Nnodim v. U.S. Bank National Association

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

AMADI NNODIM,

Plaintiff, No. 24-cv-12162-IT

v.

U.S. BANK NATIONAL

ASSOCATION and SN SERVICING

CORPORATION,

Defendants.

REPORT AND RECOMMENDATION ON

DEFENDANTS’ RENEWED MOTION TO DISMISS (D. 25)

CABELL, U.S.M.J.

Plaintiff Amadi Nnodim contends that the entities holding and

servicing the mortgage to his residence, defendants U.S. Bank

National Association (U.S. Bank) and SN Servicing Corporation

(S.N. Servicing), have repeatedly harassed, threatened and

retaliated against him because he previously sued them in 2022

(“the 2022 lawsuit”).1 The operative amended complaint asserts

several statutory and common law claims. The defendants move

pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint for

1 In the (presently pending) 2022 case, Nnodim v. U.S. Bank Nat’l Ass’n, 22-cv-

11125-DLC, the named loan servicer is Rushmore Loan Management Services LLC; SN

Servicing apparently took over Rushmore’s loan servicing obligations, hence

their inclusion in this suit. (See D. 1 at 64, D. 14-17 at 2).

failure to state a valid claim. (D. 25).2 For the reasons that

follow, the court recommends that the motion be granted in part

and denied in part.

I. Relevant Factual and Procedural Background

The parties have been embroiled in a dispute for years. In

brief, the defendants previously initiated foreclosure proceedings

on the plaintiff’s home because he reportedly defaulted on his

mortgage. The plaintiff cured the default, and the defendants

ceased their foreclosure efforts. However, the plaintiff remained

displeased with the way he had been treated and consequently filed

the 2022 lawsuit.

Against that backdrop, the instant complaint alleges that the

defendants have subjected the plaintiff to various forms of

maltreatment, both to force him to drop the 2022 lawsuit, and

because he has refused to drop the lawsuit. As an example, the

plaintiff asserts that the defendants have improperly increased

his mortgage payments to include attorneys’ fees the defendants

allegedly incurred during the prior foreclosure proceedings. The

plaintiff also alleges that the defendants threatened to foreclose

upon his house if he did not withdraw the 2022 lawsuit and pay the

2 To be clear, the plaintiff filed an original complaint which the defendants

moved to dismiss. The plaintiff then filed the operative amended complaint and

the defendants in response simply renewed their motion to dismiss to apply to

it. (D. 1, 10, 23, 25).

2

increased fees. (D. 23 ¶¶ 10, 32, 73, 91, 96). The plaintiff

further alleges that the defendants are receiving and cashing his

mortgage checks but are not crediting them to his account balance.

(D. 23 ¶¶ 25, 96).

The amended complaint asserts seven claims for: (1) violation

of the plaintiff’s constitutional rights under 42 U.S.C. § 1983;

(2) violation of the Massachusetts Civil Rights Act (“the MCRA”),

M.G.L. c. 12, § 11I & H; (3) violation of the Fair Debt Collection

Practices Act (“FDCPA”), 15 U.S.C. § 1692e; (4) violation of M.G.L.

c. 93A; (5) intentional infliction of emotional distress; (6)

breach of contract; and (7) breach of the implied covenant of good

faith and fair dealing.

On May 5, 2025, the court scheduled a hearing for May 14 on

the defendants’ motion to dismiss. Because the plaintiff had moved

to strike the motion for failure to confer but had not filed an

actual opposition on the merits, the court gave the plaintiff a

week——until May 12——to do so. (D. 32). The plaintiff did not

file any opposition, however.

The court convened the hearing on May 14 as scheduled.

Defense counsel appeared but plaintiff’s counsel did not. The

court chose to proceed with the hearing and “consider the pending

3

motion on the merits (without input from plaintiff’s counsel).”3

(D. 34).

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a

plaintiff must provide “enough facts to state a claim [for] relief

that is plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). The facts,

accepted as true, must “allow the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, the

allegations must be “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation” and must show more than “a sheer

possibility that a defendant has acted unlawfully.” Id.

