Shapiro et al v. Aurora Loan Services LLC

Filing 50

Judge Joseph L. Tauro: ORDER entered. MEMORANDUM and ORDER (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JUDD LOUIS SHAPIRO a/k/a JUDD
SHAPIRO, JEFFERY S. SHAPIRO,
and JOANNE M. SHAPIRO,
Plaintiffs,
v.
AURORA LOAN SERVICES, LLC,
Defendant.

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Civil Action No. 11-12218-JLT

MEMORANDUM
March 18, 2013
TAURO, J.
I.

Introduction
On May 19, 2011, Defendant Aurora Loan Services, LLC (“Aurora”) foreclosed on the

home of Plaintiffs Judd, Jeffery, and Joanne Shapiro (collectively the “Shapiros”). Prior to the
foreclosure, the Shapiros challenged Aurora’s right to foreclose. They now renew that challenge.
Before the court is Aurora’s motion for summary judgment on the Shapiros’ claim of wrongful
foreclosure and its own counterclaim for judgment of possession. For the following reasons,
Aurora’s Motion for Summary Judgment [#11] is ALLOWED.
II.

Factual Background
In 2006, Judd Shapiro obtained the deed to 25 Mohawk Road, Andover, Massachusetts.1

On July 14, 2006, he executed a note to Homecomings Financial Network, Inc. (“Homecomings”)

1

Aurora Aff. Ex. A [#14].
1

in the amount of $584,000 and a mortgage on the property to Mortgage Electronic Registration
Systems, Inc. (“MERS”).2 MERS registered the mortgage in the Essex Registry District of the
Land Court on July 21, 2006.3
Both the note and the mortgage subsequently changed hands.4 MERS, as nominee for
Homecomings, assigned the mortgage to Aurora on November 19, 2008.5 Aurora registered this
assignment on December 5, 2008.
Judd defaulted on his loan obligation in August 2008,6 setting the foreclosure process in
motion. Aurora initially scheduled a foreclosure sale for August 10, 2009, but Judd filed for
Chapter 7 Bankruptcy on August 7, 2009. He received a discharge on January 5, 2010.7
Upon completion of the bankruptcy proceedings, Aurora rescheduled the foreclosure sale
for May 5, 2011. For three consecutive weeks, it published the Notice of Mortgagee’s Sale of
Real Estate.8 Aurora concurrently sent Judd a Notice of Intent to Foreclose Mortgage letter.9
On May 5th, Judd filed a complaint and motion for a temporary restraining order (“TRO”)
in Essex Superior Court, causing Aurora to postpone the sale by public proclamation until May

2

Aurora Aff. Exs. B-C.

3

Aurora Aff. ¶ 8.

4

Aurora Aff. ¶¶ 9-12.

5

Aurora Aff. Ex. D.

6

Aurora Aff. ¶ 13.

7

Longoria Aff. ¶¶ 6-7 [#15].

8

Longoria Aff. Ex. 5.

9

Longoria Aff. Ex. 6.
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19, 2011.10 Aurora then removed the action to this court, which denied the motion on May 16th,11
allowing the foreclosure to proceed. Aurora purchased the property for $400,000.12
Aurora registered the foreclosure deed and affidavit on July 20, 2011.13 It served notices
to quit upon the Shapiros on September 14, 2011.14 The Shapiros remain in possession.15
II.

Procedural Background
As previously noted, Judd filed an initial complaint and motion for a TRO against Aurora

in Essex Superior Court on May 5, 2011, prior to the foreclosure sale. Aurora removed the suit to
this court, which denied Judd’s motion for a TRO. After the foreclosure sale, on July 15, 2011,
Aurora moved to dismiss the complaint under Rule 12(b)(6). This court allowed Aurora’s motion
after considering the merits of Judd’s arguments that Aurora lacked standing to foreclose.16
On November 17, 2011, the Shapiros initiated a new lawsuit in Essex Superior Court
against Aurora for wrongful foreclosure, arguing that Aurora lacked standing to foreclose. Aurora
again removed to this court, answered, and filed a counter-claim for judgment of possession.
Aurora moved for summary judgment on March 23, 2012. The Shapiros, now represented by
counsel, opposed the motion.

10

Longoria Aff. Ex. 15.

11

Longoria Aff. Ex. 10.

12

Aurora Aff. Ex. E.

13

Aurora Aff. ¶ 15 Exs. E-F.

14

Longoria Aff. Ex. 16.

15

Longoria Aff. ¶ 26.

16

Longoria Aff. Ex. 13.
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III.

Discussion
A.

