Galvin et al v. U.S. Bank, National Association as Trustee Relating to Chevy Chase Funding, LLC Mortgage Back Certificates Series 2007-1 et al

Filing 73

Judge Richard G. Stearns: ORDER entered. Supplemental Summary Judgment MEMORANDUM AND ORDER. "For the foregoing reasons, U.S. Bank Trustee's motion for summary judgment is ALLOWED as to Counts IV, VI, and VIII of the Galvins' Complaint and Count I of U.S. Bank Trustee's counterclaim. COUNT II of the Counterclaim is DISMISSED. The Clerk will enter judgment for U.S. Bank Trustee in the amount of $204,535.02 and close the case."(RGS, int2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-14723-RGS
MARK B. GALVIN and JENNY G. GALVIN
v.
U.S. BANK NATIONAL ASSOCIATION as TRUSTEE
RELATING TO CHEVY CHASE FUNDING, LLC MORTGAGE BACK
CERTIFICATES SERIES 2007-1 et al.
SUPPLEMENTAL MEMORANDUM AND ORDER ON DEFENDANT U.S.
BANK TRUSTEE’S MOTION FOR SUMMARY JUDGMENT
December 11, 2015
STEARNS, D.J.
On October 1, 2015, the court allowed defendant U.S. Bank Trustee’s
motion for summary judgment on its counterclaim for possession of 14 Skip
Jack Way, Tisbury (Vineyard Haven), Massachusetts. At that time, the court
deferred ruling on plaintiffs Mark and Jenny Galvin’s three remaining
claims, trespass (Count IV); unfair and deceptive practices in violation of the
Massachusetts Consumer Protection Act, ch. 93A (Count VI); and intentional
and/or negligent infliction of emotional distress (Count VII), as well as U.S.
Bank’s two outstanding counterclaims, breach of contract/deficiency
judgment (Count I); and unjust enrichment (Count II). As the trespass claim
forms the foundation of plaintiffs’ Chapter 93A and emotional distress

claims, the court permitted plaintiffs to conduct additional “targeted
discovery on the extent and reasonableness of U.S. Bank Trustee’s entries,
inspections, and repairs to the property within three years (the statute of
limitation) preceding the filing of the Complaint.” Dkt. # 56. Following that
discovery, the parties filed supplemental briefs and exhibits in support of
their respective positions.
The relevant facts are largely undisputed, and where disputed, will be
viewed in the light most favorable to the Galvins as the nonmoving party. See
Fed. R. Civ. P. 56. In 2006, the Galvins took out a loan of $2,385,000 and
executed a mortgage on the Vineyard Haven property, a waterfront house
that they occupied seasonally as a second home. In November of 2009, the
Galvins defaulted on the loan. Subsequent to the default, Special Loan
Servicing, LLC (SLS), the company contracted by U.S. Bank Trustee to
service the mortgage, conducted monthly inspections of the property. 1, 2 On

Loretta Poch, the representative for SLS, testified at her deposition
that SLS’s servicing agreements typically required monthly inspections after
a mortgagor’s default, until such a time the default is cured or otherwise
resolved. Poch Dep. at 26-27, 31.
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SLS contracts with a separate company to perform the actual
inspections.
2

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two occasions, during the winters of 2011 and 2012, finding the home vacant,
the inspector took steps to winterize the property and to change a lock.3
In November of 2014, U.S. Bank Trustee foreclosed on the mortgage
and purchased the property at the foreclosure sale for $2,295,000. U.S.
Bank Trustee seeks a deficiency judgment in the amount of $204,535.02, the
difference between the amount in principle and interest owed on the note
($2,499,535.02), and the foreclosure sale price. Although SLS assessed $366
to the Galvins’ account for the cost for the winterization and security work
performed on the property in the winter of 2012, U.S. Bank Trustee does not
seek to recover that amount in its deficiency judgment.
U.S. Bank Trustee is entitled to summary judgment on the Galvins’
trespass claim. “A trespasser has been defined as ‘a person who enters or
remains upon land in the possession of another without a privilege to do so,
created by the possessor’s consent or otherwise.’” Gage v. City of Westfield,
26 Mass. App. Ct. 681, 696 (1988), quoting Restatement (Second) of Torts, §
329 (1965). The Galvins, by executing the Mortgage, granted U.S. Bank

