United States District Court, D. Massachusetts
MEMORANDUM & ORDER DENYING MOTION FOR PRELIMINARY
Talwani United States District Judge
February 25, 2019, Plaintiff Jacques Saade filed an emergency
motion in Civil Action 18-cv-11534 asking the court to enjoin
the foreclosure of his property, which is scheduled to occur
on March 1, 2019. Mot. for Prelim. Inj. [#45]. Saade argues that
the May 18, 2018, Notice of Foreclosure is defective under
M.G.L. c. 183, § 21, and M.G.L. c. 244, § 15A,
because it does not comply with the terms disclosed in
paragraph 22 of his mortgage agreement (“Paragraph
22”), and because there are open questions as to the
proper ownership of the mortgage.
motion is DENIED.
may grant a plaintiff's motion for preliminary injunction
if he shows: (a) a reasonable likelihood of success on the
merits of his claim; (b) that he will suffer irreparable
injury if the injunctive relief is not granted; (c) that the
injury he will suffer in the absence of an injunction
outweighs the injury to the defendant that will result from
the injunction; and (d) that the injunction would not harm
the public interest. E.g., Corporate Techs., Inc. v.
Harnett, 731 F.3d 6, 9 (1st Cir. 2013)
(citing Ross-Simons of Warwick, Inc. v. Baccarat,
Inc., 102 F.3d 12, 15 (1st Cir. 1996)). The
likelihood of success on the merits “is the main
bearing wall of the four-factor framework, ”
Ross-Simons, 102 F.3d at 16 (citing Weaver v.
Henderson, 984 F.2d 11, 12 (1st Cir. 1993);
Auburn News Co. v. Providence Journal Co., 659 F.2d
273, 277 (1st Cir. 1981)), and a movant's
failure to establish a likelihood of success on the merits is
a sufficient reason to deny a motion for preliminary
injunction. Rice v. Wells Fargo Bank, N.A., 2
F.Supp.3d 25, 32 (D. Mass. 2014) (denying a motion for
preliminary injunction to foreclose a mortgage because
Plaintiffs failed to establish that they had a likelihood of
success of the merits of their argument that the Defendant
did not hold their mortgage or note).
Plaintiff Has Failed to Show a Reasonable Likelihood of
offers several arguments as to the likelihood of success on
his claim. First, he correctly notes that Massachusetts
courts require strict compliance with the Paragraph 22
provisions. See Thompson v. JP Morgan Chase Bank,
No. 18-1559, 2019 WL 493164 (Feb. 8, 2019, 1st Cir.).
Plaintiff argues next that the lender to whom any amounts are
owed in connection with the mortgage on his property (and
thus the party that should have sent the Notice required by
Paragraph 22) is Citimortgage, not the Defendants here.
Finally, Plaintiff argues that regardless of which lender is
involved, the May 31, 2018, Notice of Foreclosure was invalid
because it was issued by a law firm on behalf of a servicer
instead of directly by the lender.
do not disagree that strict compliance with Paragraph 22 is
required, but defend first on the ground that the claims are
all barred by res judicata. Defendants' res
judicata defense succeeds as to Saade's claim that
Citimortgage is the lender.
is barred from raising claims that he made or could have made
in his prior federal or state court suit. See Iantosca v.
Step Plan Servs., Inc., 604 F.3d 24, 30 (1st Cir. 2010);
Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 14
(1st Cir. 2010) (citing Federated Dep't Stores, Inc.
v. Moitie, 452 U.S. 394, 398 (1981); Kobrin v. Bd.
of Registration in Med., 832 N.E.2d 628, 634 (Mass.
2005) Defendants' res judicata defense thus
precludes litigation of Saade's claims when the following
elements have been established: (1) a final judgment on the
merits in an earlier proceeding, (2) sufficient identity
between the causes of action asserted in the earlier and
later suits, and (3) sufficient identity between the parties
in the two actions. Mass. Sch. of Law at Andover, Inc. v.
