Mack v. Wells Fargo Bank, N.A.

• Decision Date: 01 December 2015
• Docket Number: No. 14–P–1963.,14–P–1963.
• Citation: 88 Mass.App.Ct. 664,41 N.E.3d 323
• Parties: Devenia MACK v. WELLS FARGO BANK, N.A., & others.
• Court: Appeals Court of Massachusetts

88 Mass.App.Ct. 664

41 N.E.3d 323

Devenia MACK

v.WELLS FARGO BANK, N.A., & others.¹

No. 14–P–1963.

Appeals Court of Massachusetts, Worcester.

Argued Oct. 5, 2015.

Decided Dec. 1, 2015.

Robert M. Mendillo, Newton, for Harmon Law Offices, P.C., & another.

James L. O'Connor, Jr., Fitchburg, (Barry M. Altman, Wilmington, with him) for the plaintiff.

Present: VUONO, CARHART, & SULLIVAN, JJ.

Opinion

CARHART, J.

In this mortgage foreclosure action, the plaintiff alleges that Harmon Law Offices, P.C. (Harmon), as counsel for mortgagor Wells Fargo Bank, N.A. (Wells Fargo), and Commonwealth Auction Associates, Inc. (Commonwealth), violated G.L. c. 93A, §§ 2 and 9, and the Massachusetts Civil Rights Act,

G.L. c. 12, § 11I (MCRA), by continuing to advertise and schedule foreclosure auctions of her property in violation of a temporary restraining order and preliminary injunction prohibiting them from doing so.² Harmon and Commonwealth (together, the defendants) moved for summary judgment, arguing, among other things, that the “litigation privilege” immunizes them from civil liability for their actions. Summary judgment was denied, and the defendants seek interlocutory review. See Visnick v. Caulfield, 73 Mass.App.Ct. 809, 811 n. 4, 901 N.E.2d 1261 (2009).

We agree that Commonwealth's actions are not privileged as a matter of law and affirm the order denying Commonwealth's motion for summary judgment. However, because we conclude that Harmon's actions are protected by the litigation privilege, we reverse the denial of Harmon's motion for summary judgment and remand for the entry of summary judgment in Harmon's favor.

Background. The following material facts are undisputed. On May 28, 2010, Harmon notified the plaintiff that it had been retained by Wells Fargo to foreclose on her mortgage. On September 10, 2010, Harmon sent the plaintiff notice pursuant to G.L. c. 244, §§ 14 and 17B, of Wells Fargo's intent to foreclose on the mortgage and to collect from her any deficiency. The notice also advised the plaintiff that a mortgage foreclosure sale of her property would take place on October 18, 2010. On October 13, 2010, the plaintiff's attorney wrote to Harmon and challenged Wells Fargo's standing to foreclose. The plaintiff's attorney requested a postponement of the scheduled foreclosure auction and stated that, “[i]n the event [he did] not receive written confirmation of a postponement from [Harmon] by 4:00 p.m. on October 14, 2010, [he would] seek a temporary restraining order in a court of competent jurisdiction.”

On October 15, 2010, the plaintiff filed a wrongful foreclosure suit against Wells Fargo. She applied for a preliminary injunction and was granted a temporary restraining order (TRO), which stated:

“The Defendant Wells Fargo Bank, N.A., together with its agents, attorneys and others acting in its behalf are hereby ordered and temporarily restrained from foreclosing, advertising for sale or otherwise transferring the real estate of [the plaintiff] located at 25 Nichols Street, Westminster, Massachusetts.”

The same day, Wells Fargo postponed the scheduled foreclosure auction until November 1, 2010, and Harmon received actual notice of the TRO.

Harmon routinely hires Commonwealth, with which it shares a common address and mutual officers, to conduct foreclosure auctions for Harmon's clients. From October 15 through 18, 2010, Commonwealth continued to list the plaintiff's property on its foreclosure auction Web site. However, at Harmon's direction, it changed the status of the auction to “postponed.” On October 18, 2010, a Commonwealth agent appeared at the property to publicly proclaim postponement of the sale to November 1, 2010. On October 20, 2010, in response to a demand from the plaintiff's attorney, Harmon told Commonwealth to remove the plaintiff's property from its auction listing Web site.

On October 28, 2010, after a hearing, a judge in the Superior Court granted the plaintiff's request for a preliminary injunction. An order entered enjoining and restraining Wells Fargo, “its agents, servants, attorneys and deputies ... from foreclosing on the property owned by the plaintiff.” The next day, Harmon sent the plaintiff a letter “to inform [her] that the foreclosure sale on [her] property which was scheduled for November 1, 2010 has been postponed until January 26, 2011 at 10:00 a.m. ” (emphasis in original). On November 1, 2010, a Commonwealth agent appeared at the plaintiff's home and publicly proclaimed that the foreclosure auction had been postponed.

