United States District Court, D. Massachusetts
JOSEPHINE B. DONAHUE, Plaintiff,
FEDERAL NATIONAL MORTGAGE ASSOCIATION AND OCWEN LOAN SERVICING, LLC, Defendants.
MEMORANDUM AND ORDER
J. Casper United States District Judge
Josephine Donahue (“Donahue”) has filed this
lawsuit against Defendants Federal National Mortgage
Association and Ocwen Loan Servicing, LLC
“Defendants”) alleging violations of Mass. Gen.
L. c. 183, § 32 and Mass. Gen. L. 183, § 4 (Count
I), breach of the duty of good faith and reasonable diligence
(Count II) and breach of contract and the covenant of good
faith and fair dealing (Count III). D. 1-1. Ocwen has moved
for summary judgment. D. 37. For the reasons stated below,
the Court ALLOWS the motion.
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial PR. Wireless Corp., 217
F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant
“bears the burden of demonstrating the absence of a
genuine issue of material fact.” Carmona v.
Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets its burden, the non-moving party may not
rest on the allegations or denials in her pleadings,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986), but “must, with respect to each issue on which
she would bear the burden of proof at trial, demonstrate that
a trier of fact could reasonably resolve that issue in her
favor, ” Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As
a general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in original).
The Court “view[s] the record in the light most
favorable to the nonmovant, drawing reasonable inferences in
his favor.” Noonan v. Staples, Inc., 556 F.3d
20, 25 (1st Cir. 2009).
following facts are undisputed unless indicated otherwise. On
or about June 22, 2010, Donahue executed a mortgage (the
“Mortgage”) in the amount of $484, 330.00 to
Reliant Mortgage Company, LLC (“Reliant”)
relating to real property located in Scituate, Massachusetts
(the “Property”). D. 39 ¶ 1; D. 39-1; D. 45
at 1. Ocwen began servicing the Mortgage in February 2013. D.
39-6 ¶ 8. On June 10, 2014, the Mortgage was assigned
from Mortgage Electronic Registration Systems, Inc.
(“MERS”), as nominee for Reliant, to Ocwen. D. 39
¶ 2; D. 39-3; D. 45 at 2.
around April 2014, Donahue made a verbal request for mortgage
assistance from Ocwen, which Ocwen acknowledged in a letter
dated April 28, 2014. D. 39-8; D. 45 at 4. The letter
explained that Ocwen required a complete copy of an attached
“Financial Analysis Package” by June 29, 2014
from Donahue to process her request. D. 39-8 at 2; see D.
39-2 at 6. The parties dispute whether Donahue submitted the
required financial information. Compare D. 39 ¶ 11, with
D. 45 at 4-5.
first defaulted on her loan payments under the Mortgage in or
around September 2014. D. 39 at 3 n.1; D. 45 at 3; D. 47
¶ 16; D. 47-3. Between September 2014 and January 2015,
Defendants did not send any correspondence to Donahue about
the opportunity for a face-to-face meeting. D. 47 ¶ 16;
D. 39-6 ¶ 20 (referring to October 28, 2015 face-to-face
letter as Ocwen's “First” HUD Face-to-Face
Letter). Ocwen did, however, send Donahue a 150-day notice of
a right to cure the mortgage default on November 14, 2014. D.
39 ¶ 12; D. 47-3; see D. 47 ¶ 16. As of the time of
the November 14th letter, Donahue had failed to
make her monthly loan payments for September, October or
November 2014. D. 47-3 at 2. Before 150 days had passed, in
January 2015, Donahue made the outstanding payments on the
Mortgage, D. 47 ¶ 16, and Ocwen reinstated the loan, D.
39 at 3 n.1; D. 45 at 3.
March 2015, Donahue again defaulted on the Mortgage. D. 39
¶ 7; D. 47 ¶ 17. In April 2015, Donahue entered
into a “Temporary Repayment Agreement” with
Ocwen. D. 39 ¶ 14; D. 39-10; D. 45 at 6. It is
undisputed that Donahue failed to make any payments under the
Agreement. D. 39 ¶ 15; D. 45 at 6. On May 28, 2015,
Ocwen sent Donahue a pre-foreclosure referral letter,
reflecting the balance owed on the Mortgage and encouraging
Donahue to “call [Ocwen] immediately to discuss
possible alternatives to foreclosure” if she could not
make her account current. D. 39-5 at 3; D. 39-6 ¶ 17. In
or about July 2015, Donahue made another verbal request for
mortgage assistance, as acknowledged by Ocwen in a letter
dated July 15, 2015. D. 39-11; D. 39-6 ¶ 18. Ocwen
informed her that she still had not submitted a complete
mortgage assistance package and set a deadline of August 13,
2015 for receipt of that package. D. 39-11 at 2.
