Case Successes

A substantial part of the services that Harmon Law Offices, P.C., provides to its clients is representing them in court on virtually a daily basis in Massachusetts, Rhode Island and New Hampshire. Our attorneys appear in all courts: the various states' District Courts, Housing Courts, Superior Courts, the Massachusetts Land Court, and all of the states' appellate courts, as well as in the federal District Court, Bankruptcy Court, and the First Circuit Court of Appeals.

As can be seen from the vast array of decisions summarized below, our attorneys have an established track record of success in defending clients in alleged wrongful foreclosure cases, adversary proceedings, bankruptcy matters, eviction cases, title litigation, code violation defense — indeed, in all aspects of creditor-debtor relations at the trial and appellate levels. View our case victories in Massachusetts, New Hampshire and Rhode Island.

MASSACHUSETTS APPELLATE VICTORIES

(Massachusetts Supreme Judicial Court and Massachusetts Appeals Court)

Federal Nat'l Mtge. Assn. v. Nunez, 2016 WL 6358926 (MA.App.Ct. No. 15-P-0477) (Oct. 28, 2016): Typographical error referring to mortgaged property as "Street" instead of "Avenue" did not render foreclosure invalid as the property could be identified in other parts of the mortgage or documents referred to in the mortgage. Description of the property in foreclosure publication as Street a/k/a Avenue was not fatal, because the sale was held in good faith, complied with statutory requirements and the property could be ascertained. Despite a change to state law concerning the frequency of default/right-to-cure notices, borrower failed to prove fundamental unfairness, which is necessary to set the foreclosure aside. (Attorneys Thomas Santolucito, Anthony Coletti and Paolo Franzese).

Mack v. Wells Fargo Bank, N.A., 88 Mass.App.Ct. 664 (2015), further app. rev. denied (2016) (mortgagor's action against mortgagee's law firm for alleged Chapter 93A and state civil rights violations is barred by the absolute litigation privilege because the firm's actions occurred preliminary to and during mortgagor's litigation in which firm represented mortgagee) (Attorney Robert M. Mendillo).

Federal Nat'l Mortgage Assn. v. Valdez, Boston Housing Court No. 11H84SP004849 (Nov. 24, 2015) (Winik, F.J.) (declining to apply a strict compliance standard to a default notice sent prior to the MA Supreme Judicial Court's Pinti decision where the issue had been preserved in the trial court, but was not on appeal at the time of the Pinti ruling) (Attorney Sarah Billeri).

Fazio v. U.S. Bank, N.A., as Trustee (Middlesex County Superior Court, Docket No. 1581CV05786) (2015 WL 6510889) (October 21, 2015) (Miller, J.) Borrower filed suit for breach of contract and declaratory judgment and sought to enjoin a foreclosure of his property. The complaint alleges that the foreclosure cannot proceed because the default notice does not strictly comply with the language of paragraph 22 of the mortgage. Borrower contends that since the foreclosure has not occurred, the prospective limitation in the Pinti decision has no meaning and should not apply as the rationale was to protect third party purchasers. In denying the borrower's request for a preliminary injunction, the court disagreed and found that the prospective nature of the Pinti decision does apply. Since the default notice was sent nearly four and a half years before the Pinti decision, strict compliance with the default language of the mortgage is not necessary. Additionally, the court found that the borrower does not have a likelihood of success on the merits of his breach of contract claim. The borrower has failed to show how he has been damaged by the breach of the failure to provide a strictly compliant default notice, considering he has not been confused and has brought suit twice to enjoin the foreclosure. (Attorney Kurt R. McHugh).

Boulanger v. Wells Fargo Bank, N.A., as Trustee (Appeals Court No. 14-P-1341) (Hampshire County Superior Court, Docket No. HSCV2012-00050) (October 13, 2015) (finding that (1) MERS could assign a mortgage without the express authority of the lender; (2) the borrower's lacked standing to allege that the assignment violated the terms of a PSA; and (3) the assignment complied with M.G.L.c.183 § 54B; consequently, rejecting the argument that the person who executed the assignment for MERS was not authorized to do so. (Attorney).

