United States District Court, D. Massachusetts
DENISE D. CRANMORE, Plaintiff,
WELLS FARGO BANK, N.A., d/b/a AMERICAN'S SERVICING CO. a/k/a BERKSHIRE HATHAWAY INC. & U.S. BANK, N.A., AS TRUSTEE FOR RESIDENTIAL ASSET SECURITIES CORP. a/k/a HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-EMX9, Defendants.
MEMORANDUM OF DECISION
WILLIAM G. YOUNG DISTRICT JUDGE.
matter came before this Court as a case stated, see
United Paperworkers Int'l Union, Local 14 v.
International Paper Co., 64 F.3d 28, 31 (1st Cir. 1995)
(citing Equal Employment Opportunity Comm'n v.
Steamship Clerks Union 1066, 48 F.3d 594, 603 (1st Cir.
1995)), to resolve the one count remaining after another
session of the court twice denied summary judgment.
See ECF Nos. 26 (denying summary judgment on all
counts), 60 (denying summary judgment on part of count III).
The plaintiff Denise Cranmore (“Cranmore”)
contends that Wells Fargo Bank, National Association
(“Wells Fargo”) and U.S. Bank, National
Association, as Trustee for Residential Asset Securities
Corporation, Home Equity Mortgage Asset-Backed Pass-Through
Certificates, Series 2006-EMX9 (“U.S. Bank as Trustee
for Series 2006-EMX9”) violated chapter 93A of
Massachusetts General Laws by initiating foreclosure
proceedings on her property without possession of both the
note and the mortgage as required by Massachusetts law. The
Defendants argue, among other things, that Cranmore cannot
prove that the holder of the mortgage did not hold the note
when it noticed foreclosure or that they met the scienter
requirement of her chapter 93A claim.
borrowed $331, 500 from Mortgage Lenders Network USA, Inc.
(“Mortgage Lenders Network”) on June 29, 2006 to
purchase a property in Milton, Massachusetts (“the
Property”). See Stipulated Facts ¶ 1.
Cranmore's promissory note on this debt was secured by a
mortgage on the Property and listed Mortgage Lenders Network
as the lender. See id. & Ex. A, Adjustable Rate
Balloon Note (“Note”) 2, ECF No.
74-1. The mortgage designated Mortgage
Electronic Registration Systems, Inc. (“MERS”) as
the nominee for the lender. See Stipulated Facts
¶ 5 & Ex. B, Mortgage 10, ECF No. 74-1.
October 17, 2011, MERS assigned the Mortgage to U.S. Bank,
National Association, as Trustee for RASC 2006-EMX9
(“U.S. Bank as Trustee for RASC 2006-EMX9”).
Stipulated Facts ¶ 6 & Ex. C, Corporate Assignment
Mortgage (“First Assignment”) 35, ECF No. 74-1.
On February 17, 2015, U.S. Bank Trustee RASC 2006-EMX9
assigned the mortgage to U.S. Bank as Trustee for Series
2006-EMX9. Stipulated Facts ¶ 7 & Ex. D, Corporate
Assignment Mortgage (“Second Assignment”) 38, ECF
Fargo has been the servicer of the mortgage loan on behalf of
U.S. Bank since at least 2009. See Stipulated Facts
¶ 8; Statement Material Facts Supp. Defs.' Mot.
Summ. J. (“Statement Facts Defs.' First Mot. Summ.
J.”), Ex. E, Special Forbearance Plan, ECF No. 10-5.
Note was endorsed multiple times since 2006. See
Stipulated Facts ¶¶ 2-4. As explicated in Judge
Wolf's memorandum and order:
The Note contains three undated assignments: (a) from
“Mortgage Lenders Network USA” to “EMAX
Financial Group, LLC”; (b) from “EMAX Financial
Group, LLC” to “Residential Funding Company,
LLC”; and (c) from “Residential Funding Company
LLC” to “U.S. Bank National Association as
Trustee.” The last assignment does not specify the
trust for which U.S. Bank acts as trustee. Moreover, the last
assignment is crossed-out in handwriting, next to a
handwritten date of January 26, 2016. Finally, the Note also
contains an Allonge, which purports to assign the note from
“Residential Funding Company, LLC” to U.S. Bank,
as Trustee for Series 2006-EMX9.
& Order (“Wolf Mem. & Order”) 9, ECF No.
60 (internal citations omitted).
defaulted on the loan in 2008. Stipulated Facts ¶ 9. She
and Wells Fargo attempted unsuccessfully to modify her loan
between 2008 and 2016. Id. ¶ 10.
January 20, 2016 letter notified Cranmore that U.S. Bank as
Trustee for Series 2006-EMX9 intended to conduct a
foreclosure sale of the Property on February 19, 2016.
