United States District Court, D. Massachusetts
THOMAS E. MONKS, Plaintiff,
ASTORIA BANK, f/k/a ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant.
MEMORANDUM AND ORDER ON MOTION TO DISMISS
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
an action for wrongful foreclosure. In 2004, plaintiff Thomas
Monks purchased his home by taking out a mortgage loan. Nine
years later, he defaulted on the loan payments, after which
the defendant mortgagee, Astoria Bank, initiated foreclosure
proceedings. The complaint alleges that Astoria provided
Monks with an opportunity to apply for a loan modification
and assured him that it would not conduct a foreclosure sale
during the evaluation period. It further alleges that despite
those assurances, Astoria foreclosed on the home in September
2016. The complaint alleges three counts under Massachusetts
law for negligent misrepresentation, deceit, and a violation
of Mass. Gen. Laws ch. 93 A.
has moved to dismiss the complaint. For the following
reasons, the motion will be denied.
otherwise noted, the facts are set forth as alleged in the
complaint. In order to provide context, the Court has also
taken judicial notice of various filings in the bankruptcy
Monks and his family live in a house located at 34 Perley
Street in Lynn, Massachusetts ("the property").
(Am. Compl. ¶ 6). Astoria Bank, formerly known as
Astoria Federal Savings and Loan Association, is a federal
April 1, 2004, Monks borrowed $184, 000 from Astoria Federal
Mortgage Corporation to buy the property. (Id.
¶ 8). At the time of the loan, Astoria Federal Mortgage
Corporation was a subsidiary of Astoria Federal Savings and
Loan Association. (See Patel Deck Ex. D). The loan
was secured by a mortgage on the property. (Am. Compl. Ex.
9). The mortgage was subsequently assigned to Astoria Federal
Savings and Loan Association. (Id. ¶¶
has held the same job as an inspector at a machine shop for
42 years. (Id. ¶ 6). According to the
complaint, around January 2013, he went through a period of
financial hardship due to a loss of overtime work and an
illness his wife suffered that prevented her from working.
(Id. ¶ 12). As a result, he fell behind on his
mortgage loan payments. (Id.).
complaint alleges that Monks attempted to modify his mortgage
loan on multiple occasions. (Id. at 14). It alleges
that he applied for modifications in 2014, 2015, and 2016,
but that Astoria ignored some of his financial documents and
denied those applications. (Id.).
April 9, 2010, Monks filed a Chapter 13 bankruptcy petition
in the United States Bankruptcy Court for the District of
Massachusetts. (In re Thomas E. Monks, D. Mass.
Bankr. 10-13809, Docket No. 1). During the course of the
bankruptcy proceedings, Monks's attorney filed multiple
loan-modification applications on his behalf. (Am. Compl.
¶ 15). Those applications were denied, although the
reason for the denial is allegedly unclear. (Id.).
On December 23, 2014, the court granted Monks's motion to
convert the bankruptcy to a Chapter 7 proceeding. (In re
Thomas E. Monks, D. Mass. Bankr. 10-13809, Docket No.
92). Shortly thereafter, he filed a notice of intention
stating that he intended to reaffirm the debt in order to
retain the property, although he did not subsequently file a
reaffirmation agreement. (Id. Docket No. 102). On
January 30, 2015, the Chapter 7 trustee filed a report of no
distribution, stating that there was no property available
for distribution beyond that exempted by law, and further
stating, "Assets Abandoned (without deducting any
secured claims): $ 198, 390.23." (Id. at Docket
Entry on January 30, 2015). That amount is the same as the
amount of the secured claim on the property that Monks listed
on the Chapter 13 bankruptcy petition. (Id. Docket
No. 1 at 7). Finally, on April 2, 2015, Monks was granted a
discharge. (Id. Docket No. 118).
point, Monks received a notice that Astoria had scheduled a
foreclosure sale for August 29, 2016. (Am. Compl. ¶ 16).
In response to that notice, he contacted the Office of the
Attorney General of Massachusetts, which, in turn, requested
that Astoria postpone the sale and review the matter for a
possible loan modification. (Id. ¶ 17).
According to the complaint, Astoria agreed to postpone the
sale and consider Monks for a modification. (Id.
August 29, 2016, Astoria sent Monks a letter and loan
modification application. (Id. ¶ 20). The
letter stated that "[o]ptions [m]ay [b]e
[a]vailable" that would allow him to stay in his home or
leave while avoiding foreclosure, including, among other
things, modification of the loan terms. (Id. Ex. 8).
The first step, it stated, was to "provid[e] information
and documentation" using the instructions provided on
the attached checklist. (Id.). It went on to say:
Once we have received and evaluated your information, we will
contact you regarding your options and next steps.
No foreclosure sale will be conducted and you will not lose
your home during the evaluation period (or any longer period
required for us to review supplemental material you may
provide in response to this notice).
(Id.). In the following section, it stated that
"if a complete [application] is not received at least 38
calendar days before any scheduled foreclosure sale we may
not be able to conduct a full review of your mortgage loan
file." (Id.). Among other things, the document
checklist requested that Monks submit three recent
personal-bank statements. (Malik Deck Ex. I).
complaint alleges that on September 16, 2016, Monks returned
a 67-page application package to Astoria by certified mail.
(Am. Compl. ¶ 21). As a part of that package, he
provided bank statements for the period from July 23-August
18, 2016, and June 22-July 22, 2016, but did not provide a
third bank statement. (Malik Deck Ex. I). Astoria received
the package on September 22, 2016, and mailed Monks
confirmation of its receipt the following day. (Am. Compl.
¶¶ 22-23; Id. Ex. 10). The confirmation
If we received your application package more than 37 calendar
days before a scheduled foreclosure sale we will review your
application, and determine if it is complete. You will be
provided with an acknowledgement containing our assessment of
completion shortly. If your application is complete, or is
incomplete but completed within the time frame stated in the
acknowledgment we will evaluate you for all available loss
(Id.). The letter did not indicate whether the bank
considered the loan application to be complete, nor did Monks
ever receive an acknowledgement as to Astoria's
assessment of completion. (Id.)
to the complaint, despite having received the
loan-modification application on September 22, Astoria
foreclosed on the property on September 28, 2016.
(Id. ¶ 24). The foreclosure took place 30 days
after Astoria initially sent the application. (Id.).
Monks was notified that the property had sold back to Astoria
for the alleged amount of the debt of $221, 063.83, ...