United States District Court, D. Massachusetts
THOMAS HARRY JR. and GRETCHEN C. HARRY, Plaintiffs,
COUNTRYWIDE HOME LOANS INC., et al. Defendants.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
case arises from the possible foreclosure of the property
located at 89 Pimlico Pond, Mashpee, Massachusetts
(“the property”). Plaintiff's amended
emergency motion for a temporary restraining order or
injunctive relief is pending before the Court.
Harry, Jr. and Gretchen Harry (collectively
“plaintiffs”) took title to the property in 2002.
In November, 2005, plaintiffs refinanced their mortgage with
a loan of approximately $245, 000 from Countrywide Home
Loans, Inc. (“Countrywide”) that was secured by a
mortgage in favor of Mortgage Electronic Registration
Systems, Inc. (“MERS”). Bank of America, N.A.
(“BANA”) was the original servicer of the loan.
In October, 2011, MERS assigned the mortgage to the Bank of
New York Mellon, f/k/a the Bank of New York as Trustee for
the Certificate holders of CWABS, Inc. Asset-backed
Certificates, Series 2005-17 (“BNY Mellon”) which
then retained Ditech Financial, LLC, f/k/a Green Tree
Servicing, LLC (“Ditech”) to service the loan.
plaintiffs' view, Countrywide engaged in predatory
lending practices by filling out the loan application without
input from plaintiffs and because it knew that plaintiffs
lacked sufficient income or assets to warrant the
refinancing. Plaintiffs further allege that Countrywide used
bait and switch tactics regarding the interest rate and that
they were never notified of their right to rescind.
Plaintiffs submit that they made payments on the note from
January, 2006 through November, 2009.
August, 2011, plaintiffs received a letter from Harmon Law
Offices (“Harmon”) which stated that Harmon had
been instructed to foreclose on their property on behalf of
BNY Mellon. In November, 2011, Harmon filed a complaint on
behalf of BNY Mellon in the Massachusetts Land Court
Department of the Trial Court. Plaintiffs acknowledge that by
at least December, 2011 they were represented by counsel.
February, 2014, Ditech provided plaintiffs with a notice of
default. In March, 2015, Harmon again notified plaintiffs
that it was going to foreclose on the property on behalf of
BNY Mellon and Ditech. On March 20, 2015, plaintiffs sent a
notice of rescission under TILA, 15 U.S.C. § 1635.
September, 2015 Harmon yet again served plaintiffs with a
notice of foreclosure, and in March, 2016 plaintiffs filed a
complaint in Massachusetts Superior Court seeking, inter
alia, quiet title, to have the note declared null and
void, to have the mortgage “released” (presumably
meaning discharged), to have their TILA rescission enforced
and to recover damages. The Massachusetts Superior Court
allowed an ex parte motion for the filing of a lis pendens
that same month. In April, 2016 defendants BANA, Countrywide
and Bank of America Corporation (“BAC”) removed
the case to the United States District Court for the District
of Massachusetts on the basis of federal question
about September 27, 2016, Ditech issued a notice of
foreclosure sale to plaintiffs. On October 14, 2016,
plaintiffs filed an emergency motion for a temporary
restraining order or preliminary injunction to prevent
Harmon, which is not a named party, from selling the
property. On October 17, 2016, plaintiffs filed an amended
motion asking the Court to enjoin BNY Mellon and Ditech
instead of Harmon. That motion on which a hearing was held on
October 18, 2016 is the subject of this memorandum and order.
Plaintiff's Motion for a Preliminary
move for a preliminary injunction to prevent the mortgage
foreclosure sale of the property.
order to obtain a preliminary injunction, the moving party
must establish 1) a reasonable likelihood of success on the
merits, 2) the potential for irreparable harm if the
injunction is withheld, 3) a favorable balance of hardships
and 4) the effect on the public interest. Jean v. Mass.
State Police, 492 F.3d 24, 26-27 (1st Cir. 2007). Out of
these factors, the likelihood of success on the merits
“normally weighs heaviest in the decisional
scales.” Coquico, Inc. v. Rodriguez-Miranda,
562 F.3d 62, 66 (1st Cir. 2009).
Court may accept as true “well-pleaded allegations [in
the complaint] and uncontroverted affidavits.” Rohm
& Haas Elec. Materials, LLC v. Elec. Circuits, 759
F.Supp.2d 110, 114, n.2 (D. Mass. 2010) (quoting Elrod v.
Burns, 427 U.S. 347, 350, n.1 (1976)). The Court may
also rely on otherwise inadmissible evidence, including
hearsay, in deciding a motion for preliminary injunction.
See Asseo v. Pan American Grain Co., Inc., 805 F.2d
23, 26 (1st Cir. 1986). Ultimately, the issuance of
preliminary injunctive relief is “an extraordinary and
drastic remedy that is never awarded as of right.”
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