Lacey v. BAC Home Loans Servicing, LP (In re Lacey)

Decision Date12 July 2012
Docket NumberBankruptcy No. 10–19903–JNF.,Adversary No. 10–1249.
Citation480 B.R. 13
PartiesIn re Walter W. LACEY, Debtor. Walter W. Lacey, Plaintiff v. BAC Home Loans Servicing, LP; GMAC–RFC Holding Company, LLC, Orlans Moran PLLC, and The Bank of New York Mellon Trust Company, N.A., and Darlene McCarthy, Defendants.
CourtU.S. Bankruptcy Court — District of Massachusetts


David G. Baker, Boston, MA, for Plaintiff.


JOAN N. FEENEY, Bankruptcy Judge.


The matter before the Court is the Motion for Summary Judgment filed by the following defendants: “Bank of America, N.A. as successor by merger to BAC Home Loans Servicing, LP, GMAC–REF Holding Company, LLC, Orlans Moran PLLC, Bank of New York Mellon Trust Company, N.A., and Darlene McCarthy (collectively, the Defendants), through which the Defendants seek summary judgment in their favor with respect to all counts of the First Amended Complaint (the “Complaint”) filed by Walter W. Lacey (the Plaintiff or the “Debtor”). The Court heard the Motion and the Plaintiff's Objection on April 30, 2012. The issue presented is whether the Defendants have established the absence of any genuine issues of material fact entitling them to summary judgment pursuant to Fed.R.Civ.P. 56(a), made applicable to this proceeding by Fed. R. Bankr.P. 7056.


The Plaintiff alleged in his Complaint that this Court has jurisdiction pursuant to 28 U.S.C. § 13341 and that [t]his is a core proceeding within the meaning of that statute [ 28 U.S.C. § 157(b)(2)(A)(P) ], and the court has jurisdiction to enter a final judgment.” In the alternative, the Plaintiffassented to entry of final judgment by the bankruptcy court in the event the Court were to determine his claims to be non-core.

The Defendants, who have filed answers to the Complaint, denied that the Complaint is a core proceeding and denied that the Court may hear and determine the Complaint because the Plaintiff had no interest in the property when he filed his bankruptcy petition by virtue of the prepetition foreclosure sale, which extinguished his equity of redemption. They do not consent to the entry of a final judgment by this Court.

In a Memorandum dated October 27, 2011, the Court stated:

The Court concludes that the Debtor's causes of action are not “core;” rather they are “related-to” the Debtor's bankruptcy case as resolution of the claims will have a conceivable impact on the bankruptcy estate. See Boston Regional Med. Center, Inc. v. Reynolds (In re Boston Regional Med. Center, Inc.), 410 F.3d 100 (1st Cir.2005). A determination that the Debtor's causes of action are “related-to” the Debtor's bankruptcy case compels the conclusion that this Court has jurisdiction to submit proposed findings of fact and conclusion of law to the district court pursuant to 28 U.S.C. § 157(c)(1).

Lacey v. BAC Home Loans Servicing LP. (In re Lacey), Adv. P. No. 10–1249, Slip op. at 12, 2011 WL 5117767 (Bankr.D.Mass. Oct. 27, 2011) (footnotes omitted).2 The Court added that its decision was without prejudice to the filing by the Defendants of a motion to withdraw the reference or a motion for abstention. Id. at 21. None of the Defendants elected to file either type of motion.

As a result of the October 27, 2011 decision, the Court reiterates its conclusion that the Complaint is related to the Debtor's bankruptcy case, see28 U.S.C. 1334(b), as it does not implicate any core matters enumerated in 28 U.S.C. § 157(b)(2). None of the Plaintiff's claims arise under title 11, nor do they arise in his case under title 11, and the Defendants do not consent to the entry of final orders. Accordingly, the Court shall submit its proposed findings of fact and rulings of law to the United States District Court for the District of Massachusetts for review pursuant to 28 U.S.C. § 157(c)(1) when all the proceedings relative to the Plaintiff's claims are concluded in this Court.3 None of the Defendants have filed a proof of claim in the Debtor's Chapter 13 case. The Complaint is non-core and related to the Debtor's bankruptcy case and all of the parties do not consent to the entry of a final order by this Court, and, as a consequence, this Court will not be entering a final judgment in the adversary proceeding. The Court concludes that the United States Supreme Court's decision in Stern v. Marshall, 546 U.S. ––––, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), is not implicated in this proceeding. This Court interprets Stern narrowly as directed by the majority decision. Id. at 2620. Pursuant to Stern, bankruptcy courts are divested of authority to enter final judgments with respect to state law counterclaims that are not resolved in the process of ruling on proofs of claim. Those circumstances are not present in this proceeding.


The Debtor filed a Chapter 13 case on September 12, 2010. 4 He commenced the above-captioned adversary proceeding one day later. 5

On February 17, 2011, this Court entered a Memorandum and Order, denying the Plaintiff's Emergency Motion for Injunctive Relief. In its Memorandum and Order, this Court found that, on September 13, 2010, the debtor, Walter W. Lacey (the “Debtor” or the Plaintiff), filed a Verified Complaint against BAC Home Loans Servicing, LP (BAC),6 GMAC–RFC Holding Company, LLC (GMAC), Orlans Moran PLLC (Orlans Moran), and The Bank of New York Mellon Trust Company, N.A., which contained no specified counts against the Defendants. The Court further found that, although the Complaint contained generalized allegations that a prepetition foreclosure sale conducted on September 3, 2010, nine days before the filing of his Chapter 13 petition on September 12, 2010, with respect to the Debtor's residence located at 11 Mount Vernon Street, Charlestown, Massachusetts (the “Property”) was improper, the Debtor had failed to satisfy his burden for the entry of an order enjoining any further action with respect to the foreclosure sale at which Darlene McCarthy 7 (McCarthy) was the successful bidder, paid a deposit and executed a memorandum of sale. The Court specifically found that the Plaintiff had failed to establish a likelihood of success on the merits of his original complaint because it did not contain separate counts, was poorly drafted and failed to set forth cognizable legal theories in support of his claims.

