” Id. (quoting City of Revere v. Boston/Logan Airport
Assocs., LLC, 416 F. Supp. 2d 200, 209 (D. Mass. 2005) (Gorton,
J.)).
Chapter 93A requires that “a claimant seeking relief must
send a written demand ‘reasonably describing the unfair or
deceptive act or practice relied upon’ by the claimant.”
Neuhoff v. Marvin Lumber & Cedar Co., 370 F.3d 197, 205 (1st
Cir. 2004) (quoting Mass. Gen. Laws ch. 93A, § 9(3)).
Freddie Mac’s argument that the amended complaint exceeds
the scope of the pre-litigation demand letter under chapter 93A
has merit. Def.’s Opp’n 9. Wagner’s demand letter does not
describe a breach of contract claim but rather refers to Freddie
Mac’s “unwillingness” to give an extension of the closing or
execute a new P&S Agreement.8 Aff. Wagner, Tab. 2, 93A Demand
Letter (August 16, 2019), ECF No. 29-2. Furthermore, “a failure
to respond or an inadequate response to a demand letter is not
itself a violation of Chapter 93A.” Dawe v. Capital One Bank,
Civ. A. No. 04-40192-FDS, 2007 U.S. Dist. LEXIS 82870, at *4 n.2
(D. Mass. Oct. 24, 2007) (Saylor, J.) (citing Heller v.
Silverbranch Constr. Corp., 376 Mass. 621, 627 (1978)).9
8 A plaintiff’s right to relief is foreclosed as matter of
law when the demand letter makes no reference to the particular
act which he or she asserts in court constitutes a violation of
Chapter 93A. Bressel v. Jolicoeur, 34 Mass. App. Ct. 205, 211
(1993)
9 Furthermore, the amended complaint does not plausibly
allege that Freddie Mac acted “in disregard of known contractual
arrangements,” and even taking as true the allegation that it
breached the P&S Agreement, that it did so with the intent to
secure unbargained for benefits for itself. See Arthur D.
Little, Inc., 147 F.3d at 55. The amended complaint states only
that Freddie Mac delayed the execution of the P&S Agreement and
that it refused to modify the terms of the Stipulation. See Am.
Compl. ¶¶ 8, 11, 12, 28. These related events do not plausibly
constitute an attempt on Freddie Mac’s part to “enhance
bargaining power,” or act in a coercive or extortionate manner.
Arthur D. Little, Inc., 147 F.3d at 55. (collecting cases).
III. CONCLUSION
For the aforementioned reasons, this Court DENIES Wagner’s
motion for leave to file the amended complaint, ECF No. 26. The
case is hereby DISMISSED.
SO ORDERED.
_
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE