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Roberts v. U.S. Bank National Association

United States District Court, D. Massachusetts

June 19, 2014

JOHN ROBERTS and JOANNE REID, Plaintiffs,
v.
U.S. BANK NATIONAL ASSOCIATION, As Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-RP2, and OCWEN LOAN SERVICING, LLC, Defendants, and FIRST REALTY REEM PROPERTY, LLC, Party-in-Interest.

REPORT AND RECOMMENDATION RE: PLAINTIFFS' MOTION TO COMPEL (DOCKET ENTRY # 31)

MARIANNE B. BOWLER, Magistrate Judge.

Pending before this court is a motion to compel filed by plaintiffs John Roberts and Joanne Reid ("plaintiffs"). (Docket Entry # 31). Defendants U.S. Bank National Association, as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-RP2, and Ocwen Loan Servicing, LLC ("defendants") oppose the motion. (Docket Entry # 33). After conducting a hearing on June 4, 2014, this court took the motion under advisement in order to issue a report and recommendation in accordance with the referral from the district judge.

BACKGROUND

In 1978, plaintiffs acquired title to a home located in Stoughton, Massachusetts ("the property"). They have lived in the home for more than 30 years. In 1999, they took out a mortgage and a $75, 000 loan on the property. Defendant Ocwen Loan Servicing, LLC ("Ocwen") is the servicer of the loan and the agent of defendant U.S. Bank National Association, as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-RP2 ("U.S. Bank").

In or around 2011, plaintiffs applied for a loan modification.[1] In two separate letters dated September 23, 2011, Ocwen denied the requested modification because the owner of the loan did not allow modifications and/or "is not participating in the HAMP program.'"[2] (Docket Entry # 18, ¶ 23).

In January 2013, plaintiff John Roberts ("Roberts") read in a newspaper that the property was scheduled for a foreclosure auction on February 12, 2013. Plaintiffs did not receive "written notice of the sale." (Docket Entry # 18, ¶ 10).

In an effort to avoid foreclosure, Roberts contacted the Massachusetts Attorney General's Office ("the AG's Office"). The AG's Office then contacted Ocwen. Ocwen responded in writing stating that, "Ocwen has contacted their foreclosure attorneys to ask that the foreclosure sale be postponed for a period of thirty (30) days.'" (Docket Entry # 18, ¶ 14).

By letter dated February 12, 2013, Ocwen informed plaintiffs that, "Ocwen is not able to offer [Roberts] a loan modification.'" (Docket Entry # 18, ¶ 23). The letter described the loan as "one of many in a securitization trust.'" (Docket Entry # 18, ¶ 23). It also explained that Ocwen's servicing guidelines from the lender, U.S. Bank, indicated that the bank only "allowed modifications on 10% of the aggregate Certificate Principal Balance'" and the "10% cap had been reached" before the loan was transferred to Ocwen for servicing. (Docket Entry # 18, ¶ 23).

In late February 2013, Roberts telephoned Ocwen and spoke to a representative. The representative confirmed the postponement of the sale and that "there was no scheduled auction at that time." (Docket Entry # 18, ¶¶ 25-26). The representative also advised Roberts that he had time to sell the "house or pursue other options." (Docket Entry # 18, ¶ 27).

Notwithstanding these representations, a foreclosure auction took place on March 12, 2013. Michienzie & Sawin, LLC represented Ocwen "in the foreclosure proceeding." (Docket Entry # 18, ¶ 15). Plaintiffs purportedly "lost significant equity in their home." (Docket Entry # 18, ¶ 32).

On April 8, 2013, plaintiffs filed this action in Massachusetts Superior Court (Norfolk County). A temporary restraining order issued the same day enjoining U.S. Bank and Ocwen from selling or conveying the property. On May 10, 2013, defendants filed a notice of removal to this court.

The two count amended complaint sets out a claim of promissory estoppel and a violation of Massachusetts General Laws chapter 93A, section nine. The paragraphs specific to the estoppel count complain about Ocwen's misrepresentation that there was no sale date and that the foreclosure was continued indefinitely. In addition to damages, the amended complaint seeks a rescission of the foreclosure sale and a loan modification.

In August 2013, plaintiffs propounded a first request for production of documents and a first request for interrogatories to defendants. On December 30, 2013, defendants produced a number of documents but did not provide any answers to interrogatories. Defendants also provided a privilege log on the same day listing "redactions made to Documents produced in response to" document requests 11 to 57, according to plaintiffs. (Docket Entry # 31).

On February 28, 2014, the district judge issued an Order requiring defendants to respond to the interrogatories. As to the document requests, the Order instructed defendants to produce a "complete log of the redacted information" with "the name of the sender/speaker, the name of the person/entity that received the information and the content of the redacted information." (Docket Entry # 29). The Order also required defendants ...


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