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Adams v. Wells Fargo Bank, N.A.

United States District Court, D. Massachusetts

November 23, 2015

WAYNE J. ADAMS and TERRI L. ADAMS, Plaintiffs,
v.
WELLS FARGO BANK, N.A. as TRUSTEE FOR POOLING AND SERVICING AGREEMENTS OPTION ONE MORTGAGE LOAN TRUST 2004-1 ASSET-BACKED CERTIFICATES, SERIES 2004-1, WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST, 2004-1 ASSET-BACKED CERTIFICATES SERIES, 2004-1, and OCWEN LOAN SERVICING LLC, as ALLEGED SERVICING AGENT IN FACT, OR OTHERWISE ON BEHALF OF WELLS FARGO BANK, N.A., Defendants.

          MEMORANDUM OF DECISION AND ORDER PLAINTIFFS' EMERGENCY MOTION TO ENJOIN FORECLOSURE ACTION

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Background

         Wayne J. Adams and Terri L Adams (“Plaintiffs”) have filed a pro se Verified Complaint (Docket No. 2) against Wells Fargo Bank, N.A. (“Wells Fargo”), as Trustee for pooling and servicing agreements option one mortgage loan trust 2004-1 asset-backed certificates, series 2004-1, Wells Fargo, as Trustee for option one mortgage loan trust, 2004-1 asset-backed certificates series, 2004-1, and Ocwen Loan Servicing LLC (“Ocwen”), as alleged servicing agent in fact, or otherwise on behalf of Wells Fargo, alleging claims for: Fraud, Conspiracy, Illegal Debt Collection, Intentional Infliction of Emotional Distress, Slander to Title and Unjust Enrichment.

         Wells Fargo holds a mortgage on the Plaintiffs' property located at 57 Fitchburg Road, Ashburnham, Massachusetts (the “Property”). The mortgage, which is dated October 31, 2003, was assigned to Wells Fargo as successor to the original mortgagee, Option One Mortgage Corporation (“Option One”). The mortgage secures a promissory note signed by the Plaintiffs in favor of Option One in the original loan amount of $225, 000; Wells Fargo also has possession of the note. Wells Fargo has notified the Plaintiffs of their intent to hold a foreclosure sale on the Property on October 31, 2016. This Order addresses Plaintiffs' Motion For Order Of Short Notice And Emergency Motion To Enjoin Foreclosure Action (Docket No. 6). For the reasons set forth below, the motion is denied.[1]

         Facts

         On December 3, 1999, Plaintiffs purchased the Property, an approximately forty-four acre farm which includes the family home. In May 2000, the Plaintiffs discovered that thousands of yards of contaminated fill had been intentionally put into a newly installed septic system on the Property and a lawsuit was filed on their behalf. Thereafter, Plaintiffs learned of ongoing drinking well water contamination that had been affecting properties on Fitchburg Road since 1997, which had been attributed to the abutting Boutwell's Garage Citgo station. In January 2003, MTBE (methyl tertiary-butyl ether), a toxic gasoline chemical, was discovered in the Plaintiffs' drinking well water and they notified their lender. The Plaintiffs were referred to a mortgage broker who brokered a mortgage for the Plaintiffs with Option One. On October 31, 2003, Plaintiffs obtained a loan from Option One in the amount of $225, 000, which was secured by a conventional uninsured adjustable rate mortgage at issue in this case.

         The Plaintiff's made their last loan payment to Option One on December 15, 2004 at 11:45 a.m.; at the time that they made the payment, the Plaintiffs were up to date on their loan payments and had never been delinquent. On January 1, 2005, the Plaintiffs exercised their non-judicial right to “Null & Void” the occupancy loan with Option One due to a lack of disclosures required by “Federal Toxic Tort Law and Toxic Predatory Lending.” Plaintiffs allege that had Option One made the required disclosures, it would have influenced their decision as to whether to obtain the loan. However, Plaintiffs have not specified the substance of the alleged required disclosures. Plaintiffs further allege that as their “partner in the loan, ” Option One had a duty to protect its investment by holding third parties (Peterborough Oil Co., Boutwell's Garage, Citgo) responsible for the contamination and cleanup.

