United States District Court, D. Massachusetts
MICHAEL J. HEALY, Plaintiff,
U.S. BANK N.A. as TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Defendant.
OPINION AND ORDER
A. O'Toole, Jr. United States District Judge.
plaintiff, Michael J. Healy, proceeding pro se,
filed suit against the defendant, U.S. Bank N.A. as Trustee
for LSF9 Master Participation Trust, after the defendant
initiated foreclosure proceedings on the mortgage on property
located in South Yarmouth, Massachusetts. He filed his
complaint in the Barnstable County Superior Court on
September 23, 2016, asserting a variety of arguments against
the foreclosure, and requested on an emergency basis an order
to prevent the defendant from conducting a foreclosure sale
of the property. On September 26, a state court judge issued
a temporary restraining order suspending the scheduled
foreclosure sale pending further order of the court, and set
a hearing on a preliminary injunction for October 6.
October 4, the defendant removed the case to this Court
pursuant to 28 U.S.C. § 1332. This Court scheduled a
hearing on the plaintiff's motion for October 13. A few
hours before the hearing, the defendant electronically filed
its opposition to the plaintiff's motion, together with
120 pages of supporting documents. In light of the volume and
timing of the defendant's submission, the Court heard
only brief argument at the scheduled hearing and permitted
the plaintiff additional time to respond in writing to the
defendant's opposition. The Court also permitted the
defendant to file a sur-reply. After a series of requests for
continuances by both sides, the plaintiff's motion was
fully briefed as of November 23.
December 12, prior to the Court's resolution on the
pending motion for injunctive relief and before any discovery
scheduling order had been entered, the defendant moved for
summary judgment. The plaintiff opposed the motion and
ultimately also moved for summary judgment. His motion was
not accompanied by a memorandum in support or statement of
material facts. He subsequently filed a document entitled
“Complaint” which the defendant moved to strike.
Request for Preliminary Injunctive Relief
order to obtain a preliminary injunction, the plaintiff bears
the burden of demonstrating that the familiar four factors
weigh in his favor: (1) the likelihood of success on the
merits; (2) the potential for irreparable harm if the
injunction is denied; (3) the balance of relevant
impositions; and (4) the effect-if any-of the court's
ruling on the public interest. See Esso Standard Oil Co.
(P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006)
(citations omitted). Of these factors, the likelihood of
success on the merits “normally weighs the heaviest on
the decisional scales.” Coquico, Inc. v.
Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009)
(citing Borinquen Biscuit Corp. v. M.V. Trading
Corp., 443 F.3d 112, 115 (1st Cir. 2006)).
the plaintiff's motion fails largely because he has not
demonstrated a likelihood of success on the merits. The
plaintiff's primary contention is that the defendant
lacks legal authority to foreclose because the note and
mortgage were separated through various assignments. First,
as long as an assignment comported with the requirements of
Massachusetts General Laws ch. 183, § 54B, the
assignment is otherwise effective to pass legal title and
generally cannot be shown to be void. Bank of New York
Mellon Corp. v. Wain, 11 N.E.3d 633, 638 (Mass.App. Ct.
2014). Additionally, in Massachusetts, “[a] mortgage
can be split from its underlying note, so long as the two are
held by the same foreclosing party at the time of
foreclosure.” Lackei v. Deutsche Bank Nat'l
Trust Co., No. 15-30121-MGM, 2016 WL 4076830, at *3 (D.
Mass. July 29, 2016) (quoting Aragao v. Mortg. Elec.
Registration Sys., Inc., 22 F.Supp.3d 133, 139 (D. Mass.
2014); accord Foregger v. Residential Credit Sols.,
Inc., No. CIV.A. 12-11914-FDS, 2013 WL 3208596, at *5
(D. Mass. June 21, 2013) (citing Eaton v. Fed. Nat'l
Mortg. Assoc., 969 N.E. 1118, 1125 (Mass. 2012) and
Culhane v. Aurora Loan Servs., 708 F.3d 282, 292-93
(1st Cir. 2013)).
light of these principles, the plaintiff has not at this
point shown a reasonable likelihood of success on the merits
of his claims, and his request for preliminary injunctive
relief (dkt. no. 9 at 56-63) is therefore DENIED.
