Consolo v. Bank Of America et al

Filing 61

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS Defendants' motion for summary judgment, D. 50.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
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JOHN CONSOLO,
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)
Plaintiff,
)
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v.
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)
Civil Action No. 15-11840
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BANK OF AMERICA et al.,
)
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Defendant.
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)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

May 2, 2017

Introduction
Plaintiff John Consolo (“Consolo”) filed this lawsuit against Defendants Bank of America

and NationStar Mortgage LLC (“Defendants”) bringing claims for breach of contract (Count I),
promissory estoppel (Count II), negligent misrepresentation (Count III), breach of implied
covenant of good faith and fair dealing (Count IV) and violation of Mass. Gen. L. c. 93A (Count
V). D. 1-2. Defendants have moved for summary judgment. D. 50. For the reasons stated below,
the Court ALLOWS Defendants’ motion.
II.

Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material

fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the
outcome of the suit under the applicable law.” Santiago–Ramos v. Centennial P.R. Wireless Corp.,
1

217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).
The movant bears the burden of demonstrating the absence of a genuine issue of material fact.
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the moving party meets its burden, the non-moving party may not rest on the
allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986),
but “must, with respect to each issue on which she would bear the burden of proof at trial,
demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel.
S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, that requires the
production of evidence that is ‘significant[ly] probative.’” Id. (quoting Anderson, 477 U.S. at 249)
(alteration in original). The Court “view[s] the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009).
III.

Factual Background
For purposes of this summary judgment motion, the Court will consider undisputed facts

taken from the parties’ Rule 56.1 statements.1 Consolo is the son of Mary Consolo, who became
owner of the property located at 262 East Eagle Street, East Boston, Massachusetts (the
“Property”) in 1984. D. 52-1 at 5 (Consolo’s Deposition). In 1996, Mary Consolo transferred
ownership of the Property to Consolo and his brother, Gaetano Consolo, by quitclaim deed. Id. at

1

In their reply brief, Defendants urge this Court not to consider Consolo’s Rule 56.1 statement of
undisputed facts, arguing that his statement is primarily based upon allegations set forth in his
verified complaint. D. 54 at 2-3. Consolo’s Rule 56.1 statement, D. 53-1, does, however, include
references to his deposition and reliance upon a verified complaint, “the functional equivalent of
an affidavit to the extent that it satisfies the standards explicated in Rule 56(e).” Francois v.
Putnam Investments, LLC, 34 F. App’x 395, 398 (1st Cir. 2002) (quotations and citations omitted).
Thus, to the extent Consolo’s statement is based upon admissible evidence in his verified
complaint and his deposition, the Court has considered them.

2

13-14; D. 52-2 at 72. In doing so, Mary reserved a life estate for herself in the Property. D. 1-2
at 6. In 2000, when Mary was 85 years old, she signed a power of attorney appointing Consolo to
manage her affairs. Id. At that time, Consolo resided at an apartment on the Property (and he
continues to live there). Id.; D. 52-1 at 5.
In 2009, the Consolos decided to seek a home equity conversion loan (also known as a
reverse mortgage) (the “Loan”) secured by the Property. D. 1-2 at 7. At or about this time, Gaetano
Consolo, gave Consolo a power of attorney to allow him to apply for the Loan on Gaetano’s behalf.
Id. at 7-8. Consolo called Bank of America and spoke with Tim Keough (“Keough”), to discuss
whether his family would be eligible to obtain the Loan. Id. The two communicated about the
Loan solely through telephone and e-mail. Id. Initially, Consolo applied for the Loan on the
Property in Gaetano’s name. Id. at 8; D. 52-1 at 33. Consolo’s objective from the beginning of
this process was to secure a Loan that would also allow Mary, Gaetano and himself to live in the
Property until they died. D. 52-1 at 32. Understanding that his family could maximize the cash
from the Loan by basing it on Mary’s age as opposed to Gaetano’s age, D. 1-2 at 8,2 Consolo
decided to apply for the Loan on the Property in Mary’s name and again completed the Loan
counseling over the phone. Id.
To effectuate the Loan, Keough sent Consolo a packet of documents to sign. Id. at 9. The
adjustable rate home equity conversion mortgage (the “Mortgage”) stated the following:
THIS MORTGAGE (“Security Instrument”) is given on April 24, 2009 (“Date”).
The mortgagor is John G. Consolo and Gaetano F. Consolo, as tenants in common
and Mary Consolo, reserving a Life estate whose address is 262 East Eagle Street
East Boston, MA 02128 (“Borrower”).

