United States District Court, D. Massachusetts
COLLEEN A. O'HALLORAN, Plaintiff,
NATIONSTAR MORTGAGE, LLC, and DOES 1-10, INCLUSIVE, Defendants.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
GAIL DEIN UNITED STATES MAGISTRATE JUDGE.
plaintiff, Colleen A. O'Halloran
(“O'Halloran”), has brought this pro
se action against the defendant, Nationstar Mortgage,
LLC (“Nationstar”),  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.
STATEMENT OF FACTS
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).
Loan Modification Transaction
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).
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
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.
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).