2014 Case Successes Archive

Jordan v. Aurora Loan Services, LLC, Barnstable Probate Ct., No.BA11E0068QC (MA 2014) (Ryley, J.) (Dec. 5, 2014) (denying plaintiff's motion for relief from judgment where plaintiff simply restates an argument already raised and "the mere fact that Plaintiff has retained new counsel does not mean Plaintiff can relitigate her case.") (Attorney).

OneWest Bank v. Heirs, Devisees and Legal Representatives of Viirre, Land Court No. 13 MISC 478852(HPS) (July 2, 2014) (reverse mortgage containing a power of sale provision may be foreclosed by employing the "statutory" power of sale under state law) (Attorneys Paolo Franzese and J. Laurence vonBarta).

Federal Home Loan Mortgage Corporation v. Le, Boston Housing Court No. 12-SP-2323 (Muirhead, J.) (March 11, 2014) (Former owner defendant's lack of recollection of receiving notice of default is not sufficient to overcome post-foreclosure plaintiff's prima facie case for possession in summary process action. Notice of default satisfied terms of defendant's mortgage by providing information of defendant's right to bring a court action and inclusion of additional right to assert defenses in any foreclosure proceeding was not incorrect or prohibited by the mortgage.)(Attorney Danielle Gaudreau)

Fannie Mae a/k/a Federal Nat'l Mortgage Assn. v. Wooten, Southeast Housing Court No. 12-SP-03861 (Chaplin, F.J.) (Feb. 7, 2014) (G.L. c. 244, § 35A not part of the statutory power of sale and a right to cure notice that substantially complies with the statute is sufficient. A right to cure notice sent in 2008 is not governed by the 2010 amendments to the statute.) (Attorney Danielle Gaudreau)

Galiastro v. MERS et al., 467 Mass. 160 (Feb. 2014) (dismissal of conspiracy claim against Harmon for alleged wrongful foreclosure affirmed because representing a foreclosing bank does not alone suggest a plausible claim for relief) (Attorney)

May v. SunTrust Mortgage, Inc. 467 Mass. 756, 2014 WL 1394732 (MA 2014) (a borrower cannot seek a rescission of the mortgage loan transaction after the expiration of the four-year statute of limitations set forth in the Massachusetts Credit Cost Disclosure Act, even when he raises his rescission claim as a defense to foreclosure) (Attorney)

O'Neil v. The Bank of New York Mellon, 2014 WL 7465645 (MA 2014) (denying the borrowers' motion for preliminary injunction challenging the validity of a MERS assignment because (1) MERS is valid mortgagee with the power to assign and "[i]ts status as nomine for the original lender, AWL, does not render the assignment invalid, (2) the assignment complies with the statutory requirement of G.L.c.244, sec. 54B and as such the borrowers "have no basis for arguing that the assignment is void and (3) the borrowers "do not have standing to challenge the validity of the assignment based on its non-conformance with the terms of the PSA.") (Attorney).

Federal Home Loan Mortgage Corp. v. Rivera, Boston Housing Court (MA 2014) (to set aside foreclosure and defeat eviction, former owner alleging discrimination must show that discriminatory conduct occurred prior to the foreclosure sale and resulted in fundamental unfairness to the borrower) (Attorney Sarah Billeri).

Jeevanandam v. Santander, 2014 WL 7641545 (MA 2014) (denying plaintiff's motion for preliminary injunction challenging the validity a MERS assignment because "the mortgage clearly named MERS as the mortgagee, and as owner of the mortgage, MERS had the power to assign the mortgage" and the Appeals Court and the First Circuit have already rejected the argument that MERS cannot validly assign a mortgage). (Attorney).

Jeevanandam v. Santander, 2014 WL 6751253 (Mass.Super. 2014) (holding that under the plain terms of the mortgage, MERS was "clearly" the mortgagee, and that an assignment by MERS is, based upon the Appeals Court's 2014 decision in Sullivan v. Kandaur, valid without MERS having to prove that the assignment was authorized by the owner of the debt).

JP Morgan Chase Bank, N.A. v. Healey 2014 WL 3908208 (D.Mass. 2014) (In an action to determine whether mortgagors were entitled to the benefits of the SCRA, the Court found that the mortgagors could not seek a new trial based on unsupported claims that the mortgagee did not have standing. The court found the mortgagors only offered speculation and conjecture which was insufficient when faced with documentary evidence provided by the mortgagee.) (Attorney J. Laurence Von Barta, Esq.)

