Thomas v. Carrington Mortg. Servs.
| Decision Date | 04 January 2023 |
| Docket Number | Civil Action 21-11308-MGM |
| Parties | SHAUN THOMAS, Plaintiff, v. CARRINGTON MORTGAGE SERVICES, LLC; NICOLE ANDERSON; and KEVIN GARABEDIAN, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 34)
The claims in this case pertain to Defendant Carrington Mortgage Services, LLC's foreclosure sale of Plaintiff Shaun Thomas's residential property after Plaintiff defaulted on his mortgage loan in 2018. Specifically, Plaintiff contends that Defendant breached the mortgage contract by failing to make reasonable efforts to arrange a face-to-face meeting with Plaintiff prior to foreclosure, pursuant to a specific federal regulation alleged to be incorporated by reference into the mortgage contract. Plaintiff also asserts a derivative claim for equitable relief based on Defendant's alleged breach of contract. Defendant now seeks summary judgment on both claims. For the reasons set forth below, Defendant's Motion for Summary Judgment is granted.
The facts stated in this section are undisputed unless otherwise noted. In 2008, Plaintiff obtained a mortgage loan in order to purchase the subject property located at 5 Michel Street East Longmeadow, Massachusetts (“Property”). (Defendant's Statement of Undisputed Material Facts (“Def.'s SOF”), Dkt. No. 36, at ¶¶ 1-4; Plaintiff's Statement of Material Facts (“Pl.'s SOF”), Dkt No. 41, at ¶¶ 1-4). After a series of assignments, the mortgage was ultimately assigned to Defendant on September 12, 2018. (Def.'s SOF at ¶¶ 5-6; Pl.'s SOF at ¶¶ 5-6). The Property has been Plaintiff's mailing address and primary place of residence from 2018 through the present and he continues to reside at the Property. (Def.'s SOF at ¶¶ 7-8; Pl.'s SOF at ¶¶ 7-8).
In October 2013, Plaintiff defaulted on the mortgage loan and received a loan modification, after which the mortgage loan was reinstated and remained current until the events underlying this lawsuit. (Def.'s SOF at ¶¶ 9-10; Pl.'s SOF at ¶¶ 9-10). Plaintiff missed his monthly mortgage payments due on August 1, 2018 and September 1, 2018, but was able to cure those deficiencies. (Dkt. No. 3611; Dkt. No. 35 at 4 n.3). Plaintiff again missed his monthly mortgage payments due on October 1, 2018 November 1, 2018, and December 1, 2018. He made a late payment on December 13, 2018, which was credited toward the October 1 and November 1, 2018 delinquent payments. Since then, Plaintiff has not made any mortgage payments, including the December 1, 2018 payment. Thus, Plaintiff's mortgage loan went into default. (Def.'s SOF at ¶¶ 11-14; Pl.'s SOF at ¶¶ 11-14).
Defendant asserts its agent, R.R. Donnelley & Sons Company (“RRD”), mailed Plaintiff a letter via Certified Mail on or about September 11, 2018, notifying Plaintiff of his missed payments and risk of foreclosure, advising Plaintiff of the opportunity to arrange a face-to-face interview, and enclosing loss mitigation application forms. (Def.'s SOF at ¶¶ 15-16). Defendant mailed a second and third letter containing the same information via Certified Mail on November 11, 2018 and January 11, 2019. (Def.'s SOF at ¶¶ 17-20). Each letter was addressed to Plaintiff at the Property address. The Vice President of Operations for RRD attests that each letter was sent to Plaintiff via Certified Mail on the date and to the address indicated, in accordance with the regular business practices of RRD when it mails correspondence on behalf of Defendant. (Dkt. No. 36-10). Plaintiff asserts he never received these letters and contends they lack adequate certification by the United States Postal Service that they were dispatched. (Pl.'s SOF at ¶¶ 15-20; Dkt. No. 42 at ¶ 9).
