United States District Court, D. Massachusetts
ORDER ON MOTION FOR SUMMARY JUDGMENT (DOC.
SOROKIN UNITED STATES DISTRICT JUDGE
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
STATEMENT OF FACTS
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.
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.
February 4, 2010, BANA sent Plaintiff a proposed loan
modification agreement, which Plaintiff did not accept.
Id. at 3.
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.
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
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
18, 2011, Plaintiff was again notified in writing that his
mortgage loan did not qualify for a modification under HAMP.
Doc. 69 at 3.
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.”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.
to the Amended Complaint, on August 11, 2011, a BANA
representative named Manuk Mike Barsamyan 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”). 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.
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.
October 18, 2011, BANA “acknowledge[d]” to
Plaintiff “that a mistake had been made” but was
“not sure what could be done.” Id.