Fox et al v. Ocwen Loan Servicing, LLC et al

Filing 47

///ORDER granting 43 Motion for Summary Judgment. Judgment is entered in favor of the defendants on all claims. The clerk of court shall enter judgment accordingly and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Gail Fox and Ralph Wass
v.

Civil No. 17-cv-193-JD
Opinion No. 2019 DNH 075

Ocwen Loan Servicing, LLC
and HSBC Bank USA, N.A., as Trustee
for SG Mortgage Securities Trust 2006-OPT2,
Asset Backed Certificates, Series 2006-OPT2
O R D E R
Gail Fox and Ralph Wass brought suit in state court to
enjoin the foreclosure sale of their home in Goffstown, New
Hampshire.1

Ocwen Loan Servicing, LLC and HSBC Bank USA, N.A.,

as trustee, removed the case to this court.

The defendants move

for summary judgment, and Fox and Wass object.

Standard of Review
Summary judgment is appropriate when “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); see also

Thomas v. Harrington, 909 F.3d 483, 490 (1st Cir. 2019).

For

purposes of summary judgment, the court considers the facts in
the light most favorable to the plaintiffs and draws all

The plaintiffs were originally represented by counsel but
are now proceeding pro se.
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reasonable inferences in their favor.

Roy v. Correct Care

Solutions, LLC, 914 F.3d 52, 57 (1st Cir. 2019).

“An issue is

genuine if it can be resolved in favor of either party, and a
fact is material if it has the potential of affecting the
outcome of the case.”

Leite v. Gergeron, 911 F.3d 47, 52 (1st

Cir. 2018) (internal quotation marks omitted).

“A genuine issue

of material fact only exists if a reasonable factfinder,
examining the evidence and drawing all reasonable inferences
helpful to the party resisting summary judgment, could resolve
the dispute in that party’s favor.”

Town of Westport v.

Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal
quotation marks omitted); Flood v. Bank of Am. Corp., 780 F.3d
1, 7 (1st Cir. 2015).

Background
Gail Fox and Ralph Wass acquired property in Goffstown, New
Hampshire, on June 27, 2006.

On July 21, 2006, Wass signed a

promissory note in the amount of $236,000 to Option One Mortgage
Corporation, and Wass and Fox granted a mortgage on the property
to Option One Mortgage Corporation to secure the loan.
Option One changed its name to Sand Canyon Corporation on
May 28, 2009.

Sand Canyon assigned the Fox-Wass mortgage to

HSBC as trustee on April 8, 2010.

Option One endorsed the Wass

note in blank and transferred the note to HSBC Bank, as trustee.
2

The president of Sand Canyon, Dale M. Sugimoto, filed an
affidavit in a bankruptcy case in the Eastern District of
Louisiana on March 18, 2009.

In the affidavit, Sugimoto stated

that Option One’s mortgage loan servicing business was sold to
American Home Mortgage Servicing, Inc., effective as of April
30, 2008, and that as of January 31, 2008, Option One “ceased
all loan origination activities.”

Doc. 43-6, at 3.

Sugimoto

also stated that Sand Canyon’s business then involved “dealing
with litigation claims, including title issues or litigation
relating to servicing prior to the sale of OOMC’s servicing
rights to AHMS.”

Id.

In their complaint, Fox and Wass alleged that the
assignment of their mortgage by Sand Canyon to HSBC Bank in
April of 2010 was invalid because, based on Sugimoto’s
affidavit, Sand Canyon did not own the mortgage when it was
assigned.

They asked for time to examine the mortgage to

determine whether the defendants were foreclosing based on the
mortgage that they signed.

They asked to have HSBC Bank produce

the “wet signature” mortgage documents for their inspection.
The defendants previously moved to dismiss the plaintiff’s
claims on the ground that the plaintiffs were judicially
estopped from challenging the validity of the assignment of the
mortgage based on their representations in bankruptcy
proceedings filed in 2010 and 2013.
3

The motion was denied.

The

parties participated in mediation in June of 2018, when the
plaintiffs had the opportunity to examine the loan documents.

Discussion
The defendants move for summary judgment on all claims on
the grounds that the mortgage was validly assigned to HSBC,
which also holds the note.

The plaintiffs object, asserting

that material facts are in dispute that prevent summary
judgment.

Specifically, the plaintiffs now assert that the

defendants have provided different versions of the mortgage note
and that a later “confirmatory assignment” of the mortgage shows
that the mortgage was not assigned to the defendants.

The

defendants address those arguments in their reply.

A.

Mortgage and Note
The defendants contend that they are entitled to summary

judgment on the plaintiffs’ claim that they lack authority to
foreclose.

In support, they assert that HSBC Bank as trustee

holds the note, which is endorsed in blank, and that the
plaintiffs have admitted that they lack evidence that HSBC does
not hold the note.

