United States District Court, D. Massachusetts
ANDREW S. ZUCKER, Plaintiff,
BANK OF AMERICA, N.A, BAC HOME LOANS SERVICING, LP, and NATIONSTAR MORTGAGE, LLC, Defendants.
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE
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.
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 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].
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]. 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].
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.
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.
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].
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].
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 ...