Vicente v. Sutton Funding, LLC et al

Filing 26

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 9 Motion for Summary Judgment (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EDSON VICENTE,
Plaintiff,
v.
FCDB SNPWL TRUST, SUTTON FUNDING, LLC,
BARCLAYS BANK PLC, FCDB 8020 REO, LLC,
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC, and EQUIFIRST
CORPORATION
Defendants.

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CIVIL ACTION NO.
11-11767-DPW

MEMORANDUM AND ORDER
February 13, 2012
Plaintiff, Edson Vicente, brought this action against FCDB
SNPWL Trust (“the Trust”); Sutton Funding, LLC (“Sutton”);
Barclays Bank PLC; FCDB 8020 REO LLC (“the REO”); Mortgage
Electronic Registration Systems, Inc. (“MERS”); and Equifirst
Corporation, alleging various statutory and common law
violations.

Vicente claims that he was fraudulently induced into

an unfair loan, refused a loan modification, and then threatened
with wrongful foreclosure.

Defendants MERS and the Trust1 have

moved for summary judgment.
A movant is entitled to summary judgment when “the movant
shows that there is no genuine dispute as to any material fact

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The other Defendants have not appeared in the case and no
returns of service have been filed. In any event, the bases of
the motion for summary judgment apply to all Defendants, and so I
address summary judgment as to all Defendants.

and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).

Fed.

“A dispute is genuine if the evidence about

the fact is such that a reasonable jury could resolve the point
in the favor of the non-moving party,” and “[a] fact is material
if it has the potential of determining the outcome of the
litigation.” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782
(1st Cir. 2011) (quoting Rodríguez–Rivera v. Federico Trilla
Reg'l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).

In evaluating a

motion for summary judgment, a court “must construe the record in
the light most favorable to the nonmovant and resolv[e] all
reasonable inferences in that party’s favor while safely ignoring
conclusory allegations, improbable inferences, and unsupported
speculation.”

Collins v. University of New Hampshire, 664 F.3d

8, 14 (1st Cir. 2011).
Count I of the Complaint alleges that the Trust’s attempts
to foreclose are wrongful because it is not the mortgagee.
Defendants have provided copies of a chain of assignments
stretching from the originator to the Trust.

Plaintiff alleges

that something may be wrong with that chain of assignment, namely
that the assignment to the Trust may be void due to a problem
earlier in the chain of assignment.

However, Plaintiff fails to

offer the facts necessary to demonstrate such a break in the
chain of assignment.

Plaintiff also asserts that the mortgage

was assigned to FRT 2011-1 Trust on October 31, 2011.

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However,

Plaintiff does not explain how a subsequent assignment would
create a material issue of fact regarding whether the Trust
attempted to foreclose wrongfully before that assignment.
Count II alleges that the Trust breached its duty of good
faith and reasonable diligence by failing to consider Plaintiff
for a loan modification.

Plaintiff does not point to any

provision in the mortgage contract that guarantees him such
consideration.

“The purpose of the implied covenant is to ensure

that neither party interferes with the ability of the other to
enjoy the fruits of the contract.”

FAMM Steel, Inc. v. Sovereign

Bank, 571 F.3d 93, 100 (1st Cir. 2009) (internal citation
omitted).

Plaintiff neither explains how the refusal to consider

him for a loan modification interferes with his ability to enjoy
the fruits of the contract nor cites any case law to that effect.
Counts III, IV, and V allege violations of G.L. c. 93A, 940
C.M.R. 8.06(1), and 940 C.M.R. 8.06(15) based on the origination
of the loan.

Judgment for Defendants is warranted on these

Counts to the extent that they are made pursuant to the cited
regulations because 940 C.M.R. 8.06(1) and (15) create no private
right of action.

See In re Fernandes, 446 B.R. 6, 9 (Bankr. D.

Mass 2011) (holding that there is no private right of action
under either regulation); In re Mae, 460 B.R. 1, 2-3 (Bankr. D.
Mass. 2011) (holding that there is no private right of action
under 940 C.M.R. 8.06(15)).

Judgment for Defendants is also

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warranted on these Counts to the extent that they are made
pursuant to G.L. c. 93A because over four years have passed since
the loan was originated, and the statute of limitations has run.
See G.L. c. 260, § 5A (establishing that the statute of
limitations under G.L. c. 93A is four years).
Count VI alleges that Defendants have been unjustly enriched
by Plaintiff due to numerous unwarranted payments.

Neither the

Complaint nor Plaintiff’s opposition to the Defendants’ motion
for summary judgment explains which alleged facts support this
Count and what rendered the payments “unwarranted.”

It appears,

however, that the payments might be labeled “unwarranted” because
of Plaintiff’s allegations regarding the Trust’s questionable
status as mortgagee.

However, as I discussed supra, Plaintiff

has not raised facts sufficient to create a genuine dispute about
the Trust’s status as mortgagee.

Moreover, the Complaint makes

no allegations about the transfers of the note, and payments are
made to the noteholder, not the mortgagee.
Count VII alleges that Equifirst fraudulently induced
Plaintiff to enter into the loan based on misrepresentations it
made regarding his ability to afford and refinance the loan.
However, over three years have passed since the loan was
originated, and the statute of limitations for fraud has run.
See G.L. c. 260, § 2A (establishing that the statute of
limitations for tort actions is three years).

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Count VIII alleges that Defendants have acted negligently by
refusing to consider a loan modification, and Count IX alleges
that Defendants have negligently failed to provide Plaintiff with
a loan modification, causing him great emotional distress.
However, Plaintiff fails to allege the basis for a duty to
provide a loan modification.

While Plaintiff states in his

Complaint that Defendants’ duty to act in good faith and with
reasonable diligence “includes seeking reasonable alternatives to
foreclosure,” Plaintiff fails to support these claims with any
case law in his brief.

Plaintiff has not established that

Defendant had a duty to provide a loan modification, and
therefore fails to allege grounds for a claim of either
negligence or negligent infliction of emotional distress.
As a general matter, Plaintiff contends that the case is not
ripe for a motion for summary judgment because no discovery has
been conducted.

To receive the benefit of Rule 56(e), the

“movant must (1) articulate a plausible basis for the belief that
discoverable materials exist which would raise a trial worthy
issue, and (2) demonstrate good cause for failure to have
conducted the discovery earlier.”

Fennell v. First Step Designs,

Ltd., 83 F.3d 526, 531 (1st Cir. 1996).

Plaintiff does not

articulate an argument to satisfy either of these requirements; a
bare statement that discovery has not been conducted is
insufficient.

Thus, Plaintiff neither demonstrates sufficient

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evidence to show a genuine dispute as to material facts nor
alleges sufficient basis for his failure to do so.
For these reasons, I GRANT summary judgment to Defendants
(Dkt. No. 9).

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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