Holland v. Select Portfolio Servicing, Inc.
Holland v. Select Portfolio Servicing, Inc.
Opinion of the Court
This matter comes before the court in a rather unusual posture. The plaintiff, Gwendolyn Holland, is the owner of real property located in Marlborough, Massachusetts. On December 19, 2009, she granted a mortgage on the property to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Drew Mortgage Associates, Inc., and its successors and assigns, to secure payment of a promissory note. Her payments on the note are current, and no entity has instituted any foreclosure proceedings or otherwise challenged her note or mortgage. Nevertheless, Ms. Holland has brought an action challenging the status of the current mortgage holder.
Ms. Holland's mortgage has been assigned to various entities over the years. In particular, on July 27, 2010, MERS assigned the mortgage to MetLife Home Loans ("MetLife"), a division of MetLife Bank, N.A. This assignment was recorded. Ms. Holland contends that she was notified on May 1, 2013 that MetLife had sold or otherwise transferred or assigned her mortgage to JPMorgan Chase Bank, N.A. ("JPMorgan" or "Chase"), and that the defendant Select Portfolio Servicing, Inc. ("SPS") had been named as the new servicer. The assignment to JPMorgan was never recorded. On or about August 11, 2015, the defendant Carrington Mortgage Services, LLC ("Carrington") informed Ms. Holland that it was the new servicer on the loan. On October 29, 2015, MetLife assigned Ms. Holland's mortgage to Carrington. This assignment was recorded. However, Ms. Holland challenges Carrington's right to collect mortgage payments, as servicer, and to own the mortgage. It is her contention that MetLife could not have assigned the mortgage to Carrington, since it had already assigned it to JPMorgan.
Ms. Holland commenced this action on May 26, 2017 in Middlesex Superior Court, after which it was removed to this court. In her complaint, as amended, Ms. Holland purports to state a claim for fraud and violations of Mass. Gen. Laws ch. 93A. The defendants have moved to dismiss the complaint on various grounds, including, without limitation, that Ms. Holland has no standing to challenge the chain of title, which follows all recorded assignments, and that the complaint fails to satisfy the pleading requirements for a claim of fraud.
At oral argument on the motions to dismiss, plaintiff's counsel indicated that plaintiff was concerned that JPMorgan would someday make a claim for mortgage payments that she had been making to other entities. In an effort to resolve this matter expeditiously, the parties agreed that if JPMorgan would provide proof that it has no interest in the mortgage, and that it has no claim to any payments, the plaintiff would dismiss her action. Although *222such an affidavit was obtained from JPMorgan, it did not resolve this case. Instead, Ms. Holland filed a "Motion to Strike Affidavit" (Docket No. 27) and a "Motion for Leave to Withdraw Offer for Dismissal." (Docket No. 30). The defendants opposed the plaintiff's motions. In addition, SPS filed a "Cross Motion to Enforce Agreement for Dismissal." (Docket No. 31). While these motions were pending, Ms. Holland filed a "Motion for Leave to File Requests for Admission [to defendant SPS] and to Stay the Proceeding Pending Decision on Motion" (Docket No. 32), and another similar motion directed to Carrington. (Docket No. 33). SPS and Carrington opposed the motions and have each filed a "Cross Motion to Stay Discovery." (Docket Nos. 35 & 36). All these matters are presently before the court.
For the reasons detailed herein, plaintiff's Motion to Strike Affidavit (Docket No. 27) is DENIED, plaintiff's Motion for Leave to Withdraw Offer for Dismissal (Docket No. 30) is ALLOWED, and SPS's Cross Motion to Enforce Agreement for Dismissal (Docket No. 31) is DENIED. However, this court will entertain a motion from SPS for sanctions under
II. MOTION TO STRIKE AFFIDAVIT
Following the hearing on the motions to dismiss discussed above, SPS obtained the affidavit of JPMorgan. Specifically, Nicole L. Smiley, Vice President at Chase, provided an affidavit (Docket No. 26-1 ("Smiley Aff.") ), which was "based upon my review of Chase's servicing records relating to the loan and from my own personal knowledge of how they are kept and maintained." Smiley Aff. ¶ 1. Therein, Ms. Smiley attested that "Chase acquired rights" to Ms. Holland's mortgage loan "on or about April 8, 2013[.]"
In her motion to strike, Ms. Holland contends that the affidavit should be stricken because it was not based on the affiant's personal knowledge. This argument is not persuasive.
