United States District Court, D. Massachusetts
JOE A. RODRIGUES and ISABEL RODRIGUES, Plaintiffs,
OCWEN LOAN SERVICING, LLC, and DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR SOUNDVIEW HOME LOAN TRUST 2007-1 ASSET BACKED CERTIFICATES, SERIES 2007-1, Defendants.
ORDER REGARDING REPORT AND RECOMMENDATION
A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE.
magistrate judge to whom this matter was referred has issued
a Report and Recommendation (“R & R”)
recommending that the defendants' Motion for Summary
Judgment be granted in part and denied in part. In response,
the defendants raise objections to the two rulings the
magistrate judge relied on in denying the motion in part: (1)
that the magistrate judge incorrectly found that the
plaintiffs presented sufficient evidence about their history
of monthly mortgage payments to demonstrate a genuine issue
of material fact about how many payments had been made; and
(2) that regarding the issue whether the plaintiffs were
excused from the general requirement that a claim under
Massachusetts General Laws chapter 93A must be preceded by a
demand letter, the magistrate judge incorrectly found that on
the summary judgment record a genuine issue of material fact
existed whether Ocwen maintained a place of business in
Massachusetts at the relevant time. After review of the
pleadings, the summary judgment record, the magistrate
judge's R&R, and the defendants' timely
objection, I conclude that the objections are valid.
respect to their first objection, the defendants assert that
the plaintiff's sworn declaration that he made forty-one
payments toward the modified loan is uncorroborated by
additional evidence and therefore insufficient to create a
factual dispute in light of the defendants' transactional
records. I agree. The declaration's general assertion is
insufficient to raise a genuine issue of material fact as to
the accuracy of the payments history from the loan servicer.
The defendants have proffered a full transcript of the loans
in question. The transcript records twenty-eight payments
during the relevant time span, with many missed payments. Mr.
Rodrigues testified in his deposition that he commonly made
payments by electronic transfer, using his computer. If so,
it is very likely that records exist, either his or his
bank's, which could support his count of forty-one
payments and show the defendants' transcript to be in
error. But the plaintiffs have not proffered any such factual
support for Mr. Rodrigues's summary assertion. The mere
recitation of a general allegation from the complaint is
insufficient to warrant submission of the issue to the jury
in light of the defendants' properly supported motion
replete with documentary evidence of the transaction history.
As a consequence, the fraud claim based on an alleged
misrepresentation of the principal balance-the only theory
available after the magistrate judge's R&R-lacks an
essential factual basis and Ocwen is entitled to judgment as
a matter of law.
defendants' second objection is also sustained. The
defendants contend that the undisputed facts show Ocwen had a
place of business in Massachusetts on or about November 28,
2015, and therefore the plaintiff should not be excused from
the obligation to send a statutorily required pre-suit demand
letter at least thirty days prior to the filing of a Chapter
93A claim, which happened here on December 28, 2015. See
Mass. Gen. Laws ch. 93A, § 9(3). The defendants point to
a sworn affidavit from its loan analyst as evidence that
“[f]rom October 3, 2012 to May 31, 2017, Ocwen
maintained a place of business . . . at 4 Technology Drive,
Westborough, Massachusetts.” (Concise Statement of
Material Facts in Supp. of Defs.' Mot. for Summ. J, Ex. 5
at ¶ 23 (dkt. no. 57-7).) Because the undisputed facts
show that Ocwen did maintain a place of business in
Massachusetts at the necessary time, the plaintiffs were
required to first send a Chapter 93A demand letter as a
precondition to suit. Ocwen is therefore entitled to judgment
as a matter of law on the plaintiffs' Chapter 93A claim.
plaintiffs have made no objection to the magistrate
judges' recommendation in any other respect.
foregoing reasons, the defendants' Motion for Summary
Judgment (dkt. no. 55) is GRANTED in full. Judgment shall
enter in favor of the defendants.