On December 23, 2010, the plaintiff filed a first amended complaint naming Harmon and Commonwealth as additional defendants, and alleging violations by them of G.L. c. 93A, §§ 2 and 9, and MCRA. The first amended complaint alleged that the defendants communicated directly with the plaintiff on October 29, 2010, while knowing her to be represented by an attorney; engaged in conduct intended to harass, oppress, or abuse the plaintiff in connection with the collection of a debt; and continued to schedule and advertise foreclosure auctions of the plaintiff's home in violation of the TRO and preliminary injunction. On January 6, 2011, the plaintiff filed a verified complaint for contempt, in which she alleged that the defendants' rescheduling of the foreclosure auction for January 26, 2011, constituted contempt of the preliminary injunction. In November, 2011, the plaintiff

filed a second amended complaint alleging the same violations of G.L. c. 93A and MCRA by the defendants.

On July 13, 2012, a judge of the Superior Court dismissed the plaintiff's contempt complaint after concluding that she had failed to sustain her burden of proving “a clear and undoubted disobedience of a clear and unequivocal command of the court.” On February 19, 2014, the defendants moved for summary judgment and the plaintiff filed a cross motion for summary judgment as to liability only. A different Superior Court judge denied both summary judgment motions, ruling that the defendants' alleged actions in violation of the TRO and preliminary injunction do not fall within the scope of the “litigation privilege” because “they were undertaken solely for the purpose of effecting a non-judicial foreclosure of the Plaintiff's interest in the Property.” The defendants appeal from the judge's decision insofar as it denied summary judgment “based upon their defense of absolute litigation privilege.”

Discussion. 1. Standard of review. We review the judge's decision de novo, Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007), looking to the summary judgment record to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). We will uphold an order denying summary judgment “if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law.” Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536, 600 N.E.2d 571 (1992).

2. The litigation privilege. Our courts have held that “statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding.” Sriberg v. Raymond, 370 Mass. 105, 108, 345 N.E.2d 882 (1976) (Sriberg ). The privilege applies “[w]here a communication to a prospective defendant relates to a proceeding which is contemplated in good faith and which is under serious consideration,” id. at 109, 345 N.E.2d 882, but does not encompass “attorneys' conduct in counselling and assisting their clients in business matters generally.” Kurker v. Hill, 44 Mass.App.Ct. 184, 192, 689 N.E.2d 833 (1998). “The privilege applies not only to defamation claims brought against an attorney, but to civil liability generally,” Bartle v. Berry, 80 Mass.App.Ct. 372, 378, 953 N.E.2d 243 (2011), and is based on “[t]he public policy of permitting attorneys complete

freedom of expression and candor in communications in their efforts to secure justice for their clients.” Sriberg, supra at 108, 345 N.E.2d 882.

“Whether an absolute privilege applies ... is determined on a case-by-case basis, after a fact-specific analysis.” Giuffrida v. High Country Investor, Inc., 73 Mass.App.Ct. 225, 242, 897 N.E.2d 82 (2008) ( Giuffrida ). As the parties seeking summary judgment on the basis of the privilege, the defendants bear the burden of demonstrating the absence of a triable issue on whether their acts of sending letters to the plaintiff, appearing at her home to announce the postponement of the foreclosure auctions, and continuing to list the plaintiff's property on an auction Web site, are privileged. See Smith v. Suburban Restaurants, Inc., 374 Mass. 528, 531, 373 N.E.2d 215 (1978).

The judge correctly concluded that Commonwealth cannot sustain this burden. The undisputed facts demonstrate that Commonwealth appeared at the plaintiff's property, and continued to list the property on its auction Web site, in furtherance of Wells Fargo's foreclosure of the plaintiff's mortgage. “Massachusetts does not require ... judicial authorization to foreclose on a mortgaged property,” U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 645–646, 941 N.E.2d 40 (2011) (Ibanez ), and “[t]he privilege extends [only] to circumstances where the statements are made preliminary to a proposed or contemplated judicial proceeding” (emphasis added). Fisher v. Lint, 69 Mass.App.Ct. 360, 366, 868 N.E.2d 161 (2007). Commonwealth was not named as a defendant in the plaintiff's original wrongful foreclosure complaint, and it was neither “a party, counsel [n]or witness in the institution of, or during the course of, [that] judicial proceeding” when it engaged in the conduct complained of. Sriberg, supra. While Commonwealth was later named as a defendant in the first amended complaint,...