United States District Court, D. Massachusetts
MEMORANDUM & ORDER
INDIRA TALWANI, District Judge.
Plaintiff Mario Rodrigeuz brings this suit against Defendant Nationstar Mortgage LLC ("Nationstar") asserting claims related to Nationstar's April 18, 2004, letter scheduling a foreclosure sale on Rodriguez's house. Presently before this court are Rodriguez's Motion for a Preliminary Injunction to Suspend Foreclosure [#10] and Nationstar's Motion to Dismiss [#6]. For the following reasons, Rodriguez's motion is DENIED AS MOOT and Nationstar's motion to dismiss is ALLOWED.
Rodriguez owns property located at 91-93 Grant Street, Somerville, Massachusetts (the "Property"). Verified Compl. ¶ 4 [#1-2] [hereinafter Compl.]. On December 4, 2006, Plaintiff entered into a home mortgage loan with Nationstar's predecessor, BAC. See id. ¶¶ 5, 6.
On January 25, 2010, BAC entered into an Amended Servicer Participation Agreement ("SPA") with the United States Department of Treasury that expressly provided that Bank of America loans were to be included among those loans that are eligible for review under the Home Affordable Modification Program ("HAMP"), a federal program set up to help eligible home owners with loan modifications on their home mortgage debt. Id . ¶ 6. On September 24, 2010, Nationstar entered into an identical SPA with the Department of Treasury. Id . In their SPAs, Nationstar and BAC agreed to
perform the services in any supplemental.. [sic] directives, or other communications, including but not limited to.. [sic] compliance requirements, performance requirements and related remedies, issued by Treasury, Fannie Mae or Freddie Mac in order to change, further describe or clarify the scope of the rights and duties of the Participating Servicers.
Id. ¶ 7. Nationstar also agreed that it would "satisfy certain duties and obligations, with respect to its participation in the Programs." Id.
On February 9, 2012, BAC entered into a Global Settlement with the Department of Justice ("DOJ"), whereby BAC agreed to modify all loans under a "balance forgiveness modification program." Id . ¶ 9.
On July 2, 2012, Rodriguez submitted a HAMP application to BAC. Id . ¶ 10.
On October 5, 2012, BAC issued a denial letter for both HAMP and non-HAMP modifications. Id . ¶ 11. The letter stated: "You are not eligible for a Home Affordable Modification because we service your loan on behalf of an investor or group of investors that has not given us the contractual authority to modify your loan." Id . BAC stated further that "the name of your investor is Wells Fargo." Id . Wells Fargo is a HAMP participant and a contracting party to the DOJ settlement. Id . ¶ 12.
On May 16, 2013, BAC issued a denial letter under the Global Settlement agreement on the same basis. Id.
On June 13, 2013, Rodriguez sent a chapter 93A demand letter to Bank of America. See id. ¶ 13; id. at Ex. C (demand letter). Neither BAC nor Nationstar responded. Id . ¶ 13.
On April 18, 2014, Nationstar scheduled a foreclosure sale for May 15, 2014 on the Property. Id . ¶ 14. On May 1, 2014, Rodriguez submitted a HAMP application to Nationstar. Id . ¶ 15. According to HAMP Supplemental Directive 10-02, if a borrower submits a request for HAMP consideration after a foreclosure sale has been scheduled, and the request is received at least seven days before the foreclosure sale date, the servicer must suspend the sale to evaluate the borrower for HAMP. ...