United States District Court, D. Massachusetts
MEMORANDUM AND ORDER VACATING THE COURT'S APRIL
2017 ORDER IN PART, REQUESTING SUPPLEMENTAL BRIEFING, AND
DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
DENNIS SAYLOR, UNITED STATES DISTRICT JUDGE
a dispute concerning an anticipated mortgage foreclosure. It
had been previously represented to the Court that foreclosure
was imminent, based on a notice that had been issued in 2009.
In fact, however, no foreclosure has been noticed or
scheduled, and the bank does not intend to rely on the 2009
notice. Accordingly, it is necessary for the Court to vacate
portions of its April 17, 2017 order and order supplemental
briefing as to whether this matter is justiciable in its
current posture. The pending motion for summary judgment will
be denied without prejudice.
Bruce Rose filed this action in state court on June 23, 2016.
The complaint (1) sought a declaratory judgment that
defendant Bank of America cannot foreclose on his property;
(2) alleged intentional infliction of emotional distress; (3)
alleged abuse of process; and (4) alleged violation of
Massachusetts General Laws Chapter 93A. Specifically, with
respect to the declaratory judgment count, Rose alleged (1)
that Bank of America does not possess and cannot produce the
original note as required by Mass. Gen. Laws ch. 244, §
14; (2) that the bank's right to foreclose has expired;
and (3) that the bank has failed to make a good-faith offer
to modify the mortgage or file an appropriate certification
with the registry of deeds in compliance with Mass. Gen. Laws
ch. 244, § 35B. (Compl. ¶¶ 71-83).
America removed the action to this Court and filed a motion
to dismiss for failure to state a claim. The Court granted
that motion in part and denied it in part on April 17, 2017.
The only count that survived was the count for declaratory
judgment. The Court ruled that Bank of America was not
required to hold the note because it had noticed the
foreclosure in 2009, at which time the law did not require
the foreclosing party to hold the note (only the mortgage).
See Eaton v. Fed. Nat'l Mortg. Ass'n, 462
Mass. 569 (2012). It also ruled that the complaint did not
state a plausible basis to conclude that Bank of
America's right to foreclose had expired or that Bank of
America was under an obligation to make an offer to modify
Rose's loan. The Court further ruled that the complaint
plausibly alleged that Bank of America had not submitted an
affidavit with the registry of deeds certifying compliance
with Mass. Gen. Laws Chapter 244, § 35B, as required,
and therefore did not dismiss the declaratory judgment count.
The Court dismissed the counts for violation of Mass. Gen.
Laws. Chapter 93A and abuse of process because they were
based on the theory that Bank of America was required to hold
the note in order to foreclose, which the Court had
determined was not the governing law.
that ruling, Bank of America has moved for summary judgment
on the declaratory judgment claim, arguing that because it
has not noticed a foreclosure, its obligation to
submit an affidavit certifying compliance with Mass. Gen.
Laws Chapter 244, § 35B has not been triggered, and a
claim for declaratory judgment on that theory is not ripe.
time of the decision on the motion to dismiss, it had been
represented to the Court that Bank of America was proceeding
with a foreclosure pursuant to the 2009 notice alleged in the
complaint. (See Compl. ¶¶ 5, 44). Indeed,
other than the 2009 notice, the complaint does not allege
that any notice of foreclosure has been issued. It
further alleges that “[s]ince that date, Bank of
America has threatened to foreclose on Mr. Rose's
property even though it does not have any rights to take
it.” (Compl. ¶ 45; see also Id. ¶ 60
(“The Defendant, Bank of America, has threatened to
foreclose on the Plaintiff's property even though it does
not have any rights to take it.”)). It alleges that
“[a] foreclosure on the Plaintiff's property is now
being scheduled by the Bank of America.” (Id.
¶ 70). And it alleges that “[t]he Bank of America
has not followed the process under M.G.L. c. 244, s. 35B to
modify the Plaintiffs' [sic] loan and is proceeding with
a foreclosure without recording a certification as required
under the statute, ” (id. ¶ 79), and
“[u]pon information and belief, for the past ten years,
Option One, Eastside, and Countrywide cannot produce any
evidence, including an original note and mortgage on 22
Pompeii St. Boston, with Mr. Rose's signature and have no
right to foreclose on his property, ” (id.
¶¶ 81, 107).
connection with the motion for summary judgment, Bank of
America submitted an affidavit setting forth the following
facts: “A foreclosure sale of the Property previously
was scheduled for October 16, 2009, but was canceled.”
(Def. Mot. for Summ. J. Ex. A ¶ 9). “Since the
filing of this suit no foreclosure sale has been scheduled,
nor has a notice of sale been published related to the Loan
or Property.” (Id. Ex. A ¶ 10). “On
June 28, 2016, [Bank of America] recorded an Order of Notice
in compliance with Servicemembers Civil Relief Act.”
(Id. Ex. A ¶ 11). That affidavit also states
that “[Bank of America] has not taken steps to commence
a foreclosure action under Mass. Gen. Laws. ch. 244, §
14.” (Id. Ex. A ¶ 12). To the extent that
statement means that Bank of America has not taken steps to
issue the notice itself, that fact appears to be undisputed,
although plaintiff avers that “[w]hile the Defendant
has not foreclosed upon Rose's home, it has taken every
step, except the final step of sending out the final notice
to initiate a foreclosure under M.G.L. ch. 244.” (Pl.
Opp. to Summ. J. at 4).
for Bank of America represented at the November 28, 2017
hearing before this Court that the bank was not proceeding
under the 2009 notice, which has been canceled. No new notice
has been issued. Counsel for Rose represented that he is
bringing this action as a declaratory judgment in
anticipation of receiving a new notice (as Bank of America
has taken some preliminary steps indicating its intent to
foreclose) to reduce the stress on his client. Bank of
America has not denied that it is planning to foreclose on
Rose's property, but it has not issued the required
Reconsideration of the Order on Defendant's Motion to
light of the foregoing, some modification to the Court's
prior ruling is in order.
Count 1: Declaratory Judgment
extent the Court's April 17, 2017 order ruled that the
law of 2009 applied to the foreclosure contemplated by this
action, and therefore that Bank of America is not required to
hold the note in order to effect a proper foreclosure, the
order will be vacated. If the Bank of America decides to
foreclose on the property, it must conduct that foreclosure
in accordance with current law.
Counts 3 and 4: Abuse of Process ...