Id. ¶ 11 & Ex. E, Notice of Intention to
Foreclose and of Deficiency After Foreclosure of Mortgage
(“Notice of Foreclosure”) 42-44, ECF No. 74-1.
to the Notice of Foreclosure was a document, dated December
8, 2015, entitled “Certification Pursuant to
Massachusetts 209 C.M.R. 18.21A(2)(c).” See
Pl.'s Opp'n Defs.' Mot. Summ. J.
(“Opp'n Defs.' First Mot. Summ. J.”) 5-6,
ECF No. 13; Stipulated Facts, Ex. E, Certification
Massachusetts 209 C.M.R. 18.21A(2)(c)
(“Certification”) 51-52, ECF No. 74-1. The
Certification -- written and signed by Deitrice Hemphill,
Vice President of Loan Documentation at Wells Fargo,
“pursuant to [her] review of the relevant business
records, the records of the county recorder where the subject
property is located, the title report, and/or information
obtained from a title insurer or agent” -- purports to
document the chain of title for the mortgage on the Property
and its promissory note. The Certification indicates that an
assignment from U.S. Bank as Trustee for RASC 2006-EMX9 to
U.S. Bank as Trustee for Series 2006-EMX9 was recorded on
February 25, 2015. Certification ¶ 8. Further, the
Certification attests that U.S. Bank as Trustee for Series
2006-EMX9 “is the owner of the Promissory Note
.” Id. ¶ 4. Indeed, Deitrice
Hemphill's signature indicates her affiliation with
“Wells Fargo Bank, N.A., DBA America's Servicing
Company as sub servicer agent for U.S. Bank National
Association, as trustee, for residential asset securities
corporation, Home Equity Mortgage Asset-backed pass-through
certificates, series 2006-EMX9.” Certification 52.
date this Certification was completed, the Note itself
indicated that it had been endorsed to “U.S. Bank as
Trustee, ” but did not specify a trust. See
Wolf Mem. & Order 9, 12; Note 7.
state court enjoined this foreclosure on February 17, 2016,
see Wolf Mem. & Order 2; State Court Record 132,
ECF No. 6, no foreclosure has occurred nor is one presently
September 29, 2017, Cranmore served a chapter 93A demand
letter on the Defendants, to which they responded on October
25, 2017. Stipulated Facts ¶¶ 13-14.
February 17, 2016, very soon after receiving the January 2016
notice of foreclosure, Cranmore obtained a preliminary
injunction in state court that prevented the Defendants from
foreclosing on the Property. See Wolf Mem. &
Order 2; Stipulated Facts ¶ 15; State Court Record 132.
addition to seeking an injunction, Cranmore alleged that (1)
U.S. Bank as Trustee for Series 2006-EMX9 did not hold the
note at the time it initiated foreclosure proceedings and (2)
Wells Fargo failed to make a good faith attempt to consider
loan modifications. See Pl.'s Opening Br. Trial
Case Stated (“Cranmore's Br.”) 3-4, ECF No.
Fargo and U.S. Bank as Trustee for Series 2006-EMX9 removed
the case to the District Court for the District of
Massachusetts on the basis of diversity jurisdiction.
See Wolf Mem. & Order 2. Judge Wolf denied the
Defendants' first motion for summary judgment in
September 2017, allowing Cranmore to amend her complaint and
the parties to develop the record further. See id.
second amended complaint sought an injunction of the
foreclosure (count I), a judgment declaring that the
Defendants could not foreclose on the Property (count II),
and damages for alleged violations of chapter 93A of
Massachusetts General Laws (“Chapter 93A”).
See id. Cranmore alleged that U.S. Bank as Trustee
for Series 2006-EMX9 did not possess the Note at the time it
initiated foreclosure proceedings and Wells Fargo
communicated in a confusing and misleading manner and failed
appropriately to consider loan modifications. See
id. at 2-3.
March 29, 2019, Judge Wolf granted summary judgment for the
Defendants on counts I and II, ruling those claims “not
ripe for judicial determination” as they
“concern[ed] a hypothetical, future foreclosure that
defendants ha[d] not yet noticed.” Id. at 3.
Judge Wolf also granted partial relief to the Defendants on
count III, holding that Cranmore had failed to demonstrate a
genuine dispute of material fact as to her claims regarding
Wells Fargo's communications and loan modification
efforts. See id. at 3-4.
case, then consisting only of the remaining Chapter 93A
claim, was transferred to this session of the Court pursuant
to Local Rule 40.1(i) on July 5, 2019. Electronic Clerk's
Notes, ECF No. 67. The parties agreed to proceed as a case
stated, Electronic Clerk's Notes, ECF Nos. 71-72, and
filed stipulated facts, trial briefs, and responses.
See Stipulated Facts; Cranmore's Br.; Defs.'
Opening Br. Supp. Defs.' Mot. J. Case Stated
(“Defs.' Br.”), ECF No. 77; Pl.'s Resp.
Defs.' Opening Br. Trial Case Stated