United States District Court, D. Massachusetts
OMOLARE R. OLABODE and GERALD KELLY, Plaintiffs,
CALIBER HOME LOANS, INC., Defendants.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
Omolare R. Olabode and Gerald Kelly
(“Plaintiffs”) challenge an attempted mortgage
foreclosure on a residence in Dorchester, Massachusetts (the
“Property”). Plaintiffs originally filed their
Complaint in the Massachusetts Superior Court for Suffolk
County. Defendant, Caliber Home Loans, Inc.
(“Caliber”) removed the action to this Court on
January 21, 2015, based on diversity jurisdiction.
See 28 U.S.C. § 1332. Presently before the
Court is Caliber’s Motion for Summary Judgment [ECF No.
53]. For the reasons that follow, Caliber’s Motion is
ALLOWED, and judgment shall enter for the Defendant.
December 31, 2014, Plaintiffs filed their Complaint in
Suffolk Superior Court, see State Court Record [ECF
No. 11], pp. 3-83 (“Compl.”), seeking a
declaratory judgment that Caliber lacks standing to foreclose
on the Property pursuant to Mass. Gen. Laws c. 244, §
More specifically, Plaintiffs allege that Caliber has failed
to establish that it is a “mortgagee” as the term
is used in § 14. Compl. ¶ 57. In Eaton v.
Federal National Mortgage Association, the Massachusetts
Supreme Judicial Court held that to qualify as a
“mortgagee” for purposes of a Section 14
foreclosure, the foreclosing entity must be both (1) the
mortgagee of record, and (2) the holder of the underlying
promissory note (or the note holder’s authorized
agent). 462 Mass. 569, 584 (2012). Here, Plaintiffs claim
that while Caliber may be the servicer on the loan, Caliber
is not the current note holder.
support of this contention, Plaintiffs attached to their
Complaint an “Affidavit Regarding Note Secured by a
Mortgage to Be Foreclosed, ” dated April
10th, 2014, which Caliber recorded with the
Suffolk County Registry of Deeds prior to its attempted
foreclosure on the Property. See Compl. Ex. E.
(“McClelland Affidavit”). In the Affidavit, a
Caliber Default Service Officer named Daniel McClelland
certified that Caliber was “the authorized
agent of the holder” of the promissory note
secured by the mortgage to be foreclosed. Id.
(emphasis added). Notably, McClelland did not select the
other box on the form, which gave the option of certifying
that Caliber was the “holder of the promissory
note secured by the above mortgage.” See id.
after the Complaint was filed, Caliber removed the action to
federal District Court and filed a Motion to Dismiss for
failure to state a claim on which relief may be granted. [ECF
No. 12]. Caliber argued that the factual basis for
Plaintiffs’ claims (i.e., that Caliber is not
the current note holder) was negated by the documents
attached to Plaintiffs’ Complaint. Those documents,
Caliber argued, demonstrated that both the Note and the
Mortgage had been validly assigned to Vericrest Financial,
Inc., which later changed its name to Caliber.
filed an Opposition to Caliber’s Motion to Dismiss [ECF
No. 15], and the Court scheduled the Motion for a hearing.
Prior to the hearing, the Court notified the parties that it
would consider converting Caliber’s Motion to Dismiss
into a Motion for Summary Judgment. The Court invited the
parties to submit supplemental materials and ordered Caliber
to produce the original Note for inspection at the time of
the hearing. [ECF No. 27].
advance of the hearing, Caliber filed an Affidavit of Jesse
Mendez, another Caliber Default Servicing Officer, in further
support of Caliber’s Motion to Dismiss. See
[ECF No. 32] (“Mendez Aff.”). The Mendez
Affidavit asserted, inter alia, that Caliber is both
the owner and the holder of the underlying promissory note,
as well as the mortgagee of record. Id. ¶¶
5-6. Mendez further explained that “Caliber is in the
business of both owning and servicing mortgage loans, ”
but that in this particular case, Caliber is the holder,
owner, and servicer of the Note in question. Id.
hearing on May 14, 2015, Caliber produced the original Note.
See Transcript of Proceedings, ECF No. 38 pp. 29-33.
After reviewing the Note, Plaintiffs’ counsel pointed
out that although the Note was accompanied by two
“Allonges, ” the first of which purported to
indorse the Note to Vericrest, and the second of which
purported to indorse the note in blank, the Allonges were not
firmly “affixed” to the original Note, as
required by Mass. Gen. Laws c. 106, § 3-204(a).