Federal Home Loan Mortgage Corporation v. Young, Boston Housing Court (MA 2014) (summary judgment for possession awarded to client because G.L.c.244, §35A is not part of the statutory power of sale and legal deficiencies in the former owner defendant's notice to cure letter alone does not provide a defense to possession. Defendant could not assert tenant-based claims and defenses, and she was not entitled to an equitable remedy, because she failed to assert facts that could plausibly suggest client engaged in conduct that would render the foreclosure sale "so fundamentally unfair") (Attorney John Radeck, Attorney Danielle Gaudreau)

Pereira, et al. v. Federal Home Loan Mortgage Corporation. Middlesex Superior Court (MA 2014) (Court allowed defendant's motion to dismiss the fraud, 93A, and breach of contract claims based on the statute of limitations and the clear, unambiguous language of the purchase contract and its addenda which expressly waived any representations or warranties made by defendant or its agents, specifically including representations about utility, water and sewer service.) (Attorney Scott C. Owens)

Valdez et al v. Federal National Mortgage Association et al., 2014 WL 2573338 Suffolk Superior Court (MA 2014) (allegation that foreclosure counsel lacked authority to execute documents on behalf of its client fails to state a claim where there is no factual allegation suggesting that foreclosure counsel lacked this authority and no assertion of the "legal consequences of such a lack of authority") (Attorney)

Molloy v. JPMorgan Chase Bank, N.A., et al., Middlesex Superior Court, 2014 WL 1869411 (MA 2014) (wrongful foreclosure and civil conspiracy counts against foreclosing party's law firm (Harmon Law Offices) fail as a matter of law because the only party that could be sued for wrongful foreclosure was the foreclosing entity, and even if the foreclosure were defective, there was "not a shred of evidence" that the law firm "had an agreement" with its client or anyone else to commit any torts against the borrower) (Attorney)

Darling v. Federal National Mortgage Association, et al., Land Court, 2014 WL 1713363 (MA 2014) (borrower barred under res judicata from raising new challenges to the foreclosure after final judgment issued in the eviction proceeding, and the borrower's opportunity to invoke the alleged fundamental unfairness of the foreclosure due to a §35A (right to cure) violation has passed because at no point between the notice of default and the consummation of the foreclosure, was the issue raised) (Attorney)

JPMorgan Chase Bank, N.A. v. Healey, 2014 WL 1348033 (D.Mass. 2014) (Massachusetts Servicemembers Act filled the gap where the Federal act did not establish a mechanism for a lender to determine servicemember status, and borrowers are non-military and not entitled to the protections of the act, the lender has shown standing) (Attorney John L. Von Barta, Esq.)

Boulanger v. Wells Fargo, Hampshire County Superior Court, 2014 WL 981191, (MA 2014) (where assignment by a purported officer of the assignor is notarized the assignment is valid, the borrowers are not entitled to look behind it, and thus injunction against foreclosure is dissolved) (Attorney)

Holloway v. Sovereign Bank, Plymouth Superior Court No. PLCV2013-00751) (MA 2014) (entering into a loan modification agreement does not trigger an obligation to send a renewed notice to cure under G.L.c.244, §35A before commencing foreclosure; section 35A notice to cure was legally sufficient because it informed the borrower he was in default, explained steps required to avoid foreclosure, borrower actually cured the default, and the alleged inaccuracy of the amount needed to cure was not "so fundamentally unfair" as to render the subsequent foreclosure void under Schumacher) (Attorney)

Jordan v. Aurora Loan Services, LLC, 2014 WL 981190 (MA 2014) (assignment of mortgage by MERS valid because MERS has contractual authority to assign the mortgage and borrower has no standing to claim assignment is void due to alleged fraud in its execution) (Attorney)

Vachon v. FNMA, Hillsborough Superior Court (NH 2014) (ruling that the Court must consider the intent of the parties when the original debt and mortgage were formed and assuming that the defendant did not have the note, it still had the power to foreclose under the mortgage pursuant to RSA 479:25) (Attorney Andrea Lasker).

