Donahue v. FNMA, 980 F.3d 204

Background

Donahue took a $484,330 mortgage in 2010; she defaulted in September 2014 and the loan was assigned to Ocwen in June 2014.
Ocwen sent a foreclosure notice (June 17, 2016), conducted an appraisal, and held a foreclosure auction on July 21, 2016; Ocwen was the high bidder and purchased the property.
Donahue sued GNMA and Ocwen in Massachusetts state court (Feb. 27, 2017) alleging violations of Massachusetts law and that HUD regulations (incorporated into the mortgage) imposed conditions precedent to foreclosure, including a face-to-face interview or a "reasonable effort" to arrange one (24 C.F.R. § 203.604(b)).
Ocwen removed to federal court, moved for summary judgment, and the District Court granted summary judgment for Ocwen (May 20, 2019) as to claims against Ocwen; GNMA did not respond and was later voluntarily dismissed by Donahue.
The First Circuit questioned appellate jurisdiction over the partial final judgment but, invoking precedent that allows assuming jurisdiction when the merits are clear, proceeded to decide the case on the merits and affirmed summary judgment for Ocwen.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appellate jurisdiction after partial district-court judgment and voluntary dismissal of GNMA	Donahue: voluntary dismissal ripened her premature notice of appeal; appeal should proceed	Ocwen: two-dismissal rule and lack of Rule 54(b) certification undermine finality	Court assumed jurisdiction to decide merits given clarity of issues and affirmed on merits
Whether Ocwen satisfied 24 C.F.R. § 203.604(b)'s "reasonable effort" (certified letter requirement)	Donahue: Ocwen did not actually send the certified letter; tracking number evidence suggests it went to California, and she never received it	Ocwen: produced the February 5 certified-letter copy, USPS tracking number in business records, and affidavits showing regular practice of sending certified letters	Court: Ocwen submitted unrebutted evidence of mailing; plaintiff's tracking-number theory is speculative and insufficient to create a genuine factual dispute
Whether Ocwen made "at least one trip to see the mortgagor at the mortgaged property" under 24 C.F.R. § 203.604(d)	Donahue: doorknocker visit did not qualify because the person who left it lacked authority/qualifications to arrange a face-to-face meeting	Ocwen: submitted photographs, business records, and affidavit showing an agent visited the property and left a HUD doorknocker as part of regular practice	Court: regulation requires a trip but not proof of the visitor's qualifications; evidence of the visit/doorknocker sufficed
Whether Donahue created a triable issue on breach and damages to defeat summary judgment	Donahue: HUD conditions precedent were incorporated; noncompliance breached mortgage and caused damages	Ocwen: no genuine issue of breach or resulting damages shown	Court: plaintiff failed to show a genuine issue on breach or damages; summary judgment for Ocwen affirmed

Key Cases Cited

Alvarado v. Holder, 743 F.3d 271 (1st Cir. 2014) (can assume jurisdiction and decide merits when jurisdictional question is close but merits are clear)
Barrett ex rel. Est. of Barrett v. United States, 462 F.3d 28 (1st Cir. 2006) (premature notice of appeal and relation-forward principles)
Ramos-Santiago v. WHM Carib, LLC, 919 F.3d 66 (1st Cir. 2019) (circumstances allowing a premature notice of appeal to relate forward)
Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006) (summary judgment standard)
Mesnick v. Gen. Elec. Co., 950 F.2d 816 (1st Cir. 1991) (plaintiff must show genuine issue on every essential element to survive summary judgment)
Simpson v. Jefferson Standard Life Ins. Co., 465 F.2d 1320 (6th Cir. 1972) (business system evidence can establish proof of mailing)
Bennett v. Saint-Gobain Corp., 507 F.3d 23 (1st Cir. 2007) (rejects unsupported speculation as factual proof)
Pinti v. Emigrant Mortg. Co., 33 N.E.3d 1213 (Mass. 2015) (mortgagee must strictly comply with mortgage and any incorporated conditions precedent)