Mortgages - Predatory lending.

Byline: Mass. Lawyers Weekly Staff

Where plaintiff alleges that defendants' efforts to enforce the mortgage on her property are predatory because they knew at the inception of the loan that she would never be able to repay it, plaintiff's claims for unfair and deceptive trade practices in violation of 93A must be dismissed as time-barred and her claim for unfair debt collection practices in violation of ch. 93, 49 must be dismissed insofar as the statute provides no private right of action.

"[Mary Kathryn] O'Brien alleges that defendants' efforts to enforce the mortgage on her property are predatory because they knew at the inception of the loan that she would never be able to repay it. The Amended Complaint sets out two claims: unfair and deceptive practices in violation of Mass. Gen. Laws ch. 93A (Count I), and unfair debt collection practices in violation of ch. 93, 49. Defendants removed the case to the federal district court on diversity grounds and now move to dismiss both Counts of the Amended Complaint for failure to state a claim.

"O'Brien defaulted on the mortgage in September of 2008. Around that same time, WaMu failed, and the Federal Deposit Insurance Corporation (FDIC) was appointed as the receiver. O'Brien's mortgage was subsequently transferred by the FDIC to JPMorgan Chase Bank and then assigned, on February 24, 2009, to Deutsche Bank.

"Defendants first contend that O'Brien's origination claims are jurisdictionally barred because they arose out of her original mortgage with the failed WaMu. Thus, defendants argue that her only avenue of relief, which she did not pursue, was under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA).

"Because O'Brien's Chapter 93A claims are in the nature of equitable defenses, they are not precluded by FIRREA.

"Defendants...