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Zucker v. Bank of America, N.A.

United States District Court, D. Massachusetts

March 6, 2018

ANDREW S. ZUCKER, Plaintiff,
v.
BANK OF AMERICA, N.A, BAC HOME LOANS SERVICING, LP, and NATIONSTAR MORTGAGE, LLC, Defendants.

          MEMORANDUM & ORDER

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE

         Plaintiff Andrew S. Zucker brings this suit against Defendants Bank of America, N.A., and BAC Home Loans Servicing, LP, for breach of contract and the covenant of good faith and fair dealing (Count I), and against Nationstar Mortgage, LLC, for violating 12 U.S.C. 2605(f) (Section 6(f) of the Real Estate Procedures Act) and 12 C.F.R. § 1024.41(g) in connection with a foreclosure sale (Count II). Presently before the court is Defendants' Motion for Summary Judgment [#55]. As Zucker does not oppose the motion for summary judgment on Count II, see Opp'n to Mot. for Summ. J. (“Opp'n”) [#61], Defendants' motion as to that count is ALLOWED. For the reasons set forth below, Defendants' motion for summary judgment as to Count I of the Complaint [#1] is DENIED.

         I. Factual Background

         In 2005, Plaintiff Andrew Zucker obtained a $396, 625.00 loan secured by a mortgage to purchase his home in Bedford, Massachusetts. Def.'s Statement of Undisputed Material Facts (“Def.'s Statement”) ¶¶ 1-3 [#57]; Pl.'s Response to Def.'s Statement of Material Facts (Pl.'s Response”) ¶¶ 1-3 [#63]. Zucker failed to make timely payments on the loan beginning with the payment due in June 2009, which was not made until October 9, 2009. Def.'s Statement ¶ 11 [#57]; Pl.'s Response ¶ 11 [#63]. On October 13, 2009, the Servicer[1] sent Zucker a Notice of Intent to Foreclose, notifying him that the loan was in default and that Zucker had the right to cure the default by paying $10, 634.96 by November 12, 2009. Def.'s Statement ¶ 12 [#57]; Pl.'s Response ¶ 12 [#63].

         The following day, the Servicer sent Zucker another letter telling him about the opportunity to participate in the Home Affordable Modification Program (“HAMP”). Def.'s Statement ¶ 15 [#57]; Pl.'s Response ¶ 15 [#63].[2] The letter invited Zucker to participate in a three-month trial period, during which time Zucker would make reduced loan repayments of $1, 395.00. The letter informed Zucker that he would shortly receive a package with additional details and documents, but that he could “[g]et started by making [his] first trial period mortgage payment of $1, 395.00 today.” Def.'s Statement Ex. B-7 [#57-9].

         In a subsequent package, dated October 19, 2009, the Servicer again invited Zucker to send a first payment. Def.'s Statement Ex. B-8 1 [#57-10]. The letter continued, “Once you've made your first trial period mortgage payment, the next step is for you to return the requested documents and enclosed forms in order to finalize the three-month trial period and qualify for the permanent modification of your loan.” Id. Enclosed among other documents were the HAMP Trial Period Plan (“TPP”), a Hardship Affidavit, and Tax Information Form for Zucker to return to the Servicer. Id. at 3.

         The TPP states:

I understand that after I sign and return two copies of this Plan to the Servicer, the Servicer will send me a signed copy of this Plan if I qualify for the Offer or will send me written notice that I do not qualify for the Offer. This Plan will not take effect unless and until both I and the Servicer sign it and [the] Servicer provides me with a copy of this Plan with the Servicer's signature.

Def.'s Statement Ex. B-8 5 [#57-10]. Zucker executed and returned the TPP to the servicer and was subsequently provided a signed copy of the TPP from the servicer. Zucker Aff. [#62] ¶ 5.[3]

         The TPP provided further that its effective date was December 1, 2009, and that under the TPP, payments were due on December 1, 2009, January 1, 2010, and February 1, 2010. The TPP also provides the following: “If I am in compliance with this Trial Period Plan (the “Plan”) and my representations in Section 1 continue to be true in all material respects, then the Servicer will provide me with a Home Affordable Modification Agreement . . . as set forth in Section 3.” Def.'s Statement Ex. B-8 5 [#57-10]. Section 3, in turn, provides:

If I comply with the requirements [of the TPP listed in] Section 2, and my representations in Section 1 continue to be true in all material respects, the Servicer will send me a Modification Agreement for my signature which will modify my Loan Documents as necessary to reflect this new payment amount and waive any unpaid late charges associated with overdue loan payments remaining unpaid as of the date immediately before the modification.

Id. at 7. Zucker states, and Defendants do not contest, that he “complied with Sections 1 and 2 of the Trial Period Plan in all respects” and “made each of the payments described in the Trial Period Plan Agreement.” Zucker Aff. ¶¶ 8-9 [#62].

         On May 6, 2010, Bank of America sent Zucker a letter stating, “Unfortunately, your loan is not eligible for a Home Affordable Modification.” Def.'s Statement ¶ 19 [#57]. Zucker “does not recall ever receiving this denial letter.” Pl.'s Response ¶ 18 [#63].

         Zucker never received a permanent loan modification. Def.'s Statement ¶ 22 [#57]; Pl.'s Response ¶ 22 [#63]. The Servicer has not yet held a foreclosure sale of the Property. Def.'s ...


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