United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT (#28).
M. PAGE KELLEY, Magistrate Judge.
In this action, Plaintiffs Ariel Monges and Delma Santiago seek to prevent the foreclosure of their property. Pending before the Court is a motion for summary judgment that was filed by Defendants Wells Fargo Bank, National Association, as Trustee for Securitized Asset Backed Receivables LLC 2005-FR4 Mortgage Pass-Through Certificates, Series 2005-FR4; Mortgage Electronic Registration Systems, Inc. ("MERS"); and Bank of America, N.A. (Defendants' Motion for Summary Judgment, #28.) Plaintiffs responded in opposition to the motion, and Defendants replied. (Plaintiffs' Opposition to Defendants' Motion for Summary Judgment, #35; Reply Brief, #37.) For the reasons that follow, I recommend that Defendants' Motion for Summary Judgment be ALLOWED, and that judgment be entered in favor of these Defendants.
Except as otherwise noted, the following facts are undisputed. Ariel Monges and Delma Santiago own a home at 20 Brook Street in Roslindale, Massachusetts. (Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Judgment, #30 at 1.) Plaintiffs purchased the property by executing a note on March 4, 2005, in the amount of $358, 200.00, in exchange for a loan from Fremont Investment & Loan. ( Id. at 1-2 & exh. 1 at 76-79; Plaintiffs' Responses to Defendants' Statement of Undisputed Material Facts and Plaintiffs['] Statement of Additional Disputed Facts, #33 at 1-2.) Defendants claim, and Plaintiffs dispute, that Wells Fargo became the note holder by Fremont's endorsement on September 29, 2005. (#30 at 4; #33 at 8-10.)
The note was secured by a mortgage. (#30 at 2 & exh. 1 at 55-75.) The mortgage designates Monges and Santiago as "Borrower[s]" and Fremont as "Lender." ( Id. at exh. 1 at 55-56.) It also refers to MERS as "a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns" and "the mortgagee under this Security Instrument." ( Id. at exh. 1 at 55.) The mortgage authorizes the lender to accelerate payments due and to foreclose on its interest in the property if Plaintiffs fail to cure a default after proper notice. ( Id. at exh. 1 at 67.) Specifically, the mortgage provides:
If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the STATUTORY POWER OF SALE and other remedies permitted by Applicable Law.
( Id. ) The mortgage also states that, if the lender invokes the power of sale, it must publish a notice of sale, and then otherwise sell the property in the manner prescribed by the applicable law. ( Id. ) Defendants claim that Wells Fargo became the mortgage holder on November 16, 2006, by MERS's assignment. ( Id. at 3.) Plaintiffs contend that the alleged assignment was not valid. (#33 at 7-8.) There is no dispute that the alleged assignment of the mortgage by MERS to Wells Fargo was recorded in the Suffolk County Registry of Deeds on December 14, 2006. ( Id. at 7.)
Plaintiffs' loan was initially serviced by Countrywide Home Loans Servicing, LP ("CHLSLP"). (#30 at 2.) At a later date, BAC Home Loans Servicing, LP ("BACHLSLP") succeeded CHLSLP as servicer. ( Id. at 2 & exh. 3 at 2; #33 at 3.) Bank of America, N.A., is a successor by merger to BACHLSLP. (Corporate Disclosure Statement, #2, at 1.) CHLSLP and, later, BACHLSLP, sent monthly statements to Plaintiffs, and collected loan payments from them. (#30 at 2.) Plaintiffs failed to make regular loan payments beginning as early as 2005. ( Id. ; #33 at 3.) According to Defendants, CHLSLP sent notices of default on October 3, 2005, and June 2, 2006; Plaintiffs state that they "do not know whether they received" them. (#30 at 2 & exh. 3; #33 at 4.) Plaintiffs did, however, receive a subsequent letter from CHLSLP notifying them that a foreclosure sale of the property had been scheduled for January 31, 2007. (#30 at 2 & exh. 3.) That sale did not go forward.
