Sampson v. U.S. Bank, N.A.

692 F.Supp.3d 1

Francis J. SAMPSON, Jr., Plaintiff, v. U.S. BANK, NATIONAL ASSOCIATION, et al., Defendants.

Civil Action No. 22-10447-NMG

United States District Court, D. Massachusetts

Signed September 15, 2023

Glenn F. Russell, Jr., Fall River, MA, for Plaintiff.

Brian Linehan, Reneau J. Longoria, Doonan, Graves, Longoria, LLC, Beverly, MA, for Defendants.

MEMORANDUM & ORDER

GORTON, United States District Judge

This action arises out of the July, 2022 foreclosure sale of a residential property owned by plaintiff Francis J. Sampson, Jr. ("Sampson" or "plaintiff") and located at 85 Heritage Lane, Duxbury, Massachusetts ("the Property"). Sampson filed suit seeking a declaration that defendants, U.S. Bank, N.A. as trustee for WAMU Pass Through Certificates, Series 2007-OA-4 ("U.S. Bank"), Select Portfolio Servicing, Inc. ("Select") and JPMorgan Chase Bank N.A. ("JPMorgan") lack authority to foreclose on the Property and obtain damages. In March, 2023, defendants filed a motion for summary judgment on all of plaintiff's claims and its counterclaim for possession. For the reasons that follow, the motion will be allowed.

I. Background

In March, 2007, Sampson purchased the Property. In conjunction with the purchase, he borrowed money and executed a promissory note ("the Note") to Washington Mutual Bank, F.A. ("WAMU"). Sampson granted WAMU a mortgage ("the Mortgage") on the property to secure the Note (together, "the mortgage loan").

WAMU went into receivership in 2008 and the Federal Deposit Insurance Corporation ("the FDIC") was appointed to manage its remaining assets. The FDIC sold those assets to JPMorgan which, in May, 2010, assigned the Mortgage to a trust ("the Trust") for which Bank of America, N.A. ("Bank of America"), served as trustee. U.S. Bank has since succeeded Bank of America as trustee of the Trust.

In or around 2010, Sampson fell behind on his mortgage payments. In 2014, the Trust notified Sampson that it intended to sell the Property pursuant to the statutory power of sale made available to mortgagees under M.G.L. c. 244.

Sampson then commenced litigation against the Trust in March, 2015. See Sampson v. U.S. Bank, Nat'l Ass'n, 115 F. Supp. 3d 191 (D. Mass. 2015) ("Sampson I"). In that action, Sampson sought, inter alia, a declaration that U.S. Bank did not have authority to foreclose on the Property under M.G.L. c. 244, § 14. In July, 2015, this Court entered a memorandum and order dismissing Sampson I. See Sampson I, 115 F. Supp. 3d at 191. The Court held that Sampson "offered nothing beyond conclusory allegations of law" in support of his contention and that the facts

render[ed] less than plausible the claim that the Trust was not the valid mortgagee and thus did not have authority to foreclose on the mortgage loan.

Id. at 193.

Sampson appealed the dismissal to the First Circuit Court of Appeals ("the First Circuit") and the United States Supreme Court ("the Supreme Court"), without success. More than two years after the Supreme Court denied his petition for certiorari, Sampson moved for this Court to set aside the judgment in Sampson I. That motion was denied by margin endorsement in October, 2020.

On March 17, 2022, Sampson filed the instant action ("Sampson II") in Massachusetts Superior Court for Plymouth County, again seeking to forestall the foreclosure sale of his residence. Sampson's complaint is comprised of four counts for: 1) declaratory judgment that U.S. Bank cannot foreclose under M.G.L. c. 244, § 14, 2) wrongful foreclosure, against U.S. Bank and Select, 3) slander of title, against JPMorgan and 4) violation of M.G.L. c. 93A against Select. Defendants answered the complaint and asserted three counterclaims for: 1) breach of contract, 2) deficiency judgment, and 3) possession.

Defendants removed the action to this Court in March, 2022, and, shortly thereafter, plaintiff filed a motion for a preliminary injunction. This Court convened a hearing on that motion, at which counsel for plaintiff failed to appear. In April, 2022, this Court denied the motion for a preliminary injunction holding that plaintiff's claims were unlikely to succeed on the merits. Soon thereafter, plaintiff filed a motion for reconsideration which this Court also denied.

In July, 2022, U.S. Bank conducted a non-judicial foreclosure sale of the Property and was the successful bidder. U.S. Bank purchased the Property for $780,000.

Sampson died in November, 2022. By his Last Will and Testament, the Property would be left to James F. Sampson, Gretchen Sampson and Jeffrey Sampson, his children. This Court later allowed a motion to substitute plaintiff for his successors in interest. In December, 2022, U.S. Bank recorded the Foreclosure Deed, conveying title to the Property to itself.

In March, 2023, defendants filed a motion for summary judgment on plaintiff's claims and its counterclaim for possession.

II. Motion for Summary Judgment

A. 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) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving party to show, through the pleadings, discovery and affidavits, "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).

A fact is material if it "might affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute "is such that a reasonable jury could return a verdict for the nonmoving party." Id.

If the moving party satisfies its burden, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the entire record in the light most favorable to the non-moving party and make all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is appropriate if, after viewing the record in the non-moving party's favor, the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

B. Application

Defendants move for summary judgment on each of plaintiff's four claims as well as on its counterclaim for possession. As a preliminary matter, plaintiff asserts that, under Fed. R. Civ. P. 56, this Court should reject defendants' exhibits because they did not include an Affidavit in Support with their Statement of Undisputed Facts. Plaintiff misstates the Rule 56 standard. A moving party is not required to submit an Affidavit in Support with its motion for summary judgment. See Celotex Corp., 477 U.S. at 318, 106 S.Ct. 2548.

1. Claims predicated on Wrongful Foreclosure (Counts I and II)

Plaintiff asserts that defendants U.S. Bank and Select wrongfully foreclosed on the Property because 1) U.S. Bank failed to describe the complete chain of title in the Notice of Sale, as required by M.G.L. c. 244, § 14 and related regulations and 2) U.S. Bank lacked authority to foreclose on the Property.¹

a. U.S. Bank properly described the chain of title

Plaintiff contends that U.S. Bank impermissibly failed to describe the complete chain of title because it omitted the 2013 assignment from JPMorgan to U.S. Bank ("the Confirmatory Assignment") from the Notice of Sale.

Defendants acknowledge the omission of the Confirmatory Assignment but argue that it is immaterial because the Confirmatory Assignment did not transfer legal title to the Mortgage.

In order to comply with Massachusetts law, an entity seeking to foreclose must, inter alia, certify the chain of title of the subject mortgage. See 209 C.M.R. § 18.21A(2)(c) (imposing obligation to "certif[y] the chain of title and ownership of the note and mortgage from the date of the recording of the mortgage being foreclosed upon"), O'Brien v. Wilmington Trust N.A., 506 F. Supp. 3d 82, 100 (D. Mass. 2020). The purpose of certification is to ensure that the foreclosing party holds the subject mortgage by virtue of an "unbroken chain of assignments". O'Brien, 506 F. Supp. 3d at 100 (quoting U.S. Bank, N.A. v. Mistovich, 97 Mass.App.Ct. 1122, 147 N.E.3d 1107 (2020)).

Presented with substantially the same question, another session of this Court held that purported assignments made by an entity which was not the mortgage holder at the time of assignments "were not part of the chain of title and were properly excluded" from the certificate required by § 18.21A(2)(c). Id. at 100 (citing Germano v. U.S. Bank, N.A., No. 17-SBQ-36138-12-001 (HPS), 2018 WL 986065 (Mass. Land Ct. 2018)).

This Court agrees. Defendants explain and provide documentary evidence that JPMorgan initially assigned the Mortgage to Bank of America, as trustee for the Trust, in 2010 ("BOE Assignment"). In 2013, after U.S. Bank succeeded Bank of America as trustee, JPMorgan executed the Confirmatory Assignment which purported to transfer the Mortgage to U.S. Bank. Because JPMorgan had, however, already assigned the Mortgage to Bank of America, it lacked the authority to execute an assignment of the Mortgage to U.S. Bank. As a result, U.S. Bank secured an assignment of the Mortgage from Bank of America in 2019 ("the 2019 Assignment"), reference to which defendants included in the Notice of Sale and related documents.

Defendants' unrebutted evidence demonstrates that at the time of the Confirmatory Assignment, JPMorgan was not the mortgage holder. Accordingly, U.S. Bank was not required to include the Confirmatory Assignment in the foreclosure documents and its omission does not violate the chain...