AND RECOMMENDATION RE: DEFENDANTS OCWEN LOAN SERVICING, LLC
AND DEUTSCHE BANK NATIONAL TRUST COMPANY'S MOTION FOR
SUMMARY JUDGMENT (DOCKET ENTRY # 55)
MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE.
before this court is a motion for summary judgment filed by
defendants Ocwen Loan Servicing, LCC (“Ocwen”)
and Deutsche Bank National Trust Company, as Trustee for
Soundview Home Loan Trust 2007-1 Asset Backed Certificates,
Series 2007-1 (“DBNTC as Trustee”). (Docket Entry
# 55). Plaintiffs Joe A. Rodrigues (“Rodrigues”)
and Isabel Rodrigues (“plaintiffs”) oppose the
motion in its entirety. (Docket Entry # 58). After conducting
a hearing, this court took the motion (Docket Entry # 55)
filed this action on December 28, 2015. The amended complaint
seeks injunctive relief and monetary damages against Ocwen
and DBNTC as Trustee to prevent continuing foreclosure
activity on their property in Raynham, Massachusetts and to
offer a permanent modification to an existing mortgage loan
upon proper calculations of payment. (Docket Entry # 46).
Plaintiffs seek actual and/or statutory damages, damages for
emotional distress, exemplary and punitive damages, and
compensation for the costs of this action, including the fees
and costs of experts and reasonable attorney's fees.
(Docket Entry # 46). The amended complaint sets out claims
for fraud (Count I) and violation of the Massachusetts
Consumer Protection Act, Massachusetts General Laws chapter
93A (“chapter 93A”) (Count II). (Docket Entry #
and DBNTC as Trustee (“defendants”) seek summary
judgment by asserting that plaintiffs fail to submit
sufficient evidence to demonstrate common law fraud or
liability under chapter 93A. (Docket Entry # 56). In addition
to other arguments, defendants maintain that the claims
arising from a 2011 HAMP Agreement are time barred under the
statute of limitations for fraud and chapter 93A. (Docket
Entry # 56).
judgment is designed “‘to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually required.'”
Dávila v. Corporación De Puerto Rico Para
La Difusión Pública, 498 F.3d 9, 12 (1st
Cir. 2007). It is appropriate when the summary judgment
record shows “there is no genuine dispute as to any
material fact, and the moving party is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(c). It is
inappropriate “if the summary judgment record is
sufficiently open-ended to permit a rational factfinder to
resolve a material factual dispute in favor of either
side.” Pierce v. Cotuit Fire Dist., 741 F.3d
295, 301 (1st Cir. 2014).
issue is ‘genuine' when a rational factfinder could
resolve it [in] either direction” and a “fact is
‘material' when its (non)existence could change the
case's outcome.” Mu v. Omni Hotels Mgmt.
Corp., 882 F.3d 1, 5 (1st Cir. 2018); accord Green
Mountain Realty Corp., 750 F.3d 30, 38 (1st Cir. 2014).
Facts are viewed in favor of the non-movants, i.e.,
plaintiffs. See Garcia-Garcia v. Costco Wholesale
Corp., 878 F.3d 411, 417 (1st Cir. 2017) (court examines
“‘record in the light most favorable to the
nonmovant' and must make ‘all reasonable inferences
in that party's favor'”); Ahmed v.
Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In reviewing
a summary judgment motion, a court may examine “all of
the record materials on file” even if not cited by the
parties. Fed.R.Civ.P. 56(c)(3); Geshke v. Crocs,
Inc., 740 F.3d 74, 77 (1st Cir. 2014).
“‘“[C]onclusory allegations, improbable
inferences, and unsupported speculation”'”
are ignored. Garcia-Garcia, 878 F.3d at 417.