3 Ms. Poch testified that when it is necessary to enter a home to perform

maintenance work, it is SLS’s policy to change only one of the locks at the
home so that the borrowers may still enter the property through the entries
with unchanged locks. Poch Dep. at 83-84.
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Trustee (successor in interest to the original mortgagee) a conditional right
of entry onto the property.
9. Protection of Lender’s Interest in the Property and Rights
Under this Security Instrument. If (a) Borrower fails to perform
the covenants and agreements contained in this Security
Instrument . . . then Lender may do and pay for whatever is
reasonable or appropriate to protect Lender’s interest in the
Property and rights under this Security Instrument, including
protecting and/or assessing the value of the Property, and
securing and/or repairing the Property. . . . Securing the
Property includes, but is not limited to, entering the Property to
make repairs, change locks, replace or board up doors and
windows, drain water from pipes, eliminate building or other
code violations or dangerous conditions, and have utilities
turned on or off.
Def.’s Ex. A at 7-8.
The Galvins admit that their November of 2009 default triggered the
terms of Paragraph 9, but contend that SLS’s monthly inspections were not
“reasonable or appropriate” because they, through their attorney,
represented to U.S. Bank Trustee that they occupied, secured, and properly
maintained the property. The Galvins also protest that U.S. Bank Trustee
inspected the home without giving them prior notice or seeking their consent
despite multiple requests that the bank do so. Paragraph 9, however, does
not require notice or prior authorization in the event of plaintiffs’ breach of
the Mortgage terms.

Paragraph 9 also explicitly authorizes U.S. Bank

Trustee to take the action it did in “securing and/or repairing the Property
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. . . include[ing] entering the Property to make repairs, change locks, . . .
[and] eliminate dangerous conditions . . . .” Given that the Vineyard Haven
house was a multi-million dollar water front home that was only seasonally
occupied, an objective factfinder could not reasonably conclude that U.S.
Bank Trustee’s actions to protect its significant financial investment were not
“reasonable or appropriate.”
Because U.S. Bank Trustee acted within the authorized scope of the
Mortgage contract, it did not commit trespass as a matter of law. See
Dickinson v. Countrywide Home Loans, Inc., 2012 WL 163883, at *6 (W.D.
Mich. Jan. 19, 2012) (no trespass where the same mortgage language granted
lender the right to inspect and winterize property after default); Tennant v.
Chase Home Fin., LLC, 2015 WL 4506525, at *7 (Ala. Civ. App. July 24, 2015)
(same); Vinal v. Fed. Nat. Mortgage Ass’n, 2015 WL 5535191, at *9 (E.D.N.C.
Sept. 18, 2015) (same). Plaintiffs’ Chapter 93A and the emotional distress
claims, being derivative of the trespass claim, also fail as a matter of law.
Turning to the U.S. Bank Trustee’s counterclaims, there is no dispute
that under their promissory note, see Def.’s Ex. L, the Galvins are obligated
to make good any deficiency resulting from the sale of the property at

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foreclosure. 4 Unjust enrichment is an “equitable stopgap for occasional
inadequacies in contractual remedies at law.” Mass. Eye and Ear Infirmary
v. QLT Phototherapeutics, Inc., 412 F.3d 215, 234 (1st Cir. 2005). Where a
binding contract governs the parties’ relationship, the contract provides the
measure of the [aggrieved party’s] right and no action for unjust enrichment
lies. McKesson HBOC, Inc. v. New York State Common Retirement Fund,
Inc., 339 F.3d 1087, 1091 (9th Cir. 2003). Because U.S. Bank Trustee has an
adequate remedy at law, its equitable counterclaim for unjust enrichment
will be dismissed.
ORDER
For the foregoing reasons, U.S. Bank Trustee’s motion for summary
judgment is ALLOWED as to Counts IV, VI, and VIII of the Galvins’
Complaint and Count I of U.S. Bank Trustee’s counterclaim. COUNT II of
the Counterclaim is DISMISSED. The Clerk will enter judgment for U.S.
Bank Trustee in the amount of $204,535.02 and close the case.
SO ORDERED.
/s/ Richard G. Stearns
___________________________
UNITED STATES DISTRICT JUDGE

Pursuant to Mass. Gen. Laws ch. 244, § 17B, U.S. Bank Trustee
provided the Galvins notice of the intent to foreclose and seek a deficiency
judgment in October of 2014.
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