Standard of Review
As an initial matter, the parties disagree as to whether the sufficiency of the affidavit should be considered under Fed. R. Civ. P. 12(f) or Fed. R. Civ. P. 56(c)(4). Carrington contends that the motion to strike should be governed by Rule 12(f), pursuant to which an affidavit may be stricken if it is redundant, immaterial, impertinent, or scandalous. In addition, this Rule may also be applied to strike affidavits in support of pleadings that include inadmissible hearsay or lack personal knowledge. See Holloman v. Clarke,
Sufficiency of Affidavit
Affidavits used in the context of a mortgage disputes have been found to satisfy the personal knowledge requirement when the affiant avers (1) to be familiar with the documents and recordkeeping systems maintained through the bank or mortgage servicer in question, and (2) to have viewed the loan documents at issue. See Brown v. Bank of Am., Civil Action No. 13-13256-PBS,
Here, as detailed above, the affidavit from Nicole L. Smiley, a Vice President at JPMorgan, satisfies these requirements. It was based on her review of JPMorgan's records, and she attested to being personally familiar with how those records were kept and maintained. Smiley Aff. ¶ 1. "To the extent [Ms. Holland] wishes to challenge the accuracy of Ms. [Smiley]'s statements or the substance of the underlying records, [her] arguments go to the weight of Ms. [Smiley]'s testimony and not to its admissibility." Brown,
*224In support of the motion to strike, Ms. Holland cites a handful of cases from other jurisdictions where the court allowed motions to strike affidavits. Those cases are all factually distinguishable from the present case and do not persuade this court to strike Ms. Smiley's affidavit. In Cermetek, Inc. v. Butler Avpak, Inc.,
For all these reasons, plaintiff's Motion to Strike Affidavit (Docket No 27) is DENIED.
III. OFFER OF DISMISSAL
During oral argument on the motions to dismiss held on October 12, 2017, the court questioned the purpose of the lawsuit, since the mortgage holders had not asserted any contradictory claims of ownership or demands for payment and Ms. Holland's loan was current. Her counsel indicated that she was concerned that JPMorgan might someday assert that it was entitled to payment. Counsel indicated that Ms. Holland was seeking to have all her mortgage payments returned to her, so that she could then turn around and make them to the "right" party. The court suggested, and the parties agreed, that an assignment or affidavit from JPMorgan confirming that it no longer had any ownership interest in the note and mortgage, and would not assert any such claims against Ms. Holland, could resolve the case. On behalf of Ms. Holland, Attorney O'Brien agreed that such an affidavit would eliminate his client's claim.
Wasted Efforts to Obtain Affidavit
SPS then proceeded to obtain the affidavit. Its efforts were detailed in status reports filed with the court on November 13, December 4 and December 22, 2017. (Docket Nos. 22, 24, 26). The affidavit was filed with the court in connection with the last status report on December 22, 2017. (Docket No. 26-1). As SPS explained in its status reports, the affidavit was being provided because "[a]t the October 12, 2017 hearing on the defendants' motions to dismiss, counsel for plaintiff indicated that he would have no claims and would dismiss the Complaint if Defendants obtained an assignment or affidavit from JPMorgan Chase Bank, NA ... that indicated that it no longer possessed any interest in the *225mortgage at issue in that matter, which was transferred to defendant Carrington Mortgage Services, LLC." (See, e.g., Docket No. 22). As detailed above, Ms. Holland's response to the affidavit was to file a motion to strike the affidavit, which was opposed by the defendants on January 12 and 15, 2018. (Docket Nos. 28 & 29).
On January 23, 2018, Ms. Holland, through counsel, filed a Motion for Leave to Withdraw Offer for Dismissal. (Docket No. 30). Therein, Attorney O'Brien asserted that "[t]he offer was in fact made tongue-in-cheek-that if J.P. Morgan could produce proof that it had assigned the subject mortgage to Defendant Carrington-Defendant [sic] Counsel would pack his bags and leave town." (Docket No. 30 at 1). It was not apparent to the court or the defendants that the offer was made "tongue-in-cheek." Moreover, Attorney O'Brien never once indicated that SPS should stop its efforts to obtain the affidavit (as detailed in its status reports), or that SPS's understanding of the purpose of the affidavit was incorrect. By his actions, Attorney O'Brien required SPS to undertake unnecessary expense, wasted this court's time and the time of counsel and the defendant parties, and delayed rulings on the motions to dismiss.
Sanctions are Appropriate
As detailed herein, this court will allow the plaintiff to withdraw her offer of settlement, primarily because it is not clear to this court that Mr. O'Brien had his client's assent to make the offer. However, SPS may file a motion, supported by an affidavit, seeking compensation for the attorneys' fees and costs it incurred in connection with obtaining the affidavit.