         Plaintiffs further allege that they could not find Option One's address until February 2005. When they found the address, Plaintiffs served their “Null & Void” along with copies of the Massachusetts Department of Environmental Protection (“DEP's”) notices of the contamination. Plaintiffs requested an investigation by Option One. From February 2005 through May 2008, Plaintiffs had contact with legal counsel for Option One, who agreed they were victims of predatory selling and lending and criminal fraud, but claimed “we're just the lender.” Plaintiffs claim that Option One would not meet and discuss any reasonable resolution to the issues, leaving them the entire burden of chasing down the responsible parties in order to clean up the contamination.

         On August 9, 2006, the Korde & Associates, P.C., law firm (“Korde”) sent the Plaintiffs a letter stating that they represent “Wells Fargo Bank N.A., as Trustee for Pooling and Servicing Agreement Option One Mortgage Loan Trust 2004-1 Asset-Backed Certificates (“Trust”), Series 2004-1 (“Holder”')”. Wells Fargo claimed to be the present holder their mortgage to Option One, dated October 31, 2003 in the original principal amount of $225, 000.00. Because the Plaintiffs were delinquent in their loan payments, Wells Fargo notified them that it intended to foreclose on the mortgaged property. On August 11, 2006, about 1½ years after the Plaintiffs unilaterally declared their loan/mortgage with Option One to be null and void, Korde filed a “Complaint to Foreclose Mortgage” in the Massachusetts Land Court. The Plaintiffs filed a Verified Complaint for Injunctive and Other Equitable Relief in Worcester Superior Court. On December 11, 2006, the defendant filed a motion to dismiss. After a hearing held in February 2007, Korde's attorney informed the Plaintiffs that the foreclosure had been put “on hold, indefinitely” and the Superior Court case was dismissed.

         In 2008, Korde recorded an alleged Assignment of Mortgage at the Worcester North Registry of Deeds suggesting that the Plaintiffs' mortgage to Option One had been assigned to Wells Fargo. The alleged assignment occurred over 1½ years after the Plaintiffs had declared their loan/mortgage obligations null and void, and over 2½ years after the Trust closed (January 2004). The alleged assignment was in violation of the material provisions of the Pooling and Servicing Agreement establishing the Trust (because the “Depositor”, Option One Mortgage Acceptance Corporation, was the only entity authorized to convey mortgage loans into the Trust). In 2009, Judge Charles W. Trombly, Jr. of the Massachusetts Land Court, issued a Show Cause Order to Wells Fargo requiring it “to submit information and documentation to the Court...attesting to the identity of the current holder of the mortgage...and demonstrating with evidence that [Wells Fargo] has standing to bring and prosecute” the foreclosure action. On February 3, 2010 Judge Trombly dismissed the action.

         In 2012, Ablitt Scofield, P.C., recorded an alleged Assignment of Mortgage at the Worcester North Registry of Deeds in which Wells Fargo assigned the mortgage to itself without reference to the “Pooling and Servicing Agreement” and without assigning the note. The assignment was witnessed and notarized by persons utilizing a “robo-signature”. On November 21, 2012, Ablitt Scofield, P.C., filed a “Complaint to Foreclose Mortgage” in the Massachusetts Land Court (presumably on behalf of Wells Fargo). In 2013, while this second foreclosure proceeding was pending, the Plaintiffs began receiving debt collection notices from Ocwen alleging that effective as of February 2, 2016, Ocwen was servicing their loan. The Plaintiffs contacted Ocwen multiple times, and informed it that in 2005, they had declared their loan/mortgage with Option One to be null and void and that they had never had a loan with Wells Fargo. The Plaintiffs also sent Ocwen copies of hundreds of documents describing the "Null & Void", ongoing fraud, no occupancy certificate, DEP letters confirming the contamination of their private water supply, and toxic predatory lending. Ocwen responded, but did not explain the origin of the loan number it referenced in the documents (Loan Number 714299 8892) it sent to the Plaintiffs, which was not the loan number of their Option One loan. Ocwen also failed to provide a full accounting for the loan and failed to verify the alleged debt. Thereafter, Ocwen continued to attempt to collect the debt. The Plaintiffs served a “No Trespass Notice” on Ocwen pursuant to Massachusetts law and a cease and desist collection notice on it pursuant to federal and state law. In 2015, while the second foreclosure proceeding was pending, Owen sent the Plaintiffs a right to cure letter stating that they had 150 days to cure the mortgage default in reference to “Loan Number 714299 8892.”

