United States District Court, D. Massachusetts
MEMORANDUM AND ORDER DISMISSING CASE AS
Dennis Saylor, IV United States District Judge
a dispute concerning an anticipated mortgage foreclosure.
Although defendant Bank of America has taken certain steps
preparatory to initiating a foreclosure, no foreclosure has
yet been noticed. Because plaintiff's remaining claims
will not be ripe until the time of foreclosure, they will be
dismissed as nonjusticiable.
Court has already determined that Bank of America's right
to foreclose has not expired; that any claim arising from the
origination of the loan is barred by the settlement
agreement; and that the complaint does not state a claim for
intentional infliction of emotional distress. (Docket Nos.
27, 48). Therefore, at this stage, plaintiff is seeking a
declaratory judgment that the bank cannot foreclose on his
property because (1) Bank of America does not possess and
cannot produce the original note as required by Mass. Gen.
Laws ch. 244, § 14; and (2) 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). Plaintiff's other two claims-for
abuse of process and violations of Massachusetts General Laws
Chapter 93A-are predicated on his position that foreclosure
complaint refers to a notice of foreclosure sent in 2009.
(See Compl. ¶¶ 5, 44). It is now
undisputed that the notice has been canceled and no
foreclosure is currently scheduled. (See Pl.
Response to Ct. Order at 4 (explaining that the parties need
guidance regarding “a possible future
foreclosure”); Def. Response to Ct. Order at 2-3).
claim is ripe only if the party bringing suit can show both
that the issues raised are fit for judicial decision at the
time the suit is filed and that the party bringing suit will
suffer hardship if ‘court consideration' is
withheld.” Labor Relations Div. of Constr. Indus.
of Mass., Inc. v. Healey, 844 F.3d 318, 326 (1st Cir.
2016) (quoting McInnis-Misenor v. Me. Med. Ctr., 319
F.3d 63, 70 (1st Cir. 2003)). “In considering the
fitness prong of the ripeness inquiry, [the First Circuit]
ha[s] emphasized that a ‘claim is not ripe for
adjudication if it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at
all.'” Id. (quoting City of Fall River
v. Fed. Energy Regulatory Comm'n, 507 F.3d 1, 6
Gen. Laws ch. 244, § 14, requires an entity seeking
foreclosure to hold both the mortgage and the original note.
Eaton v. Fed. Nat'l Mortg. Ass'n, 462 Mass.
569 (2012). But Massachusetts courts are clear that it need
only hold both instruments at the time of the foreclosure:
“[A]lthough a foreclosing mortgagee must demonstrate an
unbroken chain of assignments in order to foreclose a
mortgage, and now must also demonstrate that it holds the
note (or acts as authorized agent for the note holder) at the
time it commences foreclosure, nothing in Massachusetts law
requires a foreclosing mortgagee to demonstrate that prior
holders of the record legal interest in the mortgage also
held the note at the time each assigned its interest in the
mortgage to the next holder in the chain.” Sullivan
v. Kondaur Capital Corp., 85 Mass.App.Ct. 202, 210
(2014) (citations omitted); see Matt v. HSBC Bank
USA, 968 F.Supp.2d 351, 357 (D. Mass. 2013)
(“[B]ecause the mortgage does not necessarily follow
the note, the mortgage may be independently assigned and held
in trust for the note-holder. Post-Eaton, a
foreclosing entity need only hold both the note and the
mortgage at the time that the mandatory notice of sale has
been given.” (citations omitted)).
Gen. Laws ch. 244, § 35B(f) requires an entity seeking
foreclosure to “certify compliance with this section in
an affidavit based upon a review of the creditor's
business records.” Section 35B generally requires a
creditor to take “reasonable steps and ma[ke] a good
faith effort to avoid foreclosure, ” including offering
loan modifications to eligible borrowers. See Mass.
Gen. Laws ch. 244, § 35B. However, subsection (f), by
its own terms, only requires certification of compliance
“[p]rior to publishing a notice of a foreclosure sale,
as required by section 14.” Id. § 35B(f).
defendants have not noticed a foreclosure, this action is not
ripe. Plaintiff seeks a declaration that defendants must meet
certain legal obligations under chapter 244 in order to
foreclose, but those obligations simply do not exist until a
foreclosure is noticed. Thus, plaintiff's claim depends
on multiple factual contingencies that may not occur as
anticipated- namely, defendants must (1) notice a
foreclosure, and, at that time, (2) fail to control
both the note and the mortgage or (3) fail to have certified
compliance with § 35B. Although the Court accepts, under
the circumstances, that foreclosure is sufficiently imminent
to make a declaratory judgment about whether defendants'
right to foreclose has expired-a question which requires no
additional contingencies-any opinion by this Court as to
defendants' obligations under § 14 and § 35B
prior to a notice of foreclosure would be merely an advisory
opinion exhorting defendants to follow the law. Such a complaint
is not ripe for judicial resolution.
foregoing reasons, the remaining claims will be DISMISSED
without prejudice as not ripe for judicial review.