Aja v. Ocwen Loan Servicing LLC

Filing 110

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDERDefendant's motions to strike 94 98 are DENIED as moot. Plaintiff's motion for summary judgment 87 is DENIED. Defendant's motion for summary judgment 83 is GRANTED.(FDS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
DORITA AJA,
)
)
Plaintiff,
)
)
v.
)
)
OCWEN LOAN SERVICING, LLC,
)
)
Defendant.
)
__________________________________________)

Civil Action No.
16-10007-FDS

MEMORANDUM AND ORDER ON DEFENDANT’S MOTIONS TO STRIKE
AND CROSS-MOTIONS FOR SUMMARY JUDGMENT
SAYLOR, J.
This is a dispute concerning a mortgage. Plaintiff Dorita Aja has been in default on a
mortgage—on a property that is not her principal residence—for approximately eight years.
Defendant Ocwen Loan Servicing, LLC is the current servicer of the note. Aja has brought suit
against Ocwen under state law to void the mortgage, recover damages, and enjoin any potential
foreclosure. Both parties have moved for summary judgment, and Ocwen has also moved to
strike certain paragraphs of Aja’s affidavits in support of her motion for summary judgment. For
the following reasons, the motions to strike will be denied as moot, plaintiff’s motion for
summary judgment will be denied, and defendant’s motion for summary judgment will be
granted.
I.

Background
The following facts are as set forth in the record.
A.

Factual Background

Plaintiff Dorita Aja owns property located at 22.5 Sigourney Street, Unit F in Jamaica

Plain, Massachusetts (the “property”). (Compl. ¶ 4). She does not reside in the property. (Pl.’s
SMF ¶ 7). On December 20, 2004, she mortgaged the property for the original principal amount
of $362,500. (Docket No. 86, Ex. G). The annual interest rate of the note was 6.85%, resulting
in required monthly payments of $2,375.31. (Id.).
The initial owner of the note was Shamrock Financial, a Rhode Island corporation. (Id.).
Shamrock Financial assigned the mortgage to Option One Mortgage Co. (Docket No. 86, Ex. I).
The mortgage was recorded with the Suffolk County Registry of Deeds on December 27, 2004.
(Def.’s SMF ¶ 3). On March 3, 2008, Option One assigned the mortgage to Wells Fargo as
trustee for “MASTR Asset Backed Securities Trust 2005-OPT1”; the assignment was recorded
with the Registry of Deeds on March 7, 2008. (Docket No. 86, Ex. J). The 2008 assignment was
signed by Topako Love, who purported to be the Assistant Secretary of Option One. (Id.). A
minor correction to the name of the mortgagee was made on October 24, 2012. (Docket No. 86,
Ex. K; Def.’s SMF ¶ 6).
Aja has been in default on her payment obligations since at least early 2010. (Pl.’s
Affidavit in Support ¶ 6). 1
In 2008, the Massachusetts Attorney General brought proceedings against Option One
(later renamed Sand Canyon) and its loan servicer American Home Mortgage Servicing, Inc.
(“AHMSI”), for predatory and discriminatory lending practices. (Docket No. 93, Ex. L). On
August 8, 2011, Option One entered into a consent judgment where it agreed to various forms of
monetary and injunctive relief. (Id.; Def.’s SMF ¶ 9). Option One promised to modify certain
loans after the consent judgment’s effective date of November 6, 2011. (Docket No. 93, Ex. L;

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Ocwen contends that Aja has not made any payments since 2009. However, the exact date at which Aja
went into default is immaterial for the purpose of addressing the instant motions.

