United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
John Consolo (“Consolo”) filed this lawsuit
against Defendants Bank of America and NationStar Mortgage
LLC (“Defendants”) bringing claims for breach of
contract (Count I), promissory estoppel (Count II), negligent
misrepresentation (Count III), breach of implied covenant of
good faith and fair dealing (Count IV) and violation of Mass.
Gen. L. c. 93A (Count V). D. 1-2. Defendants have moved for
summary judgment. D. 50. For the reasons stated below, the
Court ALLOWS Defendants' motion.
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant
bears the burden of demonstrating the absence of a genuine
issue of material fact. Carmona v. Toledo, 215 F.3d
124, 132 (1st Cir. 2000); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
meets its burden, the non-moving party may not rest on the
allegations or denials in her pleadings, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but
“must, with respect to each issue on which she would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As
a general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in
original). The Court “view[s] the record in the light
most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
purposes of this summary judgment motion, the Court will
consider undisputed facts taken from the parties' Rule
56.1 statements. Consolo is the son of Mary Consolo, who
became owner of the property located at 262 East Eagle
Street, East Boston, Massachusetts (the
“Property”) in 1984. D. 52-1 at 5 (Consolo's
Deposition). In 1996, Mary Consolo transferred ownership of
the Property to Consolo and his brother, Gaetano Consolo, by
quitclaim deed. Id. at 13-14; D. 52-2 at 72. In
doing so, Mary reserved a life estate for herself in the
Property. D. 1-2 at 6. In 2000, when Mary was 85 years old,
she signed a power of attorney appointing Consolo to manage
her affairs. Id. At that time, Consolo resided at an
apartment on the Property (and he continues to live there).
Id.; D. 52-1 at 5.
2009, the Consolos decided to seek a home equity conversion
loan (also known as a reverse mortgage) (the
“Loan”) secured by the Property. D. 1-2 at 7. At
or about this time, Gaetano Consolo, gave Consolo a power of
attorney to allow him to apply for the Loan on Gaetano's
behalf. Id. at 7-8. Consolo called Bank of America
and spoke with Tim Keough (“Keough”), to discuss
whether his family would be eligible to obtain the Loan.
Id. The two communicated about the Loan solely
through telephone and e-mail. Id. Initially, Consolo
applied for the Loan on the Property in Gaetano's name.
Id. at 8; D. 52-1 at 33. Consolo's objective
from the beginning of this process was to secure a Loan that
would also allow Mary, Gaetano and himself to live in the
Property until they died. D. 52-1 at 32. Understanding that
his family could maximize the cash from the Loan by basing it
on Mary's age as opposed to Gaetano's age, D. 1-2 at
Consolo decided to apply for the Loan on the Property in
Mary's name and again completed the Loan counseling over
the phone. Id.
effectuate the Loan, Keough sent Consolo a packet of
documents to sign. Id. at 9. The adjustable rate
home equity conversion mortgage (the “Mortgage”)
stated the following:
THIS MORTGAGE (“Security Instrument”) is given on
April 24, 2009 (“Date”). The mortgagor is John G.
Consolo and Gaetano F. Consolo, as tenants in common and Mary
Consolo, reserving a Life estate whose address is 262 East
Eagle Street East Boston, MA 02128 (“Borrower”).
at 23. On the signature page of the Mortgage, the document
BY SIGNING BELOW, Borrower accepts and agrees to the terms
and covenants contained in this Security Instrument and in
any rider(s) executed by Borrower and recorded with it.
at 32. Underneath this statement, Bank of America included
signature lines for each of the three Consolos with their
preprinted names underneath each line: “Mary Consolo,
by John G. Consolo, her attorney in fact;” “John
G. Consolo, as remainderman;” and Gaetano F. Consolo,
remainderman, by John G. Consolo, his attorney in
fact.” Id. Consolo signed the Mortgage on
behalf of all three. Id. The Mortgage also contained
the following acceleration clause:
9. Grounds for Acceleration of Debt
(a) Due and Payable. Lender may require immediate
payment-in-full of all sums secured by this Security
(i) A Borrower dies and the Property is not the principal
residence of at least one ...