2010 Case Successes Archive

CitiMortgage, Inc. v. Santos, Western Housing Court (MA 2010) (90-day notice requirement of Protecting Tenants at Foreclosure Act of 2009 preempts state law requiring notices to quit to terminate a tenancy on a day when rent is due) (Attorney Daniel Murphy)

May v. Suntrust Mortgage, Inc., 2011 WL 4102805 U.S. Bankruptcy Court (MA 2010) (Adversary proceeding in which the debtors alleged against SunTrust violations of G.L. c. 140D § 10(A) and 209 CMR 32.23 on the grounds that Summit (the original lender) failed to provide the proper number of Notices of Right to Cancel to the debtors at the time of the loan transaction (Count 1) and that the finance charge at the closing was understated by more than $35.00 (Count 2). In its motion, SunTrust was seeking dismissal of the portion of Count 1, in which the debtors’ alleged that they were entitled to attorney’s fees, on the ground that such a claim is not available against SunTrust, the assignee, where the alleged violation is not apparent on the fact of the loan documents; and dismissal of Count 2 on the ground that it is time-barred. The Court allowed SunTrust’s motion) (Attorney)

Albert v. Citimortgage, Inc., 2010 WL 7508511 Norfolk Superior Court (MA 2010) (borrower’s application for further extension of preliminary injunction denied because allegations of complaint do not appear to state a claim, there is no likelihood of success on the merits, and there is no risk of irreparable harm because bank agreed not to foreclose as long as borrowers made payments under special forbearance agreement plan) (Attorney Jennifer Normand)

BAC Home Loans Servicing, LP f/k/a Countrywide Home Loan Servicing, LP v. Larry J. Meilleur, et al., Mass. Land Court (MA 2010) (defendants’ motion to vacate default judgment in mortgage foreclosure case denied because court finds no showing of excusable neglect in the failure to answer and no showing of any meritorious defense to be advanced by the defaulted defendant should judgment be vacated) (Attorney Frederick Casavant)

Bailey v. Wells Fargo Bank, NA, 437 B.R. 721 Mass. Bankruptcy (MA 2010)

(Wells Fargo’s motion to dismiss declaratory judgment claim that it was not actual holder of the mortgage at the time of the foreclosure denied because debtor had adequately pled facts to support his claim; debtor’s claim for breach of covenant of good faith and fair dealing dismissed because he alleged he had no contract with Wells Fargo, and absent contract there could be no breach of covenant, and debtor did not allege any bad faith conduct even if there were a contract; debtor’s claim for intentional infliction of emotional distress dismissed because even if Wells Fargo foreclosed without authority, the facts pled cannot support a claim that Wells Fargo’s conduct was intentional; negligent infliction of emotional distress claim dismissed because debtor has not alleged any physical harm; unjust enrichment claim dismissed because debtor was obligated to pay someone; 93A claim also dismissed.) (Attorney Jennifer Normand)

Bean v. Wells Fargo Bank, NA, 2010 WL 7508819; 2010 WL 7508820 Essex Superior Court (MA 2010) (plaintiff’s complaint seeking Superior Court relief from Land Court judgment against him dismissed because plaintiff’s “appeal” is barred by res judicata, and any appeal of Land Court judgment must be taken to the Appeals Court) (Attorney)

Citibank, N.A. as Trustee v. Collette, 2010 WL 7746835 Mass. Land Court (MA 2010) (MERS, as mortgagee of record, can validly assign mortgage without need to demonstrate authorization from its principal; Harmon attorney acting as officer of MERS has authority to execute assignment, and is not disqualified from doing so because Harmon represented mortgagee against borrower; borrowers motion to vacate Servicemember’s Act judgment denied) (Attorney Carrie Rosenman)

DaCruz v. US Bank, National Association, Middlesex Superior Court (MA 2010) (motion to enjoin foreclosure sale denied because borrower not likely to show success on claims under c. 183C or c. 93A, or for breach of covenant of good faith and fair dealing, as the complaint was devoid of any factual allegations of any wrongdoing on the part of US Bank) (Attorney)

