DiMare v. Ameriquest Mortg. Co. (In re DiMare)

• Decision Date: 15 November 2011
• Docket Number: Adversary No. 08–1046.,Bankruptcy No. 08–10598–WCH.
• Parties: In re Donna M. DIMARE, Debtor.Donna M. DiMare, Plaintiff, v. Ameriquest Mortgage Company and Option One Mortgage Corporation, Defendants.
• Court: United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts

462 B.R. 283

In re Donna M. DIMARE, Debtor.Donna M. DiMare, Plaintiff,
v.
Ameriquest Mortgage Company and Option One Mortgage Corporation, Defendants.

Bankruptcy No. 08–10598–WCH.

Adversary No. 08–1046.

United States Bankruptcy Court, D. Massachusetts,Eastern Division.

Nov. 15, 2011.

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Barbara J. Santiano, Burlington, MA, for Plaintiff.

Gregory N. Blase, K & L Gates LLP, Phoebe S. Winder, R. Bruce Allensworth, Kirkpatrick & Lockhart Preston Gates Ell, Deirdre M. Keady, Harmon Law Offices, Newton Highlands, MA, Nathalie K. Salomon, Harmon Law Offices, Newton, MA, for Defendants.

MEMORANDUM OF DECISION WILLIAM C. HILLMAN, Bankruptcy Judge.I. INTRODUCTION

The matter before the Court is the “Plaintiff, Donna DiMare's Motion for

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Summary Judgement [sic]” (the “Motion for Summary Judgment”) filed by Donna M. DiMare (the “Debtor”), the “Defendant Option Mortgage Corp.'s Opposition to the Plaintiff's Motion for Summary Judgment [sic] Cross–Motion for Partial Summary Judgment” (the “Cross–Motion”) filed by the defendant Option One Mortgage Corporation (“Option One”), and the “Plaintiff, Donna DiMare's Opposition to Defendant Option One Mortgage Corp.'s Cross–Motion for Summary Judgement [sic]” (the “Opposition”) filed by the Debtor. Through her motion, the Debtor seeks summary judgment with respect to all seven counts set forth in her Verified Adversary Complaint (the “Complaint”), while Option One seeks judgment as a matter of law on all counts but one.¹ For the reasons set forth below, I will deny the Motion for Summary Judgment on all counts, grant the Cross–Motion with respect to Counts I, II, IV, V, VI, and VII, and schedule an evidentiary hearing with respect to Count III.

II. PRELIMINARY MATTERS

Before delving into the merits of the pleadings now before me, I must address several preliminary matters.

First, the Debtor argues that the Cross–Motion is untimely and should be denied on that basis. Pursuant to my pre-trial order dated March 17, 2011, the parties were to file dispositive motions, if any, by July 20, 2011. According to Massachusetts Electronic Filing Rule (“MEFR”) 3(c), where the Court orders that a filing must be completed by a specific date but does not specify the time, electronic filing must be completed by 4:30 p.m. to be deemed timely .² Here, the Cross–Motion was filed at 8:22 p.m. While the Debtor is technically correct, I find that under the circumstances denial of the Cross–Motion on this basis is unnecessary and inefficient. There is no question that the Debtor suffered no prejudice from the marginally late filing. Moreover, to the extent that the Cross–Motion contains a timely opposition to the Motion for Summary Judgment, I must consider it at least on that basis. In any event, where appropriate, I may grant summary judgment to a nonmovant so long as the other party had a reasonable opportunity to respond. ³ As the Debtor filed the Opposition, she cannot claim prejudice.

Second, the parties each filed a concise statement of undisputed material facts of record pursuant to Local Rule 56.1 of the United States District Court for the District of Massachusetts,⁴ as well as responses to each other's statements of undisputed material facts.⁵ Having reviewed these

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statements carefully, it appears that, aside from how some facts are characterized, the parties largely agree as to the facts of this case. While there are six statements regarding the Debtor's interactions with representatives from Aegis to which Option One claims to be without sufficient information to admit or deny, they are deemed admitted by virtue of Option One's failure to expressly controvert them as required by LR, D. Mass. 56.1. ⁶

I note, however, that while the Debtor attached 30 exhibits to the Motion for Summary Judgment, many of which are not self-evident,⁷ her statement of undisputed material facts references only 8 of those exhibits. Many of these documents are nonetheless cited in support of statements made in her memorandum. This is indicative of a larger problem; namely, that the Debtor's statement of undisputed material facts does not actually contain all the facts necessary to determine the Motion for Summary Judgment in her favor. Indeed, each section of her memorandum includes a plethora of new facts not previously asserted.