In Re: Mills: 2014 WL 5859632 New Hampshire Supreme Court (NH 2014) (The Supreme Court upheld the Probate Court's ruling stating that the statute requiring creditors to file claims in the probate case is a prerequisite to a creditor's ability to maintain an action against the estate. Given that the foreclosure process in NH is non-judicial and does not require the filing of a lawsuit, the reverse mortgage holder's failure to file such a claim was not fatal.) (Amie DiGiampaolo, Esq.)

Bates v. CitiMortgage, Inc., et al. 2014 WL 4723510 (NH 2014) Plaintiffs, discharged in a chapter 13 bankruptcy action, reopened the case and filed an adversary complaint alleging that Defendant creditor, holder of a mortgage on plaintiff's property had violated the bankruptcy discharge. On cross motions for summary judgment, the Court found that none of the post-discharge statements sent to borrowers were in violation of the injunction because under the objective standard, the creditor did not act to coerce or harass the Plaintiff for the purpose of collecting the discharged debt. A random phone call made in error, four years after the discharge, was found to be violative of the discharge. (Attorney Andrea V. Lasker)

San-Ken Homes, Inc. v. Bank of America, N.A., et al. Hillsborough Superior Court, Southern District (NH 2014) (Court allowed the defendants' motion to dismiss finding that an auctioneer owes no duty to a bidder that would support a negligence claim, because such a duty would conflict with the duty that the auctioneer owes to his principal (the mortgagee) and to the mortgagor.) (Attorney Kurt McHugh)

Bates v. CitiMortgage Inc., et al. 2014 WL 1870831 (D.NH 2014) (plaintiff's motion for summary judgment in adversary proceeding alleging numerous violations of the bankruptcy discharge denied because nothing in the summary judgment record established any factual or legal basis for any of the allegations, especially as Section 524(j) permits a mortgagee, in furtherance of collection of periodic payments associated with a valid mortgage on a personal residence, to have contact with a debtor following the discharge) (Attorney Andrea Lasker)

Lovy v. Federal National Mortgage Association, et al., 2014 WL 1669137, (D.N.H. 2014) (plaintiffs' complaint dismissed because allegations were belied by the very documents on which they relied and seemed to be based upon a misapprehension of contract law, and the counts were simply non-viable, undeniably conclusory, and unsupportive of a cause of action) (Attorney Andrea Lasker)

Larson v. Green Tree Servicing, LLC, Cheshire County Superior Court (NH), 2014 WL 539560 (motion to enjoin foreclosure denied due to lack of likelihood of success on the merits because borrowers' attorney knew that defendant was servicing the loan for modification purposes, borrowers and their counsel received timely notice that a foreclosure sale was scheduled, and borrowers knew that bankruptcy dismissal did not discharge their loan obligation) (Attorney Andrea Lasker)

Manning v. CitiMortgage, United States Bankruptcy Court, 505 B.R. 383 (NH 2014) (borrower's claim that the bank should have known that reaffirmation would be futile when it coerced him into bringing the loan current rejected because even though he was not personally liable for the debt, borrower was "required" to keep the loan current to avoid foreclosure, as his property remained encumbered by mortgage that "rode through" the bankruptcy). (Attorney Scott Owens)

Miller v. Nationstar Mortgage LLC, Strafford County Superior Court, 2014 WL 1041919 (NH 2014) (former owner's claim of fraud from securitization of loan and challenge to authority to foreclose dismissed under res judicata as they were theories of recovery that could have been pled in the initial foreclosure challenge) (Attorney Kurt McHugh)

Tilton, et al. v. Family Choice Mortgage Corp., Merrimack County Superior Court 2014 WL 115598, (NH 2014) (mortgage passed through the bankruptcy proceeding unaffected despite Bankruptcy Court's order disallowing the mortgagee's secured claim; accordingly, the mortgage remained an enforceable security interest and mortgagee could foreclose on the property) (Attorney Andrea Lasker)

Tozier v. Blessing, et al., Carroll County Superior Court, 2014 WL 981189 (NH 2014) (judgment in quiet title action entered for bank because plaintiff's interest in the property (if any) was subject to the bank's "paramount" mortgage and was wiped out by foreclosure sale, especially because plaintiff presented no evidence that the bank participated in or knew of the borrower/mortgagor's deception in "selling" the property to the plaintiff) (Attorney Scott Owens)