Tavares v. U.S. Bank, National Association, et al., Massachusetts Appellate Court, Docket No. 2014-P-0787 (Essex County Superior Court, Docket No. ESCV2011-00505) (2015 WL 4478043) (July 23, 2015) (Cypher, Green & Trainor, JJ.) Plaintiffs appealed a Superior Court summary judgment adverse to their claim that the defendants conducted a wrongful foreclosure of their home, and sought to expand the case to an action on wrongful debt collection. The Appeals Court affirmed the Lower Court's decision concluding that the Plaintiffs did no more than rest on their pleadings, and even on that standard failed to offer more than mere labels and conclusions and failed to provide detailed factual allegations. (Attorney Andrea V. Lasker)

MASSACHUSETTS TRIAL COURT VICTORIES

(Federal District Court, Bankruptcy Court, Superior Court, Housing Court, Land Court and District Court)

Keuchkarian, et al. v. Wells Fargo Bank, N.A., et al., United States District Court, Docket No. 17-10460 (2017 WL 1199768 )(Stearns, J.) (D.Mass, March 30, 2017) (suit challenging upcoming foreclosure sale dismissed because neither the obsolete mortgage statute nor the statute of limitations for filing a suit on a promissory note requires a mortgagee to conduct a foreclosure sale within six years of the acceleration of the note, and sale can proceed even if lawsuit for personal liability on the note may be barred by the statute of limitations governing notes). (Attorney Robert M. Mendillo).

Selene Finance, LP v. Willie D. Brown, United States District Court, Docket No. 16-11443 (Stearns, J.) (D.Mass, Feb. 3, 2017) (563 B.R. 451) (Bankruptcy Court's "forced vesting" order in Chapter 13 plan vacated as being unauthorized by the Bankruptcy Code, and secured creditor's appeal of the order was not rendered moot even though a stay was not sought or obtained). (Attorney Robert M. Mendillo).

Cellucci v. Bank of New York Mellon, et al. (Mass. Super. 2017) (Docket No. 1685CV00351) (Reardon, Jr., J.) ( Jan. 19, 2017) ("MERS's status as nominee does not preclude it from validly assigning the Mortgage, or limit its power to exercise a right of sale under the Mortgage," and recorded assignment from MERS to BNYM and the affidavit attesting that BNYM held the note and the mortgage constitute "uncontested evidence" that when "BNYM initiated foreclosure, it did so in accordance with the statutory requirements for the exercise of a statutory power of sale" as construed by the Supreme Court in Eaton). (Attorney Christine A. Murphy).

Agatha R. Jaffier v. Wilmington Savings Fund, et al., Norfolk County Superior Court, No. 1682CV01542 (Cannone, J.) (December 15, 2016): Mortgagor filed suit against foreclosing lender and loan servicer, alleging breach of contract and the covenant of good faith and fair dealing for the failure to adequately review the mortgagor's loan modification application and violations of M.G.L. c. 244 and M.G.L. c. 93A. In denying the mortgagor's request for injunctive relief, the court held that the mortgagor was not entitled to relief because (1) the mortgagor breached prior forbearance and loan modification agreements; (2) the mortgagor failed to submit additional information and submitted inaccurate information in connection to her loan modification application; (3) the lender had standing to foreclose and complied with M.G.L. c. 244; and (4) the mortgagor's claim under M.G.L. c. 93A falls short for the failure to serve the defendants with a demand letter. (Attorney Kurt R. McHugh)

Beneficial Massachusetts, Inc. v. Bruneau, Southeast Housing Court No. 15-SP-00961 (Chaplin, F.J.)(June 2, 2016): Mortgage does not contain the standard verbiage incorporating the HUD regulations, so the mortgagee was under no duty to comply with the regulation mandating a face to face meeting. No fundamental unfairness existed that could defeat the foreclosure/eviction concerning the plaintiff's loss mitigation processes as it introduced extensive communications with the borrower and proof that Defendants defaulted under the trial modification plan. Failure to send notice to one deceased borrower's estate did not render the foreclosure defective, as the two owned the property as tenants by the entirety with rights of survivorship. (Attorney Paolo Franzese).