They represent that the plaintiffs examined

the original note during their mediation session.
They contend that they hold the mortgage on the property by
assignment.

They further contend, based on Bergeron v. N.Y.
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Comm. Bank, 168 N.H. 63, 64-68 (2015), that as holder of the
note, they also have the rights of the mortgagee.
In objecting to summary judgment, the plaintiffs assert
that the defendants have not shown they hold the mortgage and
note.

They argue that the documents filed by the defendants as

Exhibits A-2 and B-1 show two different versions of the
“mortgage note.”

They contend, based on the theory that there

are two different versions of the “mortgage note,” that “the
identity of the maker(s) of the underlying mortgage note is in
dispute.”2

Doc. 44-1, at 2.

As the defendants explain, Exhibit A-1 is a copy of the
mortgage, signed by Fox and Wass on July 21, 2006.

Exhibit B-1

is a copy of the “Adjustable Rate Note” signed by Wass on July
21, 2006.

Therefore, contrary to the plaintiffs’ theory, those

documents are two different documents, not different versions of
the same document.

Wass signed the promissory note, and Wass

and Fox signed the mortgage.

The plaintiffs have not shown any

invalidity of the note or the mortgage or any dispute about the
makers of the note and mortgage, based on the copies of the
documents filed by the defendants.

2The

plaintiffs refer to both documents as the “mortgage
note.” At her deposition and in her affidavit, Fox appears
confused about the difference between the promissory note,
signed by Wass, and the mortgage, signed by Fox and Wass.
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B.

Confirmatory Assignment of Mortgage
The plaintiffs also argue that a confirmatory assignment of

their mortgage raises a factual dispute about the validity of
the assignment to HSBC Bank.

They contend that because the

defendants have identified Sand Canyon as the assignor and the
confirmatory assignment shows American Home as the assignor,
there is a factual dispute about the defendants’ legal standing
based on the first assignment.
The confirmatory assignment of mortgage, dated September 7,
2011, states that “American Home Mortgage Servicing, Inc.
successor to Option One Mortgage Corporation, holder of a
mortgage from Ralph K. Wass and Gail Fox to Option One Mortgage
Corporation dated July 21, 2006, recorded . . . assigns said
mortgage to HSBC Bank USA . . . .”

Doc. 44-3, at 2.

Both the

confirmatory assignment and the original assignment name HSBC
Bank as the assignee of the mortgage.

Therefore, without

delving into the underlying circumstances, HSBC Bank holds the
mortgage by assignment.

The plaintiffs have not shown that the

different but related assignors in this case make any
difference.
In addition, as the defendants point out, a confirmatory
assignment does not undermine the validity of the prior
assignment it confirms.

Instead, while a confirmatory

assignment cannot make a prior invalid assignment valid, it may
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be used to correct a prior valid assignment.

See Tucker v. U.S.

Bank, 292 F. Supp. 3d 546, 552 (D. Mass. 2018); Butler v.
Deutsche Bank Tr. Co. Americas, 2012 WL 3518560, at *9, n.6 (D.
Mass. Aug. 14, 2012).

Because the plaintiffs have not shown

that the prior assignment of their mortgage to HSBC was invalid,
they have not shown that the confirmatory assignment creates a
factual dispute about the validity of the assignment.

C.

Documents Examined at Mediation
The defendants note that Fox states in her affidavit that

she does not know whether the copies of the note and mortgage
filed with the motion for summary judgment are the documents
that she inspected during the mediation.

The defendants

challenge that statement based on Fox’s deposition testimony.
Because the plaintiffs make no argument in objecting to summary
judgment that is based on what document was inspected during the
mediation, the court will not address the issue, to the extent
an issue exists.

D.

Claims

The plaintiffs have not shown a triable issue as to whether
HSBC Bank has the authority to foreclose on their mortgage.
Therefore, the defendants are entitled to summary judgment on
the claim to enjoin the foreclosure on the plaintiffs’ property.
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The second claim depends on the success of the first claim
because the plaintiffs seek attorneys’ fees and costs under RSA
361-C:2.

That remedy is only available to prevailing parties.

Frangos v. Bank of Am., N.A., 826 F.3d 594, 598 n.3 (1st Cir.
2016).

The third claim raises a right to amend the complaint,

which is not a cognizable claim on which relief may be granted.

Conclusion
For the foregoing reasons, the defendants’ motion for
summary judgment (document no. 43) is granted.

Judgment is

entered in favor of the defendants on all claims.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 6, 2019
cc:

Joseph A. Farside, Jr., Esq.
Gail Fox, pro se
James D. Kelly, Esq.
Krystle G. Tadesse, Esq.
Peter N. Tamposi, Esq.
Ralph Wass, pro se

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