Approximately six months after the commencement of the adversary proceeding against the Defendants, the Plaintiff, on February 25, 2011, filed a First Amended Complaint (the “Complaint”). Prior to the filing of the Complaint, the Court, on January 10, 2011, at a hearing to consider the Plaintiff's Motion for Partial Judgment on the Pleadings, determined that the Plaintiff was entitled to an adequate and comprehensible accounting. The Defendants attached to their Memorandum in Support of Joint Motion to Dismiss, which was filed on April 26, 2011, an email from Caroline O. Driscoll, Esq. to Plaintiff's counsel to which she attached an accounting of the Debtor's loan, captioned “Acquisition Previous Servicer Payment History.” The accounting attached to the email was neither adequate nor comprehensible. Indeed, some pages were barely legible.8

In his Complaint, the Plaintiff set forth nine causes of action as follows: Count I—Wrongful Foreclosure; Count II—Promissory Estoppel; Count III—Chapter 93A; Count IV—RESPA; Count V—Fair Debt Collection Practices Act; Count VI—Deceit and Misrepresentation; Count VII—Negligence; Count VIII—Accounting; and Count IX—Infliction of Emotional Distress.


In his Complaint, the Plaintiff alleged that he first acquired the Property, individually, in 1985. At the time, he was employed at Massachusetts General Hospital as a biomechanical engineer, and his spouse was working part-time, as she primarily was responsible for the care of the couple's four children and the Debtor's mother.

The Debtor executed a note in favor of Fleet Mortgage Corporation (“Fleet”), dated March 29, 1996, in the original principal amount of $113,000. On the same day he executed a mortgage to secure the note in favor of Fleet.

In 2002, the Debtor conveyed an interest in the Property to his wife, who did not execute the note or the mortgage. One year later, the Debtor's spouse was required to reduce her work schedule for unspecified reasons, and, as a result, the Debtor experienced difficulties making his monthly mortgage payments. Eventually, the Debtor's spouse filed a bankruptcy petition to prevent a foreclosure sale.9 In her Chapter 13 case, she obtained confirmation of a Chapter 13 plan, but because the Debtor became ill and could not contribute to plan payments, the case was dismissed in 2008, only a few months before the completion of the plan.

In his Complaint, the Debtor further averred that the foreclosure was wrongful and to his great detriment because BAC never provided him with any information validating the amount it claimed was due. Additionally, the Debtor averred that he believed he was current with his payments until BAC refused to accept payments in February 2010.

The Debtor also averred that [u]pon information and belief,” BAC is the recipient of federal funds intended to benefit him, and individuals like him, who need to modify their mortgages in order to remain in their homes. He added that the EmergencyEconomic Stabilization Act of 2008 was signed into law on October 3, 2008. In implementing the Act, according to the Debtor, the United States Treasury instituted a number of programs, “including the ‘Making Homes Affordable’ Act, Capital Purchase Program, and Capital Assistance Program, among others.” Pursuant to those plans, and the authority provided by H.R. 1424 Title I Sec. 109–110, the Debtor alleged that the United States Treasury has ordered as follows:

Mortgage Foreclosure Mitigation: All recipients of capital investments under the Financial Stability Plan will be required to commit...

To continue reading

Request your trial
13 cases
  • Sheedy v. Deutsche Bank Nat'l Trust Co. (In re Sheedy)
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • September 27, 2012
    ...claimed injury.”); Smith v. Jenkins, 777 F.Supp.2d 264, 267 (D.Mass.2011) (same). See also Lacey v. BAC Home Loans Serv., LP (In re Lacey), 480 B.R. 13, 2012 WL 2872050 (Bankr.D.Mass. July 12, 2012). The reference to Chapter 93A in the Debtor's Chapter 13 plan is inadequate to constitute a ......
  • In re Kavlakian
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • June 3, 2013
    ...Steinke v. Sungard Fin. Sys., Inc., 121 F.3d 763, 776 (1st Cir.1997); Restatement (Second) of Contracts § 90. In Lacey v. BAC Home Loans Serv., LP (In re Lacey), 480 B.R. 13 Bankr. D. Mass. 2012), this Court noted that"[u]nder Massachusetts law, an action based on reliance, such as promisso......
  • Silveira v. Wells Fargo Bank, N.A. (In re Silveira)
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • May 2, 2013
    ...America, N.A. (In re Julien), 10-22026, 2013 WL 1124040, at *5 (Bankr. D. Mass. March 18, 2013); Lacey v. BAC Home Loans Serivcing, LP (In re Lacey), 480 B.R. 13, 49 (Bankr. D. Mass. 2012). Following receipt of the QWR, Wells Fargo was required to do one of three things under RESPA § 2605(e......
  • Lopez v. Mortg. Elec. Registration Sys., Inc. (In re Lopez)
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • January 3, 2013
    ...empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.’ ” In re Lacey, 480 B.R. 13, 29 (Bankr.D.Mass.2012) (quoting Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir.2011) (internal cita......
  • Request a trial to view additional results

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