Hasan v. Ditech Financial LLC, (Franklin County Superior Court, Docket No. 1678CV00103) (motion to enjoin sale denied because borrower's possible discharge in bankruptcy did not bar a foreclosure sale on his home, and borrower admitted he had been in default for 2 ½ years) (Attorney Robert M. Mendillo)

Ressler v. Deutsche Bank, Trustee, 2016 WL 4717659 (Dukes County Superior Court) (borrower's lawsuit dismissed because she lacked standing to claim that assignment of mortgage from original mortgagee to foreclosing mortgagee violated terms of pooling and servicing agreement, as she was not party to the agreement and her claim would at most render assignment only voidable and not void) (Attorney Robert M. Mendillo)

Ressler v. Deutsche Bank, Trustee, 2016 WL 4493199 (Dukes County Superior Court) (borrower's motion to enjoin foreclosure sale denied because mortgagee held the note and the mortgage; and borrower did not have standing to claim that foreclosing party was assigned mortgage in violation of pooling and servicing agreement (PSA) because such a claim would at most render the assignment voidable and not void) (Attorney Robert M. Mendillo)

Strawbridge v. Bank of New York Mellon (Mass. Super. 2016) (Docket No. 15-01023) (2016 WL 2989572) (Locke, J.) (holding that "MERS's status as nominee does not preclude it from validly assigning the Mortgage, or limit its power to exercise a right of sale under the Mortgage," and concluding that the recorded assignment from MERS to BNYM and the affidavit attesting that BNYM held the note and the mortgage constitute "uncontested evidence" that when "BNYM initiated a foreclosure in 2015, it did so in accordance with the statutory requirements for the exercise of a statutory power of sale as construed by the Supreme Court in Eaton).

DaCruz-Crossley, et al. v. U.S. Bank National Association (Mass. Super. 2016) (Docket No. 1681CV01458) (2016 WL 3017092) (Billings, J.) (denying a motion for preliminary injunction, holding that the borrower has no standing to raise a claim of breach of the PSA, and the chain of title of record establishes that the foreclosing mortgagee is entitled to exercise the power of sale under G.L.c.244, §14.

Central Mortgage Co. v. Lee, No. 2011-4208 (Mass. Super. Ct.) (August 28, 2015) (mortgage executed by borrower on behalf of himself and as guardian of two minor children where the Probate Court issued an order permitting the borrower to mortgage the minors' interests, is valid and enforceable against the interests of all parties) (Attorney Stephanie Sprague).

Morse v. Federal National Mortgage Association, et al. (2015 WL 1208363) (Land Court Docket No. 12 MISC 469307) (Speicher, J.) (dismissing a post-foreclosure try title action where the borrower challenged the validity of the foreclosure but failed to meet the burden of proof set forth by the SJC in Abaterequiring that the borrower demonstrates "better title" than the mortgagee).(Attorney).

Gelfgatt v. U.S. Bank National Association, et al. (2015 WL 1095685) (Essex County Superior Court Docket No. ESCV2012-01658B) (Feeley, J.) Borrower sued US Bank, NA claiming that it did not have authority to foreclose and that it failed to perfect their interest in the note under the uniform commercial code. Borrower argued that the assignment is void because MERS was the nominee for Homevest Mortgage Company and that MERS no longer had any authority to assign the mortgage after Homevest was dissolved. The court held that Homevest had conveyed its interest in the loan to US Bank well before the dissolution of Homevest and had the right to obtain an assignment from MERS. Furthermore, the court held that there is no evidence in the record that the loan was securitized or how US Bank had violated the UCC. (Attorney Kurt R. McHugh).

