2012 Case Successes Archive

Brennan v. Harmon Law Offices, P.C., 83 Mass.App.Ct. 1125 (2012), 2012 WL 1069277 (borrower’s second suit against lender and its attorneys properly dismissed based on res judicata) (Attorney)

CitiMortgage, Inc. v. Blanchette, 82 Mass.App.Ct. 1122 (2012), 2012 WL5845330 (affirming Land Court ruling denying emergency motion to vacate judgment that borrower not entitled to the protection of the Servicemembers Civil Relief Act) (Attorney Scott Owens)

Deutsche Bank Nat’l Trust Co. v. Gabriel, 81 Mass.App.Ct. 564 (2012) (“property conditions” defenses are not available to former owners and household members following a foreclosure; statutory form foreclosure affidavit may be considered as evidence of title over hearsay objections) (Attorney Thomas Santolucito)

Gilbert v. Federal National Mortgage Association, 81 Mass.App.Ct. 1128 (2012), 2012 WL 1172188 (judgment dismissing complaint challenging lender’s right to foreclose affirmed because the allegations of the complaint were “speculative” and “contradicted the exhibits attached to the complaint”) (Attorney Jennifer Normand)

U.S. Bank Nat’l Assn. v. Boyer, 82 Mass.App.Ct. 1102 (2012) (affirming trial court judgment for possession where the former owner denied receiving the notice of foreclosure sale) (Attorney Thomas Santolucito)

Conrad v. Federal Home Loan Mortgage Corp., 2012 WL 2335271 Barnstable Superior Court (MA 2012) (breach of contract, breach of the implied covenants of good faith and fair dealing, promissory estoppel, violations of G.L.c. 93A, negligent infliction of emotional distress, and negligent misrepresentation claims dismissed for failing to meet statutory requirements, failing to plead with particularity, and because mortgagee’s attorneys owed no duty to plaintiff) (Attorney Thomas Lavallee)

Comeau v. Steel Mountain Homes LLC , Worcester Superior Court (MA 2012)

(preliminary injunction preventing foreclosure vacated because plaintiff failed to comply with “specific and clear conditions imposed…for the stay of foreclosure to remain in effect,” and because plaintiff “provided false information to the court” when he stated that a payment had been previously mailed) (Attorney)

Fannie Mae a/k/a Federal Nat’l Mortgage Assn. v. Kingsley, Southeast Housing Court (MA 2012) (service of notice to quit upon former owners following foreclosure is a courtesy and not a prerequisite to invoking summary process) (Attorneys Anthony Coletti and Nancy Morency)

Federal National Mortgage Assn. v. Loughery, Southeast Housing Court (MA 2012) (former owner lacks standing to challenge power of attorney authorizing individuals to execute assignments on behalf of assignor; power of attorney executed by an appropriate officer is valid without further proof of authority) (Attorneys Sarah Billeri and Nancy Morency).

Federal Nat’l Mortgage Assn. v. Notargiacomo, Northeast Housing Court (MA 2012); and Federal Nat’l Mortgage Assn. v. Rosa, Northeast Housing Court (MA 2012) (notice of right to cure was not defective because it was sent by a loan servicer instead of the mortgage holder of record) (Attorney Sarah Billeri)

Galiastro v. Mortgage Electronic Registration Systems, Inc., Worcester Superior Court (MA 2012) (TRO to prevent foreclosure denied because entity to which MERS had assigned mortgage was not a party to the case) (Attorney)

Gelfgatt v. U.S. Bank, National Association, Suffolk Superior Court (MA 2012) (motion to enjoin foreclosure denied because plaintiff “is trying to defeat a valid mortgage on his property, basically to have his house free of any mortgage,” and because plaintiff was under indictment in three counties (a total of 61 counts) for uttering false documents, forgery, and attempt to commit a crime)

Henry v. Provident Funding Assoc. LP, 2012 WL 2913502 Suffolk Superior Court (MA 2012) (claims of negligent underwriting, fraudulent conveyance, negligent eviction, and violation of Chapter 93A dismissed, with court ruling that claim of negligent underwriting does not represent “a reasonable extension of a previously recognized common law duty”) (Attorney Jennifer Normand)

Howell v. JP Morgan Chase Bank , 2012 WL 1537961 Essex Superior Court (MA 2012) (plaintiff’s request for TRO to prevent defendant from acting on an execution and judgment issued by the Housing Court denied because “there is no likelihood that the plaintiff….can succeed on the merits, based upon the preclusive effect of prior judgments handed down in this matter by the Land Court and Housing Court”) (Attorney)

Locke v. Bank of America, N.A. 2012 WL 6928122 Essex Superior Court (MA 2012) (preliminary injunction to enjoin the foreclosure denied because the property was investment property; no payments had been made for over a year; and plaintiff refused to submit new loss mitigation paperwork, but rather sought to reinstate a previous loan modification offer that had already been denied after plaintiff failed to make timely payments; noting that plaintiff “is actually asking this court to write a new modification plan for her mortgage…,” with the court stating “This the court will not do.”) (Attorney Roger Doucette)

Mack v. Wells Fargo Bank, N.A. et al 2012 WL 3854952 Worcester Superior Court (MA 2012) (complaint for contempt dismissed against all defendants because plaintiff “has failed to meet her burden of proof, that is, she has not shown a clear and undoubted disobedience of a clear and unequivocal command of the court and certainly has not approached the evidentiary standard of clear and convincing evidence”) (Attorneys Jennifer Normand and Robert Mendillo)