3 Following the hearing, the court entered an order on the docket directing

plaintiff’s counsel to file a written response by May 16 explaining why he

failed to appear for the May 14 hearing. (D. 34). Counsel did not respond to

the court’s directive. On May 19, the court entered a notice scheduling a

status conference for May 22, and indicated it would likely recommend that the

case be dismissed for failure to prosecute should counsel fail to appear. The

court also mailed a copy of the notice to counsel’s law office. (D. 35). This

time, counsel did respond, and did appear at a status conference held on May

23. Counsel represented that he had received the mailed notice of the status

conference but inexplicably had never received any of the electronic notices

the court had issued on May 5, 14 or 19. The court expressed its difficulty in

understanding what CM-ECF anomaly plausibly might have caused counsel——who

regularly litigates cases in this court——to fail to receive the particular

notices at issue, but ultimately chose not to explore the matter further.

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III. Discussion

A. Count One – 42 U.S.C. § 1983

Count One alleges a violation of section 1983.4 Section 1983

creates a private right of action against any person who, under

color of state law, “subjects, or causes to be subjected, any . . .

person within the jurisdiction [of the United States] to the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws[.]” 42 U.S.C. § 1983. In this instance,

the plaintiff alleges that the defendants threatened and acted

against him to persuade him to drop the 2022 lawsuit, and as a

result, have violated his First Amendment rights of freedom of

speech, to petition the government, and to right of access to the

courts. (D. 23 at 10).

Even accepting these allegations as true, however, Count One

fails to state a valid section 1983 claim. To prevail under

section 1983, a plaintiff must show that the defendants (1) acted

under “color of state law” and (2) “deprived [the] plaintiff of a

right secured by the Constitution or the laws of the United

States.” Budnick v. Baybanks, Inc., 921 F. Supp. 30, 32 (D. Mass.

1996). The plaintiff cannot satisfy the first element here because

he fails to allege any facts to suggest, let alone show that the

4 Count One does not explicitly refer to section 1983 but the plaintiff clarified

at the May 23 status conference that Count One does assert a section 1983 claim.

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defendants, wholly private commercial entities, were ever acting

“under color of state law.” This matters because section 1983

“does not apply to ‘merely private conduct, no matter how

discriminatory or wrongful.’” Grapentine v. Pawtucket Credit

Union, 755 F.3d 29, 31 (1st Cir. 2014) (quoting Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). Accordingly, as

the complaint fails to suggest the defendants were ever acting

under color of state law, Count One should be dismissed.

B. Count Two – Violation of the MCRA

Count Two asserts a violation of the Massachusetts Civil

Rights Act (“the MCRA”), M.G.L. c. 12, 11I & H. To prove a MCRA

violation, a plaintiff must show that (1) his exercise or enjoyment

of rights secured by the constitution or laws of either the United

States or the Commonwealth of Massachusetts has been interfered

with, or attempted to be interfered with, and (2) that the

interference or attempted interference was by threats,

intimidation, or coercion. Barbosa v. Conlon, 962 F. Supp. 2d

316, 331–32 (D. Mass. 2013) (internal quotations and citations

omitted). The purpose of the MCRA is to provide a state law remedy

coextensive with 42 U.S.C. § 1983, except that a MCRA plaintiff

does not have to show any state action. Kelly v. LaForce, 288

F.3d 1, 10 (1st. Cir. 2002).

6

The court finds that Count II pleads a valid MCRA claim. The

plaintiff alleges that the defendants violated his constitutional

“right of free speech, right of access to the courts, and the right

to own and enjoy his property” by charging him inflated mortgage

fees and threatening him with foreclosure to get him to withdraw

the 2022 lawsuit. (D. 23 ¶ 67). Courts have found that coercing

a litigant to forgo exercising their legal rights can constitute

a MCRA violation. See e.g., Buster v. George W. Moore, Inc., 438

Mass. 635, 648 (2003) (noting that use of coercion to pressure

litigants to withdraw their appeals can constitute a MCRA

violation); Lopez v. Bd. of Selectmen, 86 Mass. App. Ct. 1110, 1

(2014) (“The use of coercion in an attempt to interfere with a

person’s exercise of legal rights violates [MCRA]”).

The defendants do not acknowledge this precedent but they do

advance two related arguments implicitly challenging it. Neither

persuades. First, they contend that the only protectible First

Amendment interests a plaintiff enjoys for purposes of advancing

a MCRA claim are those interests that are codified in

Massachusetts’ anti-SLAPP statute, M.G.L. c. 231, § 59H.5 The

defendants do not clearly explain why this is so, or specifically

5 The Anti-Strategic Litigation Against Public Participation (“anti-SLAPP”)

statute is designed to “target meritless suits brought to discourage individuals

from exercising their constitutional right of petition.” Bristol Asphalt Co.,

Inc. v. Rochester Bituminous Prods., Inc., 942 Mass. 539, 540 (2024).

