Harry, Jr. v. Countrywide Home Loans., Inc.
Opinion
In November 2005, Thomas and Gretchen Harry borrowed $245,350 from Countrywide Home Loans, Inc.,
1
to refinance their property in Mashpee, Massachusetts. The Harrys defaulted on their loan in
*18
2009, and in 2016 they initiated this action to void their transaction and enjoin their property's foreclosure sale. The district court granted the defendants' motion to dismiss the Harrys' complaint under Federal Rule of Civil Procedure 12(b)(6),
Harry
v.
Countrywide Home Loans Inc.
,
I.
A.
Our review of the dismissal is de novo.
Maloy
v.
Ballori-Lage
,
We agree with the district court that the Harrys cannot escape time bars for their RICO claim (four years to file,
see
Lares Grp., II
v.
Tobin
,
The Harrys' only argument against finding these claims time barred is that "the statute of limitations never runs on void documents, period." But their basis for claiming that the mortgage and note were void from the beginning is simply their allegation that Countrywide "was never licensed to lend money in Massachusetts." This, they state in conclusory fashion, makes the note and mortgage deed that they executed akin to forgeries and thus "void ab initio ... because Countrywide lacked the legal authority to write these documents." The Harrys, however, cite no authority for this unusual proposition, and we have found none.
The Harrys do make a somewhat more relevant pitch, urging us to toll the applicable limitations periods under the doctrine of fraudulent concealment. Tolling for fraudulent concealment, however, like the Harrys' argument for equitable tolling, requires them to make a threshold showing of due diligence.
See
Protective Life Ins. Co.
v.
Sullivan
,
B.
We can easily dispose of the remainder of the Harrys' arguments. To start, the district court properly rejected the Harrys' contention that their mortgage is obsolete under the Massachusetts obsolete mortgage statute, Massachusetts General Laws chapter 260, section 33 (extinguishing the right to foreclose on a mortgage five years after the mortgage matures).
2
The Harrys argue that Ditech-then acting as the servicer of the Harrys' mortgage-acted illegally when it instituted its October 2016 foreclosure action because the foreclosure occurred more than five years after Ditech accelerated the maturity date of their note. But there is no suggestion in either that statute, or, as the Harrys suggest, in the Massachusetts Supreme Judicial Court's decision in
Deutsche Bank Nat. Tr. Co.
v.
Fitchburg Capital, LLC
,
As noted earlier in our discussion of the applicable statutes of limitation, the Harrys also claim that their mortgage is void because Countrywide "was licensed as a mere third party loan servicer and not a lender," thereby running afoul of Massachusetts General Laws chapters 255E (licensing of mortgage lenders) and 255F (licensing of mortgage loan originators. But neither of those statutes explicitly creates a private cause of action, and the Harrys present us with no arguments to infer one. Accordingly, we find their implicit invitation to do so-an invitation we would only reluctantly consider in any case,
see
Loffredo
v.
Ctr. for Addictive Behaviors
,
We also find meritless the Harrys' argument that the district court abused its discretion in refusing to grant their last-ditch motions for entry of default against all defendants. There is nothing in the record to suggest that any defendant "failed to plead or otherwise defend" against the Harrys' complaint, see Fed. R. Civ. P. 55, and the district court acted well within its discretion by refusing to entertain the Harrys' arguments to the contrary.
II.
For the foregoing reasons, we AFFIRM the district court's rulings.
The Harrys' complaint named Countrywide as a defendant, but Bank of America, N.A. acquired Countrywide in 2008. Moreover, defendant BAC Home Loans Servicing "was a wholly owned subsidiary of Bank of America, N.A.," and has since "merged into Bank of America, N.A."
Kolbe
v.
BAC Home Loans Servicing, LP
,
We previously rejected this precise argument in an opinion that has since been withdrawn for unrelated reasons.
See
Hayden
v.
HSBC Bank USA
,
To the extent that the Harrys repeat this argument in their appeal of the district court's denial of their motion to enjoin the sale of their property in foreclosure, we find the district court's exercise of its discretion to deny injunctive relief to have been more than adequately supported by the record.
Reference
- Full Case Name
- Thomas HARRY, Jr., Gretchen Harry Plaintiffs, Appellants, v. COUNTRYWIDE HOME LOANS, INC.; BAC Home Loans Servicing, LP; Bank of America, N.A.; The Bank of New York Mellon F/K/A the Bank of New York as Trustee for the Certificate Holders of CWABS, Inc., Asset-Backed Certificates, Series 2005-17; Green Tree Servicing, LLC, N/K/A Ditech Financial LLC; Mortgage Electronic Registration Systems, Inc., Defendants, Appellees.
- Cited By
- 23 cases
- Status
- Published