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Def.’s SMF ¶ 10). As relevant here, loans originated by Option One and serviced by AHMSI
were eligible for modification provided that they were secured by property that (1) was located
in Massachusetts, (2) occupied by the owner, and (3) the owner’s primary residence. (Def.’s
SMF ¶ 11). 2
There is no record of any representative of Option One, AHMSI, or Ocwen contacting
Aja concerning the 2011 consent judgment. However, in a letter dated August 25, 2011, AHMSI
notified Aja that it was “currently gathering information to determine if [she was] eligible for the
Home Affordable Modification Program (HAMP).” (Docket No. 90, Ex. 1 at 91). Aja
apparently provided some information to AHMSI, because on March 21, 2012, AHMSI sent
another letter to Aja informing her that the information package she sent was incomplete and that
she would need to send additional information concerning her finances. (Id. at 87). Aja
apparently sent the requested information. However, on April 11, 2012, AHMSI notified Aja
that she was ineligible for a HAMP modification because the property was not her principal
residence. (Id. at 98).
Ocwen replaced AHMSI as the loan servicer on February 19, 2013. (Def.’s SMF ¶ 17).
On March 3, 2015, Ocwen mailed Aja a letter providing a “Shared Appreciation Modification”
offer. (Docket No. 90, Ex. 1 at 107). The enclosed “Frequently Asked Questions” section stated
that she was eligible for the modification because (1) her property was “underwater,” as she
owed more than the property was worth, and (2) she did not qualify for HAMP. (Id. at 109). To
qualify, Aja would have to make an initial monthly payment of $2,052.90 by April 1, 2015. (Id.
at 107). Under the terms of the Shared Appreciation Modification offer, Ocwen would

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The criteria were “generally consistent with HAMP” (Home Affordable Modification Program)
requirements. (Docket No. 86, Ex. L at 7). A summary of the criteria can also be found on the website of the
Massachusetts Attorney General. Option One Settlement FAQs, available at http://www.mass.gov/ago/consumerresources/consumer-information/home-and-housing/foreclosures-and-mortgage-lending/option-one-faqs.html.

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categorize $32,191.08 of Aja’s outstanding balance as “deferred principal” as to which Aja
would not owe any interest. (Id. at 111). The deferred principal balance would also be eligible
for debt forgiveness over the next three years. (Id.). The interest rate on the remaining balance
of $501,992.26 would further be reduced to 2.21528% per year. (Id.). In exchange, Aja would
have to remit 25% of any future appreciation in the property’s value to Ocwen, capped at the
amount of principal forgiveness of $32,191.08. (Id. at 112). There would also be a “balloon
payment” due in 2035. (Id. at 116).
Aja never made the April 1, 2015 payment, and thus never accepted the Shared
Appreciation Modification offer.
On July 20, 2015, Aja’s then-attorney David Zak mailed a demand letter to Ocwen
pursuant to Mass. Gen. Laws ch. 93A. 3 The demand letter requested that Ocwen grant a
principal balance reduction of $184,183, which the letter characterized as lost equity. (Compl.
Ex. A at 3). The letter alleged multiple violations of Chapter 93A by Ocwen, Option One, and
AHMSI. (Id. at 1-4). Ocwen’s counsel replied on October 13, 2015, denying any violation of
Chapter 93A. (Docket No. 90, Ex. 2 at 19). Nevertheless, the reply included a settlement offer.
By that date, the outstanding balance on Aja’s account had increased to $549,774.67. (Id. at
22). 4 Ocwen’s settlement offer would reduce the balance to $536,000 and lower the interest rate
to 3.9%; there would also be a balloon payment of $378,306.60 due in 2035. (Id.).
Aja did not accept the settlement offer, instead electing to file suit.

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The Suffolk County Superior Court later found attorney Zak liable under the state Consumer Protection
Act for preying on property owners facing foreclosure. The Court found that Zak targeted Spanish and Portuguesespeaking persons and made deceptive guarantees that borrowers’ mortgage loans could be modified. See
Commonwealth of Massachusetts vs. David Zak, Final Judgment and Permanent Injunction, available at
http://www.mass.gov/ago/docs/press/2015/zak-final-judgment.pdf.
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That amount reflects $374,868.26 in principal balance, $130,602.93 in accrued interest, $40,747.25 in an
unpaid escrow advance reflecting Ocwen’s payments of taxes and insurance on the property, and $3,556.22 in other
advances. (Docket No. 90, Ex. 2 at 22).