Plaintiffs’ counsel suggested that the failure to affix
the Allonges could compromise their enforceability.
Id. pp. 16-17.
the hearing, counsel for Caliber represented that, to the
best of his knowledge, there was no other entity or third
party with an ownership interest in the promissory note or
mortgage in question. Id. p. 24. Several days later,
however, Caliber’s counsel filed a letter with the
Court clarifying his prior statement [ECF No. 37]. Counsel
explained that after making further inquiries, he learned
that the Federal Home Loan Mortgage Corporation
(“Freddie Mac”) was the “investor” on
the loan secured by the mortgage in this case. Id.
Counsel further advised that, as the investor, Freddie Mac
“may (but will not necessarily) take ownership of the
property after the subject property has been sold at a
foreclosure sale.” Id.. In his letter, counsel
for Caliber argued that this fact “does not change the
legal issue or analysis before the Court, ” because
Freddie Mac’s “eventual ownership of the property
is distinct from the current ownership of the Note and
Order dated July 8, 2015, the Court denied Caliber’s
Motion to Dismiss. [ECF No. 43]. Although the Court
acknowledged that the alleged facts supporting
Plaintiffs’ theory were “exceedingly thin,
” Plaintiffs had plausibly alleged that Caliber was not
the “mortgagee” and therefore not entitled to
foreclose under Mass. Gen. Laws c. 244, § 14. The Court
further declined to convert Caliber’s Motion to Dismiss
into a motion for summary judgment, in light of lingering
ambiguities created by (1) the McClelland Affidavit, (2) the
Note’s Allonges; and (3) Caliber’s
counsel’s reference to Freddie Mac as a third party
Court further held that while Plaintiffs were entitled to
conduct some discovery on these issues, the Court was
“not inclined to allow broad discovery.”
Id. Thus, the Court set an abbreviated discovery
schedule, which was aimed at determining whether or not
Caliber was indeed the current mortgagee and note holder for
purposes of Mass. Gen. Laws, c. 244, § 14. Id.
The Scheduling Order required the parties to exchange initial
disclosures; permitted Plaintiffs to serve up to ten (10)
interrogatories; and further allowed Plaintiffs to take
Caliber’s deposition pursuant to Fed.R.Civ.P. 30(b)(6).
The Court ordered that “[a]ll discovery shall be
completed by September 25, 2015, and no additional discovery
will be permitted without leave of court.” Id.
The Court also set a deadline for filing summary judgment
motions, which was later extended to October 23, 2015.
See id.; see also [ECF No. 51].
the Court issued the Scheduling Order on July 8, 2015,
Plaintiffs waited two full months to pursue any discovery.
They finally served interrogatories on Caliber on September
8, 2015. [ECF No. 57-1]. On October 7, 2015, Caliber
responded to Plaintiffs’ interrogatories with
objections and responses. See id. Plaintiffs did not
October 22, 2015, Caliber’s counsel contacted
Plaintiffs’ counsel in an attempt to confer and
“narrow the issues” that Caliber intended to
raise in its summary judgment motion, which was due to be
filed the next day. See Declaration of Glen F.
Russell, Jr. [ECF No. 57-4] (“Russell Decl.”),
¶ 11. Plaintiffs’ counsel responded, asserting -
for the first time - that several of Caliber’s
interrogatory responses were deficient. See id. The
following day, counsel conferred by telephone in an attempt
to clarify some of Caliber’s interrogatory responses.
Id. ¶ 13. On November 16, 2015, Caliber served
supplemental responses to certain interrogatories.
Id. ¶ 14.
Plaintiffs now complain that Caliber’s interrogatory
responses are still deficient, Plaintiffs never filed a
motion to compel. Further, Plaintiffs did not attempt to
notice a deposition of Caliber’s corporate
representative, as permitted by the Court’s July 8,
accordance with the scheduling deadlines, Caliber filed its
Motion for Summary Judgment on October 23, 2016, along with a
Memorandum in Support, a Statement of Undisputed Material
Facts pursuant to Local Rule 56.1, and an Affidavit. [ECF
Nos. 53, 54, 55, 56]. On November 16, 2015, Plaintiffs filed
a Motion for Extension of Time to Complete Discovery,
pursuant to Fed.R.Civ.P. 56(d). [ECF No. 57]. Plaintiffs
argue that the “extremely truncated discovery
timeline” set by the Court, coupled with
Caliber’s “vague and evasive” interrogatory
responses, resulted in Plaintiffs being unable to timely
respond to Caliber’s Motion for Summary Judgment. In
the alternative, ...