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Weiner v. Rushmore Loan Management Services, LLC

United States District Court, D. Massachusetts

December 5, 2019

EUGENE WEINER, Plaintiff,
v.
RUSHMORE LOAN MANAGEMENT SERVICES, LLC & MTGLQ INVESTORS, LP, Defendants.

          ORDER AND MEMORANDUM ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOCKET NOS. 37 & 42)

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Eugene Weiner (“Plaintiff”) brings this action against MTGLQ Investors, L.P. (“MTGLQ”) and Rushmore Loan Management Services, LLC (“Rushmore”) (collectively, “Defendants”), alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e, and the Massachusetts Consumer Protection Act (“MCPA”), M.G.L. c. 93A, § 2. Plaintiff moves for summary judgment on liability. (Docket Nos. 37). Defendants cross-move for summary judgment on liability and damages. (Docket No. 42). For the following reasons, the Court denies both motions.

         Background

         In 2003, Plaintiff financed his purchase of property in Fitchburg, Massachusetts (the “Property”), by borrowing $124, 000.00 from Countrywide Home Loans, Inc. (Docket Nos. 40-1, 40-2, 40-3, 45 at 12-25). Plaintiff initially paid $684.73 a month on his mortgage, but he modified the terms of the loan in 2010 and 2014 to reduce his monthly payments. (Docket No. 45 at 27-37). Plaintiff does not recall making any payments after January 1, 2015 and does not contest that he defaulted on the loan. (Docket No. 46 at 8).

         The mortgage was assigned to MTGLQ on August 18, 2016. (Docket No. 41-5). MTGLQ hired Rushmore to service the loan, and on August 30, 2016, Rushmore sent Plaintiff a mortgage statement showing an outstanding balance of $16, 072.18. (Docket No. 45 at 39-43). A few months later, MTGLQ commenced a Servicemembers Civil Relief Act (“SCRA”) action in the Massachusetts Land Court to foreclose on Plaintiff's property. (Docket No. 45 at 45). Chief Justice Cutler issued an SCRA judgment on June 20, 2017. (Docket No. 45 at 45).

         On June 27, 2017, Rushmore mailed Plaintiff a letter offering him a potential loan modification plan (the “June Letter”). (Docket Nos. 40-7, 45 at 52-76). In relevant part, the June Letter states:

Congratulations! We are excited to make you an offer for a modification program that is designed to make your mortgage payments more affordable and help you keep your home.
TO ACCEPT THIS OFFER
Provide documentation of your monthly income and expense information. If your mortgage payment to monthly income ratio is less than 35% and your total monthly expenses (including your mortgage payment) to monthly income ratio is less than 55%; you will be provided with modification terms, a three month trial plan with a new principal balance of $125, 000 and an estimated payment of $857.60. If you make all three payments successfully, we will permanently modify your loan!
TIME IS OF THE ESSENCE
This modification program is based upon a valuation dated 05/16/2017. . . In the event we have not heard from you within 60 days from the date of this offer, you still may be eligible for this program; however a new valuation will be required. The estimate amount of debt forgiveness may change. All other terms of this offer would remain applicable.
. . .
WHAT IF MY PROPERTY IS SCHEDULED FOR A FORECLOSURE SALE?
• In general, we will not evaluate a Borrower Assistance Application that is submitted shortly before a scheduled foreclosure sale date. This means that, in general, in order for your Application to be evaluated, your complete Borrower ...

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