         On October 13, 2015, Ocwen's attorney sent the Plaintiffs a letter that stated: “Please be advised that this office represents Ocwen Loan Servicing, LLC as servicer for Wells Fargo Bank N.A., as Trustee for Option One Mortgage Loan Trust 2004-1, Asset-Backed Certificates, Series 2004-1 (Holder) the present holder of your mortgage to Option One Mortgage Corporation, dated October 31, 2003 in the original principal amount of $225, 000.00. The Holder has brought to our attention your delinquent mortgage account... it is the intention of the Holder to foreclose...” On October 14, 2015, while the second foreclosure proceeding was still pending, Wells Fargo filed a new complaint in the Massachusetts Land Court; Wells Fargo later filed a motion to dismiss the second foreclosure proceeding. On November 16, 2015, the Plaintiffs sent the attorney for Wells Fargo/Ocwen notice that they never had a loan with the number referenced on the paperwork and do not have a mortgage with Wells Fargo. Ocwen acknowledged that the Plaintiffs were disputing the validity of the debt and indicated that it or its legal representative would respond. Neither Ocwen nor its attorney verified the alleged debt. Instead, on December 2, 2015, the Plaintiffs received an “Identity Theft” notice from Ocwen requesting they sign an “ID Theft Affidavit” and instructing them not to send the Affidavit to the “FTC OR ANY OTHER GOVERNMENT AGENCY”. The Plaintiffs called the attorney for Wells Fargo/Ocwen in December 16, 2015 and were told that the foreclosure proceedings were on hold. From January-April 2016, Ocwen sent the Plaintiffs a series of letters regarding an alleged loan, including a letter stating that they were approved to enter into a trial period plan under the Home Affordable Modification Program.

         On May 9, 2016, the Plaintiffs sent a Motion to Dismiss the third foreclosure proceeding via priority mail to the Suffolk County Sheriff's office, requesting the motion to be served, in-hand, to the Land Court Chief Justice; the online tracking stated: “Your item was undeliverable as addressed at 3:15 p.m. on May 11, 2016 in Boston, MA 02114. It is being returned if appropriate information is available.” On May 13, 2016, a judgment in favor of Wells Fargo was entered in the third foreclosure proceeding. On May 20, 2016, the Plaintiffs hand-delivered a duplicate set of their May 9, 2016 documents to the Suffolk County Sheriff's office along with a Motion for Reconsideration; both the May 9th and May 20th documents were served via Sheriff to Land Court Chief Justice Judith C. Cutler in-hand to Jill Quigley, Clerk on 5/25/2016 at 11:22 a.m. Both the May 9th and May 20th documents were then returned by the Massachusetts Land Court with a notice that they were not accepted for filing.

         On June 9, 2016, Ocwen sent the Plaintiffs a “Notice of Foreclosure Postponement For Loss Mitigation Evaluation”, indicating a new foreclosure date of August 8, 2016. The Plaintiffs made multiple calls to Ocwen, and were told to “send documents to the research department.” On September 14, 2016, Ocwen again sent the Plaintiffs a “Notice of Foreclosure Postponement For Loss Mitigation Evaluation”, indicating a new foreclosure date of October 31, 2016. Ocwen continued sending statements and delinquency notices, most recently on October 3, 2016, alleging that they had been delinquent on their mortgage loan since January 2, 2005. On October 18, 2016, the Plaintiffs received a deficiency notice via certified mail sent September 29, 2016 indicating Wells Fargo's intention to foreclose on October 31, 2016. Included with the intention to foreclose notice was a “Certificate Relative to Foreclosing Party's Right to Foreclose” allegedly Dated: November 23, 2015 by an Ocwen manager. Attached to the notice was a copy of the original promissory note secured by the ...


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