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Vanderhoop v. Wilmington Savings Funds Society FSB

United States District Court, D. Massachusetts

July 15, 2019

MATTHEW VANDERHOOP, Plaintiff,
v.
WILMINGTON SAVINGS FUNDS SOCIETY FSB d/b/a CHRISTIANA TRUST, Not in Its Individual Capacity, but Solely as Trustee for BCAT, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          F. Dennis Saylor, United States District Judge.

         This is an action seeking to forestall a mortgage foreclosure. Plaintiff Matthew Vanderhoop, who has been in default on his mortgage for more than ten years, seeks to enjoin defendant Wilmington Savings Funds Society FSB (“Wilmington”) from foreclosing on his property. The Court previously dismissed all claims except for a claim that Wilmington did not comply with the foreclosure requirements set forth in Mass. Gen. Laws ch. 244, § 35B. Wilmington has now moved for summary judgment on that claim. For the following reasons, the motion will be granted.

         I. Background

         A. Factual Background

         The following facts are as set forth in the record.

         By quitclaim deed dated January 7, 1995, Matthew and Rachel Vanderhoop became record owners of real property located at 17 Old South Road (the “property”) in Aquinnah, Massachusetts. (Zerulik Aff. ¶ 5).[1] On April 24, 2007, Vanderhoop executed a promissory note to borrow $850, 000 from Sovereign Bank. (Def. Ex. A). The note required him to make monthly payments of $5, 090.72. (Id.). That same day, Vanderhoop also granted a mortgage on the property in favor of Sovereign Bank. (Def. Ex. B).

         Vanderhoop has not made the required monthly payment since October 2008, more than ten years ago. (Def. Ex. I). Nonetheless, he continues to possess the property, On September 9, 2014, Santander Bank, the successor-in-interest to Sovereign Bank, assigned the mortgage to MTGLQ Investors, L.P. (Def. Ex. C). It appears that the assignment was not recorded in the Dukes County Registry of Deeds until May 1, 2015. (Id.).

         On February 2, 2015, MTGLQ Investors assigned the mortgage to Wilmington. (Def. Ex. D). It is uncertain when the assignment was recorded. However, Wilmington attests that the assignment was recorded on Page 876 of Book 1375 of the Registry. (Zerulik Aff. ¶ 7).

         On January 10, 2018, Wilmington assigned the mortgage back to MTGLQ Investors. (Def. Ex. E). It appears that the assignment was not recorded until February 14, 2018. (Id.).

         On February 6, 2018, MTGLQ Investors assigned the mortgage to Wilmington for a second time. (Def. Ex. F). It appears that the assignment was not recorded until February 14, 2018. (Id.).

         At all relevant times, Selene Finance LP has been the servicer of the note. (Zerulik Aff. ¶ 2). Selene mailed a letter by First Class and Certified Mail to Vanderhoop dated June 6, 2017, titled “Right to Request a Modified Mortgage Loan” (the “Section 35B letter”). (Def. Ex. G, H). The Section 35B letter stated that Vanderhoop was eligible under Massachusetts law to “request a modification of [his] mortgage with Selene Finance LP.” (Id.). The letter also included various enclosures, including a “Mortgage Modification Options form.” (Id.). That form offered four choices, including the option to “request a loan modification.” (Id.). In order to qualify for a loan modification, Vanderhoop would have had to, among other things, attach a complete statement of his total income, assets, and debts. (Id.).

         Selene sent a second letter by First Class and Certified Mail to Vanderhoop also dated June 6, 2017, titled “90 Day Right to Cure Your Mortgage Default” (the “Section 35A letter”). (Def. Ex. I). The Section 35A letter warned that Vanderhoop owed $457, 031.52 and that the full amount was due by September 4, 2017, or 90 days from the date of the notice. (Id.). Otherwise, Wilmington would conduct a foreclosure sale. (Id.).

         It is undisputed that Vanderhoop did not complete and return the attachments included in the Section 35A and 35B letters, or otherwise cure the mortgage default before the 90-day deadline elapsed. (Def. Ex. L).

         On September 13, 2017, Wilmington filed a complaint against Vanderhoop pursuant to the Servicemembers Civil Relief Act in the Land Court. (Zerulik Aff. ¶ 14). The Land Court entered ...


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