552 F.Supp.3d 60
D. Mass.2021Background:
- Plaintiffs Joseph and Joanne Zielinski obtained a mortgage (2003) and entered a 2008 loan modification; they later defaulted and sought loss-mitigation assistance from Citizens Bank in 2015–2016.
- Citizens requested repeated documentation, sent inconsistent form letters, and denied the second loss-mitigation request on January 22, 2016; plaintiffs then sought short-sale approval (submitted March 2016), which Citizens approved July 25, 2016.
- Plaintiffs allege clerical errors, poor customer service, untimely responses, and miscalculation of rental income; they claim economic losses and emotional distress tied to Joanne’s retinal vein occlusion.
- Claims pleaded: standalone M.G.L. c. 93A (Count I) and per se 93A claims based on alleged violations of the CFPA (Count II), the FDCPA and Massachusetts debt-collection regulations (Count III), and HAMP rules (Count IV).
- Citizens moved for summary judgment on all counts; the court granted summary judgment for Citizens, concluding plaintiffs failed to show unfair/deceptive conduct or the requisite causal injury under 93A.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Count I — M.G.L. c. 93A: whether Citizens engaged in unfair or deceptive practices | Zielinski: repeated document requests, confusing/contradictory letters, poor customer service, delays, and rental-income miscalculation amount to unfair/deceptive conduct causing economic and emotional harm | Citizens: conduct amounted to clerical negligence and minor delays; applications were considered and denials explained; plaintiffs lack evidence of causation and compensable injury | Summary judgment for Citizens — 93A claim fails for lack of unfair/deceptive conduct and insufficient proof of causation/damages |
| Count II — CFPA as per se 93A violation | Zielinski: Citizens violated CFPA, so per se 93A liability follows | Citizens: even assuming CFPA violation, plaintiffs still must satisfy 93A’s injury requirement | Summary judgment for Citizens — plaintiffs fail to establish the 93A injury element, so per se recovery is unavailable |
| Count III — FDCPA and Massachusetts debt-collection regs as per se 93A violations | Zielinski: Citizens’ communications violated FDCPA and state regs, creating per se 93A liability | Citizens: Citizens is not a FDCPA "debt collector" for these acts; plaintiffs also lack evidence of 93A injury and causation | Summary judgment for Citizens — FDCPA component fails (servicer exemption applies); state-regs-based per se claim fails for lack of 93A injury |
| Count IV — HAMP violations as per se 93A | Zielinski: Citizens breached HAMP servicing requirements (document tracking, timely notices, phone access, etc.) giving rise to 93A liability | Citizens: HAMP has no private right, HAMP violations do not automatically trigger 93A liability, and plaintiffs have not shown independently actionable unfair/deceptive conduct or resulting injury | Summary judgment for Citizens — alleged HAMP breaches insufficiently unfair/deceptive and plaintiffs fail to show compensable injury |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary-judgment standard for genuine disputes of material fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (moving party’s burden and shifting burdens at summary judgment)
- Young v. Wells Fargo Bank, N.A., 828 F.3d 26 (1st Cir. 2016) (inconsistent/confusing servicer communications and recordkeeping often sound in negligence, not 93A)
- Tyler v. Michael’s Stores, Inc., 984 N.E.2d 737 (Mass. 2013) (93A requires a distinct, causally related injury to recover non‑nominal damages)
- Shaulis v. Nordstrom, 865 F.3d 1 (1st Cir. 2017) (violation of an independent statute does not automatically satisfy 93A’s injury requirement)
- Charest v. Fed. Natl. Mortg. Ass’n, 9 F. Supp. 3d 114 (D. Mass. 2014) (repeated demands plus misrepresentations can support 93A at pleading stage)
- Morris v. BAC Home Loans Servicing, L.P., 775 F. Supp. 2d 255 (D. Mass. 2011) (HAMP-related allegations may support 93A when coupled with independently actionable unfair/deceptive conduct)