On March 5, 2019, Defendant provided a different agent, National Creditors Connection Inc. (“NCCI”), with a fourth letter generated by Defendant and addressed to Plaintiff at the Property. Defendant instructed NCCI to send a field representative to the Property to deliver the March 5, 2019 letter in person. (Def.'s SOF at ¶¶ 21-23). The letter stated: “As the servicer for your mortgage, [Defendant] wants you to know that you may schedule a face-to-face meeting to discuss your financial circumstances.” (Dkt. No. 36-15 at 2). The letter notified Plaintiff that it had sent a representative to the Property to try to arrange a face-to-face meeting, which would “entail a representative of [Defendant] meeting with [Plaintiff] privately” at a later date “to discuss your financial circumstances, gather necessary information and attempt to qualify you for eligible mortgage assistance options.” (Id.). NCCI dispatched a field representative to the Property on March 6, 2019, who attempted to personally deliver the March 5 letter to Plaintiff. Though NCCI did not make contact with anyone at the Property, the representative taped the letter to the front door of the Property in an envelope with Plaintiff's name. (Dkt. No. 36-14 at ¶ 10; Dkt. No. 36-16). Defendant has also filed three photographs taken on March 6, 2019 of (1) the Property, timestamped at 10:34 a.m.; (2) the front door of the Property with an envelope taped to the door, timestamped at 10:37 a.m.; and (3) the street sign for Michel Street, on which the Property is located, timestamped at 10:38 a.m. An NCCI representative attests it is the regular business practice of NCCI to attempt personal delivery of letters from Defendant by making a trip to the property address listed and, if it is unable to do so, to leave the letter in a sealed envelope with the addressee's name taped to the front door. It is also NCCI's regular business practice to take photographs with timestamps of the properties visited to depict attempted contact and delivery. The dispatched representative then records the transaction details and photographs at or near the time of the visit to a property, which generates a field report sent to Defendant. (Dkt. No. 36-14 at ¶ 8). NCCI further attests that these practices were followed on March 6, 2019 in the attempted delivery of Defendant's March 5 letter to Plaintiff. (Id. at ¶¶ 9-11).
Plaintiff does not dispute that the photographs taken by the NCCI representative accurately depict the Property and show an envelope taped to the front door. (Pl.'s SOF at ¶ 30). However, Plaintiff contends that Defendant's agent did not deliver the March 5, 2019 letter in person because he never received it and because neither he nor his wife, who were home at the time, heard a knock or doorbell ring. (Dkt. No. 42 at ¶¶ 10-11). Specifically, Plaintiff avers that he had worked until approximately 4:30 a.m. on March 6, 2019 and fell asleep at 8:00 a.m. He states that he was sleeping in his bedroom at the time of the attempted delivery, but that his doorbell is “very loud” and he would have heard it and woken up if someone had attempted contact at the front door. Plaintiff further attests that he woke up at approximately 12:30 p.m. when his wife left for a hair appointment and did not find an envelope taped to the front door at that time. (See id.). Plaintiff's wife was awake and inside the Property at the time of the attempted delivery, but did not hear a knock or doorbell. She does not indicate where she was inside the Property. Plaintiff's wife states that she left the Property for a hair appointment at 12:38 p.m. via the front door, but did not see an envelope taped to the front door. (Dkt. No. 43). Accordingly, Plaintiff disputes that the March 5, 2019 letter was delivered in person.
Plaintiff completed four requests for mortgage assistance on April 8, 2019, May 13, 2019, July 25, 2019, and November 18, 2019, using forms identical to the loss mitigation forms attached to Defendant's three certified mailings. Defendant responded to those letters, informing Plaintiff that his only possible loss mitigation option was home liquidation via either short sale or a deed-in-lieu of foreclosure. Plaintiff admits that he received these letters, addressed to him and sent to the Property address. After Plaintiff appealed, Defendant affirmed its loss mitigation determination. Plaintiff does not dispute that Defendant informed him he did not qualify for a loan modification, forbearance, or repayment plan and that home liquidation was his only option. Plaintiff also does not dispute that Defendant evaluated him for potential loss mitigation options prior to the foreclosure sale. (Def.'s SOF at ¶¶ 31-39; Pl.'s SOF at ¶¶ 31-39).
Defendant foreclosed on Plaintiff's mortgage and purchased the Property at a foreclosure sale on January 21, 2020. (Def.'s SOF at ¶ 40; Pl.'s SOF at ¶ 40). On June 4, 2021, Defendant sold the Property to Nicole Anderson and Kevin Garabedian (the “Buyers”).[1](Def.'s SOF at ¶ 41; Pl.'s SOF at ¶ 41). Notwithstanding the sale, however, Plaintiff continues to reside at the Property. (Def.'s SOF at ¶ 8; Pl.'s SOF at ¶ 8). Thus, on July 6, 2021, the Buyers initiated a summary process action in state court against Plaintiff, in response to which Plaintiff asserted counterclaims against the Buyers and third-party claims against Defendant, mirroring the claims made in this action. The state court case is currently stayed pending the outcome of this litigation. (Dkt. No. 35 at 9 n.8).
After the mortgage loan went into default in late 2018, Plaintiff does not dispute that he lacked the funds to make the delinquent mortgage payments, cure the default, or reinstate the mortgage loan. (Def.'s SOF at ¶¶ 42-45; Pl.'s SOF at ¶¶ 42-45). Plaintiff further admits that he has made no payments on the mortgage loan to Defendant from January 1, 2019 to the present, including in or around the time of the foreclosure sale, nor has he paid any fees or costs related...
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