LR. 56.1, the moving party must “include a concise
statement of material facts of record as to which it is
contended that there exists a genuine issue to be
tried” with citations to the record. LR. 56.1. As the
opposing parties, plaintiffs must set out their own statement
with citations to the record. See LR. 56.1. The rule
deems admitted the facts in defendants' LR. 56.1
statement that plaintiffs' LR. 56.1 response does not
controvert. See Cochran v. Quest Software, Inc., 328
F.3d 1, 12 (1st Cir. 2003) (plaintiff's failure to
contest date in LR. 56.1 statement of material facts caused
date to be admitted on summary judgment); Stonkus v. City
of Brockton School Dep't, 322 F.3d 97, 102 (1st Cir.
2003) (citing LR. 56.1 and deeming admitted undisputed
material facts that plaintiff failed to controvert). Adhering
to this framework, the facts are as follows.
October 15, 2002, plaintiffs purchased land located at 538
Elm Street E in Raynham, Massachusetts (“the
property”). (Docket Entry # 57, ¶ 1) (Docket Entry
# 59, p. 18, ¶ 1). Plaintiffs secured their first
mortgage for the property on September 5, 2003 with a $275,
000 loan from SLM Financial Corporation. (Docket Entry # 57,
¶ 2) (Docket Entry # 57-2) (Docket Entry # 59, p. 19,
¶ 2). On June 7, 2005, plaintiffs executed an additional
mortgage on the property, a $100, 000 home equity line of
credit from Citibank Federal Savings Bank. (Docket Entry #
57, ¶ 2) (Docket Entry # 57-3, p. 7) (Docket Entry # 59,
p. 19, ¶ 2).
December 7, 2006, plaintiffs received the subject $475, 000
mortgage loan (“the loan”) from Mortgage Lenders
Network, USA, Inc., designated as a nominee of Mortgage
Electronic Registration Systems, Inc. (“MERS”).
(Docket Entry # 57, ¶ 3) (Docket Entry # 57-7, ¶ 4)
(Docket Entry # 59, p. 19, ¶ 3). This loan was intended
to refinance the original $275, 000 loan and the subsequent
$100, 000 line of credit. (Docket Entry # 57, ¶ 3)
(Docket Entry # 59, p. 19, ¶ 3). The $475, 000 loan
contained an adjustable rate balloon rider, a 30-year term
and 50-year amortization, and a 5.8% initial interest rate
through at least January 1, 2012. (Docket Entry # 57, ¶
4) (Docket Entry # 59, p. 19, ¶ 4). The $475, 000 loan
proceeds were distributed as follows: $355, 348.96 to GMAC
Mortgage to settle and discharge the $275, 000 loan, $100,
640.93 to Citibank Mortgage to settle and discharge the $100,
000 line of credit, $9, 759.54 cash to plaintiffs, and $9,
250.57 for settlement charges. (Docket Entry # 57-7, ¶
5). The loan also required an escrow account to pay property
taxes and hazard insurance premiums. (Docket Entry # 57,
¶ 10) (Docket Entry # 59, p. 20, ¶ 10).
January 30, 2007, Ocwen began servicing the loan. (Docket
Entry # 57-7, ¶ 7). DBNTC as Trustee currently owns the
loan and is the holder of the promissory note evidencing it.
(Docket Entry # 57-7, ¶ 9).
financial hardship, plaintiffs defaulted on their monthly
repayment obligations in July 2009. (Docket Entry # 57,
¶ 11) (Docket Entry # 57-7, ¶ 10). A “true
and accurate copy of the transaction history for the
Loan” indicates consistent delays in payments beginning
in 2009 and continuing through 2010. (Docket Entry # 57-7, ¶
10). For instance, Ocwen's transaction history reflects
that plaintiffs' April 2010 payment was not processed
until July 1, 2010. (Docket Entry # 57-7, ¶ 11) (Docket
Entry # 57-7, p. 9). Moreover, the history reveals that Ocwen
did not receive the May 2010 payment until July 26, 2010.
(Docket Entry # 57-7, ¶ 11) (Docket Entry # 57-7, p.
