Hawkes v. Bsi Fin., Inc.

444 F.Supp.3d 260

Kenneth HAWKES and Zoe Greene, Plaintiffs,

v.BSI FINANCIAL, INC., Defendant.

Civil Action No. 19-11484-FDS

United States District Court, D. Massachusetts.

Signed March 13, 2020

Gregory M. Sullivan, Law Office of Gregory M. Sullivan, Malden, MA, for Plaintiffs.

John T. Precobb, Richard C. Demerle, Demerle Hoeger LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT

SAYLOR, C.J.

This is an action arising out of a mortgage foreclosure. In 2003, plaintiffs Kenneth Hawkes and Zoe Greene executed a mortgage loan on their property. They later defaulted on that loan. In June 2019, the servicer for their mortgage, defendant BSI Financial, held a foreclosure auction on the mortgaged property. Plaintiffs allege that they were given no notice of the foreclosure in violation of three Massachusetts statutes. The complaint raises five counts arising out of the alleged notice defects, seeking damages and injunctive relief.

After removing the case to this Court, defendant has moved for summary judgment on all counts. For the reasons set forth below, the motion for summary judgment will be granted.

I. Background

The following facts are as set forth in the record and are undisputed except as noted.

On October 28, 2003, plaintiffs Kenneth Hawkes and Zoe Greene executed an adjustable-rate note in the principal amount of $199,900 with Cambridge Mortgage Group, Inc. (Cantu Aff. ¶ 3 & Ex. A).¹ As security for the loan, plaintiffs granted Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Cambridge Mortgage Group, Inc., a mortgage on real property located at 12 Suffolk Court in Lynn, Massachusetts. (Cantu Aff. ¶ 4 & Ex. B).

On March 27, 2013, MERS assigned the mortgage to Nationstar Mortgage, LLC. (Cantu Aff. ¶ 5 & Ex. C). Ultimately, the mortgage was assigned to U.S. Bank Trust National Association, as Trustee for Igloo Series III Trust. (Cantu Aff. ¶ 6-8). BSI Financial Services, Inc. was the servicer for the loan on behalf of U.S. Bank Trust. (Marinosci Aff. ¶ 3).

At some point between 2015 and 2018, plaintiffs fell behind on their monthly payments under the loan agreement. Plaintiffs claim that this occurred "[i]n or around 2018," (Sec. Amend. Compl. ¶ 5). However, defendant submitted a letter, dated April 27, 2017, indicating that plaintiffs had failed to make loan payments dating back to October 1, 2015. (Cantu Aff. Ex. F).²

On June 26, 2019, a foreclosure sale was held for the mortgaged property. (Marinosci Aff. Ex. A, 2-4). Plaintiffs allege they first learned of the foreclosure auction that same day, when an attorney for the auction firm came to their door. (Sec. Amend. Compl. ¶ 10).

Plaintiffs allege that BSI did not send three separate notices required by Massachusetts law: the Notice of Mortgagee Sale (as required by Mass. Gen. Laws ch. 244 § 14 ), the Notice of the Right to Cure (as required by Mass. Gen. Laws ch. 244 § 35A ), and the Notice of the Right to Modification (as required by Mass. Gen. Laws ch. 244 § 35B ). (Sec. Amend. Compl. ¶¶ 17-20).

BSI contends that it sent all three required notices in compliance with the Massachusetts statutes. (See Cantu Aff. ¶¶ 8-11 & Exs. F, G, H, I; Marinosci Aff. ¶¶ 4-5 & Exs. A, B).

On June 27, 2019, plaintiffs filed an action in Essex Superior Court to quiet title. (Not. of Removal, Ex. 1). On July 8, 2019, BSI removed that suit to this Court. (Id. )

Plaintiffs have since amended their original complaint. Their most recent complaint, the Second Amended Complaint, raises claims under Mass. Gen. Laws ch. 244, § 14 (Count 1), Mass. Gen. Laws ch. 244, § 35A (Count 2), Mass. Gen. Laws ch. 244, § 35B (Count 3), Mass. Gen. Laws ch. 183, § 21 (Count 4), and Mass. Gen. Laws ch. 93A, § 9 (Count 5). They seek both money damages and to have the foreclosure sale rescinded.

Defendant, having yet to file an answer, has moved for summary judgment.³

II. Legal Standard

The role of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. Gen. Elec. Co. , 950 F.2d 816, 822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when the moving party shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Essentially, Rule 56 [ ] mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ " Coll v. PB Diagnostic Sys. , 50 F.3d 1115, 1121 (1st Cir. 1995) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). In making that determination, the court must view "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). As for what constitutes that record, "[c]ourts and parties have great flexibility with regard to evidence that may be used on a Rule 56 proceeding, and as Rule 56(c) makes clear, in deciding summary judgment motions courts may consider any material that would be admissible or usable at trial ...." Asociacion De Periodistas De Puerto Rico v. Mueller , 680 F.3d 70, 78 (1st Cir. 2012) (internal quotations omitted). When "a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotations omitted). The non-moving party may not simply "rest upon mere allegation or denials of his pleading," but instead must "present affirmative evidence." Id. at 256–57, 106 S.Ct. 2505.

III. Analysis

BSI has filed for summary judgment on all five counts. In substance, it contends that the alleged violations of Massachusetts law underlying all of plaintiffs' claims are factually untrue. The inquiry, then, is whether there is a genuine dispute of fact as to whether BSI complied with the foreclosure notice provisions of Mass. Gen. Laws ch. 244, §§ 14, 35A, and 35B.

A. Mass. Gen. Laws ch. 244, § 14 Notice

The first dispute concerns the notice required by Mass. Gen. Laws ch. 244, § 14. That statute, in relevant part, provides that a foreclosure sale is permissible only if

notice of the sale has been sent by registered mail to the owner or owners of record of the equity of redemption as of 30 days prior to the date of sale, said notice to be mailed by registered mail at least 14 days prior to the date of sale ... to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage.

Id. There is no dispute that the appropriate address for such a mailing was 12 Suffolk Court in Lynn, the property in question. (See Marinosci Aff. ¶ 6; Sec. Amend. Compl. ¶ 1).

It is well-settled that the notice of sale letter required by ch. 244, § 14 need only be sent , and that a mortgagor's actual receipt of the letter is not required. See Mass. Gen. Laws ch. 244, § 14 ("[N]otice of the sale [must have] been sent by registered mail ....") (emphasis added); Hull v. Attleboro Savings Bank , 33 Mass. App. Ct. 18, 24-5, 596 N.E.2d 358 (1992) ("The fourteen-day registered mail notice requirement is satisfied by mailing and nonreceipt is irrelevant.").

BSI contends that it sent the required notice. Chad Morrone, the managing attorney for Marinosci Law Group, PC, submitted an affidavit stating that his firm mailed out the notice by certified and regular mail on May 31, 2019. (Marinosci Aff. ¶ 4). He further attested that a true and accurate copy of this letter was attached to his affidavit. (Id. ¶ 4 & Ex. A). An exhibit to his affidavit provided a U.S. Postal Service tracking number for the notice. (Marinosci Aff. ¶ 5 & Exs. A, B).

In response, plaintiffs have submitted what appears to be a screenshot of a USPS tracking number search conducted through Google.com. (Pl. Ex. A).⁴ The screenshot appears to reflect a search of the relevant tracking number and displays a result of "package returned to sender." ( Id. ).

Plaintiffs' evidence is inadequate to defeat summary judgment as to the claim of failure to provide notice under § 14. First, a stand-alone screenshot of an Internet search, unaccompanied by even a bare-bones authenticating affidavit, is not admissible and may not be considered on summary judgment. See Carmon v. Toledo , 215 F.3d 124, 131-2 (1st Cir. 2000) (refusing to consider documents on summary judgment when submitted without any authenticating affidavit); Stewart v. Wachowski , 574 F. Supp. 2d 1074, 1091 (C.D. Cal. 2005) (finding that evidence in the form of unauthenticated "web page documents" could not be considered on summary judgment motion). The screenshot here is not from an official government website, and therefore it is not self-authenticating under Fed. R. Evid. 902(5).

In any event, even assuming the admissibility of the document, it falls well short of creating a genuine dispute of fact as to whether the required statutory notice was sent. At most, the screenshot shows that the package associated with the postal tracking number was returned to the sender. (Pl. Ex. A). But BSI's exhibit establishes the exact same fact: that the package was mailed and ultimately returned to the original sender. (Marinosci Aff. Ex. B).

But the fact that the notice was returned to sender is not the critical inquiry. Again, the notice requirements of the statute are "satisfied by mailing and nonreceipt is irrelevant." Hull , 33 Mass. App. Ct. at 24-5, 596 N.E.2d 358. Plaintiffs have produced no admissible evidence creating a genuine dispute as to the fact that the notice required by § 14 was sent. Accordingly, and because Count 1 is predicated exclusively on allegations of a violation of ch. 244, § 14, summary judgment...