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B.

Procedural Background

Aja filed suit on December 3, 2015, in the Suffolk County Superior Court. Her complaint
asserts five counts: violation of Mass. Gen. Laws ch. 266, § 35A (Count 1); violation of Mass.
Gen. Laws ch. 267, § 1 (Count 2); an action to quiet title under Mass. Gen. Laws ch. 240, § 1
(Count 3); violation of Chapter 93A with respect to the HAMP modification process (Count 4);
and violation of Chapter 93A with respect to the Shared Appreciation Modification and Chapter
93A offers (Count 5). Ocwen removed the action to this Court on January 5, 2016. Both parties
have moved for summary judgment, and Ocwen has also moved to strike portions of two of
Aja’s affidavits in support of her motion.
II.

Legal Standard
The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
Summary judgment is appropriate when the moving party 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). A genuine issue is “one that must be decided at trial because the evidence,
viewed in the light most flattering to the nonmovant, would permit a rational fact finder to
resolve the issue in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court
indulges all reasonable inferences in favor of the nonmoving party. See O'Connor v. Steeves,
994 F.2d 905, 907 (1st Cir. 1993). When “a properly supported motion for summary judgment is
made, the adverse party must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotations omitted). The

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nonmoving party may not simply “rest upon mere allegation or denials of his pleading,” but
instead must “present affirmative evidence.” Id. at 256–57.
III.

Motions to Strike
Defendant has moved to strike certain paragraphs to plaintiff’s affidavits in support of her

motion for summary judgment. Because the Court will not rely on the disputed paragraphs in
deciding the cross-motions for summary judgment, the motions to strike will be denied as moot. 5
IV.

Cross-Motions for Summary Judgment
A.

Allegations of Fraud
1.

Violation of Mass. Gen. Laws ch. 266, § 35A

Count 1 alleges that defendant violated Mass. Gen. Laws ch. 266, § 35A for recording a
fraudulent assignment of plaintiff’s mortgage. That statute provides:
Whoever intentionally: (1) makes or causes to be made any material statement
that is false or any statement that contains a material omission, knowing the same
to be false or to contain a material omission, during or in connection with the
mortgage lending process, with the intent that such statement be relied upon by a
mortgage lender, borrower or any other party to the mortgage lending process . . .
shall be punished by imprisonment [and/or a fine].
Mass. Gen. Laws ch. 266, § 35A. However, the statute only provides for criminal penalties, and
“does not provide an individual borrower with a private cause of action or even refer to a civil
suit for a violation of that section.” Aliberti v. GMAC Mortg., LLC, 779 F. Supp. 2d 242, 247 (D.
Mass. 2011). Accordingly, defendant’s motion for summary judgment as to Count 1 will be
granted.

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Many of the paragraphs subject to defendant’s motion to strike include inadmissible opinion, speculation,
and hearsay. Although some paragraphs include statements which would be admissible at trial, both parties have
provided extensive primary documentary evidence on which the Court will rely in lieu of affidavits that are
unsupported or contradicted by the record.

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2.

Violation of Mass. Gen. Laws ch. 267, § 1

Count 2 alleges that defendant violated Mass. Gen. Laws ch. 267, § 1 by recording a
fraudulent assignment of plaintiff’s mortgage. That statute provides:
Whoever, with intent to injure or defraud, falsely makes, alters, forges or
counterfeits a public record . . . in relation to a matter wherein such certificate,
return or attestation may be received as legal proof . . . shall be punished by
imprisonment in the state prison for not more than ten years or in jail for not more
than two years.
Mass. Gen. Laws ch. 267, § 1. That statute also provides only for criminal penalties. “[P]rivate
citizens do not have standing to prosecute criminal violations or to initiate criminal proceedings
in their own names.” Cichocki v. Bank of America, 2016 WL 3962814, at *3 (D. Mass. July 21,
2016). Therefore, defendant’s motion for summary judgment as to Count 2 will be granted.
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Challenges to the Validity of the 2008 Assignment

