United States District Court, D. Massachusetts
LAWRENCE R. CLOCKEDILE, JR. and CHARLENE BYRNES-CLOCKEDILE, Plaintiffs,
U.S. BANK TRUST, N.A. AS TRUSTEE FOR LSF8 MASTER PARTICIPATION TRUST and CALIBER HOME LOANS, INC., Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (Docket No. 16)
TIMOTHY S. HILLMAN DISTRICT JUDGE
R. Clockedile, Jr. and Charlene Byrnes-Clockedile
(Plaintiffs) filed this action to challenge the foreclosure
of their home. They assert ten counts against the foreclosing
bank, U.S. Bank Trust, N.A., as Trustee for LSF8 Master
Participation Trust (U.S. Bank), and its servicer, Caliber
Home Loans, Inc. (Caliber) (collectively, Defendants).
Defendants move for summary judgment. For the reasons set
forth below, Defendants’ motion (Docket No. 16) is
March of 2007, Plaintiffs executed a mortgage and loan
agreement in favor of Household Finance Corporation II
(Household Finance) in the amount of $275, 497.98. The
mortgage encumbered property located on Clark Street in
Rochdale, Massachusetts. Plaintiffs have been in default
since April of 2010.
31, 2014, Household Finance assigned the mortgage to U.S.
Bank. Caliber, which was Household Finance’s servicer,
executed the assignment on Household Finance’s behalf.
The assignment referenced a power of attorney (POA), which
was granted by Household Finance to Caliber, dated June 3,
2013 and recorded in December of 2013. This POA was expired
at the time of the assignment. However, Household Finance had
issued another POA to Caliber, dated December 20, 2013, valid
for one year, which was in effect on the date of the
assignment. This POA was not referenced in the assignment
document, and it is unclear whether it had been recorded at
the time of the assignment. The assignment itself was
recorded on August 5, 2014. In the fall of 2015,
Caliber-which is now the servicer for U.S. Bank-began
initiating foreclosure proceedings. Around the same time,
Plaintiffs contacted Caliber and requested a loan
modification. The foreclosure sale was initially scheduled
for December of 2015 but has since been postponed.
brought this suit against U.S. Bank and Caliber in December
of 2015. They request a temporary restraining order (count I)
and a preliminary injunction (count II) to prevent Defendants
from foreclosing on the mortgage. Plaintiffs further allege:
breach of the covenant of good faith and fair dealing (counts
IV & V); violation of Mass. Gen. Laws ch. 93A (counts VI
& VII); intentional infliction of emotional distress
(counts VIII & IX); negligence (count IX [sic]);
and breach of contract (count X). Defendants move for summary
judgment on all counts.
of the Federal Rules of Civil Procedure provides that the
court shall grant summary judgment if the moving party shows,
based on the materials in the record, “that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” A factual
dispute precludes summary judgment if it is both
“genuine” and “material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, (1986). An issue is “genuine” when the
evidence is such that a reasonable factfinder could resolve
the point in favor of the nonmoving party. Morris v.
Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748
(1st Cir. 1994). A fact is “material” when it
might affect the outcome of the suit under the applicable
considering a motion for summary judgment, the Court
construes the record in the light most favorable to the
nonmoving party and makes all reasonable inferences in favor
thereof. Sensing v. Outback Steakhouse of Florida,
LLC, 575 F.3d 145, 153 (1st Cir. 2009). The moving party
bears the burden of demonstrating the absence of a genuine
issue of material fact within the record. Id. at
152. “Once the moving party has pointed to the absence
of adequate evidence supporting the nonmoving party’s
case, the nonmoving party must come forward with facts that
show a genuine issue for trial.” Id. (quoting
Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir.
Counts I & II
claims for injunctive relief are based on the alleged
invalidity of the assignment from Household Finance to U.S.
Bank. Plaintiffs argue that this assignment was invalid
because it referenced an expired POA and that, because the
assignment was invalid, U.S. Bank is not the mortgagee and
cannot foreclose. Defendants argue that the assignment was
valid because Caliber was operating under a valid POA, albeit
not the one that was referenced in the assignment document.
do not have standing to challenge the foreclosure on this
basis, because an assignment that contains a
scrivener’s error is not void. Under Massachusetts law,
a mortgagor has standing to challenge the validity of a
foreclosure by reason of the mortgagee’s lack of legal
authority to conduct it. Bank of New York Mellon Corp. v.
Wain, 11 N.E.3d 633, 638 (Mass. App. Ct. 2014) (citing
Sullivan v. Kondaur Capital Corp., 7 N.E.3d 1113,
1116 (Mass. App. Ct. 2014)). However, when challenging the
validity of an assignment, the mortgagor’s standing is
“limited to claims that a defect in the assignment
rendered it void, not merely voidable.” Id.
(citing Sullivan, 7 N.E.3d at 1116 n.7). “A
deficiency in an assignment that makes it merely voidable at
the election of one party or the other would not
automatically invalidate the title of a foreclosing
mortgagee, and accordingly would not render void a
foreclosure sale conducted by the assignee or its successors
in interest.” Sullivan, 7 N.E.3d at 1116 n.7;
see Culhane v. Aurora Loan Servs. of Nebraska, 708
F.3d 282, 291 (1st Cir. 2013) (homeowner had standing to
challenge mortgage assignment as “invalid, ineffective,
or void, ” but lacked standing to argue that assignment
was “merely voidable at the election of one party but
otherwise effective to pass legal title”).
the issue is whether the assignment from Household Finance to
U.S. Bank was rendered void because it referenced the wrong
POA. Under Massachusetts law, a scrivener’s error will
not invalidate an assignment if there is evidence that the
assignment is otherwise valid. See Sullivan, 7
N.E.3d at 1121. Here, the assignment was otherwise valid
because Caliber was operating under a valid POA. Accordingly,
U.S. Bank holds the mortgage, and Plaintiffs have “no
legally cognizable stake in whether there otherwise might be
latent defects in the assignment process.”
Wain, 11 N.E.3d at 638. It is also immaterial to the
foreclosure that the POA may not have been recorded at the
time of the assignment. Under Massachusetts law, “a
power of ...