Pehoviak, et al. v. Deutsche Bank National Trust Company (Lawyers Weekly No. 11-024-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12‑P‑1485 Appeals Court PAUL PEHOVIAK & another[1] vs. DEUTSCHE BANK NATIONAL TRUST COMPANY. No. 12‑P‑1485. Worcester. November 5, 2013. ‑ March 11, 2014. Present: Cypher, Brown, & Fecteau, JJ. Mortgage, Foreclosure, Junior lien. Notice, Foreclosure of mortgage. Real Property, Mortgage. Taxation, Federal tax lien. Lien. Practice, Civil, Discovery, Findings by judge, Waiver. Damages, Mitigation. Waiver. Civil action commenced in the Superior Court Department on April 10, 2006. The case was heard by John S. Ferrara, J. Marissa I. Delinks for the defendant. Howard B. D’Amico for the intervener. FECTEAU, J. The defendant, Deutsche Bank National Trust Company (Deutsche Bank), appeals from a judgment in the amount of $ 141,784.20,[2] plus interest, entered in favor of the intervening plaintiff, Commerce Bank and Trust Company (Commerce), after a jury-waived trial. Deutsche Bank claims that the judge erred in (1) applying G. L. c. 244, § 14, under the facts presented, (2) finding that Deutsche Bank’s failure to act in good faith and to use reasonable diligence to complete and close the foreclosure sale with Pehoviak caused Commerce harm, and (3) failing to account for Commerce’s lack of mitigation efforts. We conclude that (1) Deutsche Bank breached its duty to exercise reasonable diligence by refusing the prospective buyer’s request to provide him with evidence that it had sent statutorily required notices of foreclosure to junior lienholders, (2) the judge’s finding on causation was not clearly erroneous, and (3) Deutsche Bank waived the affirmative defense of mitigation of damages by failing to raise it in its first responsive pleading. 1. Background. Deutsche Bank was the holder of a first mortgage on real property in Westborough, Massachusetts. The mortgagors defaulted on the mortgage loan, and Deutsche Bank foreclosed on the property. The mortgagors owed Deutsche approximately $ 500,000. Commerce was the holder of a mortgage on the same property securing a home equity loan, which was subordinate to Deutsche Bank’s mortgage. The mortgagors were also in default on Commerce’s loan and owed Commerce approximately $ 170,000. In addition, there were two other liens on the property that were subordinate to Commerce; one was a Federal tax lien, and the other was a writ of attachment by one Dennis Armstrong. At the foreclosure sale on March 6, 2006, Pehoviak was the highest bidder […]
Bank of America, N.A. v. Rosa (and three consolidated cases) (Lawyers Weekly No. 10-198-13)
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 SJC‑11330 BANK OF AMERICA, N.A. vs. CEFERINO S. ROSA (and three consolidated cases[1]). Essex. September 9, 2013. ‑ December 18, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mortgage, Foreclosure. Summary Process. Housing Court, Jurisdiction. Practice, Civil, Summary process, Affirmative defense, Counterclaim and cross‑claim. Jurisdiction, Summary process, Housing Court, Equitable. Uniform Summary Process Rules. Rules of Civil Procedure. Statute, Construction. Summary process. Complaints filed in the Northeast Division of the Housing Court Department, two on February 6, 2012, and one each on January 20, 2012, and April 2, 2012, respectively. Motions to strike and to dismiss affirmative defenses and counterclaims were heard by David D. Kerman, J. Proceedings for interlocutory review were heard in the Appeals Court by Mary T. Sullivan, J., and the cases were consolidated and reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Phoebe N. Coddington, of North Carolina (Jennifer E. Greaney & Stephen C. Reilly with her) for Bank of America, N.A., & another. Thomas J. Santolucito (Rachel B. Meisterman with him) for Federal Home Loan Mortgage Corporation. Richard M.W. Bauer (Eloise P. Lawrence with him) for Ceferino S. Rosa & others. Marylyn E. Flores (David S. Flores with her) for Gerard J. Cioffi. Benjamin O. Adeyinka, for The Real Estate Bar Association of Massachusetts, Inc., & another, amici curiae, submitted a brief. Arielle Cohen & Charles Delbaum, for National Consumer Law Center, amicus curiae, submitted a brief. SPINA, J. In each of these consolidated appeals the plaintiff bank brought a summary process action against the former homeowner-mortgagor in the Housing Court after foreclosure. Each former homeowner raised various defenses and counterclaims in his or her answer to the complaint that challenged the bank’s right to both possession and title as derived through foreclosure sale, as well as other defenses and counterclaims. In each case the bank filed a motion to strike the affirmative defenses and to dismiss the counterclaims on grounds that the only defenses and counterclaims available in summary process are (1) those allowed by G. L. c. 239, § 8A, which does not apply here because there was no landlord-tenant relationship between the parties, and (2) a challenge to title (and thereby possession) based only on a failure to comply […]
