United States Court of Appeals: For The First Circuit

United States Court of Appeals
For the First Circuit
No. 14-1448
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]
Before
Howard, Selya, and Stahl,
Circuit Judges.
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.
June 12, 2015
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
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
incorporated therein by reference.2
the
complaint
and
documents
Grajales v. P.R. Ports Auth.,
Lister and Blais are married. Lister is the homeowner of

record and Blais asserts a leasehold interest in the subject
property. Blais, an attorney, represents Lister and also appears
pro se. For the sake of shorthand, we may occasionally refer to
both appellants by the first-named plaintiff, Lister.
2
Appellants
take
issue
with
the
district
court's
consideration of certain land records that appellees appended to
their motions to dismiss below. Their argument is misplaced. The
district court acted well within its discretion when it examined
copies of land records that were expressly referred to in the
complaint. See Beddall v. State Street Bank & Trust Co., 137 F.3d
12, 16-17 (1st Cir. 1998). Their claim rings especially hollow in
light of the fact that they also attached documents to the
complaint suggesting that certain mortgage-related evidence did
not exist.
- 3 -
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."
in
Delaware,
Lister
received
After MLN filed for bankruptcy
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.
Lister
and
Shortly
informed
thereafter,
her
that
Harmon
it
Law
Offices
represented
reiterated the foreclosure threat.
contacted
Countrywide
and
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.
with
Each request was ignored and Harmon pressed forward
foreclosure
proceedings
until
- 4 -
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 inserted
itself as the loss payee on Lister's homeowner insurance policy.
In an attempt to determine the note holder, Lister wrote
to the liquidating trustee of MLN, who explained that after filing
for
bankruptcy,
all
of
MLN's
documents
had
been
destroyed.
Plaintiffs allege that since MLN's documents were destroyed, and

subsequent "holders" are not able to produce the documents, then
it is unlikely that the documents exist.
Plaintiffs filed suit, alleging three causes of action.
Count I seeks "Interim Relief," in which they agree to sell the
house and place the proceeds in the court registry or in escrow,
from which the debt to the holder of the note will later be
satisfied.
In Count II, they seek "Quieting of Title" in order to
nullify the note and mortgage.
In Count III, they request a
"Credit Reporting," where the court would declare that plaintiffs

owe nothing to defendants and that defendants would remove all
delinquent reports from their credit.
- 5 -
In
ruling
on
defendants'
motions
to
dismiss,
the
district court directly considered only Count II (quiet title),

determining that it would be dispositive of the other counts.
After first rejecting Lister's claim that the mortgage and note
were void for never having been executed (executed copies were
attached to defendants' motions), the court went on to reach
several other legal conclusions: first, that plaintiffs' assertion
that the note was unenforceable because it cannot be produced is
contrary to Rhode Island law; second, that the facts alleged in
the complaint were insufficient to give plaintiffs' standing to
challenge the assignment of the mortgage; and finally, that the
mortgage was enforceable.
This timely appeal followed.3
II.
"Dismissal for failure to state a claim is appropriate
if the complaint does not set forth factual allegations, either
direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory."
Lemelson
v. U.S. Bank Nat'l Ass'n, 721 F.3d 18, 21 (1st Cir. 2013) (internal
Pursuant to a request made at oral argument before this

court, the appellees provided Lister with updated information
respecting the holder of the note. Those documents, submitted to
us via a Fed. R. App. P. 28(j) letter, state that Freddie Mac is
the current owner of the note, though its counsel is holding the
instrument on its behalf.
- 6 -
quotation marks omitted).
We review the district court's Rule
12(b)(6) dismissal de novo, construing all factual allegations in

the complaint in the light most favorable to the non-moving party
to determine if there exists a plausible claim upon which relief
can be granted.
Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1,
7 (1st Cir. 2014).
In so doing, however, we disregard facts which
have been "conclusively contradicted by [plaintiffs'] concessions

or otherwise."
Id. (quoting Soto-Negrn v. Taber Partners I, 339
F.3d 35, 38 (1st Cir. 2003)).

will
consider
documents
As especially relevant here, we
incorporated
complaint and matters of public record.
by
reference
into
the
Id. (citing Giragosian v.
Ryan, 547 F.3d 59, 65 (1st Cir. 2008)).
Finally, the district
court's rationale is not binding on appeal, and its ruling may be

affirmed on any basis apparent from the record.
Freeman v. Town
of Hudson, 714 F.3d 29, 35 (1st Cir. 2013). Against this backdrop,
we turn to the appellate matters at hand.
III.
We start our analysis by quickly disposing of an array
of issues that appellants raise -- or fail to raise -- in their
briefs.
First, appellants argue that discovery is needed to allow
them to uncover facts to support their claims.
In so doing,
however, they ignore the fundamental premise of Rule 12(b)(6),

