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J v SPS

J v SPS

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Published by: DinSFLA on Feb 12, 2013
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10/17/2013

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United States Court of Appeals
For the First Circuit
No. 11-2431MELISSA A. JUÁREZ,Plaintiff, Appellant,v.SELECT PORTFOLIO SERVICING, INC. ANDU.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OFTHE HOLDERS OF THE ASSET BACKED SECURITIES CORPORATIONHOME EQUITY LOAN TRUST, SERIES NC 2005-HE8,ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES NC 2005-HE8,Defendants, Appellees.APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS[Hon. Denise J. Casper, U.S. District Judge]BeforeTorruella, Ripple, and Howard,
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Circuit Judges.Glenn F. Russell, Jr., with whom Law Office of Glenn F.Russell, Jr., was on brief for appellant.Peter F. Carr, II, with whom Charlotte L. Bednar and EckertSeamans Cerin & Mellott, LLC, was on brief for appellees.February 12, 2013Of the Seventh Circuit, sitting by designation.
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TORRUELLA, Circuit Judge.
This appeal comes before usafter a dismissal of a complaint filed pro se by Melissa A. Juárezagainst two entities she claims illegally foreclosed her home onceshe defaulted on her mortgage payments. The district courtdismissed her complaint for failure to state a claim. Because wefind that the complaint states plausible claims for relief and thatthe district court abused its discretion in deciding that it wouldbe futile to allow an amendment to the complaint, we reverse.
I. A. Factual and Procedural Background 
On October 29, 2010, Juárez, an attorney acting pro se,filed a complaint in Massachusetts state court against defendantsU.S. Bank National Association as Trustee on Behalf of the Holdersof the Asset Backed Securities Corporation Home Equity Loan Trust,Series NC 2005-HE8 ("U.S. Bank") and Select Portfolio Servicing,Inc. ("SPS"), U.S. Bank's servicer. Defendants removed the casefrom the Suffolk County Superior Court to the district court afterJuárez, again acting pro se, filed an amended verified complaint.
1. The amended complaint
The facts as alleged by Juárez in her amended complaintare as follows.Juárez purchased a house in Suffolk County,Massachusetts, on August 5, 2005. She financed the purchase bytaking out two loans. The complaint, for reasons not stated in the-2-
 
record, relates exclusively to the first loan. Said loanconsisted of a note in the amount of $280,800, which was secured bya mortgage on the property.
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After closing, the note and mortgage exchanged handsseveral times within the secondary mortgage market. The amendedcomplaint states that, upon Juárez's information and belief, thenote and mortgage passed from New Century Mortgage, the originallender, to NC Capital Corporation and, later, from NC CapitalCorporation to Asset Backed Securities Corporation. None of thetransactions mentioned above were recorded in the Suffolk CountyRegistry of Deeds after they occurred.In order to pool and securitize loans, Asset BackedSecurities established a trust in the form of a real estatemortgage investment conduit ("REMIC"), a special type of trust thatreceives favorable tax treatment. See 26 U.S.C. § 860A. The trustwas governed by a Pooling and Servicing Agreement ("PSA"). Theentities involved in the operations of the trust were: U.S. Bank astrustee; Asset Backed Securities Corporation as depositor andissuing entity; Wells Fargo as Master Servicer; SPS (the seconddefendant here) as servicer; and DLJ Mortgage Capital, Inc. asseller.According to the amended complaint, the PSA and thefederal tax code's provisions regulating REMICs required that allThe second mortgage was in the amount of $70,200.
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