Cetoute v. DRRF SPE II, LLC, et al. (Mass. Bankr. Ct. AP No. 15-01113) (2015 WL 6159733 ) (October 8, 2015) (Bailey, J.) (ruling that the debtor did not have standing to "avoid" an assignment in an Adversary Proceeding case because the assignment was executed before a notary by someone purporting to be a vice president of the assigning entity - thus, the claim was barred by M.G.L.c.183 § 54B, as the assignment was at best voidable and not void). (Attorney).

Strawbridge v. The Bank of New York Mellon (Norfolk County Superior Court, No. 1582CV01023) (2015 WL 6157922 ) (October 7, 2015) (Connors, J.) (denying borrower's request for a preliminary injunction because (1) the bank's filing of an affidavit stating that it was acting as the authorized agent of the note holder shows compliance with Eaton and thus there was no Eaton violation; (2)MERS as the mortgagee has the ability to assign a mortgage so the assignment, especially as it was executed by someone purporting to be a MERS official and the assignment was notarized; and (3) any claim that the assignment was executed contrary to a pooling and servicing agreement would render the assignment voidable at best and thus the borrower had no standing to challenge it) (also concluding that although the balance of harm "plainly" weighed in the borrower's favor, that could not justify an injunction where the borrower failed to show "any appreciable likelihood of success on the merits.") (Attorney).

Household Finance Corp. II v. Carneiro, Southeast Housing Court No. 14-SP-01454 (2015 WL 5459518) (Sept. 10, 2015) (Chaplin, FJ) (under the SJC's recent Pinti decision, a mortgagee need only comply strictly with the terms of the mortgage concerning default notices for notices sent after July 17, 2015. For notices sent prior to the Pinti decision, substantial compliance is sufficient) (Attorney Paolo Franzese).

Central Mortgage Co. v. Lee, No. 2011-4208 (Mass. Super. Ct.) (August 28, 2015) (mortgage executed by borrower on behalf of himself and as guardian of two minor children where the Probate Court issued an order permitting the borrower to mortgage the minors' interests, is valid and enforceable against the interests of all parties) (Attorney Stephanie Sprague).

Newell v. America's Servicing Company and Harmon Law Offices (Norfolk Superior Court NOCV2014-01685) (2015 WL 4722647 (Mass. Super.)) (Brassard, J.) (July 31, 2015) (dismissing borrower's c.93A claim against law firm arising out of an acceleration letter sent in conjunction with foreclosure proceedings, because borrower was not in trade or commerce with foreclosure counsel and there could be no per se liability under 93A -based on a violation of c.93, section 49 or the FDCPA -because there was no allegation that foreclosure counsel " knew" that the 35A notice previously sent by its client was deficient, or that foreclosure counsel sent the acceleration letter for purposes of "'knowingly misleading" the borrower). (Attorney)

Lippincott v. JPMorgan Chase Bank, N.A., et al., United States District Court, Docket No. 1:14-cv-14400-GAO (2015 WL 4380584) (D.Mass., July 16, 2015) (Borrower's FDCPA claims relating to foreclosure dismissed because complaint alleged no facts demonstrating what was wrong with foreclosure notices or how foreclosure was improper; borrower's unsupported claims that foreclosure attorneys lacked authority to act for mortgagee or to produce evidence of their licensing oath were also dismissed without analysis.) (Attorney Scott C. Owens)

Windham v. Harmon Law Offices, P.C., United States District Court, Docket No. 1:15-cv-12809-FDS (2015 WL 4262469) (D.Mass., July 8, 2015) (Borrower's motion to enjoin imminent foreclosure sale denied. Borrower sued the wrong party, Harmon, instead of the non-party foreclosing mortgagee, JP Morgan Chase; and, borrower's chance of success on claims against Harmon "is minimal at best.") (Attorney Robert M. Mendillo)

