United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTIONS TO
STRIKE AND CROSS-MOTIONS FOR SUMMARY JUDGMENT
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE
a dispute concerning a mortgage. Plaintiff Dorita Aja has
been in default on a mortgage-on a property that is not her
principal residence-for approximately eight years. Defendant
Ocwen Loan Servicing, LLC is the current servicer of the
note. Aja has brought suit against Ocwen under state law to
void the mortgage, recover damages, and enjoin any potential
foreclosure. Both parties have moved for summary judgment,
and Ocwen has also moved to strike certain paragraphs of
Aja's affidavits in support of her motion for summary
judgment. For the following reasons, the motions to strike
will be denied as moot, plaintiff's motion for summary
judgment will be denied, and defendant's motion for
summary judgment will be granted.
following facts are as set forth in the record.
Dorita Aja owns property located at 22.5 Sigourney Street,
Unit F in Jamaica Plain, Massachusetts (the
“property”). (Compl. ¶ 4). She does not
reside in the property. (Pl.'s SMF ¶ 7). On December
20, 2004, she mortgaged the property for the original
principal amount of $362, 500. (Docket No. 86, Ex. G). The
annual interest rate of the note was 6.85%, resulting in
required monthly payments of $2, 375.31. (Id.).
initial owner of the note was Shamrock Financial, a Rhode
Island corporation. (Id.). Shamrock Financial
assigned the mortgage to Option One Mortgage Co. (Docket No.
86, Ex. I). The mortgage was recorded with the Suffolk County
Registry of Deeds on December 27, 2004. (Def.'s SMF
¶ 3). On March 3, 2008, Option One assigned the mortgage
to Wells Fargo as trustee for “MASTR Asset Backed
Securities Trust 2005-OPT1”; the assignment was
recorded with the Registry of Deeds on March 7, 2008. (Docket
No. 86, Ex. J). The 2008 assignment was signed by Topako
Love, who purported to be the Assistant Secretary of Option
One. (Id.). A minor correction to the name of the
mortgagee was made on October 24, 2012. (Docket No. 86, Ex.
K; Def.'s SMF ¶ 6).
been in default on her payment obligations since at least
early 2010. (Pl.'s Affidavit in Support ¶
2008, the Massachusetts Attorney General brought proceedings
against Option One (later renamed Sand Canyon) and its loan
servicer American Home Mortgage Servicing, Inc.
(“AHMSI”), for predatory and discriminatory
lending practices. (Docket No. 93, Ex. L). On August 8, 2011,
Option One entered into a consent judgment where it agreed to
various forms of monetary and injunctive relief.
(Id.; Def.'s SMF ¶ 9). Option One promised
to modify certain loans after the consent judgment's
effective date of November 6, 2011. (Docket No. 93, Ex. L;
Def.'s SMF ¶ 10). As relevant here, loans originated
by Option One and serviced by AHMSI were eligible for
modification provided that they were secured by property that
(1) was located in Massachusetts, (2) occupied by the
owner, and (3) the owner's primary
residence. (Def.'s SMF ¶ 11).
is no record of any representative of Option One, AHMSI, or
Ocwen contacting Aja concerning the 2011 consent judgment.
However, in a letter dated August 25, 2011, AHMSI notified
Aja that it was “currently gathering information to
determine if [she was] eligible for the Home Affordable
Modification Program (HAMP).” (Docket No. 90, Ex. 1 at
91). Aja apparently provided some information to AHMSI,
because on March 21, 2012, AHMSI sent another letter to Aja
informing her that the information package she sent was
incomplete and that she would need to send additional
information concerning her finances. (Id. at 87).
Aja apparently sent the requested information. However, on
April 11, 2012, AHMSI notified Aja that she was ineligible
for a HAMP modification because the property was not her
principal residence. (Id. at 98).
replaced AHMSI as the loan servicer on February 19, 2013.
(Def.'s SMF ¶ 17). On March 3, 2015, Ocwen mailed
Aja a letter providing a “Shared Appreciation
Modification” offer. (Docket No. 90, Ex. 1 at 107). The
enclosed “Frequently Asked Questions” section
stated that she was eligible for the modification because (1)
her property was “underwater, ” as she owed more
than the property was worth, and (2) she did not qualify for
HAMP. (Id. at 109). To qualify, Aja would have to
make an initial monthly payment of $2, 052.90 by April 1,
2015. (Id. at 107). Under the terms of the Shared
Appreciation Modification offer, Ocwen would categorize $32,
191.08 of Aja's outstanding balance as “deferred
principal” as to which Aja would not owe any interest.
(Id. at 111). The deferred principal balance would
also be eligible for debt forgiveness over the next three
years. (Id.). The interest rate on the remaining
balance of $501, 992.26 would further be reduced to 2.21528%
per year. (Id.). In exchange, Aja would have to
remit 25% of any future appreciation in the property's
value to Ocwen, capped at the amount of principal forgiveness
of $32, 191.08. (Id. at 112). There would also be a
“balloon payment” due in 2035. (Id. at
never made the April 1, 2015 payment, and thus never accepted
the Shared Appreciation Modification offer.
20, 2015, Aja's then-attorney David Zak mailed a demand
letter to Ocwen pursuant to Mass. Gen. Laws ch.
The demand letter requested that Ocwen grant a principal
balance reduction of $184, 183, which the letter
characterized as lost equity. (Compl. Ex. A at 3). The letter
alleged multiple violations of Chapter 93A by Ocwen, Option
One, and AHMSI. (Id. at 1-4). Ocwen's counsel
replied on October 13, 2015, denying any violation of Chapter
93A. (Docket No. 90, Ex. 2 at 19). Nevertheless, the reply
included a settlement offer. By that date, the outstanding
balance on Aja's account had increased to $549, 774.67.
(Id. at 22). Ocwen's settlement offer would reduce
the balance to $536, 000 and lower the interest rate to 3.9%;
there would also be a balloon payment of $378, 306.60 due in
not accept the settlement offer, instead electing to file
filed suit on December 3, 2015, in the Suffolk County
Superior Court. Her complaint asserts five counts: violation
of Mass. Gen. Laws ch. 266, § 35A (Count 1); violation
of Mass. Gen. Laws ch. 267, § 1 (Count 2); an action to
quiet title under Mass. Gen. Laws ch. 240, § 1 (Count
3); violation of Chapter 93A with respect to the HAMP
modification process (Count 4); and violation of Chapter 93A
with respect to the Shared Appreciation Modification and
Chapter 93A offers (Count 5). Ocwen removed the action to
this Court on January 5, 2016. Both parties have moved for
summary judgment, and Ocwen has also moved to strike portions
of two of Aja's affidavits in support of her motion.
role of summary judgment is to “pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. General Elec.
Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting
Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st
Cir. 1990)). Summary judgment is appropriate when the moving
party 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 genuine issue is
“one that must be decided at trial because the
evidence, viewed in the light most flattering to the
nonmovant, would permit a rational fact finder to resolve the
issue in favor of either party.” Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)
(citation omitted). In evaluating a summary judgment motion,
the court indulges all reasonable inferences in favor of the
nonmoving party. See O'Connor v. Steeves, 994
F.2d 905, 907 (1st Cir. 1993). When “a properly
supported motion for summary judgment is made, the adverse
party must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (quotations
omitted). The nonmoving party may not simply “rest upon
mere allegation or denials of his pleading, ” but
instead must “present affirmative evidence.”
Id. at 256-57.
Motions to Strike
has moved to strike certain paragraphs to plaintiff's
affidavits in support of her motion for summary judgment.
Because the Court will not rely on the disputed paragraphs in
deciding the cross-motions for ...