327 F. Supp. 3d 268
D. Mass.2018Background
- Plaintiff Eugene Weiner owned a mortgaged property; MTGLQ owned the mortgage and Rushmore serviced it. Rushmore sent a loan-modification offer letter dated June 27, 2017.
- The Letter described eligibility criteria, a three-month trial plan based on a May 16, 2017 valuation, and stated: if no application was received within 60 days the borrower "still may be eligible" but a new valuation would be required. It also referenced a 38-day cut-off for scheduled foreclosure sales.
- Weiner mailed an application on August 1, 2017; Defendants claimed it was not received. A second application was received August 24, 2017 (58 days after the Letter). Foreclosure sale was scheduled for August 14, 2017.
- Weiner sued under the FDCPA (Count I), Mass. Gen. Laws ch. 93A (Count II), and sought declaratory relief alleging statutory defects in foreclosure compliance (Counts III & IV). Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6).
- Court treated whether the Letter was false/deceptive to an unsophisticated consumer, and whether powers of attorney and recorded affidavits complied with Mass. Gen. Laws ch. 244 §§ 35B/35C.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Letter violated the FDCPA as false/deceptive | The Letter reasonably read as a 60-day offer to apply for the modification based on the May 16 valuation; rejecting an application after that period was misleading | The Letter plainly said the valuation (not the offer) expired after 60 days and other language ("time is of the essence" and 38-day rule) made deadlines clear | Denied dismissal; plausible FDCPA claim — Letter could be read as deceptive to an unsophisticated consumer |
| Whether FDCPA violation gives rise to a Chapter 93A claim | FDCPA violation is a per se violation of Chapter 93A | Chapter 93A claim depends on separate analysis | Denied dismissal of Count II because FDCPA violation can be a per se Chapter 93A violation |
| Whether foreclose sale was void for noncompliance with ch. 244 §§ 35B/35C (defective affidavits/POA) | Affidavits referenced a POA recorded in Middlesex, not in Worcester where affidavits were recorded; plaintiff says POA recording rules invalidate affidavits/standing to foreclose | There was an effective POA recorded in the Worcester Registry at the relevant time; a reference to a different POA does not negate the valid one | Granted dismissal of Counts III and IV — foreclosure not void; defendants complied via an effective Worcester-recorded POA |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible entitlement to relief)
- Pollard v. Law Office of Mandy L. Spaulding, 766 F.3d 98 (FDCPA claims judged from perspective of an unsophisticated consumer)
- McDermott v. Marcus, Errico, Emmer & Brooks, P.C., 775 F.3d 109 (FDCPA violations can be per se violations of consumer-protection law)
- Clockedile v. U.S. Bank Trust, N.A., 189 F. Supp. 3d 312 (a referenced or expired POA does not necessarily void a transaction when a valid POA existed at the time)