Embedded in Counts 1 and 2 is a challenge to the validity of the 2008 assignment
transferring the mortgage from Option One to “Wells Fargo Bank, N.A., as Trustee for MASTR
Asset Backed Securities Trust 2005-OPT1.” (Docket No. 86, Ex. J). The complaint alleges that
the signatory, Topako Love, was a so-called robo-signer employed by Loan Processing Services
(“LPS”). (Compl. ¶¶ 13, 16). The complaint further alleges Love was also signing as “assistant
secretary” to companies other than Option One, including Mortgage Electronic Registration
Systems (“MERS”) and Indy Mac Mortgage. (Id. ¶ 18). Neither party has provided
documentation concerning the exact role Love played in Option One, MERS, and Indy Mac.
Furthermore, a “bare allegation of ‘robo-signing’ does nothing to undermine the validity of [an
assignment].” Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 14 (1st Cir. 2014).
In any event, even assuming that Love was a robo-signer, plaintiff lacks standing to
challenge the 2008 assignment. In Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d 282

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(1st Cir. 2013), the First Circuit stated that third parties such as mortgagors could have standing
to challenge the validity of an assignment. However, standing is greatly circumscribed, as a
mortgagor may only “challenge a mortgage as invalid, ineffective or void.” Id. at 291. A “void
mortgage assignment is one in which the putative assignor ‘never properly held the mortgage
and, thus, had no interest to assign.’” Wilson, 744 F.3d at 10 (quoting Culhane, 708 F.3d at 291).
By contrast, under Massachusetts law, a mortgagor “does not have standing to challenge
shortcomings in an assignment that render[s] it merely voidable at the election of one party but
otherwise effective to pass title.” Culhane, 708 F.3d at 291 (emphasis added).
Although the complaint alleges that the 2008 assignment was void, plaintiff never
disputed the fact that Option One properly held the mortgage between 2004 and 2008. The
notarized 2008 assignment clearly identified Topako Love as an authorized signatory of Option
One. (Docket No. 93, Ex. J). Because the record contains no facts to contradict the 2008
assignment’s facial compliance with the statutory requirements of Mass. Gen. Laws ch. 183, §
54B, at most the assignment was voidable. 6 See Galvin v. U.S. Bank, N.A., 852 F.3d 146, 158
(1st Cir. 2017) (“Under Massachusetts law, as long as the assignor is the record holder of the
mortgage at the time of the assignment . . . an assignment that complies with . . . [section 54B]
‘cannot be shown to be void.’”) (citations omitted). Therefore, plaintiff has no standing to
challenge the assignment. See Wells Fargo Bank, N.A. v. Anderson, 89 Mass. App. Ct. 369, 372
(2016).
The complaint also alleges that the 2008 assignment is void because it “was recorded
three years after the trust settlement date.” (Compl. ¶ 42). The complaint suggests that the 2008

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Mass. Gen. Laws ch. 183, § 54B requires that assignments of mortgages “be (1) executed before a notary
public or person with similar authority to acknowledge such instruments; and (2) executed by a person purporting to
hold the position of vice president or the like, with the entity holding such mortgage.” In re Lopez, 486 B.R. 221,
229 (Bankr. D. Mass. 2013) (internal quotation marks omitted).

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assignment was invalid because it did not comply with the terms of the trust instrument. Neither
party has introduced exhibits detailing the contents of the instrument. Nevertheless, “an
assignment made in contravention of [ ] a trust agreement is at most voidable at the option of the
parties to the trust agreement, not void as a matter of law.” Dyer v. Wells Fargo Bank, N.A., 841
F.3d 550, 554 (1st Cir. 2016) (citing Butler v. Deutsche Bank Trust Co. Americas, 748 F.3d 28,
37 (1st Cir. 2014)). Because plaintiff has failed to show that the 2008 assignment was void, she
has no standing to challenge its validity.
4.

Request for Leave to Amend

In her opposition, plaintiff has requested that she be permitted to amend her complaint
with respect to Counts 1 and 2 to offer “corollary statute[s] which amount[ ] to fraud on the
issues with the assignments.” (Pl.’s Opp. at 2). A party seeking to amend a complaint after the
deadline set forth in a scheduling order must demonstrate “good cause” for the delay. See
O'Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 154 (1st Cir. 2004). The reason for the
heightened standard under Rule 16 as compared with Rule 15 is to “preserve[ ] the integrity and
effectiveness of Rule 16(b) scheduling orders.” Id. at 155. In analyzing the plaintiff's reasons
for delay, the Court must “focus[ ] on the diligence (or lack thereof) of the moving party more
than it does on any prejudice to the party-opponent.” Steir v. Girl Scouts of the USA, 383 F.3d 7,
12 (1st Cir. 2004). Amendment may also be denied on the ground of futility. Foman v. Davis,
371 U.S. 178, 182 (1962).
Here, the original complaint was filed in state court on December 3, 2015. After
removal, the Court issued a scheduling order establishing a deadline of May 17, 2016, for
motions to amend the pleadings, after which good cause must be shown. Plaintiff’s opposition
was filed on August 21, 2017, more than a year after the scheduling order deadline. She has not

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offered a rationale to justify the delay, other than to argue that defendant chose to answer the
complaint instead of filing a “timely motion to dismiss” that would have alerted her to the
complaint’s defects. (Pl.’s Opp. at 2). There has been no material change in the facts, and there
is no apparent reason why the statutes in question could not have been cited in the original
complaint. Therefore, plaintiff has failed to establish the “good cause” required to file an
untimely motion to amend.
Finally, and in any event, the proposed amendment appears to be futile. Plaintiff has not
provided a copy of a proposed amended complaint and has given no explanation as to how the
“corollary statute[s]” in question would provide her with a cause of action against Ocwen. Her
request to amend her complaint will accordingly be denied.
C.

Action to Try Title and Quiet Title

Count 3 seeks to “quiet title” to the property under Mass. Gen. Laws ch. 240, § 1.
However, that statute provides a cause of action to “try title” rather than “quiet title.” In try title
actions, a plaintiff may “defeat [ ] specified adverse claims through a default or by showing title
that is merely superior to that of the respondent.” Bevilacqua v. Rodriguez, 460 Mass. 762, 767
n.5 (2011). Invocation of the try title statute necessitates a two-step analysis. Abate v. Fremont
Inv. & Loan, 470 Mass. 821, 822 (2015). First, the plaintiff must establish the “jurisdictional
elements”: “(1) that [s]he holds ‘record title’ to the property; (2) that [s]he is a person ‘in
possession’; and (3) the existence of an actual or possible ‘adverse claim’ clouding the plaintiff's
record title.” Id. at 827 (citing Blanchard v. Lowell, 177 Mass. 501, 504 (1901)). Second, the
adverse claimant must bring an action to assert the claim to title or disclaim its interest in the
property. Abate, 470 Mass. at 822.
Plaintiff’s try title claim fails at the first step. The Supreme Judicial Court has stated that