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As a matter of law, Consolo, age 61 at the time, did not qualify for the Loan because a borrower
must be 62 or older. 24 C.F.R. § 206.33. Although Consolo argues, in his opposition, D. 53 at 7,
that technically there are a category of reverse mortgages that he would have qualified to receive,
there is no admissible evidence that this was the case here. See D. 54 at 5; see also D. 52-2 at 33.
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D. 52-2 at 23. On the signature page of the Mortgage, the document read:
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants
contained in this Security Instrument and in any rider(s) executed by Borrower and
recorded with it.
D. 52-2 at 32. Underneath this statement, Bank of America included signature lines for each of
the three Consolos with their preprinted names underneath each line: “Mary Consolo, by John G.
Consolo, her attorney in fact;” “John G. Consolo, as remainderman;” and Gaetano F. Consolo,
remainderman, by John G. Consolo, his attorney in fact.” Id. Consolo signed the Mortgage on
behalf of all three. Id. The Mortgage also contained the following acceleration clause:
9. Grounds for Acceleration of Debt
(a) Due and Payable. Lender may require immediate payment-in-full of all sums
secured by this Security instrument if:
(i)

A Borrower dies and the Property is not the principal residence of at
least one surviving Borrower; or

(ii)

All of a Borrower’s title in the Property (or his or her beneficial
interest in a trust owning all or part of the Property) is sold or
otherwise transferred and no other Borrower retains title to the
Property in fee simple or retains a leasehold under a lease for less
than 99 years which is renewable or a lease having a remaining
period of not less than 50 years beyond the date of the 100th birthday
of the youngest Borrower or retains a life estate, (or retaining a
beneficial interest in a trust with such an interest in the Property).

Id. at 26 (bold in the original). The Adjustable-Rate Note Home Equity Conversion (the “Note”),
however, only listed Mary Consolo as the borrower and only required Mary’s signature, which
Consolo signed on her behalf with the power of attorney. Id. at 102-04. Additionally, the Note
contained a clause that mirrored the acceleration clause found in the Mortgage. Id. at 118. In
addition to the Note (which was incorporated by express reference in the Mortgage, id. at 23),
there were numerous other closing documents that also only listed Mary as the borrower (although
signed by Consolo on her behalf with her power of attorney) to close the Loan. These documents
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included the Residential Loan Application for Reverse Mortgages, HUD/VA Addendum to
Uniform Residential Loan Application; Good Faith Estimate of Settlement Charges; Settlement
Statement; Third Party Contact Form; Errors and Omissions/Compliance Agreement; Personal
Liability Notice; Flood Hazard Determination; and Notice of Right to Cancel. D. 52-2 at 87, 90,
91, 93-101, 119.
After receiving the Loan documents and prior to signing them, Consolo called Keough to
confirm that his understanding of the identification of him on the Mortgage as “remainderman”
and that the terms of the Mortgage would allow him to stay in the Property following the death of
his mother. D. 52-1 at 33-34. Keogh confirmed Consolo’s understanding and Consolo then signed
the documents. Id. In February 2012, Mary Consolo passed away. Id. at 25. Bank of America
sent Consolo a letter informing him that the acceleration clause of the Mortgage and Note had been
triggered by Mary’s death and that the Loan was due in full, which Consolo acknowledged
receiving. Id. After the instant action was filed, Bank of America and Nationstar attempted to
foreclose on the Property. Id. at 37, 39.
IV.

Procedural History
Consolo instituted this action on April 23, 2015 in Suffolk Superior Court, D. 1-2 at 4, and

Defendants removed the case to this Court. D. 1. Defendants have now moved for summary
judgment. D. 50. The Court heard the parties on the pending motion and took the matter under
advisement. D. 60.
V.