Police: Homeless Man Robbed South End Bank
A homeless man was charged with robbing a bank in the South End. South End Patch News
Drakopoulos, et al. v. U.S. Bank National Association, et al. (Lawyers Weekly No. 10-126-13)
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 SJC‑11271 SUSANNE DRAKOPOULOS & another[1] vs. U.S. BANK NATIONAL ASSOCIATION, trustee,[2] & another.[3],[4] Essex. March 4, 2013. ‑ July 12, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Predatory Home Loan Practices Act. Consumer Protection Act, Mortgage of real estate. Real Property, Mortgage. Mortgage, Assignment. Assignment. Civil action commenced in the Superior Court Department on May 28, 2009. The case was heard by Robert A. Cornetta, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Paul R. Collier, III (Pamela A. Lebowitz & Max Weinstein with him) for the plaintiffs. Peter F. Carr, II, for the defendants. Martha Coakley, Attorney General, Glenn Kaplan, Aaron Lamb, & Gabriel O’Malley, Assistant Attorneys General, for the Commonwealth, amicus curiae, submitted a brief. LENK, J. In 2006, the plaintiffs, Susanne and Peter Drakopoulos,[5] refinanced their family home in Haverhill through Aegis Lending Corporation (lender), entering into a stated income home mortgage loan secured by a first mortgage on the home.[6] The total monthly payment on this loan proved to be approximately $ 600 greater than the plaintiffs’ total monthly income. Less than six months after the mortgage was funded, it was sold and assigned to the defendant U.S. Bank National Association (bank) as trustee of the Credit Suisse First Boston Mortgage Securities Corp., Home Equity Pass-Through Certificates, Series 2007-1 (trust). The loan was serviced by the defendant Select Portfolio Servicing, Inc. (servicer). The plaintiffs fell behind in their payments and defaulted on the loan; in November, 2008, the bank foreclosed on the mortgage. The plaintiffs thereafter brought this action, asserting, inter alia, violations of the Predatory Home Loan Practices Act, G. L. c. 183C (act); the Consumer Protection Act, G. L. c. 93A; and the Borrower’s Interest Act, G. L. c. 183, § 28C, The plaintiffs also asserted that the loan was unenforceable because it was unconscionable, and they sought damages and rescission for predatory lending practices. A Superior Court judge granted the defendants’ motions for summary judgment on all claims, based in large part on the ground that the defendants, as assignees, had no liability for the acts of the lender. The plaintiffs appealed. Because we conclude that the bank is not shielded from liability as a matter of law by virtue of its […]
Categories: News Tags: 1012613, Association, Bank, Drakopoulos, Lawyers, National, U.S., Weekly
Deutsche Bank National Association v. First American Title Insurance Company (Lawyers Weekly No. 10-124-13)
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 SJC‑11265 DEUTSCHE BANK NATIONAL ASSOCIATION,[1] trustee,[2] vs. FIRST AMERICAN TITLE INSURANCE COMPANY. Suffolk. March 7, 2013. ‑ July 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Insurance, Title insurance, Insurer’s obligation to defend. Real Property, Title insurance. Civil action commenced in the Superior Court Department on December 11, 2009. The case was heard by S. Jane Haggerty, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard E. Briansky (Jeffrey J. Pyle with him) for the plaintiff. Jason A. Manekas for the defendant. CORDY, J. In the present appeal, we consider whether the terms of a title insurance policy require First American Title Insurance Company (First American) to defend Deutsche Bank National Association (Deutsche Bank) in a lawsuit brought by a third party, Karla Brown,[3] seeking rescission of a note and first mortgage securing that note, originated by Deutsche Bank’s predecessor in interest in connection with the purchase of Brown’s home. Following First American’s denial of coverage, Deutsche Bank instituted this action seeking a judgment declaring that First American has a duty to defend it in Brown’s lawsuit and seeking statutory damages. We transferred the case here on our own motion following Deutsche Bank’s appeal from a Superior Court judge’s order granting summary judgment in favor of First American. On appeal, Deutsche Bank argues that the policy is susceptible to an interpretation that it covers the claims alleged in Brown’s complaint and that two exclusions contained within the policy do not preclude coverage.