to Ocwen, Ocwen first offered a face-to-face meeting with
Donahue in a letter dated October 28, 2015. D. 39 ¶ 20,
see D. 39-12. Katherine Ortwerth (“Ortwerth”), a
Senior Loan Analyst at Ocwen, refers to the letter as
“Ocwen's First HUD Face-to-Face Letter” and
attests that it was sent to Donahue. D. 39-6 ¶ 20;
12/6/18 hearing transcript (counsel for Ocwen acknowledging
that this letter was not sent by certified mail). Donahue
claims that the letter was never sent because she did not
receive it and the purported United States Postal Service
(“USPS”) tracking No. on the letter reflects
origin and receipt destinations in California. D. 45 at 7-8;
D. 47 ¶ 13; D. 48-1.
about November 2015, Donahue submitted a request for
modification of her delinquent loan. D. 39 ¶ 21; D. 45
at 8. By letter dated December 4, 2015, Ocwen acknowledged
Donahue's request and solicited additional documentation
from Donahue, including a copy of her most recent retirement,
social security and death benefit income. D. 39 ¶ 22; D.
39-14; D. 45 at 8. On December 23, 2015, Ocwen sent Donahue a
list of missing documents needed to review her request for
modification. D. 39 ¶ 23; D. 39-15; D. 45 at 8.
January 28, 2016, Ocwen ordered “Doorknocks” for
Donahue. D. 53-1 at 7. On or about February 2, 2016, Ocwen
asserts that it had a door hanger left at the Property,
advising Donahue of her right to “a face-to-face
interview with a representative from the mortgage on the
underlying loan agreement.” D. 39-16 at 3. Ocwen has
filed a photo of a door hanger on a door knob that is printed
on letterhead from a company called Safeguard Properties.
Id. at 2. The header above the photo identifies the
address as that of the Property and lists a “Completed
Date” of February 2, 2016. Id. Ortwerth from
Ocwen attests that it is the regular practice of Ocwen to
have Ocwen's vendor visit properties and leave a door
hanger with information about a face-to-face meeting once a
request is made for a property visit pursuant to 24 C.F.R.
§ 203.604. D. 53-1 ¶ 11. Ortwerth further attests
that this practice was followed in February 2016 and that,
based on her review of Donahue's file, nothing indicates
that the usual procedure was not followed in this case.
February 4, 2016, Ocwen requested a face-to-face letter be
sent to Donahue, as reflected in Donahue's account file.
D. 53-1 at 7. On February 5, 2016, Ocwen asserts that it sent
a letter informing Donahue of her right to a face-to-face
meeting. D. 39 ¶ 27; D. 39-6 ¶ 26; D. 39-17. An
entry dated February 8, 2016 in Donahue's account file
reflects the same mailing date. D. 53-1 ¶ 6; D. 53-1 at
8. The February 8, 2016 entry also lists a USPS tracking No.
that corresponds to the one at the top of the letter. D. 53-1
¶ 6; D. 53-1 at 8.
contends that Ocwen never sent the February 5, 2016 letter,
because she never received it and because the tracking
number-identical to the one offered for the October 28
letter-indicates origin and receipt destinations in
California in March 2016. D. 45 at 10-11; D. 47 ¶ 13; D.
48-1. Donahue attests that she never received any
correspondence or notice from Ocwen advising her of the
option of a face-to-face meeting. D. 47 ¶ 13. She also
attests that no Ocwen agent ever made a trip to the Property,
id., despite the Property being within 200 miles of an Ocwen
branch office, Id. ¶ 10.
remained in default. D. 39 at 3 n.1; D. 44 at 9. In or around
June 2016, approximately one month before the scheduled
foreclosure sale, Donahue submitted another request for
mortgage assistance. D. 39 ¶ 29; D. 45 at 11. On June
30, 2016, Ocwen acknowledged receipt of Donahue's request
and indicated that she had until July 14, 2016 to provide all
supporting documents listed in the letter. D. 39 ¶ 31;
D. 39-19; D. 45 at 11. The parties dispute whether Donahue
submitted the documents. Compare D. 39 ¶ 32, with D. 45
at 11-12. Ocwen representatives spoke with Donahue or her