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Everton v. HSBC Bank USA, N.A.

United States District Court, D. Massachusetts

October 17, 2018

PAMELA TAGLIERI EVERTON, Plaintiff,
v.
HSBC BANK USA, N.A., and OCWEN LOAN SERVICING LLC, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

          F. Dennis Saylor, IV United States District Judge.

         This is an action arising out of an attempted mortgage foreclosure. Plaintiff Pamela Taglieri Everton filed this suit against her mortgage lender, defendant HSBC Bank USA, N.A., and its mortgage servicer, defendant Ocwen Loan Servicing LLC. Everton defaulted on her mortgage in 2009. Ocwen allegedly offered her a private loan modification, which she accepted. The amended complaint alleges that Ocwen reneged on its initial offer and coerced her into accepting a second loan modification. Everton was unable to keep up with the increased mortgage payments and Ocwen, on behalf of HSBC, initiated foreclosure. The amended complaint asserts three claims: (1) violation of Mass. Gen. Laws ch. 93, §§ 49, 12 by HSBC; (2) violation of Mass. Gen. Laws ch. 93A by HSBC and Ocwen; and (3) failure to satisfy the provisions of Mass. Gen. Laws ch. 244, § 35B by HSBC.

         HSBC and Ocwen have moved to dismiss all three counts of the amended complaint. Specifically, HSBC and Ocwen contend that Counts One and Two should be dismissed because they are barred by the relevant statutes of limitations and the statute of frauds. They further contend that Count Three should be dismissed for failure to state a claim upon which relief can be granted.

         For the following reasons, the motion will be granted.

         I. Background

         Unless otherwise noted, the following facts are drawn from the amended complaint, documents referred to in the amended complaint, and accompanying exhibits.

         A. Factual Background

         Pamela Taglieri Everton resides at 13 Bruno Street, Revere, Massachusetts. (Amend. Compl.¶ 5). The deed to the property covers two parcels of land. (Id. ¶ 7). One parcel is registered with the Massachusetts Land Court, and the other is recorded in the Suffolk County Registry of Deeds. (Id. ¶7).

         On April 5, 2006, Everton and three of her family members executed a note and granted a mortgage on the property to the original lender, Delta Funding Corporation, in the amount of $280, 011.94. (Id. ¶¶ 5-6). Delta subsequently assigned the mortgage to HSBC. (Id. ¶ 8). At all relevant times, Ocwen has serviced the mortgage for HSBC. (Id. ¶ 9). The mortgage and the subsequent assignment were both recorded in the Registry of Deeds and registered with the Land Court. (Id. ¶¶ 7-8).

         In 2009, Everton defaulted on the mortgage. (Id. ¶ 10). On August 11, 2009, Everton received a loan modification offer from Ocwen that would reduce her principal balance to $77, 494.26, and the interest rate to 3.95%, for the next five years, after which the rate would be calculated according to the terms of the original loan. (Id. ¶ 12; Ex. 1). It appears that the amount of the principal balance set forth in the offer was a mistake, in light of the huge discrepancy between that amount and the then-existing actual balance.

         In order to “take advantage of” Ocwen's loan-modification offer, Everton was required to make an initial payment of $662.31 and return the signed loan-modification agreement to Ocwen by August 31, 2009. (Id. ¶ 13; Ex. 1). Everton timely made the required payment and returned the signed agreement to accept the offer. (Id. ¶ 14; Ex. 2).

         On September 14, 2009, Ocwen called Everton and told her that it had sent her a new loan-modification agreement that increased her principal balance to $279, 759.59 and her monthly payment from $662.31 to $1, 417.88. (Id. ¶ 15; Ex. 3). After Everton stated that she did not want to accept the modification, Ocwen “warned her that if she did not accept the new offer, her mortgage would be declared in default” and “Ocwen would then initiate foreclosure of the home.” (Id. ¶¶ 16-17). Feeling “intimidated and threatened, ” Everton “capitulated” and signed the new loan-modification agreement. (Id. ¶¶ 17-18; Ex. 3).

         Everton continues to receive monthly mortgage statements from Ocwen reflecting the increased balance under the September 2009 modification agreement. (Id. ¶ 19). At some point, Ocwen initiated foreclosure proceedings on behalf of HSBC. (Id. ¶ 22).

         The foreclosure was scheduled for January 31, 2018. (Id. ΒΆ 25; Ex. 5). However, Everton obtained a preliminary injunction in Suffolk Superior Court restraining the foreclosure prior to the ...


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