Mack v. Wells Fargo Bank, N.A.
41 N.E.3d 323
Mass. App. Ct.2015Background
- Plaintiff received foreclosure notices from Harmon Law Offices (counsel for Wells Fargo) and a sale was scheduled; plaintiff's counsel threatened litigation and sought postponement.
- Plaintiff filed a wrongful foreclosure suit and obtained a temporary restraining order (TRO) and later a preliminary injunction enjoining Wells Fargo and its agents from foreclosing or advertising the sale.
- Harmon directed Commonwealth Auction Associates (separate company that Harmon routinely hires) to list/postpone the sale; Commonwealth continued web listings and had agents appear at the property to announce postponements after the TRO.
- Plaintiff amended to add Harmon and Commonwealth, alleging violations of G. L. c. 93A and the Massachusetts Civil Rights Act based on continued scheduling/advertising and direct contact while she was represented.
- Trial judge denied summary judgment for both defendants, ruling the litigation privilege did not apply because actions were intended to effect a nonjudicial foreclosure; on appeal, the court affirms denial as to Commonwealth but holds the litigation privilege bars plaintiff's claims against Harmon and directs entry of summary judgment for Harmon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the litigation (absolute) privilege bars plaintiff's c.93A and MCRA claims against Harmon | Harmon's post‑TRO communications/acts were improper and not protected because they were meant to effect nonjudicial foreclosure and violated the injunction | Harmon contends its communications and actions were made in the course of representing Wells Fargo and were preliminary or relevant to litigation, so absolutely privileged | Held for Harmon: privilege applies as a matter of law to Harmon's conduct; summary judgment for Harmon required |
| Whether the litigation privilege shields Commonwealth for its auction listings and property appearances | Commonwealth continued listings/appearances to effect foreclosure; not acting as party to contemplated litigation so no privilege | Commonwealth argued its actions were connected to foreclosure litigation and thus privileged | Held for plaintiff: Commonwealth not entitled to privilege as a matter of law; denial of its summary judgment affirmed |
| Whether communications to a represented party violate professional rules and affect civil liability | Plaintiff contends direct contact while represented and other conduct violated Rules of Professional Conduct and supports liability | Defendants rely on absolute privilege to defeat civil liability despite potential ethics breaches | Held: Ethical violations may be implicated but do not overcome the absolute privilege; liability barred absent an independent, non‑privileged cause of action |
| Whether the conduct constituted contempt of the injunction | Plaintiff argued defendants' rescheduling/advertising was contemptuous | Defendants maintained conduct did not amount to contempt or clear disobedience | Held: Trial judge previously dismissed contempt claim; appellate court notes contempt not established and did not disturb that finding |
Key Cases Cited
- Sriberg v. Raymond, 370 Mass. 105 (absolute privilege protects statements by parties/counsel in judicial proceedings)
- Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225 (privilege determined case‑by‑case; communications preliminary to litigation may be protected)
- U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637 (nonjudicial foreclosure does not require judicial authorization)
- Sullivan v. Birmingham, 11 Mass. App. Ct. 359 (statements relevant to litigation are protected by absolute privilege)
- Doe v. Nutter, McClennen & Fish, 41 Mass. App. Ct. 137 (absolute privilege bars civil liability for statements made in course of representation)