Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Elias v. Specialized Loan Servicing, LLC

United States District Court, D. New Hampshire

April 5, 2017

Jacques Elias, et al.
v.
Specialized Loan Servicing, LLC, et al. Opinion No. 2017 DNH 068

          Keith A. Mathews, Esq.

          Christopher J. Fischer, Esq.

          MEMORANDUM AND ORDER

          Andrea K. Johnstone United States Magistrate Judge

         In an 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.[1]For the following reasons, SLS's motion is granted.

         Summary Judgment Standard

         Summary 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. 9, 2017).

         “A 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.” Id.

         Background

         I. Factual Background

         On 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.

         On May 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. Id.

         At some 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.

         On 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.

         In the 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.

         The 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.”

         There 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, [2] and the parties dispute which version or versions the plaintiffs sent to SLS.

         Both 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.