GMAC Mortgage, LLC v. Sara-Lynn Reynolds 2010 WL 7746836 Land Court (MA 2010) (GMAC filed a complaint in the Land Court pursuant to the Servicemembers’ Act. Defendants filed a motion to dismiss on the premise that GMAC did not have standing to foreclose. Defendants’ motion denied as the complaint filed with the Land Court by the foreclosing entity is merely a formality to ensure future purchasers of the property that the foreclosure sale was not defective in that it failed to allow protections to those entitled under the SCRA and neither defendant qualified as being entitled to relief under this act. Additionally, it was further ruled that GMAC did in fact have grounds to foreclose as it was the physical holder of both the note and the mortgage.) (Attorney)

Gualtieri v. Equity One, Inc. 2010 WL 7508818 Bristol Superior Court (MA 2010) (action alleging fraud and breach of contract in the origination of the loan dismissed at summary judgment because Gualtieri could not establish a genuine issue of fact and his interrogatory answers demonstrated that he could not state the basis for his fraud and breach of contract claims) (Attorney Joshua Shakun)

LaPierre et al. v. US Bank National Bank Association Trustee et al., 2010 WL 7508823 Worcester Superior Court (MA 2010) (Court dismisses all claims by non-borrower wife/occupant as to MERS, servicer, foreclosing entity and Harmon due to lack of standing; Harmon is not exercising the power of sale, so count for wrongful foreclosure dismissed; judgment for defendants on FDCPA claims regarding misrepresentation of application of payments and terms of forbearance agreements) (Attorney Jennifer Normand)

Molloy v. JP Morgan Chase Bank, et al., 2010 WL 7508815 Middlesex Superior Court (MA 2010) (in complaint against mortgagee and Harmon as mortgagee’s attorneys, claims against Harmon under various statutes (RICO, RESPA, TILA, HOEPA, and Chapter 93A) and for various state law torts (breach of fiduciary duty, unjust enrichment, conversion, and fraud) dismissed because Harmon had no role in the origination of the loan, Harmon owed no duty to the borrower because it was representing the mortgagee, and the litigation privilege protected Harmon from liability for alleged misrepresentations in actual or contemplated judicial proceedings) (Attorney)

Mortgage Electronic Registration Systems, Inc. v. Anne-Marie M. Galiastro and Joseph A. Galiastro, 2010 WL 7746838 Land Court (MA 2010) (MERS filed an action in the Land Court pursuant to the Servicemembers’ Act. Defendants subsequently filed a motion to dismiss the action on the ground that MERS was not actually the holder of the mortgage it was seeking to foreclose, which was denied. Defendants then filed a motion for reconsideration of this decision and also filed an affidavit in support of their motion. A response to this motion as well as a motion to strike the affidavit was filed on behalf of MERS. The Court denied the Defendants’ motion for reconsideration, and allowed MERS’ motion to strike on the grounds that “defendants seem to forget, or purposely ignore, the fact that this is a Servicemembers’ case”) (Attorney)

Palmucci v. BAC Home Loans Servicing, LP, 2010 WL 7508822 Norfolk Superior Court (MA 2010) (borrower’s claims against firm dismissed under Rule12(b)(6) on grounds that firm had no duty to the plaintiff and thus the alleged irregularities complained of by plaintiff (notices by certified v. registered mail; various HAMP issues) would not provide the basis for a claim against the firm) (Attorney Scott Owens)

Potaris v. OneWest Bank, FSB, 2010 WL 7508817 Middlesex Superior Court (MA 2010) (plaintiff’s request to enjoin foreclosure denied because plaintiff has not demonstrated that she has a probability of establishing that the loan itself was unfair to her; as for the claim of fraud due to incorrect income numbers, borrower was equally responsible since she did sign the document stating the incorrect income amount; based on the evidence provided about HAMP, lender is not obligated to modify the terms of the original loan) (Attorney)

Silva v. OneWest Bank, FSB, 2010 WL 2432046 Middlesex Superior Court (MA 2010) (plaintiff’s motion for preliminary injunction denied because plaintiff has not demonstrated a substantial likelihood of success on the merits of 93A claim) (Attorney)

US Bank, N.A. v. MERS Dukes Superior Court (MA 2010) (Galvins gave a mortgage to MERS, then MERS assigned the mortgage to a non-existent entity. Because of that title is not clear, and we cannot obtain an assignment from the non-existent entity into our client, the correct entity. Therefore, we filed a Clear Cloud Complaint to expunge the assignment so client can have clear title on the property. We brought the complaint in the name of the current holder of the mortgage even though there is no assignment into the correct entity, as we cannot obtain one from a non-existent entity. The Galvins’ argued that our client did not have standing to bring the case in the name of the current holder of the mortgage as we are not on record yet. We provided the Court an affidavit from client stating that it is the true holder of the mortgage and provided the pooling and servicing agreement evidencing the relationship of our client with the borrowers’ loan. Motion to dismiss denied.) (Attorney Carrie Rosenman)

US Bank, N.A. v. Hanlon, 2010 WL 7746839 Mass. Land Court (MA 2010)

(borrower’s motion to dismiss Servicemembers’ complaint denied because US Bank had sufficient standing to proceed as the only purpose of filing of the complaint was to determine that the defendants were not entitled to benefits of the Act) (Attorney)

Wells Fargo Bank, N.A. v. Bean, 2010 WL 7746841 Mass. Land Court (MA 2010) (defendants’ motion to dismiss Servicemembers’ complaint for lack of standing is denied, bank has sufficient standing to obtain determination of the Beans’ status under the Act) (Attorney)

NEW HAMPSHIRE APPELLATE VICTORIES

(First Circuit Court of Appeals and New Hampshire Supreme Court)

Amadio v. Nationstar Mortgage, 2010 WL 7508513 Rockingham Superior Court (NH 2010) (petition to enjoin foreclosure denied because borrower could have prioritized his obligation to the bank sooner and taken steps to meet his monthly obligations, so it would not be equitable to allow the borrower to avoid the terms of the parties’ contract) (Attorney Andrea Lasker)

Ferguson v. National City Mortgage, 2010 WL 7508514 Rockingham Superior Court (NH 2010): (after considering the witnesses’ testimony and exhibits and the parties’ trial memoranda, the court concluded that the defendant properly conducted the foreclosure sale in accordance with Murphy v. McQuade. The court found that it is not the bank’s responsibility to ensure that potential buyers, who have signed a purchase and sale agreement before foreclosure, not take advantage of the foreclosure status of the property at the time of the auction.) (Attorney Andrea Lasker)

Kerkam v. CCO Mortgage Corporation, 2010 WL 7508825, 7508827 Carroll County Superior Court (NH 2010) (plaintiffs filed a petition to enjoin the foreclosure based upon their belief that they were still in review for a loan modification. The Court concluded that the record did not support a finding that the defendant acted in bad faith or made misrepresentations, and denied the injunction) (motion for reconsideration denied) (Attorney Andrea Lasker)

Kinsley v. Wells Fargo Bank, N.A., 2010 WL 7508826 Belknap County Superior Court (NH 2010) (plaintiff requested 180 days to market and sell her home to forestall foreclosure but the Court found that the petitioner had not shown a likelihood of success on the underlying merits and denied injunctive relief.) (Attorney Andrea Lasker)

Federal National Mortgage Association v. Dean Manor Condominium Association, et al., 2010 WL 7508515 Providence Superior Court (RI 2010) (under prior condominium lien and foreclosure statutes, first mortgagee maintained priority over the condominium lien where the first mortgagee had not foreclosed because no six-month priority lien had been created; consequently the purchaser at the condominium foreclosure sale took title subject to the first mortgage) (Attorney Bethany Whitmarsh)