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Mitri v. Aurora Loan Services LLC

United States District Court, D. Massachusetts

February 16, 2018



          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff Jacques Mitri (“Mitri”) brings claims against Aurora Loan Services (“Aurora”), Nationstar Mortgage, LLC (“Nationstar”), Homecomings Financial Network, Inc. (“Homecomings”) and Presidential Mortgage Inc. arising out of a foreclosure of the Property. D. 1-2. The Court has previously dismissed Mitri's claims against the latter three defendants. D. 109. Aurora and Nationstar also brought counterclaims against Mitri, Elie Mitri, Hala Mitri and/or Roy Mitri. D. 6. Aurora and Nationstar (“Defendants”) now move for summary judgment, requesting judgment in their favor on both Mitri's claims and their counterclaims. D. 141. The Defendants also move for a judgment of use and occupancy against Mitri and Hala Mitri. D. 160. For the following reasons, the Court ALLOWS Aurora and Nationstar's motion for summary judgment, D. 141, and ALLOWS IN PART Defendants' motion for use and occupancy. The Court DENIES the remaining motions, D. 158, [1] D. 175 as moot.

         II. Standard of Review

         The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A dispute is genuine if ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.'” Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (citing Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has potential to determine the outcome of the litigation.” Id. (quoting Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)). The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.” Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         III. Factual Background

         The following uncontested facts are taken from the parties' statements of facts. D. 143, D. 154. On or about October 6, 2005, Mitri granted a mortgage on a property located at 26 Noel Drive, Holliston, Massachusetts (“the Property”) to Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Homecomings. D. 143 ¶¶ 1, 15; D. 154 ¶¶ 1, 15. The mortgage secured a promissory note payable to Homecomings in the amount of $603, 900. D. 143 ¶ 15; D. 154 ¶ 15. MERS assigned that mortgage to Aurora by an assignment dated April 7, 2009, which was recorded on or about May 20, 2009. D. 143 ¶ 17; D. 154 ¶ 17.

         In or around early 2009, Aurora told Mitri that he was behind on his payments and send Mitri information regarding loss mitigation options. D. 143 ¶ 25; D. 154 ¶ 25. In February 2010, Aurora offered Mitri a Special Forbearance Agreement (“2010 Forbearance Agreement”), under which Mitri would be obligated to provide a series of payments, a completed loan modification application, and financial documents verifying the financial information in the loan modification application. D. 143 ¶ 26; D. 154 ¶ 26.

         Mitri made the required payments, but failed to provide documents verifying his income in a timely manner as required by the 2010 Forbearance Agreement. D. 143 ¶ 28; D. 154 ¶ 28. The loan modification application indicated that Mitri's monthly gross wages were $11, 320. D. 143 ¶ 30; D. 154 ¶ 30. Mitri's tax return for 2008, however, indicated that his total gross wages for the year were $14, 040. D. 143 ¶ 34; D. 154 ¶ 34. There were also disparities between Mitri's reported income on the loan modification application and on Mitri's tax returns for 2009 and 2010. D. 143 ¶ 35; D. 154 ¶ 35. Mitri contends that these disparities were due to the fact that Mitri shares a bank account with his brother related to a company, Holliston Gulf, Inc. (“Holliston”), which owned and operated a gas station and Mitri did not realize that he was required to report the income related to Holliston on his tax return. D. 154 ¶ 34. Mitri contends that the income related to Holliston should have been included by Aurora in its evaluation of his income. D. 154 ¶¶ 34, 36. Mitri's brother, however, was the sole owner and shareholder of the company that owned the gas station at all relevant times. D. 143 ¶¶ 41-44; D. 154 ¶¶ 41-44. On or about June 27, 2011, Aurora informed Mitri that it was unable to offer Mitri a loan modification because the income that Mitri had provided on his loan application could not be verified. D. 143 ¶ 45; D. 154 ¶ 45.

         On August 12, 2011, Aurora conducted a public auction of the Property, and it purchased the Property in the auction. D. 143 ¶ 22; D. 154 ¶ 22; D. 146-11 at 3. On or about April 19, 2012, Aurora conveyed title to the Property to Nationstar via a quitclaim deed that was recorded in the Registry of Deeds. D. 143 ¶ 23, D. 154 ¶ 23.

         On or about April 26, 2013, Mitri received a check from Aurora in the amount of $6, 000. D. 143 ¶ 53; D. 154 ¶ 53. This check was written pursuant to a consent agreement that Aurora had entered in with the Office of the Comptroller of the Currency (“OCC”) and the Office of Thrift Supervision (“OTS”) related to Aurora's foreclosure practices. D. 143 ¶¶ 51-52; D. 154 ¶¶ 51-52. The payment did not constitute an admission of wrongdoing by Aurora and did not constitute a waiver of claims against Aurora by Mitri. D. 143 ¶¶ 52-53; D. 154 ¶¶ 52-53.

         On July 14, 2014, Aurora filed a summary process action against Mitri in state court to evict Mitri from the Property. D. 143 ¶ 2; D. 154 ¶ 2. That action resulted in a verdict of possession for Aurora, but the court subsequently granted Mitri relief from judgment because it ruled that Aurora did not have standing at the time to pursue the action, since Aurora had already transferred title to Nationstar. D. 143 ¶¶ 5, 12; D. 154 ¶¶ 5, 12. On or about March 27, 2017, Mitri filed amended tax returns for 2007, 2008, and 2010. D. 143 ¶ 49; D. 154 ¶ 49. During a prior proceeding, the parties had stipulated that the fair market rental of the Property was $3, 500 per month from August 2011 through December 2014. D. 143 ¶ 55. An expert hired by Nationstar to assess the fair market rental rate of the Property in 2017 determined that the fair market rental rate was now $2, 400 a month. D. 143 ¶ 56. Nationstar paid $89, 042.45 in real estate taxes, including assessments for water and trash usage, from August 2010 to August 2017. D. 143 ¶ 57. Of that amount, approximately $4, 335.38 was related to water and trash usage. D. 146-31. Mitri continues to reside at the Property. D. 160 at 2.

         IV. Procedural History

         Mitri filed a complaint in Middlesex Superior Court on November 24, 2015. D. 1-2 at 24. On December 18, 2015, Aurora and Nationstar removed the case to federal court. D. 1. On April 14, 2017, this Court entered an order granting the Defendants' motion to dismiss with respect to certain counts asserted in the complaint. D. 109. On September 29, 2017, Nationstar and Aurora filed a motion for summary judgment on the remaining counts and their counterclaims. D. 141. On November 8, 2017, Nationstar filed a motion for use and occupancy. D. 160. On January 10, 2018, the Court heard argument on the ...

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