United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION FOR SUMMARY
Dennis Saylor IV, United States District Judge
an action alleging unlawful foreclosure and destruction of
property. In December 2013, plaintiff Cindy Colbert Conrad
defaulted on a loan secured by a mortgage on her home. In
September 2016, the mortgagee, U.S. Bank Trust, N.A., as
trustee for LSF9 Master Participation Trust, (“U.S.
Bank”) conducted a foreclosure sale. Conrad has brought
five counts under state and federal law against U.S. Bank and
the loan servicer, Caliber Home Loans, Inc., alleging that
the foreclosure sale was unlawful and seeking to enjoin the
transfer of the property. She has brought a sixth count for
destruction of property against Jonathan Cody, the ultimate
purchaser of the property.
to any discovery taking place, defendants U.S. Bank and
Caliber moved for summary judgment. For the following
reasons, the motion for summary judgment will be granted, and
the Court will remand the remaining claim against Cody
sua sponte to state court.
August 25, 2005, Cindy Colbert Conrad executed a mortgage for
$350, 000 on her home located at 25 Curtis Road in Boxford,
Massachusetts (“the property”). (Id.
¶ 4). The mortgage secured a note to Monument
Mortgage Company, Inc. (Def. SMF ¶ 1). U.S. Bank is the
current mortgagee. (Id. ¶ 2). Defendant Caliber
Home Loans, Inc., is the servicer for the mortgage loan.
(Mansi Aff., Ex. G). According to the complaint, Jonathan
Cody was the ultimate potential purchaser following the
foreclosure sale. (Compl. ¶ 17).
mortgage designated Cindy Conrad as the borrower; Monument
Mortgage Company, Inc. as the lender; and the Mortgage
Electronic Registration Systems, Inc. (“MERS”) as
the mortgagee and nominee for Monument and its successors and
assigns. (Mansi Aff., Ex. C at 1). On January 17, 2013, MERS
assigned the mortgage to Wells Fargo Bank, N.A. (Id.
Ex. D). On April 25, 2016, Wells Fargo assigned the mortgage
to U.S. Bank. (Id. Ex. E).
note includes an allonge dated August 25, 2005. (Id.
Ex. B). The allonge endorses the note from Monument to Ohio
Savings Bank. Robert Diamond, an authorized agent of Ohio
Savings Bank, then endorsed the note in blank.
(Id.). On August 25, 2015, U.S. Bank took possession
of the note through its document custodian, Wells Fargo.
(Def. SMF ¶ 2). U.S. Bank has continuously possessed the
note since that date through its custodian. (Id.).
December 1, 2013, Conrad defaulted on the loan. (Id.
¶ 7). On January 30, 2015, Wells Fargo, the prior loan
servicer, sent a 150-day right-to-cure notice to Conrad at
the property by certified and first-class mail. (Id.
¶ 8; Mansi Aff. ¶ 14, Ex. F). Conrad did not cure
the default. (Def. SMF ¶ 9).
14, 2016, Caliber, acting pursuant to a limited power of
attorney, recorded an affidavit certifying compliance with
Mass. Gen. Laws. ch. 244, §§ 35B and 35C in the
Southern Essex County Registry of Deeds. (Mansi Aff., Ex. G).
The power of attorney authorized Caliber to, among other
things, “[d]emand, sue for, recover, collect and
receive each and every sum of money, debt, account and
interest . . . belonging to or claimed by [U.S. Bank], and to
use or take any lawful means for recovery by legal process or
otherwise.” (Id. Ex. A).
complaint alleges that on September 12, 2016, Harmon Law
Offices conducted a foreclosure sale of the property on
behalf of U.S. Bank. (Compl. ¶ 14). It further alleges
that a “Memorandum of Terms and Conditions of
Sale” was executed in favor of Siddharth Gehlot for a
purchase price of $382, 000. (Id. ¶ 15).
According to the complaint, Gehlot's bid was ultimately
assigned to defendant Jonathan Cody. (Id.
Destruction of Property Claim
complaint alleges that on October 17, 2016, Cody requested
that Conrad allow workers onto the property to “do some
‘yard work.'” (Compl. ¶ 56). Conrad
consented to allow workers to trim the grass and shrubs.
(Id. ¶ 57). She was away from home while the
work was being conducted and returned later to discover that
the workers had removed “all of her shrubbery.”
(Id. ¶ 58). She contends that the workers'
actions exceeded her authorization and seeks monetary damages
for destruction of property. (Id. ¶ 60).