Discussion
A.

Breach of Contract

Consolo brings a breach of contract claim against Defendants, arguing that he was a
borrower on the Loan and that Defendants breached the agreement by accelerating the Loan and

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attempting to foreclose on the Property while he remained alive and resided as a resident at the
Property. D. 53 at 4. Defendants counter that the terms of the Loan are clear that Mary Consolo
was the sole borrower and, therefore, the Loan became due and payable upon her death. D. 51 at
8.
When evaluating a breach of contract claim under Massachusetts law, courts must first
assess whether the contract provision at issue is ambiguous, which is a question of law. Barclays
Bank PLC v. Poynter, 710 F.3d 16, 21 (1st Cir. 2013). “To answer the ambiguity question, the
court must first examine the language of the contract by itself, independent of extrinsic evidence
concerning the drafting history or the intention of the parties.” Bank v. Thermo Elemental Inc.,
451 Mass. 638, 648 (2008). Language is ambiguous “only if it is susceptible of more than one
meaning and reasonably intelligent persons would differ as to which meaning is the proper one.”
Gemini Inv’rs Inc. v. AmeriPark, Inc., 643 F.3d 43, 52 (1st Cir. 2011) (quoting Citation Ins. Co.
v. Gomez, 426 Mass. 379, 381 (1998)). In considering whether a contract is ambiguous, the Court
notes that it must read the contract “in a reasonable and practical way, consistent with its language,
background, and purpose.” Bukuras v. Mueller Grp., LLC, 592 F.3d 225, 262 (1st Cir. 2010).
The crux of Consolo’s breach of contract claim is that the wording of the Mortgage signed
by Consolo, his mother and his brother is unclear. The Mortgage states that “[t]he mortgagor is
John G. Consolo and Gaetano F. Consolo, as tenants in common and Mary Consolo, reserving a
Life Estate, whose address is 262 East Eagle Street East Boston, MA 02128 (“Borrower”).” D.
52-2 at 23. The Mortgage also states that the Loan may be accelerated only if one of the borrowers
dies and no other “surviving borrower” uses the Property as his or her principal place of residence.
Id. at 26. As such, Consolo argues, the plain language of the Mortgage demonstrates that there
was more than one borrower on the loan or, alternatively, that the language is ambiguous.

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The Court, however, must take “the words [of the Mortgage] within the context of the
contract as a whole, rather than in isolation.” Barclays Bank PLC, 710 F.3d at 21. “[W]hen several
writings evidence a single contract or comprise constituent parts of a single transaction, they will
be read together.” F.D.I.C. v. Singh, 977 F.2d 18, 21-22 (1st Cir. 1992); Matthews v. Planning
Bd. of Brewster, 72 Mass. App. Ct. 456, 463 (2008) (noting that “‘interlocking documents [that]
are part of a single transaction and are ‘interrelated in purpose,’ must be read together to effectuate
the intention of the parties’”) (internal citation omitted). Here, the Loan was effectuated by the
Mortgage (providing a security in the Property to Bank of America) and the Note (providing the
loan by Bank of America to the borrower). Mary Consolo, moreover, was the borrower on the
Note (signed by Consolo as her attorney in fact) and was listed as the borrower on the other closing
documents for the Loan which were part and parcel of the contract transaction and, therefore,
constitute the workings of a single transaction. See Chase Commercial Corp. v. Owen, 32 Mass.
App. Ct. 248, 250-51 (1992) (construing a guaranty and contemporaneous loan and security
agreements as part of one transaction and reading them together even though the Guaranty did not
incorporate the other documents by reference).3 In each of these other closing documents, no one
other than Mary was listed as the borrower on the Loan. See D. 52-2. Moreover, each of these
documents (including the Mortgage) was signed on the same day, April 24, 2009, and Consolo

