2011 Case Successes Archive

Akar v. Federal National Mortgage Association 2011 WL 6288055 (D. Mass. 2011) (borrower’s various tort claims against Harmon Law Offices as attorneys for foreclosing entity dismissed: wrongful foreclosure claim dismissed because foreclosing entity lawfully foreclosed under Massachusetts law; trespass claim for Harmon’s auction-day entry on the premises dismissed because the foreclosure sale was valid; intentional infliction of emotional distress claim dismissed because the sale was valid; consumer protection claim under Chapter 93A dismissed because there was no business relationship in trade or commerce between the borrower and Harmon) (Attorney)

American Home Mortgage Servicing v. Blackadar, 2011 WL 4428703; 2011 WL 4428707 Essex Superior Court (MA 2011) (after two-day bench trial, court amended mortgage description to include easement rights over adjacent property controlled by borrower for septic and well service; although not a high cost loan under 183C, the court nevertheless applied 93A, generally, to restructure the terms of the loan, reducing the interest rate and extending the loan term; attorneys’ fees were awarded on the 93A counterclaim, but were offset against tax and insurance payments advanced by lender following default.) (Attorney Scott Owens)

Bank of America, NA v. Ahmad El Bey, Hampden Superior Court (MA 2011)

(in clear cloud action, decree enters dissolving the fraudulent mechanic’s lien) (Attorney Frederick Casavant)

Botsolis – Donald Watson v. BankUnited and Harmon Law Offices, P.C., Suffolk Superior (MA 2011) (Defendants’ motion for summary judgment allowed in part and denied in part. The motion was allowed as to the argument that plaintiff did not have standing in his individual capacity to bring claims against BankUnited (all claims relating to Watson in his individual capacity were dismissed) and was also allowed as the judge concluded that BankUnited was exempt from the provisions of G. L. c. 183C due to its status as a federal thrift. The motion was denied as to the plaintiff’s claim of unfair and deceptive practices under G. L. c. 93A. The judge ruled that the loan in the case at bar was similar to the loans in dispute with regard to Commonwealth v. Freemont Investment & Loan, 452 Mass. 733, 742 (2008) in that it was an adjustable rate loan with an introductory period of three years or less, the mortgage application showed that Ms. Botsolis (while she was living) did not have income from an employer, the loan was for an amount equaling about 90% of her property value at the time, and because there was a prepayment penalty. The judge concluded that due to these facts, BankUnited “knew or should have known that Ms. Botsolis would be unable to repay her loan.”) (Attorney)

City of Malden v. Flores, 2011 WL 4460714 Malden District Court (MA 2011) (receivership statutes apply to both vacant and occupied buildings, and nuisances can exist in occupied or un-occupied buildings, but receiver’s budget limited to repairs needed to ensure compliance with minimum health and safety standards) (Attorney Joshua Shakun)

City of Malden v. Rendon, 2009 WL 8413628 Malden District Court (MA 2011) (city’s duty (through receiver) is to have code violations repaired for the safety of the occupants and public, and not to engage in complete renovation and remodeling of property in violation of respondents’ rights) (Attorney Joshua Shakun)

Contreras v. Deutsche Bank and Harmon Law Offices, 2011 WL 4403838 Suffolk Superior Court (MA 2011) (former owner’s claims against law firm for alleged wrongful foreclosure of a rental property and eviction of tenants dismissed because no factual allegations were directed at the firm’s conduct; moreover, although the dismissal was without prejudice to amend the claims against the firm, the court noted its awareness of the litigation privilege even though it did not rely on that defense in dismissing the original complaint) (Attorney Scott Owens)

Federal Home Loan Mortgage Corp v. Min, Boston Housing Court (MA 2011) (MERS had authority to assign mortgages, postponement of foreclosure by public proclamation is acceptable, and defendant may not raise tort-based loss mitigation claims as a defense to possession) (Attorney Paul Manning)

Federal Natl’l Mortgage Assn. v. Hendricks, Boston Housing Court No. 10H84SP003045 (MA 2011) (in a decision that was upheld by the Supreme Judicial Court, a foreclosure affidavit that closely resembles the statutory form may be considered as evidence of title) (Attorney Anthony Coletti)

Federal Natl’l Mortgage Assn. v. Hendricks, Boston Housing Court No. 10H84SP003045 (MA 2011) (although appeal bond was waived, former owner is required to make monthly use and occupancy payments for the duration of an appeal) (Attorney Anthony Coletti)

Gilbert v. Federal National Mortgage Association, 2011 WL 1364019 Middlesex Superior Court (MA 2011) (wrongful foreclosure complaint dismissed because allegations based on belief that FNMA and not WAMU and Chase held mortgage at time of sale contradicted by documents attached to complaint showing that WAMU and Chase held the mortgage; FDIC as receiver for WAMU could transfer assets under federal statute without any approval, assignment or consent; claims against Harmon also dismissed) (Attorney Jennifer Normand)

Larcheveque v. PNC Bank, et al., 2011 WL 5841044 Worcester Superior Court (MA 2011) (borrower’s request for preliminary injunction to forestall an eviction following foreclosure denied, inter alia, because: 1) Plaintiff provided no basis he would suffer irreparable harm should injunctive relief not issue – emotion aspects aside, counsel made no showing of rights to a particular piece of property are not ultimately subject to repair by judgment as to its value; 2) Plaintiff offered no evidence of attempting to negotiate in good faith to cure his default, renegotiate his loan, or offer any payments at all during the two years that lapsed between his default and the foreclosure, where he remained in the house, evidently for free; 3) Plaintiff’s “threadbare presentation” that PNC made an oral representation to forbear the delinquency – which PNC denied – presents a question of fact that falls short of showing a likelihood of success on the merits; and 4) G.L c. 183 § 27 does not provide a remedy for its alleged violation, let alone a basis for injunctive relief) (Attorney Thomas Lavallee)

Mejia et al v. CitiMortgage, Inc., et al., 2011 WL 4428708 Essex Superior Court (MA 2011) (borrowers’ motion for TRO to stop conveyance to the party that purchased the property at foreclosure sale denied as the plaintiffs were unable to establish irreparable harm) (Attorney)

Pittol v. Wells Fargo Bank, N.A. 2011 WL 704507; 2011 WL 940345 Land Court (MA 2011) (plaintiff initiated this action on the grounds that Wells Fargo wrongfully foreclosed on his home as Freddie Mac and not Wells Fargo was the owner of his mortgage. Wells Fargo’s motion for summary judgment successfully argued the difference between the “owner” of the mortgage and the “holder” of the mortgage and that the two may be separate entities. The court ultimately concluded that the foreclosure sale was properly conducted as Wells Fargo was the holder of the mortgage at the time of the foreclosure sale.) (Attorney)

Rosa et al. v. MERS et al., 2011 WL 4381191 U.S. District Court (MA 2011) (Plaintiff alleged that the original Lender (Pinnacle Corp.) had been dissolved and claimed that MERS did not have the right to assign because the assignment occurred after the dissolution of the lender; therefore MERS was unable to establish that it was authorized to assign. The Court ruled that the case is similar to Kiah, where the original lender was defunct due to a bankruptcy filing but the court still found that MERS could assign because of the successor and assigns language contained in the mortgage. The Court indicated it was not inclined to follow the limited Eaton ruling and determined that when HSBC became holder was irrelevant, even though the endorsement was undated. The court cited extensively to Kiah, Aliberti and In re Marron) (Attorney Jennifer Normand)

Santos v. BAC Home Loans Servicing, LP, 2011 WL 4428706 Middlesex Superior Court (MA 2011) (plaintiff’s prayer for preliminary injunction to enjoin BAC from evicting Plaintiff following foreclosure denied. Plaintiff failed to meet pleading standards to warrant the “drastic remedy.” Apart from general blanket statements, complaint was devoid of information or corroborating documents evidencing that an alleged trial loan modification agreement was ever contemplated or existed) (Attorney Thomas Lavallee)

Santos v. Federal Home Loan Mortgage Corporation et al., Middlesex Superior Court (MA 2011) (Borrower’s claims for breach of contract, breach of duty to act in good faith, and intentional infliction of emotional distress, were all dismissed because, inter alia, the borrower rejected an offer for a lower rate mortgage payment prior to the foreclosure sale) (Attorney Thomas Lavallee)

Santospirito v. Central Mortgage Company, Norfolk Superior Court (MA 2011) (In light of borrower’s failure to make any payments in over three years, court conditions issuance of preliminary injunction against foreclosure on borrower’s payment of $80,000 plus payments of approximately $4,000 every three months throughout pendency of case) (Attorney Jennifer Normand)

Saroni v. U.S. Bank, et al., 2011 WL 4428704 Middlesex Superior Court (MA 2011) (Defendants U.S. Bank and MERS’s motion to dismiss plaintiff’s complaint was denied in part and allowed in part. Judge concluded that Plaintiff had sufficient standing on Counts I (Unfair and Deceptive Practices under G.L. c. 93A), II (Breach of Implied Covenant of Good Faith and Fair Dealing), and III (Breach of Contract), but strongly urged Plaintiff to amend his complaint to articulate the claims more clearly. Count IV (Fraud and Misrepresentation) was dismissed as the Judge concluded that Saroni’s claims of fraud were brought after the expiration of the statue of limitations (3 years), that any acts of fraud occurred before U.S. Bank was involved in Saroni’s loan, and that no allegation was made that U.S. Bank induced Saroni to act based upon any misrepresentation of fact) (Attorney)

Theriault v. Wells Fargo Home Mortgage, et al., 2011 WL 4428709 Essex Superior Court (MA 2011) (borrowers’ claims for wrongful foreclosure, fraud, conspiracy, etc. against Wells Fargo and Harmon dismissed as borrower has not met the pleading standards: “A complaint that makes no factual allegations against a party fails to meet the pleading requirements of Mass.R.Civ.P.8 (a)”)

Wells Fargo Bank v. McKenna, 2011 WL 6153419 Mass. Land Court (MA 2011) (in Servicemembers’ action filed with Land Court, the Court ruled that Plaintiff did have standing as Plaintiff is the current mortgagee) (Attorney Frederick Casavant)

Balansky v. Commonwealth Auction Associates, Inc., NH Supreme Court (NH 2011) (denial of borrowers’ equal protection challenge to statute of limitations in NH RSA 479:25, II (foreclosure statute) affirmed because plaintiffs failed to articulate how statute lacks rational basis and thus failed to overcome presumption of statute’s constitutionality) (Attorney Joshua Shakun)

Nationstar Mortgage, LLC v. Marie Miller, NH Supreme Court (NH 2011) (Miller appealed the decision granting Nationstar’s motion for summary judgment on its claim for possession and dismissing Miller’s claims for damages in a plea of title action in the Superior Court. The NH Supreme Court affirmed the trial court decision holding that Miller failed to provide a sufficient record on appeal and that her jurisdictional and constitutional arguments were either unsupported by the record or not sufficiently developed) (Attorney Joshua Shakun)

American Home Mortgage Servicing v. Estate of Kaufman, Grafton Probate Court (NH 2011) (lender’s petition for attachment granted because it has shown likelihood of success on the merits; motion for memorandum of lis pendens is moot, and if property is sold before trial the net proceeds shall be held in escrow) (Attorney Kristin Grant)

Bekier v. CitiMortgage, 2011 WL 4428715 Cheshire Superior Court (NH 2011) (court denied preliminary injunction based upon finding that last minute submission of a “forensic audit” of her loan was not credible, she had unclean hands due to her 3-year delinquency, and there was no private right of action based upon allegations of RESPA and other claims) (Attorney Andrea Lasker)

Blackburn v. Deutsche Bank National Trust Company, 2011 WL 4428712 Hillsborough Superior Court (NH 2011) (Plea of title trial, writ of possession to issue for Deutsche Bank, which purchased property at foreclosure sale; plea of title action “in the superior court is simply a continuation of the eviction proceeding that began in the district court,” so Deutsche Bank has burden of proof; borrower’s claims regarding events that occurred before the foreclosure sale barred by statute because he did not raise those claims in his petition to enjoin the sale; claim as to conduct of sale could be pursued because it was raised within a year and a day of the sale, but court finds that sale was conducted properly) (Attorney Joshua Shakun)

Federal National Mortgage Association v. Goyal 2011 WL 4403839 Hillsborough Superior Court (NH 2011) (former owners/occupants alleged plea of title in post-foreclosure eviction action brought by FNMA in the District Court, which was transferred to the Superior Court. The borrowers sought to invalidate FNMA’s foreclosure on the grounds that it was not the mortgagee’s assignee at the time it published two of the foreclosure notices. On cross-motions for summary judgment, the Court granted FNMA’s motion and denied the borrowers’ motion. The Court held that the foreclosure challenge was precluded by RSA 479:25, II, which bars any action on grounds that could reasonably have been known by the borrower prior to foreclosure, because it was clear from multiple instances of correspondence sent to FNMA’s counsel pre-foreclosure that the borrowers were aware of the issue. Further, the Court distinguished the Trotter decision, which is the NH analog of MA’s Ibanez, and held that FNMA was the mortgagee’s assignee at all relevant times because the transfer of the note ipso facto transfers the mortgage and, unlike in MA, an assignment of mortgage is outside the statute of frauds) (Attorney Joshua Shakun)

Federal National Mortgage Association v. Tej Rana, 2011 WL 4403840 Merrimack Superior Court (NH 2011) (after District Court transferred eviction case following former owner/occupant’s plea of title without addressing issue of recognizance, Superior Court held that FHLMC was “entitled to recognizance” as a matter of statute) (Attorney Scott Owens)

Powers v. Aurora Home Loan Services, 2011 WL 4428713 Cheshire Superior Court (NH 2011) (complaint to enjoin foreclosure dismissed because MERS (as nominee for GreenPoint) had authority to assign its mortgage to Aurora, and thus Aurora had standing to foreclose; New York case law to the contrary rejected; Massachusetts law followed; “the use of MERS as a nominee is in and of itself is neither fraudulent nor wrong” as the language of mortgage to MERS recognizes that MERS can assign mortgage.) (Attorney Joshua Shakun)

US Bank, N.A. v. Plouffe, et. al., Rockingham County Superior Court (NH 2011)

(In response to U.S. Bank’s eviction action, the borrowers transferred this matter to the Superior Court to pursue their plea of title. They alleged that the foreclosure was invalid because U.S. Bank did not have standing to foreclose and that the price obtained at auction was commercially unreasonable as the auction was conducted in the midst of a severe snowstorm. U.S. Bank’s motion for summary judgment was allowed with the Court holding that U.S. Bank had standing to foreclose and that the sale price, which was 79% of the fair market value, “did not shock the conscience of the court and was fair”)

(Attorney Joshua Shakun)

Collado v. Wells Fargo, 2011 WL 4793514 U.S. District Court (RI 2011) (Complaint against Harmon dismissed because borrower alleged no facts or legal claims against Harmon, and Harmon as foreclosure counsel for lender owed no duty to borrower.) (Attorney Bethany Whitmarsh)

Porter v. First NLC Financial Services, LLC, 2011 WL 4428719 Providence Superior Court (RI 2011) (MERS as mortgagee of record has standing to foreclose, following rationale of Bucci (RI) and similar Mass. cases; even though MERS was not the lender and did not hold the note, it could invoke statutory power of sale as mortgagee; plaintiff’s complaint to declare the foreclosure sale invalid is dismissed on summary judgment.) (Attorney Bethany Whitmarsh)