[4] Based on these arguments, Deutsche Bank contends that First American is under a contractual duty to defend it in the Brown lawsuit. In addition, Deutsche Bank renews its claim for damages under G. L. c. 93A due to First American’s alleged violation of G. L. c. 176D, § 3.[5] In response, First American argues that the allegations in Brown’s complaint do not trigger its duty to defend because they relate to a predatory lending scheme concerning the validity of the underlying note and not the enforceability of Deutsche Bank’s mortgage interest. Alternatively, First American argues that it need not defend Deutsche Bank because Brown’s claims are excluded by the policy. For the reasons discussed below, we conclude that the allegations in […]
Mount Washington Bank Robbed of $180 on Friday
The following information was supplied by the Boston Police Department. Charges listed do not indicate a conviction. A man made off with $ 180 from Mount Washington Bank on Friday, according to police. Boston Police officers responded to a bank alarm at 4:08 p.m. on Friday, June 7 at the Mount Washington Bank at 1134 Washington Street. On the scene, officers spoke to witnesses who said that the bank was robbed at about 3:59 p.m. Witnesses told the police that the suspect approached the counter, handed the clerk an EBT card and asked to withdraw $ 150 from the card. The teller said, “no,” and the suspect reportedly handed the teller a note. The note read: “Large bills or I’ll shoot you,” according to police. The suspect was handed $ 180 dollars and left out the front door, heading up East Berkley Street towards Washington Street, police said. Officers were not able to locate the suspect. The investigation is ongoing, police said. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Citizens Bank of Massachusetts v. Coleman (Lawyers Weekly No. 11-063-13)
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 12‑P‑365 Appeals Court CITIZENS BANK OF MASSACHUSETTS vs. PAMELA BAKER COLEMAN. No. 12‑P‑365. Suffolk. October 10, 2012. ‑ May 15, 2013. Present: Grasso, Fecteau, & Agnes, JJ. Husband and Wife, Conveyance between spouses. Trust, Resulting trust. Unjust Enrichment. Civil action commenced in the Superior Court Department on June 16, 2005. The case was heard by Stephen E. Neel, J.; entry of judgment was ordered by Janet L. Sanders, J., and motions to alter or amend the judgment were heard by her. Steven B. Rosenthal for the defendant. Robert L. Hamer for the plaintiff. AGNES, J. The principal question presented by this appeal is whether the judge was correct in determining that the purported transfers of the beneficial interests in two pieces of real estate by a husband to his wife as an alleged estate planning maneuver failed and thereby gave rise to resulting trusts. We conclude that the judge was warranted in finding that at the time of the transfers the husband’s intent was to protect the two properties from his creditors, and that he did not intend to convey the beneficial interests to his wife. The combination of the husband’s intent and his wife’s tacit agreement to act as his agent supports the judge’s ruling that the two properties were held by the wife, as trustee, in resulting trusts for her husband’s benefit and thus were subject to reach and apply actions by his creditor. We therefore affirm. Background. The plaintiff, Citizens Bank of Massachusetts (Citizens Bank), brought this reach and apply action to obtain assets purportedly held by the defendant, Pamela Baker Coleman (wife), to satisfy debts owed by her husband, Martin J. Coleman, III (husband), a real estate developer. The case was tried without a jury. We summarize the pertinent facts, drawn from the judge’s findings of fact, rulings of law, and order of judgment. In April of 1983 and 1984, the husband purchased, in his own name, two multifamily rental properties (collectively, rental properties) in Waltham: 331-333 Grove Street (Grove Street property) and 156-158 Ash Street (Ash Street property). The judge found that the husband furnished all the consideration to acquire these properties. In 1986, the husband and wife were married, and the wife began managing the properties. The judge found that […]
