Matt v. HSBC Bank USA, N.A.

Decision Date15 April 2015
Docket NumberNo. 13–2209.,13–2209.
Citation783 F.3d 368
PartiesJodi B. MATT, Plaintiff, Appellant, v. HSBC BANK USA, N.A., on Behalf of the Trust Fund and for the Benefit of Ace Securities Corp.Home Equity Loan Trust Series 2005–HE4 Asset Backed Pass Through Certificates, Wells Fargo Bank, N.A., Countrywide Securities Corporation, Bank of America, N.A., Successor by Merger to BAC Home Loans Servicing, LP, Formerly Known as Countrywide Home Loans Servicing, LP, HSBC Bank USA, N.A. and Ace Securities Corp., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Glenn F. Russell, Jr., with whom Glenn F. Russell, Jr., & Associates, P.C., was on brief, for appellant.

Courtney L. Benson, with whom James W. McGarry, Chad W. Higgins and Goodwin Procter LLP, were on brief, for appellees.

Before TORRUELLA, HOWARD, and KAYATTA, Circuit Judges.

Opinion

TORRUELLA, Circuit Judge.

In an attempt to avert foreclosure proceedings in state court, PlaintiffAppellant Jodi B. Matt (Matt) filed this federal case in the District of Massachusetts against DefendantsAppellees HSBC Bank USA, National Association on Behalf of the Trust Fund (HSBC as Trustee) and for the Benefit of ACE Securities Corp. Home Equity Loan Trust Series 2005HE4 Asset [Backed] Pass Through Certificates (Trust), and several other defendants (other creditors and servicers that have previously held rights over the loan). In her complaint, Matt asserts multiple claims arising from the purportedly invalid transfer and assignment of a mortgage granted over her home in Canton, Massachusetts.

While this appeal was pending, Matt and Select Portfolio Servicing, Inc. (“SPS”), a servicer acting on behalf of HSBC as Trustee, entered into a Home Affordable Modification Agreement (the “Loan Modification Agreement”). Pursuant to the Loan Modification Agreement, Matt renegotiated the terms of her existing mortgage loan, and, as a result, her mortgage loan is current and she is no longer subject to any actual or threatened foreclosure proceedings. Consequently, we dismiss this appeal as moot.

I. Background

The material facts in this case are undisputed. On April 6, 2005, Matt obtained a mortgage loan secured by her property (the “Mortgage”) from Northeast Mortgage Corporation (“Northeast”), and executed a promissory note (the “Note”) for $200,000 in favor of Northeast. On the same day, Northeast assigned the Mortgage to New Century Mortgage Corporation (“New Century”). This assignment of the Mortgage to New Century was recorded in the Norfolk County Registry of Deeds on December 19, 2006. New Century subsequently assigned the Mortgage to HSBC as Trustee on November 6, 2007. This subsequent assignment was recorded in the Norfolk County Registry of Deeds on or about November 16, 2007.

As of today, HSBC as Trustee is the mortgagee of record. The Note pertaining to the Mortgage followed a different track, but was later conveyed to the Trust. HSBC as Trustee initiated the foreclosure action on behalf of the Trust in state court to which Matt responded with the instant case. We explain the facts in more detail in an attempt to unravel Matt's claims.

A. The Mortgage and Note

As stated, Northeast assigned the Mortgage and endorsed the Note to New Century. Thereafter, New Century endorsed the Note in blank so that it became payable to the bearer rather than to a named payee. The Note was then sold and conveyed by New Century into the Trust at some point before September 27, 2005. Then, New Century, which had remained the mortgagee of record, filed for bankruptcy and entered into a bankruptcy court-approved stipulation with Countrywide Home Loans, Inc. (Countrywide) and several Countrywide affiliates. The stipulation stated that “Countrywide has serviced and is servicing loans currently pursuant to contractual agreement,” and that “Countrywide was appointed as New Century Mortgage's true and lawful attorney-in-fact and granted the ability to exercise the Power on behalf of New Century Mortgage.” This “power” included the ability to “execute and file assignments, mortgages, ... [and] endorsements ... relating to ... Defaulted Loans [ ... ].” Acting under said power of attorney on behalf of New Century, Countrywide—which at that point only held bare record title because the loan itself had been conveyed to the Trust—assigned Matt's Mortgage to HSBC as Trustee. HSBC then became the mortgagee of record.

B. The Loan's Servicing and the Filing of the Instant Case

Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP (Bank of America) serviced the mortgage loan until October 1, 2012, when the servicing rights were transferred to SPS. Matt initially defaulted on the mortgage loan in October 2005, when she failed to make her monthly payments. After bringing her loan current several times, she defaulted on her payment obligations in August 2008, and had made no further payments until the modification. Bank of America sent Matt a “Notice of Intention to Foreclose” on September 14, 2009, which provided Matt with the opportunity to cure her default. Matt did not cure the default. On January 27, 2010, HSBC as Trustee filed a complaint in the Massachusetts Land Court as a preliminary step to foreclose on the house. On September 23, 2010, Matt filed the instant case. The district court granted summary judgment in favor of DefendantsAppellees and this appeal ensued.