Any attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
"Thus, if an attorney's conduct in multiplying proceedings is unreasonable and harassing or annoying, sanctions may be imposed under section 1927." Cruz v. Savage,
In the instant case, plaintiff's counsel engaged in an extensive colloquy with the court and defense counsel during the hearing on defendants' motions to dismiss regarding the purpose of this litigation, and the way to alleviate plaintiff's concerns about the status of JPMorgan. Counsel had to leave court knowing that the defendants were going to undertake the task of getting an assignment or affidavit from JPMorgan, and that the court would delay ruling on the motions to dismiss as a result. At no time did counsel undertake any efforts to stop the defendants from wasting their time in response to the belated characterization of the settlement offer as being "tongue-in-cheek." Sanctions are clearly appropriate.
*226The amount of sanctions will be limited to the amount of unnecessary costs and attorneys' fees SPS was obligated to incur. See
Enforceability of the Offer to Dismiss
With regard to settlements, "[a]n enforceable agreement requires (1) terms sufficiently complete and definite, and (2) a present intent of the parties at the time of formation to be bound by those terms." Targus Group Int'l, Inc. v. Sherman,
"Settlement agreements can be revisited when a party's attorney oversteps [his or] her delegated authority, a settlement agreement is unfair or subsequent events warrant re-opening the case." Amary v. JP Morgan Chase Bank, N.A., Civ. No. 12-10777-NMG,
IV. MOTIONS TO STAY DISCOVERY
On February 5, 2018, Ms. Holland filed two Motions for Leave to File Requests for Admission and to Stay the Proceeding Pending Decision on Motion. (Docket Nos. 32 & 33). By these motions, Ms. Holland has asked the court to delay ruling on the outstanding motions to dismiss the complaint, so that she can proffer requests to admit to the defendants. The proposed requests to the defendant SPS relate to a credit report SPS allegedly made about Ms. Holland in 2012, and *227SPS's acquisition of the mortgage and transfer of the mortgage to Carrington. (Docket No. 32). With respect to the defendant Carrington, the proposed requests relate to the circumstances surrounding Carrington's acquisition of the mortgage, and a letter Carrington allegedly sent to the plaintiff on February 9, 2017 "stating the mortgage loan modification between Select Portfolio Servicing, Inc. and the Plaintiff was not recordable according to HUD guidelines, and that the Plaintiff should contact Carrington to discuss resigning." (Docket No. 33 at 3, ¶ 4). While plaintiff claims to need these "new facts" to support a potential amendment to her complaint, they all occurred prior to the filing of her initial complaint.
The plaintiff's motion is denied. There are presently pending before the court two motions to dismiss the complaint which challenge the sufficiency of the complaint as filed. The motions have been outstanding for many months, and the plaintiff has not put forth any reasons that warrant a further delay.
The defendants have requested that discovery be stayed pending resolution of the motions to dismiss. Since the court finds that to be the most efficient way to proceed, the motions to stay are allowed.
V. ORDERS
For the reasons detailed herein, plaintiff's Motion to Strike Affidavit (Docket No. 27) is DENIED, plaintiff's Motion for Leave to Withdraw Offer for Dismissal (Docket No. 30) is ALLOWED, and SPS's Cross Motion to Enforce Agreement for Dismissal (Docket No. 31) is DENIED. However, the court will entertain a motion for sanctions against Attorney O'Brien to compensate SPS for the efforts it expended to obtain the affidavit. SPS shall file any such motion and supporting papers within two weeks of the date of this Order.
Plaintiff's Motions for Leave to File Requests for Admissions and To Stay the Proceeding Pending Decision on Motion (Docket Nos. 32 & 33) are DENIED, and the defendants' Cross Motions to Stay Discovery (Docket Nos. 35 & 36) are ALLOWED.
Since Ms. Holland's payments are current, she apparently made the payments to SPS, and then to Carrington, as directed.
In particular, but without limitation, Ms. Holland challenges the assertion that JPMorgan "sold or otherwise transferred or assigned" its rights, and puts the date of the transaction "[i]n or near October 2015." However, this court finds that these allegations are sufficiently specific for the purpose of the affidavit-to establish whether JPMorgan retained any interest in the mortgage and note.
This court recognizes that SPS may elect not to do so and continue this litigation in light of this court's ruling allowing its motion to dismiss. The choice is the defendant's.
Reference
- Full Case Name
- Gwendolyn HOLLAND v. SELECT PORTFOLIO SERVICING, INC. and Carrington Mortgage Services, LLC
- Cited By
- 1 case
- Status
- Published