Bank of America To Unveil New ATMs in Boston
Bank of America customers in Boston soon will be able to connect with tellers via ATMs, part of the company’s new plan for rebranding. The new interactive ATMs, which are launching first in Boston, will allow customers to video chat with bank tellers and take advantage of other services, the Boston Globe reported. The new ATMs also will allow customers to cash checks for the exact amount down to the cent and will offer cash removal in additional amounts, including $ 1, $ 5, $ 20 and $ 100, the Globe reported. The machines first will go up at Bank of America’s Back Bay center, located at 133 Massachusetts Ave., with other machines going up around the city and in other parts of the country later this year, according to the Globe. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
March Top Ten: Homicide Investigation, Attempted Bank Robbery, Whole Foods
The numbers are in, and these are the most popular South End stories according to you and your neighbors in the month of March: 1. Man Found Dead on West Canton Street – A man was found dead on West Canton Street in the South End on March 23, according to the Boston Police Department. Homicide detectives are now investigating the man’s death. 2. Police: Attempted Robbery at Washington Street Bank Failed When Teller Couldn’t Read Note – After handing the teller a note that she couldn’t read, a bank robbery suspect told her she was “stupid,” and left. 3. South End Answers: When Will the Whole Foods Open? – Reader J. Nicole asked via Twitter, “When are we getting a Whole Foods and a Pinkberry? Life’s essential elements.” Find out the answer here. 4. Two of ‘Boston’s Finest’ Give Inside Scoop on the Show – Boston Police officers featured on the show dish about working with Donnie Wahlberg, and that one has never heard of New Kids on the Block. 5. South End Man’s Remains Found in Charles River – State Police detectives identified the remains of a man found in the Charles River on March 14 as a 32-year-old South End man. 6. TV Show Filming in South End Next Week – ABC’s new drama “Hatfields & McCoys,” shot on Waltham, Harrison and Washington Street in March. 7. Boston Man Charged with Kidnapping Near South End – A man allegedly kept a female victim in his residence against her will over the weekend. 8. South End’s Genuine Interactive Named One of Boston’s Fastest Growing Businesses – The South End’s Genuine Interactive has been recognized as one of the fastest growing private companies in Massachusetts by the by the Boston Business Journal. 9. Week in Review: Celebrities, Kidnapping, Whole Foods – March 18 to March 22, 2013 was a busy week in the South End. 10. Where to Eat During Restaurant Week in the South End – Boston Restaurant week was held from March 17 to 22, and March 24-29, 2013. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Police: Attempted Robbery at Washington Street Bank Failed When Teller Couldn’t Read Note
The following information was supplied by the Boston Police Department. Charges do not indicate a conviction. An attempted bank robbery at the Mount Washington Bank on Saturday morning failed when the suspect handed the teller a reportedly illegible note, called her “stupid” for not being able to read it, and left. Boston Police responded to a robbery in progress at 11 a.m. on Saturday at the Mount Washington Bank at 1134 Washington St. One of the bank’s tellers told police that just before 11 a.m., a suspect had attempted to rob the bank. The employee told officers that the suspect handed her a note. The employee was unable to determine the exact wording of the note, but was able to read the word “shoot.” The suspect then stated, “Give me the money or I’ll shoot you.” The employee told officers that she was confused at first and asked the suspect to repeat what he had said. The suspect then told the employee, “You are stupid.” He then took the note, and left the bank. The suspect did not leave the bank with any money. The FBI bank robbery task force has launched an investigation. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch