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Santiago v. U.S. Bank, N.A.

United States District Court, D. Massachusetts

November 13, 2017

U.S. BANK, N.A., as Trustee for LSF9 Master Participation Trust, Defendant.



         Plaintiff filed this action pro se against her mortgage creditor, Defendant U.S. Bank, N.A., as Trustee for LSF9 Master Participation Trust, alleging that Defendant improperly foreclosed on her home and refused to modify the mortgage. [ECF No. 1 at ¶¶ 5-7] (“Compl.”). Pending before the Court is Defendant's Motion for Summary Judgment. [ECF No. 10]. To date, Plaintiff has not responded to the motion, and the opposition deadline has long expired. The Court ordered Plaintiff to show cause as to why the motion should not be granted by July 21, 2017. [ECF No. 15]. Plaintiff never responded. For the following reasons, the motion is GRANTED.

         I. BACKGROUND

         Plaintiff took up residence in her home in Methuen, Massachusetts (the “Property”) in 2008. Compl. ¶¶ 1, 6. Thereafter, on June 22, 2009, Plaintiff and co-borrower Yovanny Santiago executed a mortgage for the Property in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Sidus Financial LLC (the “Mortgage”). [ECF No. 12 at ¶ 1] (“Defendant's Concise Statement of Material Facts” or “SMF”). The Mortgage secured Plaintiff's obligation to repay a loan in the principal amount of $192, 341 pursuant to the terms of the promissory note executed on June 22, 2009. Id. ¶ 2. On August 1, 2012, MERS assigned the Mortgage to Bank of America, N.A. Id. ¶ 6. On August 18, 2014, Bank of America, N.A. assigned the Mortgage to the Secretary of Housing and Urban Development (“HUD”). Id. ¶ 7. On October 16, 2014, HUD assigned the Mortgage to Defendant. Id. ¶ 8. Each assignment was recorded in the Northern Essex Registry of Deeds within a few months of the respective assignment. SMF ¶¶ 6-9.

         On March, 22, 2016, after Plaintiff defaulted on the Mortgage, Caliber Home Loans, Inc. (“Caliber”), as the Mortgage servicer, executed an Affidavit Regarding Note Secured by a Mortgage to be Foreclosed, affirming that Defendant had complied with Mass. Gen. Laws ch. 244, § 35B and that Defendant was the holder/owner of the promissory note secured by the Mortgage. SMF ¶ 9. See [ECF No. 11 at 2-3]; [ECF No. 13-6 at 2-3]; see also Clockedile v. U.S. Bank Trust, N.A., 189 F.Supp.3d 312, 316 (D. Mass. 2016) (with respect to “certain mortgage loans, ” as defined under Section 35B, creditors must “take reasonable steps and make good faith efforts to avoid foreclosure”); Olabode v. Caliber Home Loans, Inc., No. 15-10146, 2015 WL 4111439, at *2 n.3 (D. Mass. July 8, 2015) (Mass. Gen. Laws ch. 244, § 35C requires “that ‘[a] creditor shall not cause publication of notice of foreclosure . . . when the creditor knows that the mortgagee is neither the holder of the mortgage note nor the authorized agent of the note holder . . . .'” (citation omitted)).

         On July 27, 2016, Defendant sent Plaintiff and her co-borrower, by certified mail, return receipt requested, Notices of Intent to Foreclose Mortgage and Intent to Pursue Deficiency after Foreclosure of Mortgage, as well as a copy of the Notice of Mortgagee's Sale of Real Estate, addressed to the Property and the most recent addresses on record for the Plaintiff and her co-borrower. SMF ¶ 10; [ECF No. 11 at 3]; [ECF No. 14-1 at 2-4]. These notices included a copy of the promissory note and a certification pursuant to Massachusetts 209 CMR 18.21A(2)(c), stating that the Mortgage was in default and identifying Defendant as the owner of the promissory note and Caliber as Defendant's authorized agent in possession of the note. [ECF No. 14-1 at 5-8]. Among other things, the notices documented Defendant's intent to foreclose by sale on or after August 23, 2016 at 10:00 AM. Id. at 2. Defendant published notice of the planned sale in the Eagle-Tribune, a newspaper with general circulation in Methuen, for three consecutive weeks beginning the week of July 25, 2016. [ECF No. 13-7 at 5]. The scheduled auction was eventually postponed by public proclamation until October 12, 2016, and again postponed by public proclamation until November 28, 2016 at 2:00 PM, [1] [ECF No. 13-7 at 5], at which time Defendant purchased the Property as the highest bidder. Id.; see SMF ¶ 11. On January 19, 2017, Caliber recorded a Foreclosure Deed and Post Sale Affidavit Regarding Note, certifying, inter alia, that the “Mortgagee was [] the holder/owner of the promissory note secured by the [] Mortgage” for the period of time between the issuance of the Section 14 notices and the date of the foreclosure sale. SMF at ¶¶ 11-12.

         On February 16, 2017, Plaintiff filed the instant eight-paragraph complaint pro se, alleging that she requested loan modifications but never received assistance from Defendant. Compl. ¶ 6. She further alleged that Defendant failed to properly notify her of the auction and “like[d] to evict [her] family, ” because Plaintiff has a family member who is disabled and uses a wheelchair.[2] Id. ¶¶ 5-6. Plaintiff requests that the Court enjoin Defendant from all collection, foreclosure, and eviction proceedings. Id. ¶ 8.


         “When a non-moving party fails to file a timely opposition to an adversary's motion for summary judgment, the court may consider the summary judgment motion unopposed, and take as uncontested all evidence presented with that motion.” Perez-Cordero v. Wal-Mart Puerto Rico, 440 F.3d 531, 533-34 (1st Cir. 2006). Here, Plaintiff has neither opposed the motion nor responded to the Court's order to show cause. Over five months have passed since the filing of the motion, and the deadline to show cause expired on July 21, 2017. Accordingly, the Court treats the motion as unopposed.

         “In most cases, a party's failure to oppose summary judgment is fatal to its case.” Perez-Cordero, 440 F.3d at 534. However, “[e]ven when faced with an unopposed motion for summary judgment, a court still has the obligation to test the undisputed facts in the crucible of the applicable law in order to ascertain whether judgment is warranted.” Velez v. Awning Windows Inc., 375 F.3d 35, 42 (1st Cir. 2004). The Court “constru[es] the record evidence in the light most favorable to the nonmoving party.” Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if its resolution might affect the outcome of the case under the controlling law. A genuine issue exists as to such a fact if there is evidence from which a reasonable trier could decide the fact either way.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted).

         The Court also recognizes that a “pro se complaint is entitled to a liberal construction” and applies a “less stringent” standard to the instant Complaint as compared to a pleading drafted by an attorney. Garrett v. Ill. Att'y Gen., No. 14-10217, 2014 WL 652614, at *2 (D. Mass. Feb. 18, 2014) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). The Court, however, must “refrain from conjuring up unpled allegations to give life to a phantom cause of action.” Gaskins v. Dickhaut, 962 F.Supp.2d 336, 339 (D. Mass. 2013).


         A. Standing

         Plaintiff requests that Defendant cease all foreclosure activities until Defendant shows that it “had proper assignment and standing in this case.” Compl. ¶ 8. Plaintiff does not offer any other allegations or evidence regarding the assignment of the Mortgage or Defendant's right to foreclose. The Court may ignore “conclusory allegations, improbable inferences, and unsupported speculation, ” including where, as here, Plaintiff fails to allege that the assignments of the Mortgage were unenforceable ...

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