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with respect to the third jurisdictional element, the “‘adverse claim’ element of a try title action
is sufficiently alleged only if the foreclosure already has occurred.” Id. at 834 (emphasis added).
Because it is undisputed that foreclosure has not occurred, the try title claim is premature.
In the alternative, plaintiff appears to invoke the quiet title statute, Mass. Gen. Laws ch.
240 § 6. Whereas the try title suit is an action at law, a quiet title suit is an in rem action in
equity. Abate, 470 Mass. at 827 n.14. However, a plaintiff must not only “demonstrate better
title to the locus than the defendant[ ]. . . [but also] prove sufficient title to succeed in its action.”
Bevilacqua, 460 Mass. at 767 n.5 (quoting Sheriff’s Meadow Found., Inc. v. Bay-Courte
Edgartown, Inc., 401 Mass. 267, 269 (1987)).
In Massachusetts, a quiet title action may be pursued where “both actual possession and
the legal title are unified in the plaintiff.” Bevilacqua, 460 Mass. at 767 n.5 (quoting First
Baptist Church of Sharon v. Harper, 191 Mass. 196, 209 (1906)). However, plaintiff has not
established that she owns legal title to the property. “[A] quiet title action is not an avenue open
to a mortgagor whose debt is in arrears because, until the mortgage is discharged, the title
necessarily remains under a cloud.” Flores v. OneWest Bank, F.S.B., 172 F. Supp. 3d 391, 396
(D. Mass. 2016) (appeal filed) (quoting Oum v. Wells Fargo, N.A., 842 F. Supp. 2d 407, 412 (D.
Mass. 2012) (abrogated on different grounds)). Plaintiff concedes that she has been in default on
her mortgage for several years. (Pl.’s Affidavit in Support ¶ 6). Accordingly, defendant’s
motion for summary judgment as to Count 3 will be granted.
D.

Chapter 93A Claims

Counts 4 and 5 bring claims against defendant under Mass. Gen. Laws ch. 93A for
engaging in “unfair and deceptive conduct to delay and frustrate the HAMP review process” and
refusing to grant a principal balance reduction, respectively. (Compl. ¶¶ 58-77). “Conduct is

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unfair or deceptive if it is ‘within at least the penumbra of some common-law, statutory, or other
established concept of unfairness' or ‘immoral, unethical, oppressive, or unscrupulous.’”
Cummings v. HPG Int'l Inc., 244 F.3d 16, 25 (1st Cir. 2001) (quoting PMP Assoc. Inc. v. Globe
Newspaper Co., 366 Mass. 593, 596 (1975)).
1.

The HAMP Review Process

The record is devoid of any evidence that Ocwen’s conduct in relation to the loan
modification process was either unfair or deceptive. Plaintiff contends that AHMSI sent her a
letter stating that she was eligible for HAMP and a loan modification pursuant to the Option One
consent judgment reached with the Massachusetts Attorney General. (Pl.’s Statement in Support
of Opp. at 8). However, the letter plaintiff cites merely stated that AHMSI would investigate
whether she was eligible for a HAMP loan modification. (Docket No. 90, Ex. 1 at 91). There is
no evidence that defendant or its agents, affiliates, or predecessors-in-interest promised plaintiff
that she was entitled to a loan modification pursuant to HAMP or the Option One consent
judgment. Nor does the record contain any evidence of defendant delaying or frustrating the
HAMP review process.
Moreover, the plain language of HAMP and the Option One consent judgment clearly
show that plaintiff was never eligible for a modification under those programs. HAMP’s goal
was to provide relief to borrowers who had defaulted or were likely to default by reducing
mortgage payments to sustainable levels, without discharging any of the underlying debt. See
U.S. Dep't of the Treasury, Supplemental Directive 09–01, available at https://www.hmpadmin.
com/ portal/programs/docs/hamp_servicer/sd0901. Under those guidelines, borrowers could be
eligible for a loan modification under certain conditions, including the condition that the
mortgage be secured by the borrower's primary residence. Id. at 2. However, the property in

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question was not plaintiff’s primary residence. (Pl.’s SMF ¶ 7). Therefore, she was ineligible
for a loan modification under both HAMP and the Option One consent judgment. 7
2.