Legal Standard

To prevail on a motion for summary judgment, the moving party must show that “there is
no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a
matter of law.”17 In deciding the motion, “a court is not authorized to make findings of fact.”18
The court must examine the record “in the light most favorable to, and drawing all reasonable
inferences in favor of, the nonmoving party.”19
If the moving party does not have the burden of proof at trial, that party may demonstrate
that the evidence is insufficient to support the nonmoving party’s case.20 The nonmovant must
then proffer evidence of some genuine issue of material fact to forestall summary judgment.21
B.

The Shapiros’ Wrongful Foreclosure Claim

The Shapiros challenge Aurora’s right to foreclose. They primarily attack the note
transfers, but they also contest MERS’s assignment of the mortgage to Aurora and use of “robosigners” in executing assignments.
The Shapiros’ current claims are barred by claim preclusion. Claim preclusion applies if: 1)

17

Fed. R. Civ. P. 56(a); see Baltodano v. Merck, Sharp & Dohme (I.A.) Corp., 637 F.3d
38, 41 (1st Cir. 2011) (citing Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008)).
18

Ross v. Framingham Sch. Comm., 44 F. Supp. 2d 104, 113 (D. Mass. 1999).

19

De La Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).

20

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (“[T]he burden on the moving party
may be discharged by ‘showing’–that is, pointing out to the district court–that there is an absence
of evidence to support the nonmoving party’s case.”).
21

Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).
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the earlier suit resulted in a final judgment on the merits; 2) both suits contain sufficiently identical
causes of action; and 3) both suits involve sufficiently identical parties.22 “Claim preclusion bars
litigation even if the plaintiff is prepared to present different evidence or legal theories in the
second case.”23
Judd’s initial suit satisfies all three requirements. It resulted in a final judgment on the
merits.24 Both cases involved the same parties. Both cases arose from the same series of
transactions - the mortgage, the assignments, the foreclosure - and sought the same relief - a
determination that Aurora lacked authority to foreclose.25 This renders the causes of action
sufficiently identical. Thus, the earlier proceeding bars the Shapiros’ current suit.
To the extent any of the Shapiros’ claims involve conduct allegedly occurring after the
initial dismissal, they fail as a matter of law. First, because the foreclosure occurred before the
Massachusetts Supreme Judicial Court’s decision in Eaton v. Federal National Mortgage
Association, Aurora did not need the note to foreclose.26 Second, although the Shapiros have
standing to challenge a void transfer of their mortgage, the First Circuit has recently decided that

22

Airframe Sys., Inc. v. Raytheon Co., 601 F.3d 9, 14 (1st Cir. 2010); Korbin v. Bd. of
Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005).
23

DaCruz-Crossely v. U.S. Bank Nat’l Ass’n, No. 12-10692-JLT, 2013 WL 781932, at
*2 (D. Mass. Mar. 4, 2013).
24

AVX Corp. v. Cabot Corp., 424 F.3d 28, 30 (1st Cir. 2005) (“Ordinarily, a dismissal for
failure to state a claim is treated as a dismissal on the merits, and there is abundant case law to this
effect.”).
25

DaCruz-Crossely, 2013 WL 781932, at *2; see Airframe Sys., Inc., 601 F.3d at 15.

26

Eaton v. Fed. Nat’l Mortg. Assoc., 969 N.E.2d 1118, 1133 (Mass. 2012); see McKenna
v. Wells Fargo Bank, 693 F.3d 207, 215 (1st Cir. 2012).
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the MERS system poses no difficulties under the very typical circumstances presented in this
case.27 Finally, because a mortgagee may postpone a properly noticed foreclosure sale by public
proclamation,28 the Shapiros have not elucidated any procedural irregularities occurring after the
initial lawsuit. Aurora is therefore entitled to summary judgment.
C.

Aurora’s Counterclaim for Judgment of Possession

“In a summary process action for possession after foreclosure by sale, the plaintiff is
required to make a prima facie showing that it obtained a deed to the property at issue and that
the deed and affidavit of sale, showing compliance with statutory foreclosure requirements, were
recorded.”29 Aurora has made this required showing. Because the court has already rejected the
Shapiros’ challenges to the validity of the foreclosure, Aurora is entitled to summary judgment.
IV.

Conclusion
For the foregoing reasons, Aurora’s Motion for Summary Judgment [#11] is ALLOWED.

AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro
United States District Court

27

Culhane v. Aurora Loan Servs., No. 12-1285, 2013 WL 563374, at *6-8 (1st Cir. Feb.
15, 2013).
28

Fitzgerald v. First Nat’l Bank of Bos., 703 N.E.2d 1192, 1194 (Mass. App. Ct. 1999).

29

Bank of N.Y. v. Bailey, 951 N.E.2d 331, 336 (Mass. 2011); see Fed. Nat’l Mortg.
Ass’n v. Hendricks. 977 N.E.2d 552, 555-56, 559 (Mass. 2012).
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