Spangenberg v. Aurora Loan Services, LLC Norfolk Superior Court (MA 2012) (Motion to enjoin foreclosure sale denied because after borrower was permitted to obtain an expert’s examination of the original note and report back to the court, no report was filed with the court; plaintiff did not dispute being in default, and had not made payments for years) (Attorney)

U.S. Bank, N.A. v. Daigneault, Mass. Land Court (MA 2012): (plaintiff sought judgment that defendant is not entitled to the benefits of the Servicemember’s Civil Relief Act. Rather than claim to be entitled to the benefits of the Act, defendant raises a counterclaim challenging plaintiff’s standing to bring action, “a jurisdictional pre-requisite for the plaintiff to obtain the judgment it seeks.” The court ruled that the recorded assignment of mortgage gives plaintiff standing, and in addition, because defendant is “neither a certificateholder…nor its intended beneficiary, and thus has no standing…” to challenge plaintiff’s action) (Attorney J. Lawrence Von Barta IV)

U.S. Bank, Nat’l Assn. v. Schumacher, Worcester Housing Court No. 10-SP-1207 (MA 2012) (in this high-profile case, currently under review by the Supreme Judicial Court, the Housing Court rejected the former owner’s purported defense that the mortgagee failed to send a right to cure notice in compliance with G.L. c. 244, § 35A) (Attorney Daniel Murphy)

U.S. Bank, N.A. v. Twomey, 2012 WL 2335295 Middlesex Superior Court (MA 2012) (plaintiff mortgagee successfully obtained declaratory judgment reinstating a mortgage that was erroneously discharged) (Attorney Scott Owens)

Catovic v. Federal National Mortgage Association, 2012 WL 6784523, New Hampshire Supreme Court (NH 2012) (order of dismissal affirmed because the plaintiffs failed to provide a record demonstrating that they raised their appellate issues in the trial court) (Attorney Scott Owens)

Ferguson v. National City Mortgage, 2012 WL 6869638, New Hampshire Supreme Court (NH 2012) (judgment issued after bench trial affirmed because the Court “cannot conclude that that trial court’s decision was either unsupported by the evidence or erroneous as a matter of law”)(Attorney Andrea Lasker)

Baril v. Harmon Law Offices, P.C. Rockingham Superior Court (NH 2012)

(borrower’s claims against firm for breach of fiduciary duty, negligent employment and supervision, breach of implied covenants of good faith and fair dealings, violations of consumer protection act, and fraud dismissed because borrower was not a client of Harmon, and Harmon owed no fiduciary duty to borrower) (Attorney Scott Owens)

Fortier v. Sovereign Bank, Rockingham Superior Court (NH 2012)

(TRO preventing foreclosure vacated because due to lack of merit in legal claims “the continuance of the injunction on the foreclosure is not appropriate”) (Attorney Andrea Lasker)

Lugo v. Aurora Loan Services Strafford Superior Court (NH 2012) (Defendant successfully obtained preliminary injunction lifted after plaintiff failed to report on process towards reaching an amicable resolution through loss mitigation or a short sale. The court recognized that plaintiff “succeeded in delaying foreclosure for over one year and thereby accomplished her goal set out in her initial petition. However, after considering all the evidence and the circumstances, I find and rule that [Plaintiff] has not met her burden of proving that it is unfair at this juncture to allow foreclosure to proceed”)

Miller v. Nationstar Mortgage, LLC, et al 2012 WL 3637456 (D.N.H.) (borrower’s attempt to re-litigate alleged wrongful foreclosure and wrongful eviction barred by prior state court judgments against her; case dismissed.)
Wells Fargo Bank, N.A. v. Reidy, et al Strafford Superior Court (NH 2012)

(Plaintiff sough the eviction of defendants from foreclosed property. Defendants counterclaimed challenging plaintiff’s standing to bring eviction proceedings, arguing ownership of the property was in dispute. The court denied defendant’s motion to dismiss stating defendants “had been accorded sufficient opportunity to be apprised of the pertinent circumstances to be able to file a pre-foreclosure petition” and could not now challenge the foreclosure which had already taken place. Judgment for possession was granted to plaintiff) (Attorney Joshua Shakun)

Cafua v. Mortgage Electronic Registration Systems, Inc., Kent Superior Court (RI 2012): (summary judgment granted against borrower because lender had properly exercised statutory power of sale, sale was valid, and successful bidder was owner of the property) (Attorney Bethany Whitmarsh)

Dilibero v. Mortgage Electronic Registration Systems, Inc., 2012 WL 4507551 (R.I.Super.) (defendants’ motion to dismiss granted because plaintiff’s challenge to lender’s standing to foreclose based on allegedly faulty or ineffective assignment of mortgage constitutes “a legal conclusion not supported by the prevailing law.”) (Attorney Jennifer Normand)

Mallett v. National City Mortgage Kent County Superior Court (RI 2012)

(plaintiff challenged lender’s standing to foreclosure. Defendant prevailed on its motion to dismiss which the court converted to a motion for summary judgment. The court ruled that plaintiff’s complaint was dismissed; that lender properly exercised its statutory power of sale; and that the lis pendens previously filed was dissolved.)

(Attorney Bethany Whitmarsh)