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Holland v. Select Portfolio Servicing, Inc.

United States District Court, D. Massachusetts

March 14, 2018





         This matter comes before the court in a rather unusual posture. The plaintiff, Gwendolyn Holland, is the owner of real property located in Marlborough, Massachusetts. On December 19, 2009, she granted a mortgage on the property to Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Drew Mortgage Associates, Inc., and its successors and assigns, to secure payment of a promissory note. Her payments on the note are current, and no entity has instituted any foreclosure proceedings or otherwise challenged her note or mortgage. Nevertheless, Ms. Holland has brought an action challenging the status of the current mortgage holder.

         Ms. Holland's mortgage has been assigned to various entities over the years. In particular, on July 27, 2010, MERS assigned the mortgage to MetLife Home Loans (“MetLife”), a division of MetLife Bank, N.A. This assignment was recorded. Ms. Holland contends that she was notified on May 1, 2013 that MetLife had sold or otherwise transferred or assigned her mortgage to JPMorgan Chase Bank, N.A. (“JPMorgan” or “Chase”), and that the defendant Select Portfolio Servicing, Inc. (“SPS”) had been named as the new servicer. The assignment to JPMorgan was never recorded. On or about August 11, 2015, the defendant Carrington Mortgage Services, LLC (“Carrington”) informed Ms. Holland that it was the new servicer on the loan. On October 29, 2015, MetLife assigned Ms. Holland's mortgage to Carrington. This assignment was recorded. However, Ms. Holland challenges Carrington's right to collect mortgage payments, as servicer, and to own the mortgage. It is her contention that MetLife could not have assigned the mortgage to Carrington, since it had already assigned it to JPMorgan.[1]

         Ms. Holland commenced this action on May 26, 2017 in Middlesex Superior Court, after which it was removed to this court. In her complaint, as amended, Ms. Holland purports to state a claim for fraud and violations of Mass. Gen. Laws ch. 93A. The defendants have moved to dismiss the complaint on various grounds, including, without limitation, that Ms. Holland has no standing to challenge the chain of title, which follows all recorded assignments, and that the complaint fails to satisfy the pleading requirements for a claim of fraud.

         At oral argument on the motions to dismiss, plaintiff's counsel indicated that plaintiff was concerned that JPMorgan would someday make a claim for mortgage payments that she had been making to other entities. In an effort to resolve this matter expeditiously, the parties agreed that if JPMorgan would provide proof that it has no interest in the mortgage, and that it has no claim to any payments, the plaintiff would dismiss her action. Although such an affidavit was obtained from JPMorgan, it did not resolve this case. Instead, Ms. Holland filed a “Motion to Strike Affidavit” (Docket No. 27) and a “Motion for Leave to Withdraw Offer for Dismissal.” (Docket No. 30). The defendants opposed the plaintiff's motions. In addition, SPS filed a “Cross Motion to Enforce Agreement for Dismissal.” (Docket No. 31). While these motions were pending, Ms. Holland filed a “Motion for Leave to File Requests for Admission [to defendant SPS] and to Stay the Proceeding Pending Decision on Motion” (Docket No. 32), and another similar motion directed to Carrington. (Docket No. 33). SPS and Carrington opposed the motions and have each filed a “Cross Motion to Stay Discovery.” (Docket Nos. 35 & 36). All these matters are presently before the court.

         For the reasons detailed herein, plaintiff's Motion to Strike Affidavit (Docket No. 27) is DENIED, plaintiff's Motion for Leave to Withdraw Offer for Dismissal (Docket No. 30) is ALLOWED, and SPS's Cross Motion to Enforce Agreement for Dismissal (Docket No. 31) is DENIED. However, this court will entertain a motion from SPS for sanctions under 28 U.S.C. § 1927 to compensate it for the efforts it expended to obtain the affidavit. Plaintiff's Motions for Leave to File Requests for Admissions and To Stay the Proceeding Pending Decision on Motion (Docket Nos. 32 & 33) are DENIED, and SPS's and Carrington's Cross Motions to Stay Discovery (Docket Nos. 35 & 36) are ALLOWED. The defendants' motions to dismiss shall be discussed in a separate opinion.