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define what those interests are, but they argue that this

proposition impels dismissal of the MCRA claim because the anti-

SLAPP statute “only applies to actions brought against government

institutions.” As such, so the defendants reason, the plaintiff

may not bring a First Amendment-based MCRA claim against them

because they are not governmental institutions. This argument has

no force. Again, the precedent cited above, which the defendants

do not address or dispute, makes clear that a plaintiff may assert

a valid MCRA claim where a non-governmental defendant coerces them

into forgoing their right to seek legal redress.6

Second, the defendants argue that the MCRA only prohibits

compelling a plaintiff to take an action they are not legally

obligated to perform, but does not proscribe interfering with a

plaintiff’s right to engage in conduct permitted by law, i.e.,

they argue that it does not bar their “attempting to deprive [the

plaintiff] of his right to continue with this action. . . .” This

argument is without force for the same reasons noted above; there

is no question that acting to deprive a plaintiff of their right

to do something the law permits them to do may constitute a MCRA

violation. See e.g., Buster, 438 Mass. at 648 (pressuring

6 The defendants cite to a 1997 Massachusetts Appeals Court decision for support

but the case they cite is not instructive where it does not reference or discuss

the MCRA and in any event predated Buster and Lopez by several years. See

DuracraftCorp. v. Holmes Prods. Corp., 42 Mass. App. Ct. 572 (1997).

8

plaintiffs to withdraw their appeals to prevent foreclosure could

be considered economic coercion violative of the MCRA); cf. Kennie

v. Nat. Res. Dep’t, 451 Mass. 754, 763 (2008) (threats to rig

results of a survey in order to block plaintiff’s attempt to obtain

a property development permit may violate MCRA); Redgrave v. Boston

Symphony Orchestra, Inc., 399 Mass. 93, 98-100 (1987) (depriving

plaintiff of their right to perform pursuant to a contract may

violate MCRA); Pheasant Ridge Assocs. Ltd. P’ship v. Town of

Burlington, 399 Mass. 771 (1987) (threats to unlawfully take

plaintiff's land by eminent domain in order to block development

may violate MCRA); Batchelder v. Allied Store Corp., 393 Mass.

819, 822-23 (1985) (preventing plaintiff from distributing

political written materials may violate MCRA).7

Per the foregoing, the court finds that Count Two pleads a

valid MCRA claim.

C. Count Three – Violation of the FDCPA

Count Three alleges a violation of the FDCPA, 15 U.S.C. §§

1692-1692p. The FDCPA prohibits a wide range of practices,

including, among other things, making false claims about the amount

of debt that is owed. 15 U.S.C. § 1692e. To prevail, a plaintiff

7 Moreover, to the extent the defendants argue that the complaint does not allege

that the defendants forced the plaintiff to do anything he was not required to

do, it does allege that the defendants attempted using the specter of

foreclosure to force him to pay increased fees. (See D. 23 at ¶¶ 77-79).

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must establish three elements: (1) that he was the object of

collection activity arising from consumer debt, (2) the defendants

are debt collectors as defined by the FDCPA, and (3) the defendants

engaged in an act or omission prohibited by the FDCPA. O'Connor

v. Nantucket Bank, 992 F. Supp. 2d 24, 30 (D. Mass. 2014) (quoting

Som v. Daniels L. Offs., P.C., 573 F. Supp. 2d 349, 356 (D. Mass.

2008)).

The court finds that Count Three pleads a viable FDCPA claim

where it alleges that: (1) the defendants have attempted to obtain

mortgage payments; (2) the defendants acknowledge that they hold

and service the plaintiff’s mortgage; and (3) the plaintiff alleges

that the defendants are unfairly seeking to force him pay more

than what he owes.

In seeking dismissal, the defendants do not actually argue

that the complaint fails to plead these elements. Rather, they

argue that they are merely “entities who do no more than enforce

security interests in nonjudicial foreclosure proceedings in

accordance with state law.” They argue that this matters for FDCPA

purposes because entities that are engaged solely in such

nonjudicial foreclosure proceedings are largely exempt from the

prohibitions of the FDCPA, and are subject only to the restrictions

set forth in section 1692f(6). See Britton v. Marcus, Errico,

Emmer & Brooks, P.C., No. 1:18-cv-11288-IT, 2022 WL 2308934, at *5

10

(D. Mass. June 27, 2022)). Section 1692f(6) in turn only prohibits

a debt collector from “[t]aking or threatening to take any

nonjudicial action to effect dispossession or disablement of

property if” the defendants presently have no right or intent to

take possession of the property.8 The defendants argue that this

provision applies here and merits dismissal of Count Three because

they have not commenced any foreclosure proceedings or made any

statements evincing an intent to take possession of the property,

and the complaint moreover does not allege that they have taken

such action.