10). In examining the transaction history for the period of
January to September 2010, plaintiffs were consistently at
least two months late on their scheduled payments. (Docket
Entry # 57-7, pp. 9-10). An Ocwen account statement dated
September 7, 2010 reflects a cumulative sum of $14, 110.47
due. (Docket Entry # 57-8, p. 1). This sum included $9,
798.72 in past due principal and escrow payments, $3, 264.59
in current principal, and $1, 047.16 in late fees. (Docket
Entry # 57-8, p. 1).
September 27, 2010, Ocwen preliminarily approved plaintiffs
for a loan modification under HAMP. (Docket Entry # 57-7,
¶ 12). In order to successfully complete the
modification, plaintiffs were required to make three,
consecutive monthly payments under a trial period plan from
November 2010 to January 2011. (Docket Entry # 57-8). If all
three trial payments were successfully completed, plaintiffs
were to sign a Home Affordable Modification Agreement and
Balloon Disclosure (“2011 HAMP Agreement”).
(Docket Entry # 57-8).
2011 HAMP Agreement specifically stated that, upon applying a
$9, 900.00 deferred balance to the $482, 140.53 new principal
balance, the total principal due would be $472, 240.53 at
2.00% interest. (Docket Entry # 57-8). The adjustable
interest rate would be subject to alterations after five
years. (Docket Entry # 57-8). The accompanying balloon
disclosure did not specify an amount due at the mortgage
term's conclusion. (Docket Entry # 57-8). In an account
statement dated September 7, 2010, Ocwen informed plaintiffs
that their total remaining principal balance due prior to the
2011 HAMP Agreement was $468, 909.34. (Docket Entry # 57-8).
transmitted the 2011 HAMP Agreement to plaintiffs on November
8, 2010. (Docket Entry # 57, ¶ 20) (Docket Entry # 59,
p. 21, ¶ 20). The 2011 HAMP Agreement accounted for all
outstanding amounts due, including the three trial payments
to be submitted in the succeeding months. (Docket Entry #
57-7, ¶ 13). Plaintiffs successfully completed all three
trial payments, and Ocwen received the signed 2011 HAMP
Agreement on January 25, 2011. (Docket Entry # 57-7, ¶
14). On January 27, 2011, Ocwen modified the loan. (Docket
Entry # 57-7, ¶ 14).
on February 1, 2011, $1, 430.07 of each payment was applied
to both the principal and interest. (Docket Entry # 57-7,
¶ 15). For the payments dating from February 1, 2011 to
May 1, 2013, Ocwen applied approximately $643.00 to $675.83
of each payment to the principal. (Docket Entry # 57-7,
Ocwen Loan Analyst (“the loan analyst”) avers
that from February 2011 to July 2013 Ocwen received only 28
regular monthly payments from plaintiffs, returning one to
them. (Docket Entry # 57-7, ¶ 16). The transaction
history reflects these payments. (Docket Entry # 57-7, pp.
11-12). Ocwen's records indicate that plaintiffs remained
one to two months behind on their regular monthly modified
loan payments from November 2012 to June 2013. (Docket Entry
# 57-7, ¶ 16). Between July 26, 2013 and May 2, 2014,
Ocwen did not record any new changes to the modified
loan's outstanding balance that would have resulted from
additional monthly payments. (Docket Entry # 57-7, pp.
