440 F.Supp.3d 99
D. Mass.2020Background
- Plaintiff David Howe owns 12 Stuart Street, Sudbury, MA, subject to a mortgage originally from Option One (2007); the loan went into default with no payments since November 2014.
- A series of assignments (including a 2008 Lost Assignment Affidavit) culminated in U.S. Bank National Association as Trustee for RMAC Trust Series 2016-CTT holding the mortgage; Rushmore services the loan.
- Howe filed Chapter 7 in 2010, faced earlier foreclosure attempts, and previously litigated to stop a 2012 sale; later sales were postponed by further bankruptcies.
- In 2018–2019 Rushmore sent a 90‑day Right to Cure and a Notice of Intent to Accelerate; U.S. Bank recorded the M.G.L. c. 244, § 35B affidavit and scheduled a foreclosure sale (postponed to Feb. 14, 2020).
- Howe sued in state court asserting the assignment is void, U.S. Bank does not hold the note, defendants misrepresented amounts in notices, and the § 35B affidavit/power of attorney is invalid; the case was removed to federal court.
- Howe moved for a preliminary injunction (filed Jan. 2, 2020) to enjoin the foreclosure sale; the district court denied the motion on Feb. 13, 2020.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of mortgage assignment | Assignment(s) void because Option One had transferred residential mortgages before the purported assignment to J.P. Morgan | J.P. Morgan acquired the mortgage before Dec. 2008 (Lost Assignment Affidavit) and recorded later assignments; prior case filings and documents refute invalidity | Assignment chain is valid; Howe not likely to succeed on this claim |
| Holder of promissory note | U.S. Bank Trust is not the enforceable holder of the original note | Original note and allonges show endorsement to U.S. Bank Trust | U.S. Bank Trust is holder of the note; plaintiff unlikely to prevail |
| Right to Cure and Acceleration notices | Notices misrepresent amounts and conflict with mortgage paragraphs 18 and 22 | Notices comply with M.G.L. c. 244, § 35A and with mortgage terms | Notices comply with statute and mortgage; claim fails |
| § 35B affidavit / Power of Attorney | § 35B affidavit invalid because it references a POA recorded in Worcester (not Middlesex) | Identical POAs were recorded in Middlesex; affidavit was issued/recorded in Middlesex by an authorized agent | § 35B affidavit is valid; claim fails |
| Chapter 93A claims | Defendants’ conduct (assignments, notices, affidavit) violates ch. 93A | Chapter 93A claims are derivative of the failing substantive claims | 93A claims fail because underlying claims lack merit |
Key Cases Cited
- Jean v. Mass. State Police, 492 F.3d 24 (1st Cir. 2007) (preliminary injunction factors)
- Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62 (1st Cir. 2009) (likelihood of success normally weighs heaviest)
- Rohm & Haas Elec. Materials, LLC v. Elec. Circuits, 759 F. Supp. 2d 110 (D. Mass. 2010) (court may accept well-pleaded allegations and uncontroverted affidavits on PI motions)
- Asseo v. Pan American Grain Co., Inc., 805 F.2d 23 (1st Cir. 1986) (hearsay and otherwise inadmissible evidence may be considered on PI motions)
- Weiner v. Rushmore Loan Mgmt. Servs., LLC, 327 F. Supp. 3d 268 (D. Mass. 2018) (treating recorded POAs and § 35B affidavits)
- Clockedile v. U.S. Bank Tr., N.A., 189 F. Supp. 3d 312 (D. Mass. 2016) (similar treatment of POA recording and § 35B affidavits)