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Shaw v. Bank of America, N.A.

United States District Court, D. Massachusetts

January 15, 2015

SUSAN A. SHAW, Plaintiff,


DENISE J. CASPER, District Judge.

I. Introduction

Susan A. Shaw ("Shaw") brings this action against defendant Bank of America, NA ("BOA"), successor to BAC Home Loans Servicing, LP ("BAC"). Shaw challenges actions leading to the foreclosure of her residence. Third Am. Ver. Compl., D. 67. BOA has moved for summary judgment pursuant to Fed.R.Civ.P. 56. D. 75. For the reasons stated below, BOA's motion is ALLOWED.

II. Governing Legal Standard

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party." Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The party seeking summary judgment bears the burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the non-moving party must produce specific facts "sufficient to deflect the swing of the summary judgment scythe." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). The Court must view the record in the light most favorable to the non-moving party and draw all reasonable inferences in her favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). The non-moving party, however, cannot simply rely on conclusory allegations and improbable inferences. Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010).

At the outset, the Court notes that even though Shaw is pro se, she must comply with the Federal Rules of Civil Procedure. The Court is required to construe liberally a pro se litigant's pleadings, but the Court may not rewrite deficient pleadings to sustain an action. Thompson v. Worcester County, No. 10-40126-FDS, 2011 WL 4829972, at *2 (D. Mass. Oct. 11, 2011).

This action was filed in 2010 and the Court has allowed Shaw to amend her complaint three times. Docket entry 2/29/12; D. 41; D. 64. After a course of discovery, Shaw appears to rely on a corpus of documentary evidence attached to her third amended verified complaint and in connection to her opposition to this motion. Some of these documents, however, are inadmissible as hearsay or not relevant to Shaw's asserted claims and thus may not be considered in opposition to summary judgment. Friends of Merrymeeting Bay v. Hydro Kennebec, LLC, 759 F.3d 30, 34 (1st Cir. 2014); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Moreover, Local Rule 56.1 requires Shaw, as the party opposing the summary judgment motion, to "include a concise statement of material facts of record as to which it is contended there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation." Here, Shaw did not submit a statement detailing which facts are disputed and, therefore, the Court may consider BOA's statement of material facts as undisputed for purposes of this motion. Swallow v. Fetzer Vineyards, 46 Fed.Appx. 636, 638 (1st Cir. 2002). Even in the absence of such Local Rule 56.1 statement, and viewing the entirety of the record in the light most favorable to Shaw, summary judgment in BOA's favor is warranted.

III. Relevant Facts

Shaw owns a home located at 12 Jarvis Lane in North Attleboro, Massachusetts (the "Property"). Def.'s Statement of Material Facts, D. 77 ¶ 1. On August 15, 2006, Shaw refinanced an existing mortgage on the Property, executing a note (the "Note") in the amount of $400, 000 in favor of America's Wholesale Lender. Id . ¶ 16. Shaw also executed a mortgage (the "Mortgage") in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"). Id . ¶ 17. Countrywide Home Loans, Inc. ("Countrywide") was the servicer of the Note and Mortgage. Id . ¶ 18. In 2007, Shaw stopped making monthly payments on the Note and the Mortgage. Id . ¶ 19. In a letter dated August 16, 2007, Countrywide informed Shaw that her loan was in default. D. 77-3 at 39. In June 2008, Countrywide notified Shaw that it intended to foreclose and initiated foreclosure proceedings. D. 77 ¶¶ 20-21; D. 77-3 at 42. In July 2008, Countrywide became BAC Home Loan Servicing, L.P. ("BAC"), the predecessor entity of BOA.[1]

The foreclosure sale initially set for April 16, 2009 was postponed three times. D. 77 ¶¶ 25-26. During that time, Shaw applied for and was granted a modification of her Note and Mortgage. Id . ¶ 27. Shaw received a loan modification agreement dated July 14, 2009, but declined to sign it because the proposed new payment was nearly the same as her payment at the time. Id .; D. 77-3 at 45-48; D. 84 at 9-10; D. 84-3. On August 14, 2009, Shaw sought bankruptcy protection resulting in the cancellation of the foreclosure sale scheduled for August 17, 2009. D. 77 ¶¶ 28-29. On December 15, 2009, Shaw received a Chapter 7 discharge and her bankruptcy case closed shortly thereafter. Id . ¶ 30.

On November 8, 2009, MERS assigned its interest in the Mortgage to BAC, the predecessor entity of BOA. Id . ¶ 31. On May 24, 2010, BAC, through its attorneys, notified Shaw of its intent to foreclose and set a sale date of June 18, 2010. Id . ¶ 32; D. 77-4 Exh. C-8. On June 17, 2010, Shaw filed her initial complaint in this action against BAC and an ex parte motion for a temporary restraining order against the sale. D. 1, 2. Shaw withdrew the injunctive motion because BOA agreed to postpone the foreclosure while she sought a modification to her loan under the Home Affordable Modification Program ("HAMP"). D. 77 ¶¶ 33, 37; D. 4.

On January 12, 2011, BOA notified Shaw that the modification she sought under HAMP was declined. D. 77-3 at 51. The reason Shaw was not eligible for a HAMP modification was "excessive forbearance" (i.e., meaning that, to arrive at an affordable payment for Shaw, the mortgagee would have been required to delay collecting too large a portion of the principal). Id . Shaw then applied for a traditional in-house loan modification. D. 77 ¶ 38. Shaw's request was denied because her debt-to-income ratio exceeded 107%. Id . ¶ 39; D. 84-4.

BOA again initiated foreclosure proceedings. D. 77 ¶ 40. On June 3, 2011, BOA's attorneys notified Shaw, her bankruptcy attorney and the attorney then representing her in this lawsuit of BOA's intention to foreclose and indicated a sale date of June 17, 2011. D. 77-4 Exh. C-10. On June 17, 2011, BOA sold the Property to itself and assigned its bid to the Federal National Mortgage Association ("Fannie Mae"). D. 77 ¶ 43, D. 77-3 ¶ 19.

Within hours of the foreclosure sale, Shaw's attorney at the time contacted her stating in part, "As I stated before, the bank's attorney informed me that they would be postponing the sale. I spoke to her today and she was surprised that the sale had gone through. She is going to contact the bank to find out what happened." D. 84-5. Six days later, on June 23, 2011, the attorney contacted Shaw again, stating that "the bank has stated that they have rescinded the foreclosure, so that is taken care of."[2] D. 84-6.

BOA acknowledges that Shaw sought a rescission following the foreclosure sale. The affidavit submitted by BOA in support of its motion states that "Bank of America reached out to Fannie Mae regarding the request to rescind the sale. This request was denied." D. 77-3 ¶ 21.

On June 14, 2012, BOA executed an assignment of its rights to Fannie Mae. D. 77 ¶ 49. The same day, BOA executed and ...

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