United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING PLAINTIFFS' MOTION
FOR PRELIMINARY INJUNCTION
G. MASTROIANNI UNITED STATES DISTRICT JUDGE
before the court is a motion for a preliminary injunction
filed by Gary and Joyce Skarzynski (“Plaintiffs”)
in which they seek to enjoin the foreclosure sale of the real
property located at 27 Clark Wright Road in Middlefield,
Massachusetts (the “Property”). Plaintiffs filed
their five-count complaint, alleging violations of federal
and state law in connection with the origination and
subsequent modification and assignment of a 2004 loan secured
by the mortgage on the Property, on April 4, 2018 in
Massachusetts Superior Court, shortly before a foreclosure
auction that had been scheduled for April 10, 2018. (State
Court Record, Dkt. No. 25 at 5.) Also on April 4, 2018,
Plaintiffs filed a motion for preliminary injunction.
(Id.) A hearing was set for April 9, 2018, but was
not held at the request of Defendants, who removed the action
to this court that same day. (Id.) On April 11,
2018, Plaintiff filed the pending Motion for Preliminary
Injunction in this court.
continued the foreclosure sale until April 24, 2018 and then
continued it further after this court scheduled a hearing on
the Motion for Preliminary Injunction. The hearing was held
on May 9, 2018. While the court is troubled by many of
Plaintiffs' allegations, having carefully considered the
timing of the underlying conduct, the court is compelled to
find Plaintiffs have failed to demonstrate a substantial
likelihood of success of the merits of their underlying
claims because their allegations relate to actions occurring
well outside the statute of limitations period.
obtained a mortgage on the property in 2004. Within a few
years, Plaintiffs experienced difficulties with their
mortgage servicer, Defendant EMC Mortgage Corp.
(“EMC”). These difficulties included failure to
properly process payments which lead to additional charges
being added to Plaintiffs' mortgage and failures of EMC
to properly reduce the interest rate on their mortgage as
market interest rates declined, as required under the terms
of the mortgage. During 2007, the mortgage was modified.
Plaintiffs assert the modification was fraudulent and their
signatures on relevant documents were forged.
the same time, in September of 2007, the holder of
Plaintiff's mortgage filed an action in Massachusetts
Land Court, pursuant to the Massachusetts procedure for
complying with the Servicemembers Civil Relief Act (SCRA), 50
U.S.C. app. §§ 3901 et seq., as part of an
effort to foreclose on the Property. In 2012 the Land Court
dismissed the action, finding timing errors and other
irregularities in instruments related to the mortgage
prevented the plaintiff financial institution from having
standing to bring the suit. (Notice of Docket Entry, Dkt. No.
9-1 at 7.) No. later than 2010, while the Land Court action
was still pending, Plaintiffs stopped making payments on
their mortgage. They have not made any payments since, but
have continued to live in the Property. U.S. Bank filed a new
action in the Massachusetts Land Court on July 23, 2017. Due
to procedural changes, Plaintiffs, who had participated in
the previous Land Court action, were unable to participate in
the 2017 action. U.S. Bank subsequently notified Plaintiffs
in March of 2018 that a foreclosure sale of the Property
would take place on April 10, 2018. Plaintiffs responded by
filing this action.
obtain a preliminary injunction, the plaintiffs bear the
burden of demonstrating (1) a substantial likelihood of
success on the merits, (2) a significant risk of irreparable
harm if the injunction is withheld, (3) a favorable balance
of hardships, and (4) a fit (or lack of friction) between the
injunction and the public interest.”
Nieves-Márquez v. Puerto Rico, 353 F.3d 108,
120 (1st Cir. 2003). The court begins by considering
Plaintiffs' likelihood of success on the merits as to
each claim set out in the Complaint.
I - Truth in Lending Act
allege all Defendants violated the Truth in Lending Act
(TILA), 15 U.S.C. §§ 1601 et seq., by
failing to “provide good faith estimates and other
required documentation.” TILA allows consumers to
obtain information about the terms of loans secured by the
consumer's principal dwelling. In re Sheedy, 801
F.3d 12, 19 (1st Cir. 2015). When a lender does not provide
the forms and disclosures required under TILA, a consumer can
seek rescission of the loan for up to three years from the
date of the transaction or, if earlier, until the property is
sold. Id.; 15 U.S.C. § 1635(f). Plaintiffs'
rights to obtain relief under TILA thus expired in 2007 with
respect to the 2004 mortgage and in 2010 with respect to the
2007 modification. As this action was not filed until 2018,
Plaintiffs' TILA is clearly time-barred.
II - Violation of Massachusetts Law Regarding Forgery
second claim advanced by Plaintiffs is that Defendant, Town
and Country Credit Corp., violated Mass. Gen. Laws c. 267,
§ 1 by causing the forgery of the Plaintiffs'
notarized signatures on documents executed in connection with
the 2007 modification. The law cited by Plaintiffs in their
complaint is a criminal statute. Civil litigants cannot
prosecute cases under criminal statutes, but they can bring
actions in which they allege fraud. See,
e.g., Smith v. Jenkins, 732 F.3d 51, 62
(1st Cir. 2013). However, the statute of limitations requires
that actions alleging fraud be brought within “three
years next after the cause of action accrues.” Mass.
Gen. Laws c. 260, § 2A. “Generally, ‘causes
of action in tort ... accrue ... at the time the plaintiff is
injured, '” which, in this case, would have been
when the modification was executed, meaning any suit would
have had to be filed no later than 2010. Chalifoux v.
Chalifoux, 701 Fed.Appx. 17, 21 (1st Cir. 2017) (quoting
Joseph A. Fortin Const., Inc. v. Mass. Hous. Fin.
Agency, 466 N.E.2d 514, 516 (MA 1984)). The limitations
period may be extended, pursuant to the “discovery
rule” which operates to toll the limitations period
until such time as “a plaintiff knows or reasonably
should know that she may have been harmed by a
defendant's conduct, even if the harm actually occurred
earlier.” RTR Techs., Inc. v. Helming, 707
F.3d 84, 89 (1st Cir. 2013). However, since Plaintiffs were
aware of the alleged forgery by the end of 2010, the
limitations period expired well before this case was filed in
2018. (Letter from Chase re: Allegations of Forged Documents,
Dkt. No. 9-3 at 6.)
III - Massachusetts ...