The Shared Appreciation Modification and Ch. 93A Settlement Offers

Similarly, there is no evidence that Ocwen’s conduct in making the Shared Appreciation
Modification offer and the Chapter 93A settlement offer was either unfair or deceptive. The
complaint contends that the Shared Appreciation Modification offer would “require [plaintiff] to
surrender 25% of the equity in her home” and that defendant “imposed” the modification on her.
(Compl. ¶¶ 69, 75). These factual claims are contradicted by the record. The plain language of
the Shared Appreciation Modification offer specified that if plaintiff accepted the offer,
$32,191.08 of her principal balance would be “deferred.” (Docket No. 90, Ex. 1 at 111). That
amount would be forgiven in “equal installments over three years.” (Id.). However, if the value
of the property appreciated, defendant would be entitled to 25% of the appreciation value,
capped at the amount of the “deferred” principal balance. (Id. at 112). In addition, the offer was
not “imposed” on plaintiff; she could elect to accept the offer by making a payment on April 1,
2015, or refuse and adhere to the previously existing payment plan (on which she had already
defaulted). (Id. at 107).
Ocwen’s settlement offer in response to plaintiff’s demand letter also did not violate
Chapter 93A. The complaint contends that plaintiff was entitled to a significant reduction in her
principal balance under the consent judgment and that the settlement offer was unfair. However,
as noted, plaintiff’s loan was never subject to the 2011 Option One consent judgment, and thus
she had no right to a modification. Although plaintiff was dissatisfied with the debt relief
defendant offered, defendant had no duty to modify the loan any further. “Under Massachusetts

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As mentioned earlier, one of the criteria for a modification pursuant to the Option One consent judgment
was that the original loan be secured by the borrower’s primary residence.

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case law, absent an explicit provision in the mortgage contract, there is no duty to negotiate for
loan modification once a mortgagor defaults.” Mackenzie v. Flagstar Bank, FSB, 738 F.3d 486,
493 (1st Cir. 2013) (quoting Peterson v. GMAC Mortg., LLC, 2011 WL 5075613, at *6 (D.
Mass. Oct. 25, 2011)). Therefore, defendant’s conduct was neither “unfair” nor “deceptive,” and
defendant’s motion for summary judgment as to Counts 4 and 5 will be granted. 8
3.

Alternative Theories of Liability

In her opposition, plaintiff appears to introduce new theories of liability under Chapter
93A. Specifically, plaintiff alleges that defendant violated the Fair Debt Collection Practices Act
and Truth in Lending Act, and appears to invoke the Predatory Home Loan Practices Act. (Pl.’s
Statement in Support of Opp. at 7-10). However, these arguments were not raised in the
complaint or demand letter. “Chapter 93A requires claimants to set out specifically any
activities in their demand letter as to which they seek relief. Separate relief on actions not so
mentioned is foreclosed as a matter of law.” Clegg v. Butler, 424 Mass. 413, 423 (1997). In
addition, a plaintiff is “not entitled to raise new and unadvertised theories of liability for the first
time in opposition to a motion for summary judgment.” Calvi v. Knox County, 470 F.3d 422,
431 (1st Cir. 2006) (citing Torres–Rios v. LPS Lab., 152 F.3d 11, 15-16 (1st Cir. 1998)).
Therefore, the Court declines to consider the merits of any such newly-raised claims.
V.

Conclusion
For the foregoing reasons, defendant’s motions to strike are DENIED as moot, plaintiff's

motion for summary judgment is DENIED, and defendant’s motion for summary judgment is

8
Defendant raises various other arguments in its memorandum in support of summary judgment. For
example, defendant contends that: (1) it was not a party to the Option One consent judgment; (2) plaintiff lacked
standing to enforce compliance of the consent judgment; and (3) the record shows that plaintiff’s alleged damages
were not caused by the purported Chapter 93A violations. (Def.’s Mem. in Support. at 15-17). However, because
the Court finds that defendant’s conduct was not “unfair and deceptive,” it need not consider those additional
arguments.

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GRANTED.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: November 30, 2017

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