Murphy v. U.S. Bank

• Decision Date: 14 April 2023
• Docket Number: 22-P-526
• Parties: ROBERT E. MURPHY v. U.S. BANK NATIONAL ASSOCIATION, trustee,[1] & another.[2]
• Court: Appeals Court of Massachusetts

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ROBERT E. MURPHY v. U.S. BANK NATIONAL ASSOCIATION, trustee,^[1] & another.^[2]

No. 22-P-526

Appeals Court of Massachusetts

April 14, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In a Superior Court action to rescind a foreclosure sale, a judge ruled on the parties' cross motions for summary judgment that the foreclosure sale was invalid because the defendant banks did not hold the mortgage and the note, nor were they acting on behalf of the true holder of the note during the foreclosure process.^[3] The plaintiff, Robert E. Murphy, appeals from summary judgment entered against him on his claims for intentional or negligent infliction of emotional distress resulting from the defendants' invalid foreclosure of his property (and asserts, on appeal, the tort of wrongful foreclosure). Concluding that neither party met its initial burden of establishing the absence of a triable issue on either claim, we vacate in part.

1. Standard of review. "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Boazova v. Safety Ins. Co., 462 Mass 346, 350 (2012). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). On a motion for summary judgment, "[t]he moving party bears the burden of affirmatively demonstrating the absence of a triable issue." Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 237 (2010). "Once the moving party satisfies its burden, the burden shifts to the nonmoving party to show with admissible evidence a dispute of material fact." Siebe, Inc. v. Louis M. Gerson Co., 74 Mass.App.Ct. 544, 548 (2009). As the parties have cross moved for summary judgment, "we review a grant of summary judgment de novo." Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436, 448 (2018). In doing so, we view the evidence "in the light most favorable to the losing party." Welch v. Barach, 84 Mass.App.Ct. 113, 119 (2013).

2. Plaintiff's motion for summary judgment. a. Intentional infliction of emotional distress. To prevail on a claim for intentional infliction of emotional distress, the plaintiff must show "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct . . .; (2) that the conduct was 'extreme and outrageous,' was 'beyond all possible bounds of decency' and was 'utterly intolerable in a civilized community' . . .; (3) that the actions of the defendant were the cause of the plaintiff's distress . . .; and (4) that the emotional distress sustained by the plaintiff was 'severe.'" Howell v. Enterprise Publ. Co., LLC, 455 Mass. 641, 672 (2010), quoting Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). For purposes of liability, it is insufficient "that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Polay v. McMahon, 468 Mass. 379, 385 (2014), quoting Tetrault v. Mahoney, Hawkes &Goldings, 425 Mass. 456, 466 (1997).

Here, the plaintiff has not met his burden of showing, as a matter of law, that the defendants are liable for intentional infliction of emotional distress. See Vacca v. Brigham & Women's Hosp., Inc., 98 Mass.App.Ct. 463, 473 (2020) ("[defendant's] actions do not constitute the sort of extreme and outrageous conduct that would allow [the plaintiff] to recover for intentional infliction of emotional distress"). In the case of the tort of intentional infliction of emotional distress (as distinguished from the tort of wrongful foreclosure), a "wrongful foreclosure may be the basis for an action for intentional infliction of emotional distress." Reynolds v. CB&T, 342 Ga.App. 866, 871 (2017), quoting Mbigi v. Wells Fargo Home Mtg., 336 Ga.App. 316, 326 (2016).^[4] Here, however, the summary judgment record is devoid of any evidence that the plaintiff suffered severe emotional distress from the invalid foreclosure. See Thompson-El v. Bank of Am., N.A., 327 Ga.App. 309, 313 (2014) (plaintiff failed to allege facts "that her emotional distress was so severe that no reasonable person could be expected to endure it"). Cf. McGinnis v. American Home Mtge. Servicing, Inc., 817 F.3d 1241, 1259 (11th Cir. 2016) (wrongful foreclosure "had a severe effect on [the] [p]laintiff both emotionally and physically"). Contrary to the plaintiff's view, severe emotional distress is not merely a method of proving damages but is an element of the cause of action, an element that the plaintiff must prove to establish liability for intentional infliction of emotional distress. See Polay, 468 Mass. at 388. Accordingly, the plaintiff has not met his burden on this claim.

b. Negligent infliction of emotional distress. To prevail on a claim for negligent infliction of emotional distress, "a plaintiff must prove '(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case.'" Lanier v. President &Fellows of Harvard College, 490 Mass. 37, 44 (2022), quoting Payton v. Abbott Labs., 386 Mass. 540, 557 (1982).

"The record here is bereft of physical harm manifested by objective symptomatology." Shea v. Cameron, 92 Mass.App.Ct. 731, 739 (2018). See Lanier, 490 Mass. at 44, quoting Sullivan v. Boston Gas Co., 414 Mass. 129, 137-138 (1993) (physical harm requirement broadly interpreted; "what is required is only enough 'objective evidence' to 'corroborate [plaintiffs'] mental distress claims'"). Accordingly, the plaintiff "has not shown that [he] would be entitled to judgment as a matter of law." Psychemedics Corp. v. Boston, 486 Mass. 724, 746 (2021).

3. Defendants' cross motion for summary judgment. "[T]he defendants, as the moving parties, have assumed 'the burden affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if [they] would have no burden on an issue if the case were to go to trial,' and demonstrating further that they are entitled to judgment as matter of law." Howcroft v. Peabody, 51 Mass.App.Ct. 573, (2001), quoting Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Accord Siebe, Inc., 74 Mass.App.Ct. at 548 (moving party bears burden "even if it would not have that burden at trial"). The plaintiff's "failure to show that [he] was entitled to summary judgment does not mean that the [defendants] [a]re entitled to the allowance of their cross motion for summary judgment." Winbrook Communication Servs., Inc. v. United States Liab. Ins. Co., 89 Mass.App.Ct. 550, 558 (2016).

Here, the defendants failed to affirmatively demonstrate the absence of liability on either of the plaintiff's emotional distress claims. See Boazova, 462 Mass. at 350 (moving party must show that opposing party has "no reasonable expectation of proving an essential element of its case"). In their cross motion for summary judgment, the defendants argued that the foreclosure was proper. See O'Brien v. Wilmington Trust N.A., 506 F.Supp.3d 82, 101 (D. Mass. 2020) (bank's lawful foreclosure eliminated plaintiff's intentional infliction of emotional distress claim). The judge rejected this argument, however, and on other claims entered a judgment declaring the foreclosure invalid, from which the defendants have not appealed. At no point did they suggest that the plaintiff otherwise lacked support for his emotional distress claims. See Winbrook Communication Servs., Inc., 89 Mass.App.Ct. at 558 (defendant "failed to satisfy [its] burden where it produced no evidence").

To be sure, the plaintiff failed to "come forward with admissible evidence setting forth specific facts showing that there is a genuine issue for trial" on the emotional distress claims. Ortiz v. Morris, 97 Mass.App.Ct 358, 362 (2020). That duty, however, comes into play only "[o]nce the defendants met their burden in moving for summary judgment." Bardige v. Performance Specialists, Inc., 74 Mass.App.Ct. 99, 102 (2009), quot...