C. The Appeal

Matt reiterates her claims on appeal. She argues (1) that she only granted the power of sale of her property to Northeast, not to any other assignee of the Mortgage and Note; (2) that HSBC as Trustee has only proffered a sworn statement by its agent showing that the loan was conveyed to the Trust; (3) that the Mortgage was assigned to the Trust after the date established by the Pooling Service Agreement of the Trust for depositing assets into it, thus never becoming an asset of Trust; (4) that an “Acquisition Memo” showed that the loan had been acquired by the HE–2” trust rather than the HE–4” trust, i.e., the Trust, that was now seeking foreclosure through its Trustee, and thus it must be another trust that holds the assets; (5) that somehow New Century was impeded from transferring its claim in the loan for reason of being in bankruptcy, even though the transfers were done under the supervision and with approval of the bankruptcy court; (6) and, in sum, that [a]ll [Matt] ever wanted was to glean who it is, precisely, that owns the legal claim to the [Mortgage] to her real property, and precisely who it is that has the legal right and authority to accept her monthly principal and interest payments,” but that each of those issues invalidates the transfer of the Mortgage and Note from Northeast to HSBC as Trustee.

Matt stresses throughout her opening brief that every argument made referring to the alleged errors committed by the district court is relevant because it affects the district court's conclusion that HSBC as Trustee is the party with “proper jurisdiction and authority to act under the strict requirements of [Mass. Gen. Laws ch.] 244, § 14, to utilize the harsh Massachusetts non judicial foreclosure statute.” That is, every argument advanced by Matt concludes that any right HSBC as Trustee may have to act under Mass. Gen. Laws ch. 244, § 14 is void. That section refers to “foreclosure under the power of sale” and provides the procedural and formal requirements to mortgagees seeking such remedies. Finally, Matt perfunctorily reiterates her request for retrospective relief in the form of damages for unjust enrichment, civil conspiracy, and other common law claims, which derive directly from her contention that HSBC as Trustee is not her creditor because each of the aforementioned transfers of the Mortgage and Note are void.

D. Recent Developments

At oral argument, this Court was blindsided by the fact that the parties had reached some kind of workout agreement many months before and that the loan was current as a result of settlement negotiations to avoid foreclosure. We requested the parties to submit a joint stipulation detailing the new agreement and explaining whether this case is moot as a result of this agreement. The parties could not agree and opted for filing separate statements. Matt conceded that she had executed the Loan Modification Agreement with SPS after a process in which, on August 30, 2013, “SPS on behalf of HSBC,” had received her application for the modification. HSBC as Trustee included a copy of the Loan Modification Agreement with their statement and argued that Matt's loan has been permanently modified by SPS under the federal Home Affordable Modification Program (“HAMP”).1 The Loan Modification Agreement defines SPS as the “Lender” and provides that it is intended to modify Matt's existing contractual agreements. It also: (1) establishes a new principal balance for the mortgage loan, a new maturity date, and a payment and escrow schedule; (2) states that all the original loan documents of the Mortgage are modified by it and that said loan documents are “duly valid, binding agreements, enforceable in accordance with their terms and are hereby reaffirmed;” (3) establishes that all the terms of the original loan documents remain in full force and that [Matt] will be bound by and will comply with, all the terms and conditions of the loan documents;” and (4) provides that [Matt] will cooperate fully with [SPS] in obtaining any title endorsement(s), or similar title insurance product(s), and/or subordination agreement(s), that are necessary or required by [SPS's] procedures to ensure that the modified mortgage loan is in first lien position and/or is fully enforceable upon modification....”

Despite reaffirming her loan documents and negotiating a Loan Modification Agreement with SPS, Matt continues to reject that HSBC as Trustee is her valid creditor. In light of the conflicting statements, we ordered the district court to hold an...

To continue reading

Request your trial
14 cases
  • Sheedy v. Deutsche Bank Nat'l Trust Co. (In re Sheedy)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 1, 2015
    ...rules are.12 We think this is nothing more than a skeletal presentation of the argument; it is thus waived.13 See Matt v. HSBC Bank USA, N.A., 783 F.3d 368, 373 (1st Cir.2015) (“These issues are stated ‘in the most skeletal way, leaving the court to do counsel's work, create the ossature fo......
  • Int'l Ass'n of Machinists & Aerospace Workers, AFL-CIO, Local Lodge No. 1821 v. Verso Corp.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • December 14, 2015
    ...S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (quoting Church of Scientology , 506 U.S. at 12, 113 S.Ct. 447 ). See also Matt v. HSBC Bank USA, N.A. , 783 F.3d 368, 372 (1st Cir.2015).This leaves the Plaintiffs with an abstract right but no realistic remedy. The remaining request is for a declarat......
  • Sheedy v. Deutsche Bank Nat'l Trust Co. (In re Sheedy), 14-1246
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 1, 2015
    ...are.12 We think this is nothing more than a skeletal presentation of the argument; it is thus waived.13 See Matt v. HSBC Bank USA, N.A., 783 F.3d 368, 373 (1st Cir. 2015) ("These issues are stated 'in the most skeletal way, leaving the court to do counsel's work, create the ossature for the......
  • Denicola v. Potter
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 30, 2020
    ...to render a court opinion merely advisory, Article III considerations require dismissal of the case."); see also Matt v. HSBC Bank USA, N.A., 783 F.3d 368, 372 (1st Cir. 2015) ("Mootness is a jurisdictional matter. Consequently, it can be raised by a federal court sua sponte." (citations om......
  • Request a trial to view additional results
1 books & journal articles
  • Review Proceedings
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...692, 710-11 (2011) (appeal moot because juvenile plaintiff no longer needed court protection); see, e.g. , Matt v. HSBC Bank USA, N.A., 783 F.3d 368, 372-73 (1st Cir. 2015) (appeal moot because borrower, seeking to avoid foreclosure, entered into loan modif‌ication agreement); Ashmore v. CG......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT