Cabrera v. Sovereign Bank
Filing
32
Judge Richard G. Stearns: ORDER entered granting 21 Motion for Summary Judgment (Zierk, Marsha)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 1:13-cv-10335-RGS
AIDA CABRERA
v.
SOVEREIGN BANK
MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
May 7, 2014
STEARNS, D.J.
Pro se plaintiff Aida Cabrera is one of the too many Americans who
lost their home in the Great Recession. She blames her plight on defendant
Sovereign Bank, which she alleges “compelled her to give up her home and
agree to [an] unfair short sale.”
Compl. ¶ 8.
Sovereign Bank, n/k/a
Santander Bank, N.A. (Santander), 1 now moves for summary judgment
pursuant to Fed. R. Civ. P. 56(a). Because Cabrera has failed to summons
sufficient evidence to support her claim, the motion will be granted.
BACKGROUND
On January 30, 2009, Banco Santander, completed its purchase of
Sovereign Bank. On January 26, 2012, Sovereign Bank changed its name to
“Sovereign Bank, N.A.” – and on October 17, 2013, to “Santander Bank,
N.A.”
1
The facts viewed in the light most favorable to Cabrera as the nonmoving party are as follows. On January 8, 2004, Cabrera and her mother,
Eulalia Polanco, purchased 270 Andover Street in Lawrence, Massachusetts
(Property) for $283,000. Mother and daughter granted a mortgage on the
Property to Wells Fargo Home Mortgage, Inc., as security for a $374,760
promissory note. On January 13, 2004, Cabrera and Polanco executed a
Quitclaim Deed transferring the Property to Cabrera as the sole owner. On
December 20, 2005, Cabrera negotiated a $280,000 “cash-out” refinancing
of the Property with Santander. In return, Cabrera granted Santander a
mortgage on the Property.
By January of 2008, Cabrera was unable to work and her only sources
of income were her monthly Social Security and workers’ compensation
benefits.
Financially stressed, she submitted a loan modification
application to Santander. On February 10, 2008, after determining that
Cabrera’s monthly mortgage and household expenses exceeded her income,
Santander denied the application. In October of 2008, Cabrera missed her
first mortgage payment. Over the next two years, Cabrera continued to
miss mortgage payments, while repeatedly asking Santander to no avail for
a loan modification.
2
On March 22, 2010, Orlans Morgan PLLC (Orlans Moran), a law firm
retained by Santander, notified Cabrera by mail that it had begun
foreclosure proceedings.
With the notification, Orlans Moran included
information suggesting alternatives to a foreclosure sale, including the
option of a prior sale of the Property by Cabrera herself.2 Shortly after
receiving the March 22, 2010 letter, Cabrera entered into an exclusive
listing agreement with realtor RE/MAX. On April 30, 2010, Cabrera signed
an agreement with Francis Villa Javier for purchase of the Property for
$175,000. Shortly thereafter, Javier withdrew his offer.
On June 17, 2010, Orlans Moran sent Cabrera a “Notice of Intention
to Foreclose and Deficiency After Foreclosure of Mortgage,” which listed an
auction date of July 22, 2010. On July 7, 2010, Cabrera filed a preemptive
voluntary petition for Chapter 7 bankruptcy, which served to cancel the sale.
Thereafter, Cabrera renewed her efforts to sell the Property. On January 19,
2011, Santander approved a contract of sale between Cabrera and Michael J.
Farris for $140,000. On January 21, 2011, Cabrera executed a settlement
statement and a quitclaim deed transferring the Property to Farris.
The notice stated as follows: “Sell Your Property: This means that
your property would be sold by you prior to the foreclosure. Approval is
required if your sale does not pay off your lender in full.” Def.’s Ex. 12 –
Dkt. #23.
2
3
On February 21, 2013, Cabrera filed this Complaint alleging that the
short sale was “unfair” and that she had been “compelled to give up her
home” after Santander “start[ed] the foreclosure process” and “while [her]
loan modification was in process.” Compl. ¶¶ 6, 8. Cabrera also alleges that
she “served a demand letter” on Santander and that it “failed to make a
reasonable settlement offer.” Id. ¶¶ 9-10. On February 25, 2013, Santander
moved for a more definite statement. On June 24, 2013, the court denied
Santander’s motion after finding that Cabrera had adequately pled a claim
under Mass. Gen. Laws, ch. 93A (Chapter 93A). The court authorized a sixmonth discovery period.
On January 31, 2014, Santander filed for
summary judgment. The parties’ briefing was completed on March 24,
2014.
DISCUSSION
Summary judgment is appropriate when “the movant 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). For a
dispute to be “genuine,” the “evidence relevant to the issue, viewed in the
light most flattering to the party opposing the motion, must be sufficiently
open-ended to permit a rational factfinder to resolve the issue in favor of
either side.” Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735
4
(1st Cir. 1995) (citation omitted).