3

Consolo argues that this case is inapplicable here because a guaranty agreement is necessarily
subject to another agreement and, therefore, even if the guaranty agreement does not reference
other documents like loan and security agreements, those documents would need to be viewed as
part of the transaction to give the guaranty agreement effect. D. 53 at 6. Consolo maintains that
the Mortgage and Note here are separate contracts that do not need to be read together to give each
other effect. Id. Case law in the Commonwealth, however, dictates that the documents must be
read together when they are close in temporal space and are “closely interrelated.” Chelsea Indus.,
Inc. v. Florence, 358 Mass. 50, 55 (1970). That is exactly the situation presented here.
Furthermore, the Mortgage here clearly contemplated the operation of the Note and makes express
reference to the Note, see D. 52-2 at 23-33, and these documents together effectuated the Loan
transaction between the parties.
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was afforded the opportunity to inspect each document prior to affixing his signature to the various
papers. D. 52-1 at 39. The only document that did not list Mary solely as the borrower was the
Mortgage.

Significantly, however, the Mortgage qualified Consolo and his brother as

“remainderman.” D. 52-2 at 32. As the Defendants point out, federal law requires that where a
mortgagor has a life estate in the Property (as Mary did here), the other owners (those holding a
future interest or remainder in the estate as the Consolo brothers did here) must consent to the
transaction. D. 51 at 9-10 & n.2 (citing 24 C.F.R. § 206.35). This qualification, coupled with the
fact that all other documents were signed by Mary (through Consolo as her attorney in fact) as the
borrower demonstrates that Consolo was not considered a borrower under the terms of the Loan.
See Williams v. Nationstar Mortg., LLC, No. 13074566, 2015 WL 6407493, *4-5 (Pa. Ct. Cm. Pl.
Sept. 14, 2015) (ruling that an individual who signed a reverse mortgage as attorney-in-fact for
mother and personally as remainderman was not a borrower under the terms of the reverse
mortgage loan). Because the Court must view the Mortgage in conjunction with the other Loan
documents including the Note, the Court holds that the contract may not be viewed as ambiguous
since the clear intent was that Mary Consolo was the borrower for the Loan transaction. The Court,
therefore, ALLOWS the Defendants’ motion for summary judgment as to Consolo’s breach of
contract claim.
B.

Promissory Estoppel

Consolo next claims that when he decided to enter into the Loan, he reasonably relied on
Keough’s promise that Bank of America would not foreclose on the Property so long as he was
alive and lived on the Property. D. 1-2 at 13. To prevail on a promissory estoppel claim, Consolo
must show: 1) a representation intended to induce a course of conduct on the part of the person to
whom the representation was made; 2) reasonable reliance upon the representations by that party;

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and 3) detriment to that party as a result of the reliance. Hall v. Horizon House Microwave, Inc.,
24 Mass. App. Ct. 84, 93-94 (1987); Cellucci v. Sun Oil Co., 2 Mass. App. Ct. 722, 728 (1974).
Defendants maintain that it was unreasonable for Consolo to have relied upon Keough’s
alleged oral representations when they conflicted with the express terms of the Loan transaction.
D. 51 at 12. Generally, “a person who is able to read a document but fails to do so when the
opportunity is afforded is not entitled to have that document set aside on the grounds that she was
misled into signing a paper different from that which she intended to sign, at least in the absence
of evidence that she was induced by the other party to sign such a document without reading it.”
Taunton Fed. Credit Union v. Weiner, 76 Mass. App. Ct. 1128 (unpublished), 2010 WL 1708814,
at *1 (April 29, 2010). That is, where “a person can read, and is not prevented from reading what
[he] signs, [he] alone is responsible for [his] omission to read what [he] signs.” Id. Defendants
argue that even if Keough misrepresented the contractual terms of the mortgage to Consolo and
thereby induced Consolo to enter into the contract, there is no viable promissory estoppel claim
because Consolo had ample time to review the loan documents and, had he done so properly, he
would have realized he was not actually a borrower. D. 51 at 12.
In support of their position, Defendants rely upon Kuwaiti Danish Computer Co. v. Digital
Equip. Corp., 438 Mass. 459 (2003). In Kuwaiti, Plaintiff had initially reached an agreement with
Defendant’s representative to purchase particular computer parts, the terms of which were
summarized in a price quotation that Defendant’s representative provided to Plaintiff. Id. at 461.
The quotation, however, contained qualifying language that it was “an invitation to offer only”
and that “[a]ny contract resulting from the quotation must be accepted at [Defendant’s] Corporate
offices by a duly authorized representative of [Defendant].” Id. at 462. At Plaintiff’s request,
Defendant’s representative also drafted a purchase order that incorporated the terms of the