I am reminded that the United States Court of Appeals for the First Circuit has explained that LR, D. Mass. 56.1 “is intended to prevent parties from shifting to the ... court the burden of sifting through the inevitable mountain of information generated by discovery in search of relevant material.” ⁸ “Such rules are designed to function as a means of ‘focusing a ... court's attention on what is—and what is not—genuinely controverted.’ ” ⁹ The Debtor's failure to cite to her own exhibits in her statement of undisputed material facts not only leaves me to “grope unaided for factual needles in a documentary haystack,” ¹⁰ but further confuses matters in an already complicated case. Moreover, by asserting and relying on facts not contained in the statement of undisputed material facts, the Debtor has created an incomplete and incoherent narrative of events to which Option One was not required to respond statement by statement. For this reason alone, the Motion for Summary Judgment should be denied.

This, however, does not resolve the difficulties associated with my review of the Cross–Motion and the Opposition. The Opposition, in similar fashion to the Motion for Summary Judgment, simply introduces additional factual assertions, albeit with citations to the record, mixed

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with argument. Local Rule 56.1 only prevents a nonmovant from disputing the material facts in the movant's statement and does not preclude the nonmovant from offering additional evidence in opposition to summary judgment.¹¹ Unfortunately, LR, D. Mass. 56.1 does not set forth any procedure or restrictions on how the nonmovant presents such evidence. Therefore, to the extent that the Opposition contains properly supported factual assertions that augment the record, I am left to do the Debtor's homework for her as I must consider them with respect to the Cross–Motion.

For these reasons, my recitation of the facts in this memorandum must be divided into two sections. The first, to be considered with respect to the Motion for Summary Judgment, is taken only from the parties competing statements.¹² The second will include, to the extent necessary and appropriate, additional facts set forth in the Opposition to be considered in conjunction with the Cross–Motion.

Lastly, the Debtor appears seek summary judgment on several theories not actually asserted in the Complaint, including breach of the implied covenant of good faith and fair dealing and violations of Mass. Gen. Laws chs. 93A and 183C. It is apodictic that one cannot obtain judgment as a matter of law on a claim was not brought. Therefore, these arguments will not be addressed further.

III. BACKGROUNDA. Procedural History ¹³

The present dispute is the latest iteration of a drawn out battle between the Debtor and her mortgage lenders over their efforts to foreclose her property at 19 Alcine Lane, in Burlington, Massachusetts (the “Property”). On December 15, 2006, the Debtor filed her first Chapter 13 petition.¹⁴ Shortly after Option One filed a motion for relief from the automatic stay, the Debtor commenced an adversary proceeding against Option One, Ameriquest Mortgage Company (“Ameriquest”), and Aegis Lending Corporation (“Aegis”) on August 22, 2007 (the “First Adversary Proceeding”).¹⁵ The First Adversary Proceeding arose out of two loan refinancing transactions with respect to the Property: one with Ameriquest in 2004, and the other with Option One in 2005 where Aegis acted as the mortgage broker. The Debtor asserted claims for negligence, fraud, emotional distress, breach of contract, and violations of state and federal truth in lending statutes. In October 2007, Option filed an answer to the Debtor's complaint while Ameriquest filed a motion to dismiss, arguing that the claims were untimely, not factually supported, and not plead with

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sufficient particularity.¹⁶ Judge Feeney held a hearing on the matter, and subsequently took it under advisement. Prior to the issuance of a decision, however, the Debtor's bankruptcy case was dismissed on January 2, 2008, for failure to make plan payments. As a result the First Adversary Proceeding was dismissed on January 23, 2008, for lack of jurisdiction.

On January 29, 2008, the Debtor filed her second Chapter 13 petition. ¹⁷ The present adversary proceeding followed on March 9, 2008. The Debtor's Complaint contains identical factual allegations and arises from the same events as the First Adversary Proceeding. This time, however, Aegis was not named as a defendant. Through the Complaint, the Debtor sought recovery from Ameriquest and Option One on the following counts: Count I—Negligence; Count II—Promissory Fraud; Count III—Violations of the Federal and/or State Truth in Lending Acts; Count IV—Borrower's Interest; Count V—Unconscionability; Count VI—Restitution; Count VII—Emotional Distress. On November 6, 2008, I granted a motion to dismiss filed by Ameriquest, dismissing Counts I, II, IV, V, VI, and VII.¹⁸ Subsequently, I granted Ameriquest's motion for summary judgment as to the remaining count on December 22, 2009.¹⁹ Accordingly, Option One is now the only defendant in this adversary proceeding.

After an extended period of inactivity, the Debtor filed the Motion for Summary Judgment on July 11, 2011.²⁰ Option One filed the Cross–Motion on July 20, 2011, and the Opposition followed on August 1, 2011. I conducted a hearing on the matter on August 17, 2011, at the conclusion of which, I took the matter under advisement.

B. The Undisputed Material Facts of Record

The Debtor resides at the Property.²¹ She acquired full ownership of the Property following her...