The defendants’ argument fails to persuade. Notwithstanding

their assertion that they are merely “entities who do no more than

enforce security interests in nonjudicial foreclosure

proceedings,” the record, scant as it is at this early juncture,

suggests that the defendants were in fact performing other

functions akin to that of a traditional debt collector. Indeed,

the defendants themselves have attached a document as an exhibit

8 In full, section 1692f(6) prohibits a debt collector from:

Taking or threatening to take any nonjudicial action to

effect dispossession or disablement of property if” the

defendants presently have no right or intent to take

possession of the property if - (A) there is no present

right to possession of the property claimed as

collateral through an enforceable security interest;

(B) there is no present intention to take possession of

the property; or (C) the property is exempt by law from

such dispossession or disablement.

15 U.S.C. § 1692f(6).

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to their motion reflecting that SN Servicing, as part of its

relationship with US Bank, sent the plaintiff a letter in October

2023 reflecting that SN Servicing was “attempting to collect [a]

debt” from the plaintiff for one or more outstanding mortgage

payments. (D. 14-7 at 2). The contours and relative merits of

the FDCPA claim will be revealed through discovery but dismissal

is not presently warranted on the ground advanced by the

defendants.

D. Count Four – Violation of M.G.L. c. 93A

Count IV alleges a violation of Massachusetts’ consumer

protection statute, M.G.L. c. 93A. The plaintiff avers that the

defendants engaged in unfair and deceptive acts by adding “bogus

charges” to his monthly mortgage and harassing and threatening him

for initiating the 2022 lawsuit, which they were seeking to get

him to drop. As the defendants do not dispute that these

allegations, if true, would support a claim for violation of

Chapter 93A, the court presumes for present purposes that they

would.

The defendants argue that Count Four should be dismissed

against both defendants because the plaintiff failed to properly

serve US Bank with a demand letter. Their argument goes as

follows. A plaintiff must timely serve a defendant with a demand

letter before bringing a Chapter 93A claim. See M.G.L. c. 93A, §

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9(3). Here, the plaintiff sent a demand letter to SN Servicing as

the mortgage servicer, but never sent a letter to US Bank as the

lender/mortgage holder. The defendants argue that US Bank

consequently may not be sued because it never got the letter. They

argue further that SN Servicing, despite having received a demand

letter, cannot be sued as US Bank’s agent because SN Servicing has

no contractual relationship or privity with the plaintiff and thus

cannot be held liable to him. The defendants cite a bankruptcy

court decision from this district supporting the proposition that

a borrower cannot sue a mortgage servicer for breach because the

servicer has no contractual relationship or privity with the

borrower. See In re Jackson, 622 B.R. 321, 331 (Bankr. D. Mass.

2020). But even assuming that Jackson provides an accurate

statement of the law, the defendants’ reliance on it is misplaced

here.

Notably, the complaint alleges that both defendants engaged

in unfair and deceptive acts against the plaintiff. It further

alleges facts suggesting the defendants may share more than a

traditional principal-agent relationship and be interrelated in

some way. It alleges, for example, that the defendants have the

same business address, which the defendants do not dispute. (D.

23 ¶ 21). Further, it alleges that the plaintiff sent the demand

letter to SN Servicing and also addressed it to LB-Igloo Series IV

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Trust, which defendant U.S. Bank acts as trustee for, and an

attorney responding on SN Servicing letterhead represented among

other things that “I represent U.S. Bank Trust National

Association, as Trustee of LB-Igloo Series IV Trust.” (D. 1 at

63-67). Thus, even if the plaintiff did not send a separate letter

to US Bank, the record affirms that the letter was sent to an

entity which US Bank is a trustee of, and counsel responded to the

plaintiff’s demand letter stating, among other things, that he

represented US Bank. These facts are sufficient in the court’s

view to establish that the plaintiff adequately served US Bank

with the demand letter. Dismissal therefore is not warranted on

this ground.

E. Count Five – IIED.

Count Five asserts a claim for intentional infliction of

emotional distress (“IIED”). “The standard for making a claim of

intentional infliction of emotional distress is very high.” Polay

v. McMahon, 468 Mass. 379, 385 (2014). To prevail on an IIED

claim, a plaintiff must show “(1) that the defendant intended,

knew, or should have known that [his/her] conduct would cause

emotional distress; (2) that the conduct was extreme and

outrageous; (3) that the conduct caused emotional distress; and

(4) that the emotional distress was severe.” Id. To be considered

extreme and outrageous, a defendant’s conduct must “go beyond all

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possible bounds of decency.” McCusker v. Ocwen Loan Servs., No.

14-13663-MGM, 2015 WL 4529986, at *7 (D. Mass. July 27, 2015).

“Insults, indignities, threats, annoyances” and even questionable

business tactics are not enough to state an IIED claim. Id.

The complaint alleges that the defendants’ conduct in

retaliating against him for the 2022 lawsuit and seeking to force

him to drop the lawsuit by, among other things, improperly adding

certain fees to his mortgage payments, threatening foreclosure,

and failing to credit certain payments, was extreme and outrageous.

The defendants argue in support of dismissal that the alleged

conduct fails to rise to the level that would support an IIED

claim. The court agrees with the defendant.

Courts have consistently dismissed IIED claims arising in the

foreclosure context. This is the case even where, as here, the

defendants reportedly used questionable business practices or

conveyed improper threatening communications, on the ground that

such behavior is not egregious enough to rise to the level of

extreme and outrageous conduct. See e.g., O’Brien v. Wilmington

Trust N.A., 506 F. Supp. 3d 82, 101 (D. Mass. 2020) (holding that

even questionable business practices in foreclosure cases did not

plausibly allege extreme and outrageous conduct); Akar v. Fannie

Mae, 845 F. Supp. 2d 381, 385 (D. Mass. 2012) (holding that

behavior sufficient to make out claims for bad faith and

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misrepresentation does not go ‘beyond all bounds of decency’ so as

to support IIED claim); McCusker v. OcWen Loan Servs., LLC, No.

14-13663-MGM, 2015 WL 4529986, *7 (D. Mass. July 27, 2015) (holding

that communications made to mislead plaintiffs regarding a

mortgage payment did not suffice to support a proper IIED claim);

Koufous V. U.S. Bank, N.A., 939 F. Supp. 2d 40, 54 (D. Mass. 2013)

(holding “continued threats” to collect upon a debt and foreclosure

were insufficient to support an IIED claim).

While the foregoing precedent certainly does not foreclose

the legal possibility that a plaintiff could plead a viable IIED

claim in the foreclosure context, it underscores the high bar that

must be met. In this case, the court finds that the complaint

falls short of meeting that standard. Count Five therefore should

be dismissed.

F. Count Six – Breach of Contract

Count Six asserts a claim for breach of contract. The

complaint somewhat amorphously alleges that the plaintiff

“executed a mortgage agreement or contract and promissory note”

but the plaintiff clarified at a post-hearing conference that the

contract at issue is the mortgage.

To state a claim for breach of contract, a plaintiff must

allege “the existence of a contract, his compliance with its terms,

breach, and damages.” Foss v. Marvic, 365 F. Supp. 3d 164, 167

16

(D. Mass. 2019) (citing 5 Wright & Miller’s Federal Practice &

Procedure § 1235 (4th ed. 2019)). Although Rule 8(a) of the

Federal Rules of Civil Procedure does not require great detail, a

plaintiff must provide enough specificity to adequately notify a

defendant of the nature of the claim. Id.; see Fed. R. Civ. P.

8(a) (requiring a short and plain statement showing the plaintiff

is entitled to relief). To that end, “a claim for breach of a

written contract must either (1) quote pertinent contractual

language; (2) contain a copy of the contract as an attachment; or

(3) summarize the contract’s purported legal effect.” Id.

The defendants argue that Count Six should be dismissed

because the plaintiff has failed to identify any contractual

provision that they reportedly breached. The court agrees. For

a contract claim to survive a motion to dismiss, “[p]laintiffs ...

must do more than allege, in conclusory fashion, that the defendant

breached the contract, by describing, with ‘substantial

certainty,’ the specific contractual promise the defendant failed

to keep.” Higgins v. Town of Concord, 246 F. Supp. 3d 502, 518

(D. Mass. 2017) (citing Brooks v. AIG SunAmerica Life Assur. Co.,

480 F.3d 579, 586 (1st Cir. 2007)). The First Circuit has

interpreted Rule 12(b)(6) to “require[ ] that plaintiffs allege a

factual predicate concrete enough to warrant further proceedings.”

Buck v. Am. Airlines, Inc., 476 F.3d 29, 38 (1st Cir. 2007)

17

(upholding dismissal of contract claim that failed to allege

sufficient facts) (internal quotations omitted). Indeed, the

First Circuit has explained that to survive a motion to dismiss,

“the complaint should at least set forth minimal facts as to who

did what to whom, when, where, and why.” Educadores

Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66–67 (1st

Cir. 2004).

The complaint does not meet this standard. Although the

plaintiff clarified that the contract at issue is the mortgage, he

fails to particularize each of the myriad claimed alleged breaches

and fails further to tie each breach to a specific provision of

the mortgage. Without more, the claim is too vague and imprecise

to provide meaningful guidance to the defendants. The claim

therefore should be dismissed, but without prejudice, subject to

the plaintiff's ability to amend to set out specific facts

demonstrating his entitlement to relief for each claimed breach.

G. Count Seven – Breach of the Implied Covenant

Count Seven asserts a claim for breach of the implied covenant

of good faith and dealing. Under Massachusetts law, a covenant of

good faith and fair dealing is implied in every contract. UNO

Rests., Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385

(2004). As such, every contract inherently includes the promise

that “neither party shall do anything that will have the effect of

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destroying or injuring the rights of the other party to receive

the fruits of the contract.” Robert Reiser & Co. v. Scriven, 130

F. Supp. 3d 488, 495 (D. Mass. 2015) (quoting Anthony's Pier Four,

Inc. v. HBC Assocs., 411 Mass. 451, 471-72 (1991)). To recover,

a claim for breach of the implied covenant of good faith and fair

dealing “requires conduct taken in bad faith either to deprive a

party of the fruits of labor already substantially earned or unfair

leveraging of the contract terms to secure [an] undue economic

advantage.” Christensen v. Kingston Sch. Comm., 360 F. Supp. 2d

212, 226 (D. Mass. 2005). Notably, a party may breach the implied

covenant of good faith and fair dealing “without breaching any

express term of that contract.” Speakman v. Allmerica Fin. Life

Ins., 367 F. Supp. 2d 122, 132 (D. Mass. 2005).

The complaint here alleges among other things that the

defendants “made it impossible for Plaintiff to reap the

fruits/benefits of the bargain and the benefits of Plaintiff’s

contract with Defendants.” While not overly fulsome, it is enough

against the backdrop of the complaint’s numerous assertions of

threats, retaliation, and harassment, including the claim that the

defendants sought to increase the plaintiff’s mortgage payments to

include their attorneys’ fees, to plead a viable claim that the

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defendants acted in bad faith when dealing with the plaintiff and

the mortgage.9

IV. Recommendation

In light of the foregoing, the defendants’ renewed motion to

dismiss should be GRANTED in part and DENIED in part. It should

be GRANTED as to Counts One, Five and Six. Count Six should be

dismissed without prejudice, however, with 14 days for leave to

amend from the date this recommendation is adopted, if it is

adopted. The motion to dismiss should otherwise be DENIED with

respect to Counts Two, Three, Four, and Seven.10

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: July 31, 2025

9 The defendants argue contrarily that there can be no breach of the implied

covenant of good faith and fair dealing if there is no breach of the contract

itself. As noted above, however, that proposition is not correct. See Speakman,

367 F. Supp. 2d at 132. The case the defendants cite to support their position

actually undermines rather than supports their argument and affirms that a party

may breach the implied covenant without breaching the underlying contract at

issue. See A.L. Prime Energy Consultant, Inc. v. Mass. Bay Transp. Auth., 479

Mass. 419, 433 (2018) (noting that a party’s “broad latitude” to act under a

contract “does not immunize it against” an allegation of breach of the implied

covenant of good faith).

10 The parties are hereby advised that under the provisions of Federal Rule of

Civil Procedure 72(b), any party who objects to this recommendation must file

specific written objections thereto with the Clerk of this Court within 14 days

of the party's receipt of this Report and Recommendation. The written

objections must specifically identify the portion of the proposed findings,

recommendations, or report to which objection is made and the basis for such

objections. The parties are further advised that the United States Court of

Appeals for the First Circuit has repeatedly indicated that failure to comply

with Rule 72(b) will preclude further appellate review of the District Court's

order based on this Report and Recommendation. See Keating v. Sec’y of Health

and Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano

Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor

Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-

379 (1st Cir. 1982).

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