Cruz v. The Bank of New York Mellon Trust Company, National Association (2015 WL 3794853 - unpublished disposition under Rule 1:28 ) (Middlesex County Superior Docket No. MICV2014-00417) (Appeals Court Docket No.: 2014-P-1302) (June 19, 2015) ( "declin[ing] to create an additional requirement (not present in the language of [G.L.c.244, section 35A]) that foreclosure proceedings must also be completed within five years of the notice [to cure]," also noting that even if it were to create such a requirement, "the mere allegation that the foreclosure sale occurred five years and nine days after the notice to cure, without an allegation that those nine days would have made a difference, does not meet" the fundamentally unfair standard needed to void a sale under Schumacher and Wain.) (Attorney)

New Hampshire Appellate Court Cases

Federal Home Loan Mortgage Corp. v. Willette, 2016 WL 145319, NH Supreme Court, January 12, 2016 (District Division of Circuit Court may resume eviction proceedings and issue a writ of possession after a borrower's plea of title (foreclosure challenge) before another court is dismissed). (Attorney Amie DiGiampaolo).

Betty Woodmansee, et al. v. Federal National Mortgage Association,(Rockingham County Superior Court, Docket No.: 218-2014-CV-00313) (New Hampshire Supreme Court, Docket No.: 2014-0511 ) (Dalianas, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ.) (May 12, 2015): The NH Supreme Court affirmed the Superior Court's (Delker, J.) ruling vacating a preliminary injunction against foreclosure. The Plaintiffs, the foreclosed mortgagors, alleged that they did not receive notice of a status conference held prior to the foreclosure and argued that the trial court erred by not holding a hearing before granting Defendant's motion to lift the injunction and by conditioning the injunction upon Plaintiffs making monthly mortgage escrow payments. The NH Supreme Court held that there is a presumption that a properly mailed communication has been received in the absence of contrary evidence and the order granting the injunction stated that the trial court would entertain Defendant's motion to lift the injunction if the Plaintiffs failed to make the monthly payments. The Court dismissed Plaintiffs' additional arguments because they failed to supply a complete record sufficient to rule on the issues. (Attorney Andrea V. Lasker)

New Hampshire Trial Court Cases

Patrick Garrett, et al. v. MTGLQ Investors, LP, et al., Merrimack County Superior Court, No. 2015-CV-0534 (2016 WL 7116705) (McNamara, J.) (October 21, 2016): Mortgagor filed suit against foreclosing lender and loan servicer, alleging the lender lacked standing to foreclose and breached the covenant of good faith and fair dealing by making misrepresentations about the mortgagor's loan modification application. The lender and loan servicer both moved for summary judgment. In granting the motion, the court held that (1) there was sufficient evidence that the lender had standing to foreclose; (2) the claims of misrepresentation and breach of the covenant of good faith and fair dealing against a prior loan servicer carry no weight against the lender or current loan servicer under Article 3 of the UCC, RSA 382-A:3-301: et seq.; and (3) the mortgagor's claims are barred by the doctrine of res judicata for the failure to bring forth the claims in three prior bankruptcy actions. (Attorney Kurt R. McHugh)

Luke Bates v. Harmon Law Offices, P.C., Merrimack County Superior Court, No. 2016-CV-625 (2016 WL 7116704) (McNamara, J.) (November 17, 2016): Pro se heir of borrower improperly filed suit against lender's foreclosure counsel, alleging the estate was provided inadequate time to obtain funds to pay of mortgage loan and the lender's purported failure to respond the heir's inquiries constituted unfair and deceptive acts. The heir's request for injunctive relief was denied because (1) a previously scheduled foreclosure auction was cancelled at the heir's request to allow additional time to sell the property and pay off the mortgage loan; and (2) the claim that the lender's actions were unfair and deceptive are unsubstantiated in light of evidence that multiple payoff statements were provided to the heirs. (Attorney Kurt R. McHugh)

Sykes v. Federal National Mortgage Association, et al., Docket No. 13-00334 (D.N.H.) (November 20, 2015) (DiClerico, Jr., J.) Pro se plaintiff brought claims against certain banks and mortgage providers alleging clams that arose from defendants' involvement in circumstances surrounding the 2009 foreclosure of plaintiff's home. Although the Court found that all of the claims were barred by the applicable statutes of limitations, plaintiff alleged that the limitation periods should be tolled based upon his alleged mental incapacity. The Court found that the summary judgment record established that Plaintiff was mentally competent for purposes of NH RSA 508:8 and federal equitable tolling during the relevant period and granted summary judgment in favor of all defendants. (Attorney Andrea V. Lasker).

Pine Brook Condominium Association v. Financial Freedom Senior Funding Corp., Rockingham County Superior Court No. 218-2014-CV-1330 (May 19, 2015): (Court allowed motion to dismiss action by condominium association seeking to avoid the mortgage. The Court found that a condominium lien lacked priority over first mortgage dated prior to January 1, 2011. Also, the mortgagee did not "abandon" the property by failing to foreclose immediately following default.) (Attorney Amie DiGiampaolo)

Wilson v. Specialized Loan Servicing, LLC, (Coos County Superior Court, Docket No. 214-2015-CV-00055) (2015 WL 4976526 (N.H. Super.)) (MacLeod, Jr., J.) (August 14, 2015) Plaintiffs moved to enjoin the foreclosure of their home based on their claim that they had a cash buyer for the property in an amount that would payoff defendant bank's lien in full. The Court found that plaintiffs were unable to sustain their burden of proving their right to injunctive relief because the purchase and sale was contingent on plaintiffs promptly procuring discharges from junior lien-holders and that plaintiffs made no claim that the bank acted in bad faith. The motion for injunctive relief was therefore denied, and the case dismissed.(Attorney Andrea V. Lasker)

Susan Skidmore v. Santander Bank, N.A., (Hillsborough County (South) Superior Court, Docket No 226-2014-CV-00719) (2015 WL 1801453 ) (Ignatius, J..) (April 14, 2015): Plaintiff filed an ex-parte motion to enjoin a foreclosure sale, which was granted pending a hearing. The parties agreed to a payment plan by which the plaintiff would make monthly payments and submit a loan modification application and the defendant would stay the foreclosure for three months. The plaintiff failed to comply with the agreement, and the Court allowed defendant's motion to enforce the agreement and dismiss the case. After the defendant proceeded to foreclose again, the plaintiff filed and obtained a second ex-parte motion to enjoin the foreclosure sale, pending another hearing, on the grounds that the plaintiff had complied with the terms of the prior agreement. Following the second hearing, the judge found that plaintiff's evidence of compliance was unpersuasive. The Court vacated the injunction and dismissed the case with prejudice according to the stipulated agreement. (Attorney Andrea V. Lasker)

FV-I, Inc. v. Best Rate Funding Corp., 2015 WL 3476947 (Mass.App.Ct., 2015) (unpublished disposition under Rule 1:28). (Trial court committed no error in allowing mortgagee to record a copy of an assignment in lieu of the original when the original was proven to be lost and the borrowers failed to raise a genuine issue concerning the authenticity of the photocopy submitted to the Court.) (Attorneys Stephanie Sprague and Thomas Santolucito)

Rhode Island Appellate Court Cases

Rhode Island Trial Court Cases

Porter v. First National Bank, --- A.3d ----, R.I., June 13, 2016 (RI 2016) (no cause shown for briefing or argument in borrower's appeal challenging summary judgment because borrower failed to provide affidavits or other competent evidence to raise any issue of material fact in the trial court) (Attorney Scott C. Owens)

Pimental v. Well Fargo Bank, NA et al. 2015 WL 5243325 (D.R.I.) (September 4, 2015) (Sullivan, Mag. J.) (recommendation of dismissal of FDCPA claim and invasion of privacy claim against foreclosure firm by Magistrate Judge; because pre-foreclosure default and acceleration notices expressly exempted personal liability due to borrowers' bankruptcy discharge, there was no debt collection for the purposes of FDCPA; foreclosure firm's sending statutory notice letters by first class mail did not constitute any invasion of plaintiffs' privacy) (Attorney Scott Owens).