United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
Dennis Saylor, IV United States District Judge.
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.
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.
following reasons, the motion will be granted.
otherwise noted, the following facts are drawn from the
amended complaint, documents referred to in the amended
complaint, and accompanying exhibits.
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).
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.
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.
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).
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).
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).
foreclosure was scheduled for January 31, 2018. (Id.
¶ 25; Ex. 5). However, Everton obtained a preliminary
injunction in Suffolk Superior Court restraining the
foreclosure prior to the ...