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quotation, and both parties signed the purchase order. Id. at 462-63. Defendant subsequently
reneged on the terms of the quotation and purchase order and Plaintiff brought suit for damages
based on negligent misrepresentation. Id. at 463-64. The court ruled against Plaintiff, concluding
that it was unreasonable for Plaintiff to have relied on the quotation Defendant’s representative
had provided “because it conflicted with the qualifying language of [the] quotation.” Id. at 468.
The court noted that “‘if a mere cursory glance would have disclosed the falsity of the
representation, its falsity is regarded as obvious’” and reliance is unreasonable as a matter of law.
Id. (internal citation omitted)
Defendants also direct the Court to Taunton Fed. Credit Union v. Weiner, 2010 WL
1708814, at *1. In Weiner, a mother alleged that her son, who had no legal interest in her home,
committed fraud by misrepresenting the nature of a loan document he presented to her. Id. While
he claimed it would merely refinance the original mortgage on her mobile home to a more
favorable interest rate and that it would not increase the outstanding loan amount, his
representations were false. Id. The mother did not read the document at all prior to signing it, but
argued that the contract should be considered invalid. Id. The court ruled, however, that the
mother “was not deceived as to the true nature of the loan document and was not prevented from
having a meeting of the minds with the credit union with respect thereto.” Id. Thus, the court
held, “the son's fraud upon Weiner does not make the contract unenforceable against the credit
union.” Id.
Consolo states that he received the Loan documents and then called Keough to ask what
the term “remainderman” meant and Keough responded “exactly what it says, remain . . . once
your mother passes, you [and your brother] remain in the house.” D. 52-1 at 33. While the
plaintiffs in Kuwaiti and Taunton did not question the whether the written terms conformed to the

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oral representations they received in the manner that Consolo did, this distinction is insufficient to
render Consolo’s reliance on Keough’s statements reasonable. The doctrine of promissory
estoppel is designed to create an enforceable promise in the absence of consideration or an
otherwise valid contract. R.I. Hosp. Tr. Nat’l Bank v. Varadian, 419 Mass. 841, 850 (1995) (citing
Loranger Constr. Corp. v. E.F. Hauserman Co., 376 Mass. 757, 760-61 (1978)). Here, however,
there is an enforceable contract which, for the reasons already discussed, directly conflicts with
the promise that Consolo now seeks to enforce. Viewed in this light, the Court cannot find
Consolo’s reliance on Keough’s statements to be reasonable. See Taunton, 76 Mass. App. Ct. at
1128; Kuwaiti, 438 Mass. at 468; see also Wilton Props. II, Inc. v. 99 W., Inc., No. 2000000586F,
2000 WL 33170832, at *4 (Mass. Super. Nov. 1, 2000) (noting that “where a person [is] capable
of reading and understanding a written instrument . . . his ignorance of the force and effect of the
instrument is not available as a basis for equitable relief by way of cancellation” (quoting
O’Reilly’s Case, 258 Mass. 205, 208-09 (1927))). As such, the Court ALLOWS Defendants’
motion for summary judgment on Consolo’s promissory estoppel claim.
C.

Breach of the Implied Covenant of Good Faith and Fair Dealing

Consolo also claims that Defendants breached the implied covenant of good faith and fair
dealing when they moved to foreclose on the Property while Consolo was still alive and living
there. D. 1-2 at 15. “The covenant of good faith and fair dealing is implied in every contract.”
UNO Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004). The
covenant provides “that neither party shall do anything that will have the effect of destroying or
injuring the right of the other party to receive the fruits of the contract.” Anthony's Pier Four, Inc.
v. HBC Assocs., 411 Mass. 451, 471 (1991) (quoting Druker v. Roland Wm. Jutras Assocs., Inc.,
370 Mass. 383, 385 (1976)). “[T]he purpose of the covenant is to guarantee that the parties remain