Am. Bar Ass'n, 142 F.3d 26, 37 (1998). Here, the
first two elements are met by the final judgment entered in
this court in three prior proceedings in November 2016 and
January 2018, with causes of actions relating to the same
dispute regarding Citibank's transfer of the mortgage.
See 15-cv-12275 (“First Action”), Order
Dismissing Case, November 16, 2016 [#127]; 15-cv-13611
(“Second Action”), Order Dismissing Case,
November 28, 2016 [#42]; 16-cv-11982 (“Third
Action”), Order Dismissing Case, January 25, 2018. As
to the third element, in the earlier federal actions, Saade
challenged the assignment of the mortgage to PNMAC Mortgage
Co. (and related entities), and Christiana Trust, a division
of Wilmington Savings Fund Society, FSB. Defendants'
uncontradicted affidavits here show that Christiana Trust
subsequently assigned the Mortgage back to PNMAC, and PNMAC
assigned the Mortgage to the Defendant Wilmington Trust,
National Association, as Trustee of MFRA Trust 2014-2, (the
“Trust”) and that Defendant Fay Servicing, LLC,
(“Fay”) is the current loan servicer on behalf of
the Trust. See Def. Mot. to Dismiss, Ex. B [#6-3],
at 7-9; Def. Mot. to Dismiss, Ex. B [#6-3], at 10-11; Aff. of
Vonterro White [#58], ¶ 6. Accordingly, the court finds
sufficient identity between the parties.
as reported in yet another action, a state land court has
concluded that claims against the parties here are barred by
the prior federal actions. See Land Court decision
in 19-MISC-000067 (the “2019 Land Court action”)
(reporting that in 18-MISC-000432 (the “2018 Land Court
action”) the judge declared that all of Saade's
challenges to events surrounding the 2006 mortgage that
predate October 2015 are barred under the doctrine of res
judicata). Judgment has been entered in that case,
Jacques Saade v. Wilmington Trust, et al., No.
18MISC000432 (Sep. 27, 2019, Mass. Land Ct.) (Lombardi, J.),
and accordingly, Plaintiff's claims regarding
Citimortgage's transfer of the mortgage are further
barred by the state court judgment.
claim that a law firm representing a servicer was not the
appropriate entity to send the Paragraph 22 Notice on May 31,
2018, was not resolved by this court in the litigation that
concluded in January 2018. Nor was the issue finally resolved
in the subsequent litigation in state court. See
2019 Land Court decision (rejecting Defendants' argument
that this issue is precluded by the 2018 Land Court decision
where the complaint in the 2018 Land Court action didn't
mention the paragraph 22 issue, and staying action there
pending final judgment in the actions pending in this court).
merits of this claim, Plaintiff relies on Paiva v. Bank
of N.Y. Mellon, 120 F.Supp.3d 7, 10 (D. Mass. 2015) for
his argument that a law firm representing a servicer cannot
send the notice required by paragraph 22 of the mortgage on
behalf of the lender. In Paiva, the original lender,
MERS as nominee for Countrywide Home Loan, Inc., assigned the
mortgage to a second lender. After the mortgage was assigned,
Countrywide sent out the Notice of Default. The court found
that this Notice did not strictly comply with the
requirements of Paragraph 22 that the Notice be sent by the
lender, since at the time the Notice was sent, Countrywide
was no longer the lender, and merely the servicer.
court agrees with the Paiva decision only to the
extent that the servicer sending the Notice of Default sends
it on behalf of the prior lender or fails to identify the
lender at the time of the Notice. But here, the Notice of
Default was sent on behalf of the identified current lender.
Mot. for Prelim. Inj. [#45-1], at 4 (“[T]his firm has
been retained by Fay Servicing, LLC as servicer for
Wilmington Trust, National Association, not in its individual
capacity, but solely as trustee for MFRA Trust 2014-2 (the
‘Mortgagee') . . . .”]. Saade has not
provided, and this court has not found, further authority for
the notion that strict compliance with Paragraph 22 precludes
the lender from acting through its agents, such as the
servicer or a law firm, where the lender is explicitly
identified. See Khalsa v. Sovereign Bank, N.A., 88