Sarbanis v. Federal National Mortgage Association
///ORDER granting 12 Motion for Summary Judgment. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Ann Sarbanis
Civil No. 17-cv-037-JD
Opinion No. 2017 DNH 170
O R D E R
Mary Ann Sarbanis brought suit in state court to enjoin the
foreclosure sale of her home, which was scheduled for January
The state court granted an ex parte temporary
restraining order on January 17, with a hearing set for January
Following the hearing, Federal National Mortgage
Association (“Fannie Mae”) removed the case to this court and
filed a motion for summary judgment.
Sarbanis objects to
Standard of Review
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 dispute is one that a
reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.
The facts and reasonable inferences are taken in the
light most favorable to the nonmoving party.
of Quincy, 835 F.3d 192, 202 (1st Cir. 2016).
McGunigle v. City
“On issues where
the movant does not have the burden of proof at trial, the
movant can succeed on summary judgment by showing ‘that there is
an absence of evidence to support the nonmoving party’s case.’”
OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of
Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)).
In this district, a party moving for summary judgment must
include in the memorandum “a short and concise statement of
material facts, supported by appropriate record citations, as to
which the moving party contends there is no genuine issue to be
The party opposing summary judgment must
include in her memorandum “a short and concise statement of
material facts, supported by appropriate record citations, as to
which the adverse party contends a genuine dispute exists so as
to require a trial.”
Importantly, “[a]ll properly
supported material facts set forth in the moving party’s factual
statement may be deemed admitted unless properly opposed by the
Sarbanis, who is represented by counsel, did not include a
properly supported factual statement in her memorandum in
opposition to Fannie Mae’s motion for summary judgment.
Instead, Sarbanis simply responded to Fannie Mae’s factual
statement by saying that she admitted or denied the statements
made in each numbered paragraph.
She provided some explanations
for her disagreement with facts in Fannie Mae’s memorandum that
may have been intended to be supported by her affidavit which
purports to incorporate all statements in the memorandum.
“An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
R. Civ. P. 56(c)(4).
An affidavit must state facts, not legal
conclusions, assumptions, or guesses.
Gordon v. EarthLink,
Inc., 2017 WL 3203385, at *6 (D. Mass. July 27, 2017).
an affidavit that states that a memorandum is true “to the best
of my knowledge, information and belief” is not competent to
support or oppose summary judgment.
F.D.I.C. v. Roldan Fonseca,
795 F.2d 1102, 1106 (1st Cir. 1986); Inman v. Riebe, 2016 WL
3102198, at *1-*2 (D. Me. May 5, 2016); Drew v. N.H. Drug Task
Force, 2015 WL 4526968, at *3, n.2 (D.N.H. July 27, 2015).
Sarbanis submitted her affidavit in support of her
objection to summary judgment.
In her affidavit, Sarbanis
states that she reviewed the objection and memorandum prepared
by her counsel, and she “swear[s] that all of the statements and
allegations made therein are true to the best of [her]
knowledge, information and belief.”
As such, Sarbanis’s
affidavit is not competent to oppose summary judgment.
Fannie Mae did not object to the affidavit, however, the court
will consider the factual statements in the objection and
memorandum as if they were supported by an affidavit.
Sarbanis obtained a loan and signed a mortgage to IndyMac,
FSB in November of 2002.
That loan was modified in December of
In March of 2010, the mortgage was assigned to OneWest
Bank, FSB, and was assigned again in June of 2011 to Fannie Mae.
Fannie Mae sent Sarbanis a foreclosure notice, and in
response, Sarbanis applied for a loan modification in July of
Fannie Mae scheduled a foreclosure sale of the property
for April of 2013.
Sarbanis filed a petition in state court to
enjoin the foreclosure sale, and the state court granted a
temporary restraining order on April 23, 2013.
removed that case to federal court on May 23, 2013.
Sarbanis v. Fed. Nat’l Mortg. Ass’n, 13-cv-244-LM (D.N.H. 2013)
In Sarbanis I, Sarbanis made allegations in support of
injunctive relief from the foreclosure sale without identifying
any specific claims.
Fannie Mae moved for summary judgment,
challenging Sarbanis’s allegations that the assignments to
Fannie Mae were invalid, arguing that a dual tracking theory was
not viable, and asserting that it properly held the note and
mortgage and was entitled to foreclose.
While Fannie Mae’s
motion for summary judgment was pending, the parties were
negotiating a settlement agreement.
Sarbanis’s motion to dismiss her claims against Fannie Mae
in Sarbanis I, without prejudice, was granted on November 17,
Judgment was entered the same day.
On January 17, 2017, Sarbanis filed a second petition in
state court to enjoin the scheduled foreclosure sale of the
Sarbanis alleged that she had not made mortgage
payments to Fannie Mae because she had been trying “to come to
an agreement with FNMA for them to discharge [her] mortgage for
a lump sum.”
She asked to have the foreclosure sale stopped to
Although Sarbanis was represented by counsel during Sarbanis
I, she appears to have filed the current petition in state court
while proceeding pro se. She is now represented by new counsel.
allow her to attempt to settle the matter with Fannie Mae.
support, Sarbanis made the same allegations that were in her
Sarbanis I petition about a defective assignment to OneWest.
She added new allegations that she had reached a settlement
agreement in Sarbanis I to modify her loan to allow her to
satisfy the debt with a lump sum payment.
As is noted above, Fannie Mae removed the case to this
court and moves for summary judgment.
In support of summary judgment, Fannie Mae contends that no
settlement agreement was ever reached in Sarbanis I to modify
Sarbanis’s loan and that the record shows that Sarbanis is in
As a result, Fannie Mae contends, it is entitled to
foreclose and is entitled to summary judgment on Sarbanis’s
request for an injunction.
In her objection, Sarbanis argues that she reached a
settlement agreement with Ocwen,2 which was acting as Fannie
Mae’s mortgage servicer, and that the agreement bars
Sarbanis also asserts that Fannie Mae lacks
authority to foreclose because of faulty assignments of her
Sarbanis does not provide a full name, but she is referring
to Ocwen Loan Servicing, Inc.
Fannie Mae filed a reply to address Sarbanis’s
arguments raised in her objection.
Breach of Settlement Agreement
A claim seeking to enforce a settlement agreement in a
diversity case is governed by the law of the forum state, in
this case New Hampshire.
See Tremblay v. Ameriprise Fin.
Servs., Inc., 2017 WL 3278951, at *2 (D.R.I. Apr. 5, 2017).
Under New Hampshire law, “[a] valid and enforceable settlement,
like any contract, requires offer, acceptance, consideration and
Hogan Family Enters., Ltd v. Town of Rye, 157
N.H. 453, 456 (2008).
“Mutual assent requires that the parties
have the same understanding of the agreement’s essential terms,
and manifest an intent to be bound by them.”
Fannie Mae moves for summary judgment on the ground that
the parties never reached a settlement agreement.
Fannie Mae cites Sarbanis’s admissions in her petition that
although the parties were negotiating a settlement agreement,
“[a]n agreement between the parties was never finalized.”
Sarbanis further explained that “[t]here was one term of the
settlement agreement that was still needing to be negotiated.
needed certain documentation from the lender and the lender
never provided it.”
Fannie Mae also cites Sarbanis’s admission
that she signed the purported agreement after the deadline.
The proposed settlement agreement offered in Sarbanis I
includes a deadline for Sarbanis’s performance of August 10,
2015, at 5:00 p.m.
The proposed agreement also states that
“[t]here will be no extensions of time in which to make said
Sarbanis admits that she did not comply with that
term and did not sign the agreement until March of 2016.
Sarbanis argues, however, that after the parties failed to
reach an agreement in Sarbanis I and the case was dismissed
without prejudice, they continued to negotiate.
further states in her objection that although she did not meet
the payment deadline in the proposed agreement, she thought that
Fannie Mae “would honor it.”
She sought confirmation from Ocwen
that Fannie Mae would discharge the mortgage in exchange for a
lump sum payment of $303,000.00, but Ocwen “did not know of the
details of the history and settlement negotiations in [Sarbanis
Sarbanis asserts that although lenders have no obligation
to modify a loan, Fannie Mae had an obligation to respond within
a reasonable amount of time to the signed settlement proposal
that she sent in March of 2016.
Based on the summary judgment record, Sarbanis did not
comply with the terms of the proposed settlement agreement.
that reason, Sarbanis has not shown that an enforceable
settlement agreement exists.
She cites no authority to support
her theory that Fannie Mae had an obligation to respond when she
returned the signed settlement proposal more than six months
after the deadline.3
Therefore, Sarbanis has not shown a triable
issue as to whether Fannie Mae would violate a settlement
agreement by foreclosing on her property.
Authority to Foreclose
As in Sarbanis I, Sarbanis contends here that the
assignment of her mortgage from the FDIC to OneWest in 2010 was
defective because it was “robo signed” by Bryan Bly who did not
work for the FDIC.4
Sarbanis provides a copy of a deposition of
Bly taken in another case where Bly testified that he signed
assignments of mortgages for lending companies based on
corporate resolutions from those companies that authorized him
as a signer when he was not otherwise an employee of those
companies, his signature was applied electronically, and his
signature was notarized electronically.
Sarbanis deems that
work to be “robo signing” which she contends renders the
To the extent Sarbanis relies on Grenier v. Barclay Square
Commercial Condo. Owners’ Ass’n, 150 N.H. 111, 120 (2003), her
reliance is misplaced. The cited part of Grenier pertains to a
plaintiff’s obligation to mitigate damages. Fannie Mae is not
the plaintiff and is not seeking damages in this case.
Sarbanis did not file a copy of the assignment allegedly
signed by Bly.
assignment of her mortgage from the FDIC to OneWest defective.
She further argues that as a result the subsequent assignment
from OneWest to Fannie Mae was also defective, so that Fannie
Mae lacks authority to foreclose.
In its reply, Fannie Mae
responds to Sarbanis’s defective assignment theory and objects
to the exhibit filed by Sarbanis of the deposition of Bly.
Under New Hampshire law, a debtor can raise defenses
against the assignee of his debt that he could have raised
against the assignor before the assignment was made, any matter
that renders the assignment void, and a defense that the
assignee lacks title.
Woodstock Soapstone Co., Inc. v.
Carleton, 133 N.H. 809, 817 (1991).
If the assignment passed
title to the assignee, however, the debtor cannot raise issues
“which merely render the assignment voidable at the election of
the assignor or those standing in his shoes.”
quotation marks omitted); see also Pike v. Deutsche Bank Nat’l
Tr. Co., 168 N.H. 40, 43 (2015).
A charge of “robo signing”
alone does not prove that a mortgage assignment is void.
v. Deutsche Bank Tr. Americas, 748 F.3d 28, 33-34 (1st Cir.
2014); Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 13-14
(1st Cir. 2014).
Unless state law restricts who may act on
behalf of an assignor to sign an assignment, an assignment
signed by someone appointed for that purpose is not invalid
despite the signor’s lack of regular employment by the assignor.
Id. at 12 (addressing issue under Massachusetts law).
Sarbanis has not shown that a triable issue exists as to
whether the assignment of her mortgage from the FDIC to OneWest
was void because the assignment was signed by Bryan Bly.
extent the assignment would be voidable, she lacks standing to
raise that issue.
Burke v. Wells Fargo Bank, N.A., 2015 WL
2125906, at *3 (D.N.H. May 5, 2015).
Sarbanis asserts in her objection that Fannie Mae must show
that it holds the note and a valid mortgage in order to
foreclose and that she is entitled to an injunction if Fannie
Mae cannot make that showing.5
Sarbanis did not raise any issue
or claim related to the validity of the note in her petition for
She alleges no facts to show that Fannie Mae
does not hold the note.
Therefore, Sarbanis failed to raise an
issue in this case as to whether Fannie Mae holds the note that
is secured by the mortgage on Sarbanis’s property.
Ordinarily, a party seeking injunctive relief bears the
burden of showing that such relief is appropriate. See DiazCarrasquillo v. Garcia-Padilla, 750 F.3d 7, 10 (1st Cir. 2014);
Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st
Cir. 2006). The court need not address the burden of proof
issue here, however, because the record supplies sufficient
evidence to overcome Sarbanis’s theory.
With respect to the mortgage, Sarbanis provided a copy of
her mortgage and the assignment of the mortgage to Fannie Mae in
support of her petition for an injunction against the
The assignment states that OneWest Bank assigned
Sarbanis’s mortgage and the note secured by the mortgage to
As such, Sarbanis provided evidence that Fannie Mae
holds a valid mortgage and the note for her property.
not provided evidence to show that the assignment from the FDIC
to OneWest is void and therefore has not raised a triable issue
as to whether Fannie Mae has authority to foreclose on her
Based on the evidence presented for purposes of summary
judgment, Sarbanis has not shown a triable issue about Fannie
Mae’s authority to foreclose.
Fannie Mae objects to having Bryan Bly’s deposition
considered in this case.
In support, Fannie Mae cites the
protective order that was filed with the deposition and contends
that the deposition is inadmissible evidence under Federal Rule
of Civil Procedure 32(a)(8) and Federal Rules of Evidence 401
In response, Sarbanis argues that the protective
order does not prohibit using the deposition in this case.
argues that Bly’s deposition is admissible under Federal Rule of
Civil Procedure 32(a)(4) which pertains to unavailable
Fannie Mae is correct that the Bly deposition concerned a
different mortgage assignment that Bly signed on behalf of a
Because Bly did not testify about the
assignment of Sarbanis’s mortgage or even assignments he may
have signed on behalf of the FDIC, the deposition cannot be
considered to show the circumstances of the assignment of
Sarbanis’s mortgage from the FDIC to OneWest.
In any case, for
the reasons explained above, Sarbanis did not show that Bly’s
status when he signed the assignment from the FDIC to OneWest
rendered it void.
Therefore, the deposition is not material to
the outcome in this case.
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 12) is granted.
In support, Sarbanis represents without evidence that Bly
lives in Florida and contends it would not be reasonable for her
to depose Bly or to procure his attendance at trial. As such,
Sarbanis has not provided grounds for allowing the deposition
under Rule 32(a)(4).
The clerk of court shall enter judgment accordingly and
close the case.
Joseph DiClerico, Jr.
United States District Judge
August 30, 2017
Sandra A. Kuhn, Esq.
Walter H. Porr, Jr.
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