2013 Case Successes Archive

Shea v. Federal National Mortgage Association, et al., Docket No. 2013-P-1630, (appeals court upheld trial judge's 12(b)(6) dismissal of claims of wrongful foreclosure against servicer, mortgagee, investor and counsel for mortgage; borrower alleged that foreclosing mortgagee lacked standing to foreclose because he claimed the original mortgagee, MERS, had no authority to assign; trial judge and appeals court disagreed, taking the common sense approach that MERS was identified as mortgagee in the mortgage and thus had authority to assign; no further written authority from the beneficial interest holder was required) (Attorney Scott Owens).

Kitner v. Mortgage Lenders Network USA Inc., et al., 2013 WL 1324899 (MA 2014) (affirming judgment where the appellant made no argument on appeal regarding the dismissal of all claims against Harmon Law Offices) (Attorney).

Federal Nat'l Mortgage Assn. v. Isaac, 2013 WL 9890785 (MA 2014) (counsel for foreclosing mortgagee need not provide sealed evidence of authority to send and publish notices and perform other acts on behalf of a client when the foreclosure was conducted in the client's name) (Attorneys Danielle Gaudreau and Thomas Santolucito).

HSBC Bank USA v. Matt, 464 Mass. 193 (MA 2013) (borrower who is not in the military cannot appear in Servicemembers Civil Relief Act proceedings, which can be filed by a mortgagee or an entity acting on behalf of the mortgagee) (Attorney)

Federal Home Loan Mortgage Corp. v. Doust, 83 Mass.App.Ct. 1115 (2013) (former owner unable to defend summary process case due to alleged lack of standing to foreclose, when he had litigated the same issue in a prior lawsuit) (Attorney Thomas Santolucito)

Federal Home Loan Mortgage Corp. v. Holman, 83 Mass.App.Ct. 1134 (2013) (certified copy of foreclosure deed and affidavit are admissible as public records and need not be authenticated as bank records to be considered as evidence of title) (Attorney Anthony Coletti)

US Bank v. Twomey, 83 Mass.App.Ct. 1130 (2013), 2013 WL 1942210 (judgment declaring US Bank's mortgage valid and enforceable despite an erroneously recorded discharge affirmed because borrowers failed to provide an adequate record for appellate review, and US Bank awarded its appellate attorneys' fees and costs) (Attorney Scott Owens)

Reynolds v. GMAC Mortgage, LLC, 83 Mass.App.Ct.1124 (2013), 2013 WL 2420705 (summary judgment for GMAC affirmed because record established that "GMAC had the authority to foreclose, as the uncontroverted holder of the mortgage with the power of sale") (Attorney)

Epps v. Bank of America et al., 2013 WL 7196330 (Mass. Sup. June 18, 2013) (in a wrongful foreclosure lawsuit, dismissal under Rule 12(b)(6) of a prior lawsuit operates as an adjudication on the merits precluding claims against law firm (a party in the prior lawsuit) notwithstanding different evidence or legal theories, as the claims arise out of the same event, namely the foreclosure. Such dismissal also precludes claims against two entities who share the same business operations and personnel as the law firm because there is privity of parties.) (Attorney)

Federal Nat'l Mortgage Assn. v. Ojini, Boston Housing Court No. 12H84SP004771 (Muirhead, J.) (Dec. 31, 2013) (tenant was not entitled to assert a 'conditions defense' to eviction where: 1) the 'property' at issue was an illegal unit and was never intended for human habitation; 2) the tenant did not notify the property manager of any problems with the property until three years after the foreclosure, despite having the property manager's contact information; and 3) the unit could not be made habitable without requiring the tenant to vacate (Attorney John Radeck).

Ball v. Nationstar Mortgage, LLC, 2013 WL 5434567 (D.Mass., 2013) (summary judgment granted dismissing plaintiff's claims under the Truth and Lending Laws, the Good Funds Statute, and Chapter 93A) (Attorney Scott Owens)

DeSouza, Trustee v. OneWest Bank Group, LLC, Essex Superior Court (MA 2013) (trustee who became owner of the property after mortgage was executed by borrower lacks standing to litigate wrongful foreclosure claims raised by the borrower) (Attorney)

Federal Home Loan Mortgage Corp. v. LaPorta, Chelsea District Court (MA, 2013) (post-foreclosure plaintiff need not demonstrate strict compliance with G.L. c. 244, § 35A to prevail in summary process) (Attorneys Daniel Murphy and Paul Manning)

Federal Nat'l Mortgage Assn. v. Blain, Boston Housing Court (MA 2013) (conditions defense not available to former owners under the Appeals Court's Gabriel decision where the property was allegedly rented by and to other parties) (Attorneys Paul Manning and Sarah Billeri)

