Akar v. Federal National Mortgage Ass'n
843 F. Supp. 2d 154
D. Mass.2012Background
- Plaintiffs challenge the February 10, 2009 foreclosure sale of Sabah Akar’s property and seek damages and injunctions against the current holders and managers.
- Wells Fargo initiated foreclosure; Harmon Law Offices and Northeast Abstract acted as its counsel and affiliate service, respectively.
- Akar’s mortgage was assigned to Wells Fargo via MERS on September 22, 2008, with recording on September 24, 2008; prior notices referenced Wells Fargo as holder before assignment was recorded.
- Plaintiffs allege lack of valid assignment at filing, misrepresentations about mortgage ownership, and delays in loan modification assistance contributing to foreclosure.
- Foreclosure proceeded under Massachusetts statutory power of sale; Land Court proceedings occurred under the Servicemembers Civil Relief Act but did not render foreclosure invalid when later assignment happened.
- Harmon and Northeast Abstract moved to dismiss under Rule 12(b)(6); the court recommends denying the FDCPA claim (Count II) and dismissing other counts against them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA viability before assignment | Harmon violated FDCPA by misrepresenting mortgage ownership before assignment. | Communications were proper; litigation privilege may apply; Ibanez-based timing defenses. | Count II against Harmon survives; FDCPA claim not barred by privilege and pre-assignment communications may violate FDCPA. |
| Validity of foreclosure under power of sale | Foreclosure before valid assignment was executed; sale void. | Wells Fargo had a valid assignment before notice and sale; sale valid. | Foreclosure upheld as valid; wrongful foreclosure claims against Harmon/Northeast Abstract dismissed. |
| Liability of Northeast Abstract | Northeast Abstract participated in foreclosure and related notices. | No pleaded facts tying Northeast Abstract to foreclosure actions. | Counts III, IV, VII against Northeast Abstract dismissed for lack of involvement. |
| Trespass and notice sufficiency | Harmon’s entry and advertising caused trespass and unauthorized access. | Foreclosure sale properly authorized; notices identifed holder; sale valid. | Trespass claim against Harmon dismissed. |
| Chapter 93A and business relationship | Harmon/Northeast Abstract engaged in unfair/deceptive acts in foreclosure process. | No business relationship; purely adversarial dispute; no 93A basis. | 93A claims against Harmon and Northeast Abstract dismissed. |
Key Cases Cited
- U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (Mass. 2011) (foreclosure power of sale requires proper assignment and notice; sale void if not followed)
- Beaton v. Land Court, 367 Mass. 385 (Mass. 1975) (Servicemembers Civil Relief Act compliance; title concerns and foreclosure procedure)
- Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009) (pleading standards; plausible entitlement to relief in First Circuit context)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard; no bare assertions survive a motion to dismiss)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaint sufficiency)
- O’Neil v. DaimlerChrysler Corp., 538 F. Supp. 2d 304 (D. Mass. 2008) (emotional distress standards and requirements for outrageous conduct)
- Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007) (FDCPA applies to attorneys who constitute debt collectors)
- Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364 (3d Cir. 2011) (FDCPA applicability and common-law privileges interaction)