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faithful to the intended and agreed expectations of the parties in their performance.” UNO
Restaurants, 441 Mass. at 385. Defendants respond that the terms of the Loan make clear that they
had a right to foreclose on the Property upon the death of Mary Consolo and, therefore, that they
cannot have breached the covenant of good faith and fair dealing by acting on that right. D. 51 at
13.
Consolo has failed to oppose Defendants’ summary judgment motion concerning his claim for
breach of the implied covenant of good faith and fair dealing. D. 53-1; D. 54 at 8-9. Accordingly,
he has waived any argument that there was such a breach. See Clinton v. Maxim Lift, Inc., No.
CV 12-11072-MBB, 2015 WL 12683973, at *2 (D. Mass. Mar. 23, 2015); see also Vallejo v.
Santini-Padilla, 607 F.3d 1, 7 n.4 (1st Cir. 2010) (affirming dismissal where “[p]laintiffs have not
cited a single authority in support of their assertion that their failure to timely oppose the motion
to dismiss did not constitute waiver”); Coons v. Indus. Knife Co., Inc., 620 F.3d 38, 44 (1st Cir.
2010) (observing that the “district court was ‘free to disregard’ the state law argument that was not
developed in [plaintiff’s] brief”).
Even if Consolo had not waived his claim, however, his claim for breach of the implied
covenant of good faith and fair dealing would still fail. It is true that a party may breach this
covenant without breaching an express term of that contract. Marx v. Globe Newspaper Co., No.
99-2579-F, 2002 WL 31662569, at *5 (Mass. Super. Nov. 26, 2002); see Fortune v. Nat’l Cash
Register Co., 373 Mass. 96, 101 (1977). Yet the “scope of the covenant is only as broad as the
contract that governs the particular relationship,” Ayash v. Dana–Farber Cancer Inst., 443 Mass.
367, 385 (2005), and it cannot give rise to “rights and duties not otherwise provided for in the
existing contractual relationship.” UNO Restaurants, 441 Mass. at 385. Consolo’s claim for
breach of the covenant of good faith and fair dealing is derivative of his breach of contract claim

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and depends on an interpretation of the contract that would treat Mary, Gaetano and Consolo
himself as joint borrowers. The Court has already granted summary judgment to the Defendants
on his breach of contract claim because Mary Consolo was the sole borrower for the purpose of
the Loan. The Court cannot, then, sustain Consolo’s claim for breach of the implied covenant of
good faith and fair dealing without contradicting the unambiguous terms and creating rights and
duties not contemplated in the express terms of the Loan. Accordingly, the Court also ALLOWS
Defendants’ motion for summary judgment as to Consolo’s claim of breach of the implied
covenant of good faith and fair dealing.
D.

Chapter 93A Claim

Consolo next claims that Defendants engaged in unfair and deceptive actions in violation of
Mass. Gen. L. c. 93A in connection with their representations concerning the Mortgage as well as
their attempts to foreclose on the Property. D. 1-2 at 12-13. Chapter 93A proscribes “[u]nfair
methods of competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce.” Mass. Gen. L. c. 93A, § 2. A consumer alleging a 93A violation must establish (1)
that the defendant has committed an unfair or deceptive act or practice; (2) injury; and (3) a causal
connection between the injury suffered and the defendant's unfair or deceptive act. Herman v.
Admit One Ticket Agency LLC, 454 Mass. 611, 615-16 (2009). A practice is unfair if it falls
“within…the penumbra of some common-law, statutory, or other established concept of
unfairness; … is immoral, unethical, oppressive, or unscrupulous; [and] . . . causes substantial
injury.” Linkage Corp. v. Trs. of Bos. Univ., 425 Mass. 1, 27 (1997) (quoting PMP Assocs., Inc.
v. Globe Newspaper Co., 366 Mass. 593, 596 (1975)).
Defendants argue that summary judgment must be granted as to the 93A claim because to be
found liable under the statute their “conduct must be not only [have been] wrong, but egregiously

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wrong.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 41 (1st Cir. 1998).
Defendants further argue that their conduct does not rise to this level of culpability because they
were entitled to foreclose on the Property upon the death of Mary Consolo under the clear terms
of the Mortgage. D. 51 at 13. Defendants’ attempts to foreclose on the Property are not egregious
in light of the terms of the unambiguous language in the Loan documents providing for
acceleration of the loan upon the death of the borrower (Mary Consolo), as the Court has now
ruled. To the extent that Consolo relies upon his promissory estoppel claim or misrepresentation
claim for his c. 93A claim, this claim also fails since the Court has ruled, as discussed above and
below, that Consolo’s reliance upon any representations by Keough was not reasonable here and,
therefore, it cannot be said that the Defendants’ conduct was egregious in this regard.4
E.

Negligent Misrepresentation

Finally, Consolo claims that Defendant Bank of America engaged in negligent
misrepresentation specifically in connection with Keough’s inaccurate statements regarding the
terms of the mortgage. D. 1-2 at 13-14. Defendants counter, however, that Consolo’s negligent
misrepresentation claim is, among other things, barred by the applicable statute of limitations. D.
51 at 14-15. Negligent misrepresentation claims are subject to the statutory three year limitations,
Mass. Gen. L. 260 § 2A, see, e.g., Salois v. Dime Sav. Bank of N.Y., FSB, 128 F.3d 20, 24 (1st
Cir. 1997); Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 761–62 (1st Cir. 1996); MaxPlanck-Gesellschaft Zur Forderung Der Wissenchaften E.V. v. Whitehead Inst. for Biomedical

4

Since the Court dismisses the c. 93A claim on substantive grounds, it does not reach Defendants’
separate argument that this claim is time-barred. Consolo additionally maintains that his 93A
claim is viable because the Defendants attempted “to foreclose on Mr. Consolo’s home while [this]
action is pending.” D. 53 at 14. Such allegation, however, was not made in his complaint and is
not properly before the Court on this motion for summary judgment. See D. 55 ¶¶ 44- 46; D. 551; D. 55-2.
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Research, No. 09-CV-11116-PBS, 2010 WL 2428690, at *2 (D. Mass. June 11, 2010); Humana
Found., Inc. v. Cantella & Co., No. 2000-CV-12393-ML, 2000 WL 33774752, at *3 (D. Mass.
Nov. 17, 2000).
It is undisputed that a few months after Mary Consolo’s death, Bank of America sent a letter
informing Mary Consolo’s estate that the loan was due and payable due upon Mary’s death in
2012. D. 52-1 at 25. It is also undisputed that on April 17, 2012, Consolo acknowledged Bank of
America’s correspondence. Id. at 26; D. 52-2 at 134. Consolo, therefore, was on notice that an
alleged harm had occurred at least by April 17, 2012. Consolo, however, filed the instant action
on April 23, 2015 which was over three years after he should have known about the harm. The
Court recognizes that “the discovery rule ordinarily involves questions of fact and therefore in
most instances will be decided by the trier of fact.” Genereux, 577 F.3d at 360. Indeed,
“[d]etermining when a plaintiff had notice of the likely cause of [an] injury is one example of such
a [factual] determination.” Id. Here, there is no date later than April 17, 2012 that could serve as
the date of sufficient notice where Consolo himself acknowledged the Bank of America
correspondence informing him that the loan was due and payable.5 As such, the negligent
misrepresentation claim is time barred and summary judgment is GRANTED as to this claim.
VI.

Conclusion
For the foregoing reasons, the Court ALLOWS Defendants’ motion for summary

judgment, D. 50.

5

One of the elements of negligent misrepresentation under Massachusetts law is that the plaintiff
justifiably relied on the defendant’s misrepresentation. Mass. Sch. of Law at Andover, Inc. v. Am.
Bar Ass’n, 142 F.3d 26, 41 (1st Cir. 1998). Because Consolo did not justifiably rely on Keough’s
statements, as discussed above as to the promissory estoppel claim, he cannot make out a claim
for negligent misrepresentation on the merits, even as this claim is also time barred, as discussed
above.
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So Ordered.
/s/ Denise J. Casper
United States District Judge

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