Fox v. Ocwen Loan Servicing, LLC
1:17-cv-00193
| D.N.H. | May 6, 2019Background
- Gail Fox and Ralph Wass own a Goffstown, NH property purchased in 2006; Wass executed a promissory note and both signed a mortgage to Option One Mortgage Corporation.
- Option One later became Sand Canyon; Sand Canyon assigned the mortgage to HSBC Bank USA, N.A., as trustee in April 2010; the note was endorsed in blank and transferred to HSBC.
- Plaintiffs sued in state court seeking to enjoin a foreclosure sale, alleging the assignment to HSBC was invalid based on a 2009 Sand Canyon affidavit suggesting servicing rights had been sold earlier.
- Defendants removed the case to federal court; defendants moved for summary judgment after plaintiffs (now pro se) inspected loan documents at mediation.
- Plaintiffs argued: (1) the defendants produced inconsistent documents (alleged two versions of the “mortgage note”), and (2) a 2011 confirmatory assignment names a different assignor (American Home), creating a dispute about standing.
- The court considered whether HSBC holds the note and mortgage (authority to foreclose) and whether any documentary discrepancies create a triable issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants hold the promissory note and thus have foreclosure authority | Plaintiffs claim documents show conflicting versions of the “mortgage note,” creating doubt about who holds the note | Defendants show Wass signed the promissory note (endorsed in blank) and plaintiffs inspected originals at mediation; plaintiffs have no evidence HSBC does not hold the note | Court: No triable issue; HSBC holds the note and has foreclosure authority |
| Whether defendants hold the mortgage by valid assignment | Plaintiffs argue a later confirmatory assignment naming American Home as assignor contradicts the earlier assignment from Sand Canyon to HSBC | Defendants point to the original assignment to HSBC and note that the confirmatory assignment also names HSBC as assignee; confirmatory assignments generally correct or confirm prior valid assignments | Court: No material dispute; HSBC holds the mortgage by assignment |
| Whether the confirmatory assignment undermines the original assignment's validity | Plaintiffs contend the different assignor names create factual dispute about standing | Defendants argue confirmatory assignment does not invalidate a prior valid assignment and may correct it | Court: Confirmatory assignment does not create a triable issue absent proof the original assignment was invalid |
| Availability of statutory fees and costs claim (RSA 361-C:2) | Plaintiffs seek attorneys’ fees contingent on prevailing on injunction claim | Defendants: If injunction claim fails, fee claim fails | Court: Fee claim fails because plaintiffs did not prevail on injunction claim; also other claims (e.g., request to amend) are not cognizable relief |
Key Cases Cited
- Thomas v. Harrington, 909 F.3d 483 (1st Cir. 2018) (summary judgment standard)
- Roy v. Correct Care Solutions, LLC, 914 F.3d 52 (1st Cir. 2019) (summary judgment: view facts in light most favorable to nonmovant)
- Leite v. Gergeron, 911 F.3d 47 (1st Cir. 2018) (definition of genuine issue and material fact)
- Town of Westport v. Monsanto Co., 877 F.3d 58 (1st Cir. 2017) (reasonable factfinder standard at summary judgment)
- Flood v. Bank of Am. Corp., 780 F.3d 1 (1st Cir. 2015) (summary judgment standards in borrower-lender disputes)
- Bergeron v. N.Y. Comm. Bank, 168 N.H. 63 (N.H. 2015) (holder of the note possesses mortgagee rights)
- Frangos v. Bank of Am., N.A., 826 F.3d 594 (1st Cir. 2016) (attorney-fee eligibility tied to prevailing party status)
- Tucker v. U.S. Bank, 292 F. Supp. 3d 546 (D. Mass. 2018) (confirmatory assignments may correct prior valid assignments)