Cross-Motions for Summary Judgment
First Circuit has cautioned district courts to “refrain
from entertaining summary judgment motions until after the
parties have had a sufficient opportunity to conduct
necessary discovery.” Velez v. Awning Windows,
Inc., 375 F.3d 35, 39 (1st Cir. 2009) (citations
omitted). “It follows that when a party moves for
summary judgment, the opposing party must be afforded a fair
chance to obtain and synthesize available information before
being required to file an opposition.” Id.
When confronted with a motion for summary judgment under Rule
56 of the Federal Rules of Civil Procedure, a party who needs
additional time for discovery may invoke Rule
56(d) or “its functional
equivalent.” Id. 39-40. The rule “serves
a valuable purpose” in that it “protects a
litigant who justifiably needs additional time to respond in
an effective manner to a summary judgment motion.”
Rivera-Almodovar v. Instituto Socioeconomico Comunitario,
Inc., 730 F.3d 23, 28 (1st Cir. 2013) (citation
omitted); accord Resolution Tr. Corp. v. North Bridge
Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994)
(explaining that the rule is “intended to safeguard
against judges swinging the summary judgment axe too
hastily”) (citation omitted). “Consistent with
the salutary purposes underlying” the rule, courts
should construe requests “that invoke the rule
generously, holding parties to the rule's spirit rather
than its letter.” In re PHC, Inc. S'holder
Litig., 762 F.3d at 143 (quoting Resolution
Tr., 22 F.3d at 1203). While the rule provides for
various requirements a party opposing summary judgment must
proffer in order to gain its benefit-authoritativeness,
timeliness, good cause, utility, and materiality-the
“requirements are not inflexible and . . . . one or
more of the requirements may be relaxed, or even excused, to
address the exigencies of a given case.” Id.
(quoting Resolution Tr., 22 F.3d at 1203).
the defendant moved for summary judgment just after briefing
on the motion for injunctive relief was complete and before a
discovery schedule had entered. In his response, the
plaintiff persistently requests, albeit without an affidavit,
the opportunity to obtain discovery. He promptly made the
request when confronted with the defendant's motion.
See Resolution Tr., 22 F.3d at 1203 (noting that the
rule “is designed to minister to the vigilant, not to
those who slumber upon perceptible rights” (citation
omitted)). Although the utility and materiality of discovery
may be doubtful, the defendant does repeatedly point to the
plaintiff's lack of evidence as support for granting its
summary judgment motion. (See, e.g., Def.'s
Reply to Pl.'s Opp'n to Mot. for Summ. J. 4 (dkt. no.
39) (“Plaintiff does not allege any facts or
provide any evidence to support this claim.”
(emphasis added)); id. (“Plaintiff offers
no evidence for his conclusory and meritless
allegations.” (emphasis added)); id. at 6
(“Plaintiff fails to submit with the
Opposition . . . any evidence to support the
allegation . . . .” (emphasis added)).)
light of the circumstances of this case and the Circuit's
direction to construe generously requests made pursuant to
Rule 56(d), see In re PHC, Inc. Shareholder Litig.,
762 F.3d at 143, I will allow the plaintiff a short period
for formal discovery. Consequently, the cross-motions for
summary judgment (dkt. nos. 28 and 45) are DENIED without
prejudice so as to permit a short period of time for
Motion to Strike
defendant's Amended Motion to Strike (dkt. no. 51) is
DENIED as unnecessary. The plaintiff's
“Complaint” (dkt. no. 47) was docketed as
“Statement of Facts” but appears wholly unrelated
to the cross-motions for summary judgment, does not seem to
seek to amend the complaint to allege a new count, and
requests no specific relief from the Court. Consequently, no