Paulo REZENDE, Plaintiff, Appellant, v. OCWEN LOAN SERVICING, LLC; US Bank, N.A., as Trustee, Defendants, Appellees.
No. 16-1931
United States Court of Appeals, First Circuit.
August 25, 2017
Cueto separately contends that the District Court plainly erred in failing to provide sufficient explanation for its decision to impose the standard conditions of supervised release that he now challenges. We reject this challenge, too. We have already noted that the “[g]uidelines flatly recommend the standard conditions, without qualification[] or prerequisite.” Tulloch, 380 F.3d at 13. We further explained in United States v. Garrasteguy, 559 F.3d 34, 42 (1st Cir. 2009), that “[a]ny conditions of supervised release that a sentencing court chooses to impose must, of course, be supported by the record.” But, we emphasized, “this requirement can be satisfied without a written or oral explanation of the reasons supporting the condition if we can infer the court‘s reasoning by comparing what was argued by the parties or contained in the pre-sentence report with what the court did.” Id. On appeal, Cueto does not point to any specific condition of supervised release that he contends were unjustified in light of the record before the District Court. Thus, we conclude that Cueto cannot show that the District Court plainly erred in providing the level of explanation concerning the imposition of the standard conditions of supervised release that Cueto now challenges.
For these reasons, we reject Cueto‘s challenge to the nine separate conditions of supervised release to which he objects.
IV.
For these reasons, the judgment of the District Court is affirmed.
Carmenelisa Perez-Kudzma, Weston, MA, on brief for appellant.
Marissa I. Delinks, Maura K. McKelvey, and Hinshaw & Culbertson LLP, Boston, MA, on brief for appellees.
Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.
LYNCH, Circuit Judge.
We review the district court‘s judgment on the pleadings de novo. Jardín De Las Catalinas Ltd. P‘ship v. Joyner, 766 F.3d 127, 132 (1st Cir. 2014) (citation omitted). We accept all of the non-moving party‘s well-pleaded facts as true and draw all reasonable inferences in his favor. Feliciano v. Rhode Island, 160 F.3d 780, 788 (1st Cir. 1998). A judgment on the pleadings is only appropriate when “it appears beyond a doubt that the nonmoving party can prove no set of facts in support of [his] claim which would entitle [him] to relief.” Id.
Rezende‘s challenge that the court abused its discretion by considering and granting Defendants’ allegedly premature Rule 12(c) motion lacks merit. Not only was Defendants’ filing of their motion on January 25, 2016 itself timely,3 but the district court did not even hear the motion until four months later on May 25, 2016, and granted it on June 24, 2016. Rezende had ample time to seek leave from the court to amend his complaint, but chose not to do so. We also dismiss Rezende‘s unsubstantiated assertion that “there were disputed issues of material fact ... as to Counts V and VII [sic] of the Complaint,” for it is not relevant in the context of a
With respect to count V (quiet title), the district court properly found that Rezende lacked standing. A mortgagor lacks standing to bring a quiet title action as long as the mortgage remains in effect. See, e.g., Oum v. Wells Fargo, N.A., 842 F.Supp.2d 407, 412 (D. Mass. 2012), abrogated on different grounds by Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d 282 (1st Cir. 2013); Flores v. OneWest Bank, F.S.B., 172 F.Supp.3d 391, 396 (D. Mass. 2016), appeal docketed, No. 16-1385 (1st Cir. Apr. 8, 2016). This is because under Massachusetts law, a quiet title action “cannot be maintained unless both actual possession and the legal title are united in the plaintiff,” Daley v. Daley, 300 Mass. 17, 14 N.E.2d 113, 116 (1938), yet “a mortgage splits the title in two parts: the legal title, which becomes the mortgagee‘s, and the equitable title, which the mortgagor retains.” Bevilacqua v. Rodriguez, 460 Mass. 762, 955 N.E.2d 884, 894 (2011) (quoting Maglione v. BancBoston Mortg. Corp., 29 Mass.App.Ct. 88, 557 N.E.2d 756, 757 (1990)). Rezende‘s assertion that Defendants bear responsibility for his default is irrelevant: what matters is the existence of a mortgage, not whether the underlying loan is in default.
The district court also correctly rejected Rezende‘s attempts to circumvent his lack of standing by challenging MERS‘s assignment of the mortgage to US Bank. Rezende asserts that the assignment was void because MERS failed to seek permission from the bankruptcy court to assign the mortgage after Aegis had filed for bankruptcy. Rezende waived this argument by failing to cite any authority whatsoever in support of his conclusory assertion. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues unaccompanied by some effort at developed argumentation[] are deemed waived.“). As for Rezende‘s contention that the assignment was void because it was made after the closing date of the mortgage loan trust, Rezende lacked standing to bring this challenge. See Butler v. Deutsche Bank Trust Co. Ams., 748 F.3d 28, 37 (1st Cir. 2014) (borrowers lack standing to challenge mortgage assignment for alleged violation of trust‘s pooling and servicing agreement). On appeal, Rezende cites Culhane‘s holding that “a mortgagor has standing to challenge a mortgage assignment as ... void,” but Culhane specified that a mortgagor “does not have standing to challenge shortcomings in an assignment that render it merely voidable.” 708 F.3d at 291 (emphasis added). Here, the assignment, allegedly made in contravention of the trust agreement, was “at most voidable at the option of the parties to the trust agreement, not void as a matter of law.” Dyer, 841 F.3d at 554.
With respect to count VI, the district court correctly found that the Chapter 93A claim was time-barred. Rezende alleges that the delay caused by Defendants’ failure to provide him monthly statements between March and September 2010 was an “unfair and deceptive practice.” At the latest, this claim accrued by September 2010 and expired by September 2014—well before Rezende brought suit in June 2015. See
Rezende‘s attempt to invoke the discovery rule “to salvage his untimely claims” is unavailing because, as the district court already noted, the alleged harm was not “inherently unknowable at the moment of [its] occurrence.” Latson v. Plaza Home Mortg., Inc., 708 F.3d 324, 327 (1st Cir. 2013) (internal quotation marks omitted). Rezende argues that because Defendants failed to send him statements between March and September 2010, he could not have reasonably known of his default until Defendants notified him in June 2013. Yet Rezende signed the 2010 loan modification agreement, which expressly required him to make monthly payments, in March 2010 at the latest. Therefore, Defendants’ delay in issuing statements and Rezende‘s default were not “inherently unknowable” harms. See id. (holding that the plaintiffs’ alleged injury of payment of excess interest became “apparent” when plaintiffs signed the loan documents); see also St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 879 N.E.2d 27, 35 (2008) (“Typically, one who signs a written agreement is bound by its terms whether he reads and understands them or not.“).
For these reasons, we affirm.
Keven A. MCKENNA, Plaintiff, Appellant, v. David CURTIN; Laura A. Pisaturo; John Shekarchi; Maria Bucci; David Caprio; Richard S. Humphrey; Matthew F. Callaghan; Frank Connor; Anthony F. Amalfetano; John Moran; Paul Tavares; Daniel Egan; William Rampone; Paul A. Suttell; Maureen McKenna Goldberg; William P. Robinson, III; Francis X. Flaherty; Gilbert V. Indeglia; Debra Saunders; William Smith; Scott R. Jensen; Marc Desisto, Defendants, Appellees, Helen McDonald, Defendant.
No. 17-1006
United States Court of Appeals, First Circuit.
August 25, 2017