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Bou-Nassif v. Bank of America, N.A.

United States District Court, D. Massachusetts

August 31, 2017

BANK OF AMERICA, N.A., et al., Defendants.



         After the Court dismissed the initial complaint in this case, see Doc. 23, Plaintiff Edward Bou-Nassif filed a verified Amended Complaint against Defendants Bank of America, N.A., and unknown agents of the company (collectively, “BANA”). Doc. 26. The Court dismissed as futile every count in the Amended Complaint except for Count One. Doc. 31 at 6. In that count, Plaintiff claims BANA violated Mass. Gen. Laws ch. 93A, § 2 (hereinafter, “93A”), which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce, ” by incorrectly telling him that he would receive a loan modification and then ultimately foreclosing on his home on August 12, 2011. See Doc. 26 at 4. BANA has filed a Motion for Summary Judgment (Doc. 67). For the reasons that follow, the Court ALLOWS the Motion.


         Plaintiff had a home mortgage loan that, starting around March 2008, was serviced by Countrywide Home Loans Servicing, LP, which changed its name to BAC Home Loans Servicing, LP (“BAC”) in April 2009. Doc. 69 at 2. On July 1, 2011, BAC merged with and into BANA. Id.

         Plaintiff went into default on his home mortgage loan in January 2009. Id. He received notification of default the following month and failed to cure it. Id. After warning Plaintiff of foreclosure, BAC initiated foreclosure proceedings in July 2009. Id. at 2-3.

         On February 4, 2010, BANA sent Plaintiff a proposed loan modification agreement, which Plaintiff did not accept. Id. at 3.

         Around December 2010, Plaintiff asked BANA for “a chance to modify his [home mortgage] loan.” Doc. 26 at 1. According to Plaintiff's under oath statements in his Amended Complaint, BANA told him “that he needed to be three months behind before” a loan modification application “would be accepted or processed.” Id. Plaintiff alleges he “relied” on this representation by BANA “that it would renegotiate following [Plaintiff's] cessation of mortgage payment.” Id. at 2. On February 4, 2010, BANA offered Plaintiff a loan modification. Doc. 69 at 3. Plaintiff failed to accept this modification. Id.

         Later, Plaintiff was considered for another modification. On January 26, 2011, Plaintiff was notified in writing that his home mortgage loan did not qualify for a modification under the Home Affordable Modification Program (“HAMP”).[2] Id.

         In April 2011, Plaintiff repeatedly “sent an entire package of documents for consideration of a loan modification, ” but BANA rejected the package for procedural infirmities, such as out-of-order pages. Doc. 26 at 2.

         On July 18, 2011, Plaintiff was again notified in writing that his mortgage loan did not qualify for a modification under HAMP. Doc. 69 at 3.

         During the summer of 2011, according to his under oath statements in his Amended Complaint, Plaintiff “continued to answer questions to [BANA] agents, ” who “encouraged” him “that a modification would be forthcoming.” Doc. 26 at 2. Plaintiff complied with all of BANA's requests for additional documentation, and BANA “constantly reassured” Plaintiff over the phone that “a modification would be obtained.” Id. Plaintiff's summary judgment affidavit states that between July 18, 2011, when he received the second denial for a HAMP modification, and August 17, 2011, five days after BANA foreclosed on his home, he “was in communication with” a BANA representative named Mike “over 18 times working to clear up misunderstandings in my paperwork and to clarify the finances of my company and family.”[3]Doc. 75-2 at 1. In the Amended Complaint, Plaintiff suggests that one of these “misunderstandings” was “why [he] ha[d] two addresses, ” and that after he provided an answer “the agent was satisfied . . . [and Plaintiff] felt a modification would be approved.” Doc. 26 at 2. Plaintiff provides no specific information about what else Mike asked him to clarify, what documentation he asked Plaintiff to provide, whether Mike was the only BANA representative with whom he spoke, what dates he received assurances of a loan modification, or the context in which BANA representatives “constantly reassured” him that he would receive a modification, notwithstanding the two written denials of modification he had received. Plaintiff alleges he relied upon the loan modification assurances of BANA representatives and chose not to take actions to stop impending foreclosure, “such as finding a potential buyer” for his home. Id. at 8.

         According to the Amended Complaint, on August 11, 2011, a BANA representative named Manuk Mike Barsamyan[4] told Plaintiff that “the pending foreclosure on his property was suspended, ” as “negotiations and review of the file were going to be ongoing.” Doc. 26 at 3; see also id. (stating that Plaintiff understood he “was under the HAMP procedures and a suspense of th[e] foreclosure action was to take place”).[5] In contrast to this under oath statement, in his summary judgment affidavit Plaintiff states Mr. Barsamyan told him something else. Plaintiff's affidavit claims that, on August 11, 2011, Mr. Barsamyan “said that the modification was approved and that the foreclosure would be stopped.” Doc. 75-2 at 1 (emphasis added); see also Doc. 75-1 at 4 (alleging that a BANA representative told Plaintiff twice on August 11, 2011, at 6:55 p.m. and at 8:41 p.m., “that the modification was completed”) (emphasis added). In reliance on this statement, according to the affidavit, Plaintiff “did not attempt to seek out a lawyer to either get an injunction or to file for Bankruptcy to stop the foreclosure, ” nor did he “ask[] for more time to obtain other financing for the house.” Doc. 75-2 at 1.

         On August 12, 2011, BANA foreclosed on Plaintiff's home and sold it. Id.; Doc. 69 at 3. Mr. Barsamyan “admitted” to Plaintiff “that he and his office made a mistake in not notifying [BANA's] foreclosing department to stop the foreclosure and was attempting to correct this mistake.” Doc. 26 at 3.

         On October 18, 2011, BANA “acknowledge[d]” to Plaintiff “that a mistake had been made” but was “not sure what could be done.” Id. Plaintiff ...

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