Mack v. Wells Fargo Bank, N.A., et al. (Lawyers Weekly No. 11-180-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1963 Appeals Court DEVENIA MACK vs. WELLS FARGO BANK, N.A., & others.[1] No. 14-P-1963. Worcester. October 5, 2015. – December 1, 2015. Present: Vuono, Carhart, & Sullivan, JJ. Practice, Civil, Summary judgment. Real Property, Mortgage. Mortgage, Foreclosure. Consumer Protection Act, Mortgage of real estate. Massachusetts Civil Rights Act. Immunity from suit. Rules of Professional Conduct. Civil action commenced in the Superior Court Department on October 15, 2010. The case was heard by Brian A. Davis, J., on motions for summary judgment. Robert M. Mendillo for Harmon Law Offices, P.C., & another. James L. O’Connor, Jr. (Barry M. Altman with him) for the plaintiff. CARHART, J. In this mortgage foreclosure action, the plaintiff alleges that Harmon Law Offices, P.C. (Harmon), as counsel for mortgagor Wells Fargo Bank, N.A. (Wells Fargo), and Commonwealth Auction Associates, Inc. (Commonwealth), violated G. L. c. 93A, §§ 2 and 9, and the Massachusetts Civil Rights Act, G. L. c. 12, § 11I (MCRA), by continuing to advertise and schedule foreclosure auctions of her property in violation of a temporary restraining order and preliminary injunction prohibiting them from doing so.[2] Harmon and Commonwealth (together, the defendants) moved for summary judgment, arguing, among other things, that the “litigation privilege” immunizes them from civil liability for their actions. Summary judgment was denied, and the defendants seek interlocutory review. See Visnick v. Caulfield, 73 Mass. App. Ct. 809, 811 n.4 (2009). We agree that Commonwealth’s actions are not privileged as a matter of law and affirm the order denying Commonwealth’s motion for summary judgment. However, because we conclude that Harmon’s actions are protected by the litigation privilege, we reverse the denial of Harmon’s motion for summary judgment and remand for the entry of summary judgment in Harmon’s favor. Background. The following material facts are undisputed. On May 28, 2010, Harmon notified the plaintiff that it had been retained by Wells Fargo to foreclose on her mortgage. On September 10, 2010, Harmon sent the plaintiff notice pursuant to G. L. c. 244, §§ 14 and 17B, of Wells Fargo’s intent to foreclose on the mortgage and to collect from her any deficiency. The notice also advised the plaintiff that a mortgage foreclosure sale of her property would take place on October 18, 2010. On October 13, 2010, the plaintiff’s attorney wrote to Harmon and […]