Federal Nat'l Mortgage Assn. v. Darling, Boston Housing Court (MA 2013) (former owner's lack of recollection of receiving acceleration notice does not present a disputed issue of fact for trial) (Attorney Sarah Billeri)

Grandoit v. Wells Fargo Home Mortgage, 2013 WL 1282357 (D.Mass., 2013) (wrongful foreclosure complaint dismissed because it "fails to set forth 'a short and plain statement of claims showing that the pleader is entitled to relief' as required" by the federal rules of civil procedure) (Attorney Scott Owens)

In Re:Gill, 2013 WL 3379542 (Bankruptcy, D.Mass., 2013) (claims against credit union for alleged violations of FDCPA and Fair Credit Reporting Act dismissed for failure to state a claim) (Attorney)

Kastelic et al. v. Huntington National Bank 2013 WL 3204147 Worcester Superior Court (MA 2013) (borrowers' request for a TRO to prevent foreclosure denied because they failed to demonstrate a likelihood of success on the merits of their complaint-- the borrowers had been offered a loan modification, but had failed to make payments, including payments for real estate taxes and hazard insurance; and the property was a second home) (Attorney Andrea Lasker)

King v. Wells Fargo Home Mortgage, 2013 WL 1196664 (D.Mass., 2013) (borrower's claims against Harmon dismissed because of Harmon's protection under the litigation privilege, because Harmon has no interest in the property at issue, because numerous claims were inadequately pled, and because while the prospect of foreclosure "is absolutely distressing, intention to foreclosure or participating in pre-foreclosure legal proceedings is not extreme and outrageous" conduct that would make a law firm liable for emotional distress damages) (Attorney Scott Owens)

Kitner v. Mortgage Lenders Network USA Inc., 2013 WL 1324899 Middlesex Superior Court (MA 2013) (claims against lender and its attorneys for violations of Chapter 93A and TILA, misrepresentation, breach of covenants of good faith and fair dealings, negligence, and interference with prospective contract dismissed because complaint did not comply with procedural requirements and failed to plead counts with particularity) (Attorney Thomas Lavallee)

Moronta v. Nationstar Mortgage, LLC, Norfolk Superior Court (summary judgment granted in favor of Nationstar on a wrongful foreclosure claim because the injunction issued in Commonwealth v. Fremont does not apply to loans transferred from Fremont prior to the issuance of the injunction and therefore Nationstar did not need to seek approval to foreclose from the Attorney General; Additionally, summary judgment granted in favor of Nationstar for 93A claims because the loan was not inherently unfair under the Fremont standard and Nationstar offered a loan modification that lowered the borrower's monthly payments) (Attorney Jennifer Normand)

Ouch v. Federal National Mortgage Association, 2013 WL 139765 (D.Mass., 2013) (borrowers' claims against Harmon dismissed due to complaint's implausible allegations) (Attorneys Robert Mendillo and Thomas Lavallee)

Provident Funding Associates, LP v. Jones, 2013 WL 1324653 Suffolk Superior Court (MA 2013) (in summary process action transferred to the Superior Court, plaintiff's motion to strike and dismiss borrowers counterclaims and affirmative defenses allowed because res judicata prevented borrowers from raising any counterclaims, as those claims could have been brought in the first summary process case; and borrowers had not sufficiently alleged that Provident was not a bona fide purchaser of the property) (Attorney Jennifer Normand)

Suntrust Mortgage, Inc. v. Forsberg, 2013 WL 5783020 (Mass. Land Ct.) (conducting all foreclosure proceedings in name of SunTrust Mortgage LLC (which never existed) as opposed to SunTrust Mortgage, Inc. (correct name of mortgagee) was a minor scrivener's error that did not render the foreclosure sale invalid) (Attorney Laurence Von Barta IV)

Schaefer V. Indymac Mortgage Services, (1st Cir. 2013) 2013 WL 5452987 (economic loss doctrine barred mortgagor's negligence and negligent misrepresentation claims) (Attorney Thomas Lavallee)

NEW HAMPSHIRE TRIAL COURT VICTORIES

(Federal District Court, Superior Court, Probate Court)

Baril v. Harmon Law Offices, P.C., Rockingham Superior Court (NH 2013)

(borrower's lawsuit against the firm for acting as counsel for foreclosing mortgagee dismissed at summary judgment because borrower could not demonstrate detrimental reliance on any of Harmon's statements or actions taken on behalf of its client) (Attorney Scott Owens)

Bourassa v. Fannie Mae, Merrimack Superior Court (2013) (plaintiff's request to enjoin the foreclosure of property encumbered by a "reverse mortgage" denied because allegations that the originator of the loan made fraudulent misrepresentations to her were not supported by her vague testimony, and because she signed all the requisite loan closing documents, including confirmation of reverse mortgage counseling) (Attorney Andrea Lasker)

Federal Home Loan Mortgage Corporation v. Jutras Rockingham Superior Court (NH 2013) (because non-judicial foreclosures are valid as long as all statutory requirements are complied with, initiation of foreclosure proceedings could effectively be passed on to an assignee because the statute specifically states "the mortgagee, or his assignee" are to provide notice and comply with the statutory requirements for a valid foreclosure) (Attorney Scott Owens)

In Re: Mills, 2013 WL 5275951 (N.H.Cir.Ct.) (9th Circuit Probate Division 2013) (mortgagee's lien position and right to foreclose are not linked to the time bars for making a monetary claim against a decedent mortgagor's estate) (Attorney Amie DiGiampaolo)

Leoni v. Bank of America, N.A. Carroll Superior Court (NH 2013) (borrower's third request to enjoin foreclosure denied because the national foreclosure consent judgment that the lender entered into allowed but did not require the lender to review the borrower's request for a loan modification) (Attorney Andrea Lasker)

Moore. v. Mortgage Electronic Registration Systems, Inc. 2013 WL 1773647 (D.N.H., 2013) (borrowers' lawsuit against the firm and multiple lenders and loan servicers for allegedly unlawful debt collection practices and fraud dismissed at summary judgment because the borrowers "had not proffered admissible evidence creating a dispute of material fact to any of the claims...nor have they shown that a genuine dispute of material fact exists as to defendant Deutsche Bank National Trust Company's possession of (and, hence, right to enforce) their note") (Attorney Scott Owens)

Zecevic v. U.S. Bank Belknap Superior Court (NH 2013) (Harmon awarded summary judgment on borrower's claim that Harmon, in representing its clients against borrower, violated the NH Consumer Protection Act, because even if Harmon is subject to the Act, all the allegations relate to Harmon's representation of its clients, and by representing its clients against borrower Harmon was not in "trade or commerce" with borrower, which is required for liability under the Act) (Attorney Andrea Lasker)

Welch v. BAC Home Loans Servicing, LP, 65 A. 3d 484 (RI 2013) (borrower's appeal challenging denial of request for injunction dismissed as moot because there was no foreclosure sale pending) (Attorney Thomas Lavallee)

In re: Mortgage Foreclosure Cases, 2013 WL 4735638 (D.R.I., 2013) (blanket injunction against foreclosure and evictions dissolved in wake of ruling from First Circuit Court of Appeals.) (Attorneys Jennifer Normand, Robert Mendillo and Thomas Lavallee)

Seng v. Mortgage Electronic Registration Systems, Inc., 2013 WL 1490360 (R.I.Super. 2013) (summary judgment granted in favor of defendants because borrowers lack standing to challenge the assignment under Rhode Island and the notary certificate on the foreclosure deed creates a strong presumption of validity that borrower's affidavit did not overcome, especially when the defendants provided an affidavit in support of their claim for summary judgment that satisfied the strictures of Rule 56 and the business records exception to hearsay) (Attorneys Jennifer Normand and Bethany Whitmarsh)

Smith v. Mortgage Electronic Registration Systems, Inc., Kent Superior Court (RI 2013) (defendants' motion for summary judgment on borrower's wrongful foreclosure claims allowed because borrower's previously filed bankruptcy cases barred his claims under doctrine of res judicata) (Attorney Bethany Whitmarsh)

Sousa v. Mortgage Electronic Registration Systems, Inc. 2013 WL 4094379 (D.R.I.) (borrowers' attorney sanctioned $10,000 for not complying with requirements of the Court's mediation program) (Attorney Thomas Lavallee)

Southwick v. Mortgage Electronic Registration Systems, Inc., 2013 WL 1496526 (R.I.Super. 2013) (summary judgment granted in favor of defendants because borrowers lack standing to challenge the assignment under Rhode Island and the notary certificate on the contested foreclosure deed creates a strong presumption of validity that borrower's affidavit did not overcome, especially when the defendants provided an affidavit in support of it claim for summary judgment that satisfied the strictures of Rule 56 and the business records exception to hearsay.) (Attorneys Jennifer Normand and Bethany Whitmarsh)

Van Hoecke v. First Franklin Financial Corp., 2013 WL 1088825 (R.I. Super.2013) (Summary judgment granted in favor of defendants because borrowers lack standing to challenge the assignment under Rhode Island and a notary certificate on a document recorded in the Land Evidence records creates a strong presumption of validity that borrower's affidavit cannot overcome and a servicer is permitted to conduct non-judicial foreclosure on behalf of mortgagee. R.I.G.L. 18-10-1 is a discretionary provision allowing a bank or trustee to register notes and mortgage in the name of a nominee. R.I.G.L. 34-4-27 , § 34-4-27 may require a Trustee to record a trust instrument or memorandum of trust, but the statute does not establish that the failure to record a trust instrument upon transfer of trust property invalidates or voids that transfer.) (Attorneys Jennifer Normand and Bethany Whitmarsh)