“Trialworthiness requires not only a
‘genuine’ issue but also an issue that involves a ‘material’ fact.” Id. A
material fact is one which has the “potential to affect the outcome of the
suit under applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d
701, 703 (1st Cir. 1993). “[W]hen the facts support plausible but conflicting
inferences on a pivotal issue in the case, the judge may not choose between
those inferences at the summary judgment stage.”
Coyne v. Taber
Partners I, 53 F.3d 454, 460 (1st Cir. 1995).
In support of her Chapter 93A claim, Cabrera contends that
Santander “promise[d]” her that “as the process of the loan modification is
on[]going,” Santander would “work with [her] as [it] had information that
[her] income set back is temporary,” and that she would “get back on [her]
feet after some time.” Pl.’s Opp’n at 3. Cabrera asserts that despite these
soothing words, Santander pressured her into the short sale of her home.
Cabrera also maintains that after receiving her Chapter 93A demand letter
on September 16, 2012, Santander “failed to make [a] reasonable offer to
settle.” Id. ¶ 10.
To prevail on her Chapter 93A claim, Cabrera must demonstrate that
Santander engaged in “[u]nfair methods of competition and unfair or
deceptive acts or practices in business transactions.” Mass. Gen. Laws ch.
5
93A, § 2.
“A practice is unfair if it is within the penumbra of some
common-law, statutory, or other established concept of unfairness; is
immoral, unethical, oppressive, or unscrupulous; and causes substantial
injury to other businessmen.” Juarez v. Select Portfolio Servicing, Inc.,
708 F.3d 269, 280 (2013), quoting Kenda Corp. v. Pot O’Gold Money
Leagues, 329 F.3d 216, 234 (1st Cir. 2003).
The boundaries of what
qualifies as conduct violating Chapter 93A is a question of law, not fact.
Casavant v. Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011).
What is missing is any evidence that anything Santander did or said
was unfair or deceptive. Santander consistently informed Cabrera between
2008 and 2010, that because her income did not match the amount of her
loan payments, it would not modify her mortgage. There was nothing
untrue or legally unfair about this statement. Santander also provided
Cabrera with the appropriate notice of the foreclosure proceedings and
explained her responsibility for any deficiency. She was also given advice
on alternatives to foreclosure that she could pursue (subject to Santander’s
approval). Moreover, Cabrera admits that there were no threats or overtly
coercive acts by Santander influencing her decision to sell the Property to
Farris. To the contrary, she testified at her deposition that the agreement
with Farris was completely voluntary on her part.
6
Q: Did anyone force you to sign this document
(Settlement Statement) at the closing?
A: No.
Q: Did anyone threaten you if you didn’t sign this document?
A: No
.
Def. Ex. 6 at 57.
Q: Do you recognize this document (Quitclaim Deed)?
A: Yes.
Q: Is that your signature at the bottom?
A: Yes.
...
Q: And this document was signed at the closing?
A: Yes.
Q: And you signed this document voluntarily?
A: Yes.
Q: No one forced you to sign it?
A: No.
Q: No one threatened you if you didn’t sign it?
A: No.
Id. at 57-58.
What is left is Santander’s refusal to grant Cabrera a loan
modification. It is well-settled that a bank has no obligation under a note or
mortgage to modify a loan. “Under Massachusetts case law, absent an
explicit provision in the mortgage contract, there is no duty to negotiate for
loan modification once a mortgagor defaults.” Peterson v. GMAC Mortg.,
7
LLC, 2011 WL 5075613, at *6 (D. Mass. Oct. 25, 2011), citing Carney v.
Shawmut Bank, N.A., 2008 WL 4266248, at *3 (Mass. App. Ct. 2008) (per
curiam). It follows as a matter of law that the refusal to enter into a loan
modification cannot constitute an unfair or deceptive act under Chapter
93A. This is logic. If the mere breach of contract does not amount to a
violation of Chapter 93A, Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85,
100-101 (1979), one is hard pressed to explain how the refusal to enter into
a contract in the first place could ever become one.
Finally, Aida Cabrera contends that documents that Santander has
submit in support of its summary judgment motion are “incomplete” and
the attached affidavit of counsel James Kessler is “not base[d] on personal
knowledge.” Pl.’s Opp’n at 4. She has failed to raise a genuine issue of
authenticity as to any of Santander’s documents. See Orr v. Bank of Am.,
NT & SA, 285 F.3d 764, 774 (9th Cir. 2002) (“[A] proper foundation need
not be established through personal knowledge but can rest on any manner
permitted by . . . Fed. R. Evid. 901(b) (providing ten approaches to
authentication) [or] Fed. R. Evid. 902 (self-authenticating documents need
no extrinsic foundation.”).
8
ORDER
For the foregoing reasons, defendant’s motion for summary judgment
is ALLOWED with prejudice. The Clerk will enter judgment for Santander
and close the case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE
9
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