affidavit, Rodrigues avers that he “made 41 payments
towards the modified loan between the [January] 2011
modification and the [July] 2014 modification.” (Docket
Entry # 58, ¶ 3) (Docket Entry # 57-7, pp. 11-12). The
transaction history does not reflect all of the 41 payments
Rodrigues made between the January 2011 HAMP Agreement and
“the [July] 2014 Modification.” (Docket Entry #
58, ¶ 3) (Docket Entry # 57-7, pp. 11-12). Drawing
reasonable inferences in plaintiffs' favor, Ocwen
received additional payments beyond the 28 it identifies in
the transaction history. (Docket Entry # 57-7, ¶ 16)
(Docket Entry # 57-7, pp. 11-12). A genuinely disputed
material fact therefore exists regarding whether Ocwen
received and correctly credited a number of payments that
Rodrigues made during the January 2011 to July 2014 time
correspondence dated February 19, 2014, Ocwen proposed the
second modification to the mortgage, which included a Loan
Modification Agreement and Balloon Disclosure (“2014
Modification Agreement”). (Docket Entry # 57-9). In an
account statement dated December 17, 2013 that Ocwen sent to
plaintiffs, Ocwen listed a current principal balance of $451,
866.36 and a deferred principal amount of $9, 900.00. (Docket
Entry # 57-7, ¶¶ 16, 18) (Docket Entry # 57-9, p.
3). After applying the deferred principal balance of $9, 900,
the December 17, 2013 account statement discloses that the
total principal owed leading up to the second modification
was $461, 766.36. (Docket Entry # 57-9, p. 3) (Docket Entry #
57-7, ¶ 18). The same statement also shows that
plaintiffs paid $5, 303.20 that Ocwen applied to interest and
$4, 707.29 that Ocwen applied to principal during the
“year-to-date.” (Docket Entry # 57-9, p. 3)
(capitalization omitted). Ocwen also sent plaintiffs a
February 17, 2014 account statement that disclosed the same
principal ($451, 866.36) and deferred principal ($9, 900)
figures. (Docket Entry # 57-9, p. 5).
qualify for the 2014 Modification Agreement, plaintiffs
needed to sign the agreement, submit a single down payment of
$2, 509.79 prior to April 1, 2014, and complete two
subsequent trial period payments of $1, 626.22 for May and
June 2014. (Docket Entry # 57-9, p. 7). The agreement stated
that the new principal balance following the trial period
would be $472, 823.93 with a 2.00% annual interest rate
charged to the unpaid principal balance. (Docket Entry #
57-9, p. 9). The attached balloon disclosure estimated that a
$185, 996.85 balloon payment would be due on the January 1,
2037 maturity date, subject to subsequent variation. (Docket
Entry # 57-10).
successfully paid the three initial amounts and signed the
2014 Modification Agreement, which Ocwen received on June 30,
2014. (Docket Entry # 57-7, ¶ 19). On July 11, 2014,
“the Loan was modified.” (Docket Entry # 57-7,
¶ 19). Following a recorded assignment on July 24, 2014,
DBNTC as Trustee became the record holder of the mortgage.
(Docket Entry # 57-7, p. 7).
the 2014 Modification Agreement, plaintiffs continued making
adjusted monthly payments. (Docket Entry # 57-7, pp. 13-14).
Their final, recorded, regular monthly payment was processed
on April 17, 2015. (Docket Entry # 57-7, p. 15). On May 20,
2015, Ocwen transmitted an amortization schedule for the
duration of the loan. (Docket Entry # 57-10, pp. 2-11)
(Docket Entry # 57-7, ¶ 21). To date, the June 1, 2015
monthly payment is overdue, as are payments thereafter.
(Docket Entry # 57-7, p. 15).
October 3, 2012 to May 31, 2017, Ocwen maintained a business
operations office at 4 Technology Drive in Westborough,
Massachusetts. (Docket Entry # 57-7, ¶ 23). From May 31
to October 31, 2017, Ocwen maintained another place of
business also located in Westborough, Massachusetts. (Docket
Entry # 57- 7, ¶ 23). Ocwen also maintains assets in
Massachusetts through its Westborough offices and the
recorded mortgages it maintains on real property located
within the state. (Docket Entry # 57-7, ¶ 23).
as Trustee maintains places of business at One Beacon Street,
One International Place, and 321 Summer Street, Suite 405 in
Boston, Massachusetts. (Docket Entry # 57, ¶ 44).
Moreover, as the record holder of recorded mortgages on real
property located in Massachusetts, DBNTC ...