i.e., that the plaintiff must set forth sufficient factual matter
- 7 -
to state a claim for relief that is plausible on its face.
See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Lister
fails
to
do
so
and
As will be discussed below,
discovery
would
not
alter
that
conclusion.
Next, appellants suggest that rather than employing the
Rule 12(b)(6) legal framework described above, the district court
should have instead judged the complaint on what they call "the
extraordinarily low standard of [Rhode Island's] title quieting
statute."
We should thus not impose a "requirement to cite to
dispositive facts in the complaint."
Appellants' position flies
in the face of clear precedent, which holds that "state pleading

requirements, so far as they are concerned with the degree of
detail to be alleged, are irrelevant in federal court even as to
claims arising under state law."
Andresen v. Diorio, 349 F.3d 8,
17 (1st Cir. 2003) (citing Hanna v. Plumer, 380 U.S. 460, 466-74
(1965)); see also Chhun v. Mortg. Elec. Registration Sys., Inc.,
84 A.3d 419, 422 (R.I. 2014) (acknowledging that the federal
standard for surviving motions to dismiss is more stringent than
the traditional Rhode Island standard).
As a final housekeeping matter, we note that while the
district court dismissed the complaint in its entirety, appellants
offer no argument with respect to Counts One ("Preliminary Relief")
- 8 -
and Three ("Credit Reporting").

waived.
1990)
We therefore deem those claims
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

("[I]ssues
unaccompanied
by
adverted
some
to
effort
at
in
perfunctory
developed
manner,
argumentation,
are
deemed waived.").
IV.
This leaves only Count Two, "Quieting of Title," before
us on appeal.
Pursuant to Rhode Island law:
Any person or persons claiming title to real

estate, or any interest or estate, legal or
equitable, in real estate . . . may bring a
civil action against all persons claiming, or
who may claim, and against all persons
appearing to have of record any adverse
interest therein, to determine the validity of
his, her, or their title or estate therein, to
remove any cloud thereon, and to affirm and
quiet his, her, or their title to the real
estate. The action may be brought under the
provisions of this section whether the
plaintiff may be in or out of possession and
whether or not the action might be brought
under the provisions of 34-16-1 or under the
provisions of any other statute.
R.I. Gen. Laws 34-16-4 (1956).4
By its own terms, the Rhode Island statute requires
defendants in a quiet title action to have "an adverse interest"
In Rhode Island, the statute is often utilized when

challenging an easement, see, e.g., Caluori v. Dexter Credit Union,
79 A.3d 823 (R.I. 2013), or in the context of an adverse
possession, see, e.g., McGarry v. Coletti, 33 A.3d 140 (R.I. 2011).
- 9 -
to that of the plaintiff.
See also R.I. Gen. Laws 34-16-5
(requiring quiet title complaint to contain, inter alia, "[a]

recital of the character and source of the claims adverse").
this
specific
case,
the
facts
alleged
in
the
complaint
In
are
insufficient to make out a plausible showing of such an interest

(and, thus, are insufficient to state a claim upon which relief
can be granted).5
"Rhode Island is a title-theory state, in which 'a
mortgagee not only obtains a lien upon the real estate by virtue
of the grant of the mortgage deed but also obtains legal title to
the property subject to defeasance upon payment of the debt.'"
Bucci v. Lehman Bros. Bank, FSB, 68 A.3d 1069, 1078 (R.I. 2013)
(quoting 140 Reservoir Ave. Assoc. v. Sepe Inv., LLC, 941 A.2d
805, 811 (R.I. 2007)).
Put another way, the title theory of
mortgage law "splits the title [to a property] in two parts:
the
legal
the
title,
which
becomes
the
mortgagee's
and
secures
underlying debt, and the equitable title, which the mortgagor

retains."
Lemelson,
721
F.3d
at
23
(citing
Bevilacqua
v.
Rodriguez, 955 N.E.2d 884, 894 (Mass. 2011)) (internal quotation

marks omitted); see also Houle v. Guilbeault, 40 A.2d 438, 423
As Lister emphasizes throughout, this case does not arise

in the context of a foreclosure. We thus have no need to consider
how a foreclosure might alter the mortgagor-mortgagee relationship
in a quiet title proceeding.
- 10 -
(R.I. 1944). A mortgagor can reacquire this defeasible legal title

by paying the debt which the mortgage secures.
Lemelson, 721 F.3d
at 23-24 (citing Abate v. Freemont Inv. & Loan, No. 12 MISC

464855(RBF), 2012 WL 6115613, at *4 (Mass. Land Ct. Dec. 10,
2012)); see In re D'Ellena, 640 A.2d 530, 533 (R.I. 1994) (stating
that a mortgagee's legal interest is "subject to defeasance upon
payment of the debt").
The key to this case is determining the import of that
mortgagor-mortgagee relationship on the quiet title regime; an
issue we recently resolved with respect to Massachusetts law in
Lemelson.
In that case, we held that given the concomitant
relationship that each has with respect to the property, the

mortgagor's and mortgagee's respective estates (or interests) are
not adverse, but instead are "prima facie consistent with each
other."
Lemelson, 721 F.3d at 24 (quoting Dewey v. Bulkley, 67
Mass. (1 Gray) 416, 417 (1854)).

the way title is split.
This makes eminent sense given
The mortgagor and mortgagee each possess
"complementary" and "separate" claims; one party's interest (legal

or equitable), as a general rule, does not interfere with the
other's.
See Lemelson, 721 F.3d at 24.

Though Lemelson interpreted Massachusetts' law to reach
that conclusion, Rhode Island's identical understanding of the

relationship between the mortgagor and mortgagee necessarily leads
- 11 -
to the same understanding.
See Andrew Robinson Int'l, Inc. v.
Hartford Fire Ins. Co., 547 F.3d 48, 52 (1st Cir. 2008) (noting
that, in a diversity case applying state law, "the federal court's
objective is not to choose the legal path it deems best, but,
rather, to predict what path the state court would most likely
travel").6
Indeed, we are hard-pressed to hypothesize a manner in
which Rhode Island's understanding of title could lead to a

different result.
Lemelson, though only persuasive authority,
thus guides our resolution of this case.7

As noted at the outset, Lister's allegations ultimately
boil down to uncertainty over who holds the mortgage.
Lister
maintains
relinquished
an
legal
equitable
title
to
interest
it.
Her
in
the
But, while
property,
assertions
she
respecting
uncertainty over the mortgage speak solely to the legal title and
not to her equitable interest.
There is thus not the "requisite
adversity to cloud [her] claim of equitable title."

F.3d at 24 n.7.
Lemelson, 721
Instead, while the economic interests of Lister
and the mortgagee might be adverse in the sense that she disputes
We are not aware of any reported case where a Rhode Island

court has expressly considered this question in this context.
7
We also note that though stylistically different, the

Massachusetts try-title statute is substantively analogous to the
Rhode Island law at issue here. Compare Mass. Gen. Laws ch. 240,
1, with R.I. Gen. Laws 34-16-4.
- 12 -
owing any money, "[Lister] cannot be heard to argue that [the

mortgagee's] claim is adverse to [her] own" within the meaning of
the quiet title statute.
Id. at 24.
Her claim necessarily fails.
V.
The judgment of the district court is affirmed.
- 13 -

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

Registration Systems, Inc.; Homeward Residential Inc., in its own

June 12, 2015

HOWARD, Circuit Judge.

Claiming uncertainty as to which

entity holds an enforceable mortgage on their home, Deborah Lister

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.

dismissal, although for different reasons than those offered by

incorporated therein by reference.2

Grajales v. P.R. Ports Auth.,

Lister and Blais are married. Lister is the homeowner of

Lister refinanced and secured a new mortgage with Mortgage Lenders

Lister alleges that neither the note nor the

mortgage were executed, witnessed, or notarized, and that she does

she began making payments to the address listed on a document

After MLN filed for bankruptcy

payments to Bank of America, and she did so.

2008, Countrywide Home Loans contacted Lister and threatened to

reiterated the foreclosure threat.

On November 5, 2008, Blais

demanded verification from Harmon under the Fair Debt Collection

Each request was ignored and Harmon pressed forward

initiate a lawsuit against Harmon and its attorneys.

4, 2010, Harmon "put on hold" the scheduled foreclosure sale.

parties agree that there is no foreclosure currently pending.

most recent communication regarding the mortgage (at least before

Plaintiffs allege that since MLN's documents were destroyed, and

In Count II, they seek "Quieting of Title" in order to

nullify the note and mortgage.

In Count III, they request a

"Credit Reporting," where the court would declare that plaintiffs

district court directly considered only Count II (quiet title),

Pursuant to a request made at oral argument before this

quotation marks omitted).

We review the district court's Rule

12(b)(6) dismissal de novo, construing all factual allegations in

Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1,

7 (1st Cir. 2014).

In so doing, however, we disregard facts which

have been "conclusively contradicted by [plaintiffs'] concessions

Id. (quoting Soto-Negrn v. Taber Partners I, 339

F.3d 35, 38 (1st Cir. 2003)).

As especially relevant here, we

complaint and matters of public record.

Id. (citing Giragosian v.

Ryan, 547 F.3d 59, 65 (1st Cir. 2008)).

Finally, the district

court's rationale is not binding on appeal, and its ruling may be

First, appellants argue that discovery is needed to allow

them to uncover facts to support their claims.

however, they ignore the fundamental premise of Rule 12(b)(6),

to state a claim for relief that is plausible on its face.

As will be discussed below,