         Following the hearing on the motions to dismiss discussed above, SPS obtained the affidavit of JPMorgan. Specifically, Nicole L. Smiley, Vice President at Chase, provided an affidavit (Docket No. 26-1 (“Smiley Aff.”)), which was “based upon my review of Chase's servicing records relating to the loan and from my own personal knowledge of how they are kept and maintained.” Smiley Aff. ¶ 1. Therein, Ms. Smiley attested that “Chase acquired rights” to Ms. Holland's mortgage loan “on or about April 8, 2013[.]” Id. ¶ 2. She further attested that “[i]n or near October 2015, JPMorgan sold or otherwise transferred or assigned all if its rights to the above-referenced mortgage loan to Carrington Mortgage Services, LLC.” Id. ¶ 3. Ms. Smiley further confirmed that “Chase no longer possesses any interest in, or rights to, the above-referenced mortgage loan.” Id. ¶ 4. Ms. Smiley's signature is dated and notarized on December 13, 2017.

         In her motion to strike, Ms. Holland contends that the affidavit should be stricken because it was not based on the affiant's personal knowledge. This argument is not persuasive.

         Standard of Review

         As an initial matter, the parties disagree as to whether the sufficiency of the affidavit should be considered under Fed.R.Civ.P. 12(f) or Fed.R.Civ.P. 56(c)(4). Carrington contends that the motion to strike should be governed by Rule 12(f), pursuant to which an affidavit may be stricken if it is redundant, immaterial, impertinent, or scandalous. In addition, this Rule may also be applied to strike affidavits in support of pleadings that include inadmissible hearsay or lack personal knowledge. See Holloman v. Clarke, 244 F.Supp.3d 223, 227 (D. Mass. 2017). Ms. Holland contends that the affidavit in the instant case should be judged under Rule 56(c)(4), which requires that “[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Strictly speaking, neither Rule 12(f), which pertains specifically to motions to strike portions of pleadings, nor Rule 56(c)(4), which relates to motions for summary judgment, applies in the instant case to an affidavit which was provided outside of normal pleading or discovery procedures in an effort to address the fundamental concern that purportedly had motivated this litigation. In any event, there is no contention that the instant affidavit contains material that is redundant, immaterial, impertinent, or scandalous. Since both Rules require that affidavits be based on personal knowledge, this court will apply the more specific requirements as delineated in Rule 56(c)(4). As detailed herein, the affidavit submitted by JPMorgan is sufficient.

         Sufficiency of Affidavit

         Affidavits used in the context of a mortgage disputes have been found to satisfy the personal knowledge requirement when the affiant avers (1) to be familiar with the documents and recordkeeping systems maintained through the bank or mortgage servicer in question, and (2) to have viewed the loan documents at issue. See Brown v. Bank of Am., Civil Action No. 13-13256-PBS, 2015 WL 5163045, at *3 (D. Mass. Sept. 3, 2015) (finding the personal knowledge requirement for an affidavit satisfied by an affiant who averred 1) she was “familiar with the types of records maintained by [the bank] in connection with mortgage loans serviced by [the bank], ” 2) that she “reviewed [the bank]'s regularly kept business records pertaining to the [plaintiff's] Loan, ” and 3) that she “personally . . . confirmed the facts attested to” in her affidavit); Cremaldi v. Wells Fargo Bank, C.A. No. 13-11767-MLW, 2017 WL 1190377, at *3 (D. Mass. Mar. 30, 2017) (finding a sufficient foundation for an assertion of personal knowledge when affiant stated that she was “familiar with the business records maintained by Wells Fargo for the purpose of servicing mortgage loans and [has] personal knowledge of the operations and the circumstances surrounding the preparation, maintenance and retrieval of records in Wells Fargo's recordkeeping systems.”); see also HMC Assets, LLC. v. Conley, Civil Action No. 14-10321-MBB, 2016 WL 4443152, at *4 (D. Mass. Aug. 22, 2016) (holding that “an affiant is only required to have some familiarity and ability to explain the ...

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