In late Spring of 2009, Plaintiffs successfully applied for a loan modification from BACHLSLP. ( Id. ) However, Plaintiffs failed to make regular payments under the modification agreement. (#33 at 5.) Allegedly, BACHSLP sent Plaintiffs notices of intent to foreclose in August and September 2009. ( Id. at 3; but see #33 at 5 [Plaintiffs state that they are unsure whether they received these and that, in any event, the letterhead says "Bank of America Home Loans" instead of "BAC Home Loans Servicing, LP"].)
On October 5, 2010, the law firm of Guaetta and Benson, as representatives for Wells Fargo as trustee, sent Plaintiffs a letter notifying them that a foreclosure sale of the property had been scheduled for October 26, 2010. (#30 at exh. 3 at 89-93; #33 at 10-11.) The sale did not take place. On November 9, 2010, Plaintiffs filed an action in state court to challenge the threatened foreclosure. ( See Notice of Removal, #1, at exh. C [#1-3] at 14.) In their original complaint, Plaintiffs sued Wells Fargo and MERS, seeking a declaratory judgment "that an alleged assignment of the Plaintiffs' mortgage loan from MERS TO [sic] Wells Fargo Bank, N.A., as trustee, is invalid and that, as a result, the defendant securitization trust is not the current mortgagee and has no standing or authority to foreclose." (#1-3 at 14-15.) Plaintiffs subsequently amended their complaint, adding claims for injunctive relief and for violations of state and common law. ( Id. at 101-102.) Plaintiffs also added claims "against their mortgage broker, NextHome Mortgage Company, Inc. and its employee, Richard Gillis." ( Id. at 102.) The case was removed on July 22, 2013, based on this court's federal question and supplemental jurisdiction. (#1 at 3-6.)
In their most recent complaint, Plaintiffs summarize their allegations against the movants:
This action, brought by two homeowners, seeks a declaratory judgment that Wells Fargo Bank, N.A., claiming to be Trustee of a securitization trust, lacks the authority to foreclose their mortgage because it has failed to produce the original promissory note and because it is neither the current holder of their mortgage nor the underlying promissory note. The Plaintiffs are seeking injunctive relief to stop the threatened foreclosure.
The Plaintiffs are also asserting various claims against Wells Fargo Bank, as Trustee, and Bank of America Corp. Trust for conversion, money had and received, breach of contract, breach of the implied covenant of good faith and fair dealing, unfair or deceptive acts and practices in violation of the Massachusetts consumer protection law and unjust enrichment; against Bank of America Corp. for violation of G.L. c. 93, § 54A; and against Mortgage Electronic Registrations Systems, Inc. for unfair or deceptive acts and practices in violation of the Massachusetts consumer protection law.
(#1-3 at 101-02.) On August 22, 2014, Defendants Wells Fargo, MERS, and Bank of America filed a motion for summary judgment on all of those claims. Having reviewed the arguments, the evidence, and the applicable law, the Court recommends that the motion for summary judgment be allowed.
II. STANDARD OF REVIEW
The purpose of summary judgment is "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Rojas-Ithier v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico, 394 F.3d 40, 42 (1st Cir. 2005) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). When considering a motion for summary judgment, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of "assert[ing] the absence of a genuine issue of material fact and then support[ing] that assertion by affidavits, admissions, or other materials of evidentiary quality." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). "Once the moving party avers the absence of genuine issues of material fact, the nonmovant must show that a factual dispute does exist, but summary judgment cannot be defeated by relying on improbable inferences, conclusory allegations, or rank speculation.'" Fontanez-Nunez v. Janssen Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006) (quoting Ingram v. Brink's, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)). Instead, "the nonmovant must produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.'" Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).
In determining whether summary judgment is proper, "a court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor." Id. (citing Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir. 2000)). The Federal Rules "mandate the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56); accord Rojas-Ithier, 394 F.3d at 42. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (further internal quotation marks omitted).
In their amended complaint, Plaintiffs seek a declaratory judgment and injunctive relief to avoid foreclosure. They also seek damages from varying defendants for conversion, money had and received, unjust enrichment, breach of contract, breach of the implied covenant of good faith and fair dealing, unfair or deceptive acts and practices in violation of state consumer protection laws, and violations of state credit reporting laws. Defendants Wells Fargo, MERS, and Bank of America seek summary judgment on all of these ...