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O'Halloran v. Nationstar Mortgage, LLC

United States District Court, D. Massachusetts

January 25, 2017





         The plaintiff, Colleen A. O'Halloran (“O'Halloran”), has brought this pro se action against the defendant, Nationstar Mortgage, LLC (“Nationstar”), [1] alleging that the defendant engaged in wrongful conduct in connection with O'Halloran's efforts to modify her mortgage loan and avoid a foreclosure on the property located at 2 Leland Drive, Sherborn, Massachusetts (the “Property”). Although sounding in several counts, all of the counts are premised on two allegations, specifically that Nationstar wrongfully failed to modify the mortgage loan despite the fact that O'Halloran made three timely trial plan payments under a trial payment plan (“TPP”), and that the Town of Sherborn, and not O'Halloran, was the true owner of the Property. Discovery is complete, and the matter is presently before the court on Nationstar's Motion for Summary Judgment. (Docket No. 21). Because the undisputed facts establish that O'Halloran did not make three timely trial plan payments as required by the TPP, and that O'Halloran was the rightful owner of the Property, the defendant's motion for summary judgment is ALLOWED.


         On November 5, 2007, the plaintiff entered into a loan agreement with Taylor, Bean & Whitaker Mortgage Corp., and executed a promissory note in the original principal amount of approximately $90, 000.00, secured by a mortgage on the Property. (DF ¶ 1; Compl. ¶ 6). After a series of transactions, the details of which are not relevant here, Nationstar became the holder of the note and mortgage, and is also the mortgage servicer. (DF ¶ 2; Compl. ¶ 6).

         The Loan Modification Transaction

         According to O'Halloran, she began experiencing financial difficulties sometime subsequent to June 12, 2013. (Compl. ¶ 7). It is undisputed that in or about December 2014, O'Halloran and Nationstar entered into discussions about a possible loan modification. (DF ¶ 9; Compl. ¶ 8). Nationstar approved O'Halloran for a TPP pursuant to which O'Halloran was obligated to make three payments in the amount of $678.25 on or before January 1, 2015, February 1, 2015 and March 1, 2015. (DF ¶ 10; Compl. ¶ 8; Docket No. 13-1). As the letter to O'Halloran provided:

We must receive each payment in the month in which it is due. If you miss a payment or do not fulfill any other terms of your trial period, this offer will end and your mortgage loan will not be modified.

(Docket No. 13-1).

         O'Halloran alleges that she made the three payments in a timely manner. (See O'Halloran Decl. ¶ 7). However, O'Halloran admitted in court, and the undisputed document-tary evidence establishes, that she did not make the second or third payments in a timely manner. Specifically, it is undisputed that Nationstar received the first trial payment from O'Halloran in the amount of $678.25 on or about December 29, 2014. (DF ¶ 12). The evidence shows further, however, and O'Halloran admits, that while she tried to make the second trial payment on or about January 31, 2015 by personal check, this payment was reversed due to insufficient funds on February 5, 2015, because O'Halloran did not actually have sufficient funds in the account to cover the check. (DF ¶¶ 16-17). On February 5, 2015, Nationstar sent O'Halloran a letter stating that the payment had been returned due to “Insufficient Funds.” (DF ¶ 29). The notice provided further:

You must replace this check with certified funds immediately. Acceptable certified funds include a Money Order, Money Gram, Wester Union, or a Cashier's Check from a banking institution. You may not replace a returned check with another check payment.

(Nationstar Decl. Ex. 3). Nationstar did not receive any additional payments until March 10, 2015, at which time it received a payment of $1, 000.00 from O'Halloran. (DF ¶ 31). Not only was this payment late, but it also was insufficient to satisfy O'Halloran's obligation to pay $678.25 in both February and March. (DF ¶ 32). It does not appear that O'Halloran has made any mortgage payments since March 10, 2015.

         Since O'Halloran's trial plan failed, she was ineligible for a final loan modification. (DF ¶ 38). Nationstar notified O'Halloran by letter dated March 14, 2015 that her loan modification request had been denied because she “did not make the required Trial Period Plan payments.” (Nationstar Decl. Ex. 4; DF ¶ 39). On or about May 1, 2015, O'Halloran received a notice that Nationstar had referred the loan to foreclosure. (Compl. ¶ 11). O'Halloran replied by letter dated May 29, 2015, objecting to the foreclosure because she had paid $1, 000 in March. (Compl. ¶ 12 & Ex. 5; PF ¶ 17). O'Halloran contends that she sent a demand letter pursuant to Mass. Gen. Laws ch. 93A to Nationwide before commencing this action, but Nationstar denies receiving any such letter and no such letter has been submitted to the court. (PF ¶ 20; Nationstar Decl. ¶ 33).

         Title ...

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