United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO VACATE THE
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
lawsuit arises out of the alleged wrongful foreclosure on a
rental property-not a primary residence-owned by pro
se plaintiff Candy Mei Tak Lo. Lo executed a note in
2002 and granted a mortgage on her property as security for
the note. The mortgage was initially assigned to Washington
Mutual Bank ("WaMu"). After Lo defaulted in 2006,
she entered into a loan modification agreement
("LMA") with WaMu in April 2008. Later, the loan
was acquired by defendant JPMorgan Chase, N.A.
("Chase"). Lo then made seven more payments under
the LMA before defaulting again in November 2008. Because she
did not make any more payments after that date, Chase
foreclosed on her property in November 2015.
amended complaint alleges that Chase, as WaMu's
successor, failed to abide by the terms of the mortgage and
unlawfully foreclosed on the property without providing a
proper accounting or an opportunity to cure the default.
Chase has moved for summary judgment, and Lo has moved to
vacate the November 2015 foreclosure sale. For the following
reasons, the motion for summary judgment will be granted, and
the motion to vacate the foreclosure sale will be denied.
following facts are as set forth in the record.
Mei Tak Lo owned the property located at 315 Allston Street,
Unit #3 in Brighton, Massachusetts (the
"property"). (Compl. ¶ 1). She did not
reside there, instead living at 19 Dixon Avenue, Worcester,
Massachusetts, with her fiance, Charles De Gennaro.
(Id. ¶¶ 1-2).
October 22, 2002, Lo executed a note in the amount of $152,
000 in favor of First Alliance Bank. (Def. Ex. A; Grageda
Aff. ¶ 2). She granted a mortgage on the property at 315
Allston Street to Mortgage Electronic Registration Systems
("MERS") as security for the note. (Def. Ex. B;
Grageda Aff. ¶ 3).
making a payment on May 16, 2006, Lo defaulted on her
mortgage. (Def. Ex. E; Lo Dep. at 53-55). Lo did not make a
single payment on her mortgage between May 16, 2006, and
April 22, 2008, a period of approximately two years.
September 13, 2006, MERS assigned its interest in the
mortgage to WaMu. (Def. Ex. C; Grageda Aff. ¶4).
eventually began working with WaMu on a LMA. (Lo Dep. at
56-57). On April 1, 2008, WaMu sent Lo a proposed LMA. (Def.
Ex. J). The proposed LMA stated that Lo owed $173, 519.81 in
principal on the note, corresponding to monthly payments of
$1, 154.40. (Id.). On April 17, 2008, Lo executed a
final version of the LMA, which was countersigned by WaMu
Assistant Vice President Michelle Neal. (Def. Ex. K). The
countersigned version provided by Chase does not state the
amount Lo owed. Lo's version of the LMA that she signed
showed that she owed $166, 952.56, corresponding to monthly
payments of $1, 104.95, but these numbers do not appear in
any bank documents. (Docket No. 7 at 81-83). In
correspondence, Lo requested that WaMu mail back a
countersigned copy of the document she signed. (Id.
at 86-87). Regardless of the claimed discrepancy, the parties
agree that they entered into the LMA in April 2008 and that
it is a binding contract.
August 15, 2008, Lo received a loan statement from WaMu
showing an outstanding balance of $172, 509.34, corresponding
to monthly payments of $1, 154.40. (Id. at 94). On
September 27, 2008, Lo and De Gennaro sent another letter to
WaMu requesting a countersigned copy of the LMA that Lo
executed. (Id. at 89). Between April 22, 2008 and
November 14, 2008, Lo made seven payments, apparently
pursuant to the LMA. (Def. Ex. E; Lo Dep. at
November 14, 2008, Lo has not made any payments on the loan.
(Def. Ex. E; Lo Dep. at 70-72). Between 2006 and late 2016,
Lo was employed and earned income, and was able to rely on De
Gennaro for financial support. (Lo Dep. at 25-44). In
addition, Lo rented out the property between 2006 and 2015,
collecting approximatively $1, 500 per month in rent.
(Id. at 91-92).
December 16, 2008, WaMu sent Lo a 90-day right-to-cure notice
to both her Worcester and Brighton addresses (Grageda Aff.
¶¶ 9-10; Def. Exs. H, I). Lo received both these
letters. (Lo Dep. at 115).
October 9, 2009, Lo and De Gennaro responded to a notice of
foreclosure scheduled for October 15, 2009, by sending a
Chapter 93A demand letter. (Docket No. 7 at 91-93). The
demand letter claimed that WaMu's accounting was
incorrect and that Chase, as WaMu's successor, was not
adhering to the terms of the LMA.
(Id.). In particular, the letter noted that the
August 2008 statement showed a higher balance due than the
April 2008 LMA Lo executed. (Id.). In response, on
November 13, 2009, Chase denied all liability, but offered as
a settlement offer that it would "agree not to
foreclose on the Property until Chase [could] provide a
specific response to the . . . Demand Letter."
(Id. at 97-98). Lo never responded to the offer of
settlement. (Lo Dep. at 75-77).
November 16, 2012, the FDIC, as receiver of WaMu, assigned
the mortgage to Chase. (Def. Ex. D; Grageda Aff. ¶ 5).
early 2013, Lo was given notice that Chase had scheduled
another foreclosure action on the property. (Docket No. 7 at
104-06). Lo and De Gennaro responded with another Chapter 93A
demand letter, asserting that Chase had failed to provide a
full accounting for the loan and improperly restarted
foreclosure proceedings. (Id.).
August 18, 2014, Nicole Smiley, a Vice President at Chase,
filed an affidavit stating that she had reviewed Chase's
business records and that Lo had received notice of her right
to cure pursuant to Mass. Gen. Laws ch. 244 § 35A prior
to August 3, 2012. (Id. at 108-09). She further
certified that the loan records were accurate, and that Chase
was authorized to conduct a foreclosure sale. (Id.).
October 9, 2014, Chase notified Lo that a foreclosure sale
would be held on November 19, 2014. (Compl. ¶ 25). That
sale was postponed and rescheduled for April 17, 2015.
(Id. ¶¶ 26-27). Lo and De Gennaro sent a
third Chapter 93A demand letter in March 2015, ...