United States District Court, D. New Hampshire
Jacques Elias, et al.
Specialized Loan Servicing, LLC, et al. Opinion No. 2017 DNH 068
A. Mathews, Esq.
Christopher J. Fischer, Esq.
MEMORANDUM AND ORDER
K. Johnstone United States Magistrate Judge
amended complaint, the plaintiffs, Jacques and Sabine Elias,
allege that the defendant, Specialized Loan Servicing
(“SLS”), mishandled their mortgage, thereby
forcing their property into foreclosure. Doc. no.
20. SLS moves for summary judgment, doc. no.
30, and the plaintiffs object, doc. no.
35.For the following reasons, SLS's motion
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Xiaoyan Tang v. Citizens Bank,
N.A., 821 F.3d 206, 215 (1st Cir. 2016). “An issue
is ‘genuine' if it can be resolved in favor of
either party, and a fact is ‘material' if it has
the potential of affecting the outcome of the case.”
Xiaoyan Tang, 821 F.3d at 215 (internal quotation
marks and citations omitted). At the summary judgment stage,
the court draws “‘all reasonable inferences in
favor of the non-moving party, ' but disregard[s]
‘conclusory allegations, improbable inferences, and
unsupported speculation.'” Fanning v. Fed.
Trade Comm'n, 821 F.3d 164, 170 (1st Cir. 2016)
(citation omitted), cert. denied, 85 U.S.L.W. 3324 (U.S. Jan.
party moving for summary judgment must identify for the
district court the portions of the record that show the
absence of any genuine issue of material fact.”
Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st
Cir. 2016). Once the moving party makes the required showing,
“‘the burden shifts to the nonmoving party, who
must, with respect to each issue on which [it] would bear the
burden of proof at trial, demonstrate that a trier of fact
could reasonably resolve that issue in [its]
favor.'” Id. (citation omitted).
“This demonstration must be accomplished by reference
to materials of evidentiary quality, and that evidence must
be more than ‘merely colorable.'”
Id. (citations omitted). “At a bare minimum,
the evidence must be ‘significantly
probative.'” Id. (citation omitted). The
nonmoving party's failure to make the requisite showing
“entitles the moving party to summary judgment.”
September 8, 2006, Sabine Elias executed a promissory note,
which was secured by a mortgage on property located in
Amherst, New Hampshire. Doc. no. 30-3, at 9-12.
Sabine Elias alone signed the note and was named as sole
borrower under the mortgage. Id. at 12, 13. Both
plaintiffs signed the mortgage. Id. at 27.
19, 2012, the plaintiffs entered into a loan modification
with Bank of America, which was the servicer of the mortgage
at that time (“2012 modification”). See doc. no.
30-5. Under this modification, an amount of $102,
535.12 was deferred and treated as non-interest-bearing
principal forbearance. Id. at 5. If the plaintiffs
met certain conditions specified in the 2012 modification
agreement, including not falling more than three months
behind on their payments under the 2012 modification, this
amount would be forgiven over the course of three years.
point after the 2012 modification was executed, Bank of
America informed the plaintiffs that they qualified for
better modification terms under a federal program (the
“federal modification”). Elias Aff. ¶ 6
(doc. no. 35-1). Bank of America informed the
plaintiffs that in order to qualify for the federal
modification, they would have to be two months behind on
their payments under the 2012 modification. Id. The
plaintiffs pursued this modification, falling two months
behind on their mortgage payments. Id. ¶ 7.
November 1, 2012, Bank of America transferred service of the
plaintiffs' loan to SLS. Doc. no. 30-3, at 31.
At this time, the plaintiffs had not received the federal
modification from Bank of America. On November 9, 2012, SLS
sent the plaintiffs a statement informing them of the
transfer and instructing them to send all future payments to
SLS at an address provided. Id. SLS specifically
noted that as of November 1, 2012, Bank of America
“w[ould] not accept payments from [the
plaintiffs].” Id. The plaintiffs continued to
make payments to Bank of America, which were returned. Elias
Aff. ¶ 11. By the time the plaintiffs started sending
payments to SLS, they were more than three months behind on
their mortgage payments. Id. ¶ 14.
summer of 2014, SLS offered the plaintiffs a new loan
modification (“2014 modification” or “2014
modification agreement”). See doc. no. 20-3.
SLS informed the plaintiffs that to accept this offer, they
must sign and return two original copies of the 2014
modification agreement by August 31, 2014. Id. at 2.
2014 modification agreement indicated that an amount of $102,
535.12 had been deferred in a previous modification, which
would not accrue interest, but would remain due and owing at
the end of the loan and was “not a forgiveness of a
partial debt . . . .” Id. The plaintiffs
believed that this amount had been forgiven under the 2012
modification. They based this belief on a 1099-C tax form
issued by Bank of America on February 26, 2013, see doc. no.
20-5, at 5, which a tax professional had informed
them meant that forgiveness of this amount had actually
occurred, see Elias Aff. ¶ 31-32. The plaintiffs filled
out 1040X and 982 tax forms based on this belief. See doc.
no. 20-5. Plaintiffs' counsel conceded at the
hearing that this belief was mistaken, and that the $102,
535.12 was not forgiven “as a matter of law.”
is no dispute in the record that the plaintiffs signed the
2014 modification agreement on August 30, 2014, and that they
mailed at least one copy of that agreement to SLS that day.
There are two versions of the 2014 modification agreement in
the record, however,  and the parties dispute which version or
versions the plaintiffs sent to SLS.
versions of the 2014 modification agreement contain the same
typed agreement language and both are signed by the
plaintiffs and dated August 30, 2014. Compare doc. no.
20-3 with doc. no. 20-4. In one version
there is a handwritten notation next to the reference to the
$102, 535.12 in prior deferred principal, which states that
“[t]his debt was cancelled by [Bank of America] as of
June 2. Form 1099-C attached.” Doc. no. 20-3,
at 5. Both plaintiffs ...