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Koufos v. U.S. Bank, N.A.

United States District Court, D. Massachusetts

September 8, 2015

PETER H. KOUFOS, Plaintiff,
v.
U.S. BANK, N.A, as Trustee on Behalf of the Holders of the CFSB Mortgage Pass-Through Certificates Series 2005-CF1, et al., Defendants.

MEMORANDUM AND ORDER

DENISE J. CASPER, District Judge.

I. Introduction

The Estate of Peter H. Koufos ("Koufos"), through its Administrator James Koufos, has sued U.S. Bank National Association ("U.S. Bank"), as Trustee on behalf of the holders of the CSFB Mortgage Pass-Through Certificates Series 2005-CF1 (the "Trust"), Select Portfolio Servicing, Inc. ("SPS"), Lender Processing Services, LPS Default Solutions, New Century Mortgage Corporation ("New Century") and Ablitt & Scofield, P.C. (collectively, "Defendants"), asserting claims that relate to the Trust's foreclosure on Koufos's residence. U.S. Bank and SPS have moved for summary judgment on Koufos's claims and on their counterclaim for title and possession of the property. D. 58. For the reasons stated below, the Court ALLOWS the motion.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). "As a general rule, that requires the production of evidence that is significant[ly] probative.'" Id. (quoting Anderson, 477 U.S. at 249) (alteration in original). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background

The facts below are drawn from Defendants' statement of material facts, D. 60 (and exhibits referenced therein), Koufos's response thereto, D. 64 (and exhibits referenced therein), and the exhibits appended to Koufos's amended complaint, D. 10. On January 26, 2005, Koufos refinanced his home and executed a promissory note in the amount of $344, 250 (the "Note") to New Century. D. 60 ¶ 1. Koufos granted New Century a mortgage (the "Mortgage") on his property located at 19 Skyline Drive, Medway, Massachusetts (the "Property") to secure the obligations under the Note. Id. ¶ 2.

On July 1, 2005, Credit Suisse First Boston Mortgage Securities Corporation ("Credit Suisse"), DLJ Mortgage Capital, Inc. ("DLJ Mortgage"), SPS and U.S. Bank entered into a Pooling and Servicing Agreement (the "PSA"). D. 60 ¶ 3, D. XX-X-XX-XX. The Mortgage Loan Schedule to the PSA identifies the Mortgage as included in the corpus of the Trust. D. 62-11 at 3. On July 13, 2005, the servicing rights of the Mortgage were transferred from New Century to SPS with notice to Koufos. D. 60 ¶ 7.

On April 2, 2007, New Century filed for Chapter 11 bankruptcy. D. 60 ¶ 8. At the time, New Century held approximately two thousand residential mortgage loans. D. 10-12 at 33. On May 18, 2007, New Century agreed to sell a portion of its mortgage assets for $57.9 million to Ellington Capital Management Group, L.L.C. ("Ellington"). Id. at 34. On June 29, 2007, Ellington purchased New Century's remaining residential loans with the exception of forty-six loans that were either subject to "complications related to the State of Ohio" or required the clearing of title. Id. at 34-38.

Koufos defaulted on the Mortgage and failed to cure his default following notice. D. 60 ¶ 11. On January 4, 2008, Koufos entered into a Forbearance Agreement with SPS to permit Koufos to reinstate the Mortgage and halt foreclosure in return for agreed-upon payments. Id. ¶ 12; D. 62-15. Koufos subsequently defaulted under the Forbearance Agreement. D. 60 ¶ 13.

On April 9, 2009, in accordance with a power of attorney it held on behalf of New Century, D. 62-13, SPS assigned the Mortgage to U.S. Bank as Trustee for the Trust and recorded the assignment (the "Assignment") on April 21, 2009. D. 62-12.

The Trust then proceeded with foreclosure against Koufos. D. 60 ¶ 14. On May 14, 2009, the Trust sent Koufos written notice of a foreclosure sale scheduled for June 23, 2009. D. 62-16. Foreclosure proceedings were automatically stayed when Koufos filed for bankruptcy. D. 60 ¶ 15. When the bankruptcy court lifted the stay, the Trust rescheduled the foreclosure sale for August 1, 2012. D. 60 ¶ 19. The Trust was the highest bidder at the public foreclosure auction and purchased the Property. D. 60 ¶ 21, D. 62-19. Following the foreclosure and sale, Koufos continued to occupy the Property. D. 60 ¶ 23.

IV. Procedural History

Koufos filed this action on April 24, 2012 in the Norfolk Superior Court challenging the Trust's right to foreclose on the Property. D. 9 at 1. U.S. Bank and SPS removed the matter to federal court on April 26, 2012.[1] D. 1. On that same day, Koufos moved for injunctive relief to block the foreclosure sale. D. 4. Koufos filed an amended complaint on May 2, 2012. D. 10. U.S. Bank and SPS subsequently filed a motion to dismiss or to strike Koufos's amended complaint. D. 14. The Court denied Koufos's motion for injunctive relief, D. 23, and denied in part and allowed in part the motion to dismiss, D. 26. The Court dismissed all claims except Koufos's claims for a declaratory judgment that U.S. Bank ...


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