Wallace v. PNC Bank, N.A. (Lawyers Weekly No. 10-010-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12261 DAVID C. WALLACE vs. PNC BANK, N.A. January 16, 2018. Supreme Judicial Court, Superintendence of inferior courts. David C. Wallace (petitioner) filed a petition in the county court pursuant to G. L. c. 211, § 3 (general superintendence); G. L. c. 249, § 4 (relief in the nature of certiorari); and G. L. c. 249, § 5 (relief in the nature of mandamus), seeking relief from a judgment of the District Court in a summary process proceeding.[1] He also challenged a decision of the Appellate Division of the District Court affirming the appeal bond ordered by the trial judge in the same summary process proceeding. The single justice denied the petition without a hearing. We affirm. Regardless of whether relief is requested in the nature of certiorari or mandamus, or by means of the court’s extraordinary power of general superintendence, relief is available only where the petitioner demonstrates the absence of an adequate and effective alternative remedy. See Picciotto v. Appeals Court (No. 2), 457 Mass. 1002, 1002 (2010), cert. denied, 562 U.S. 1044 (2010) (certiorari review unavailable where other paths for review available); Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 82-83 (1968) (purpose of certiorari is to provide a remedy in absence of reasonably adequate alternative). See also Murray v. Commonwealth, 447 Mass. 1010, 1010 (2006) (relief in nature of mandamus is extraordinary, and granted in court’s discretion only where other relief unavailable); Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996) (relief properly denied under G. L. c. 211, § 3, “where there are [other] adequate and effective routes . . . by which the petitioning party may seek relief”). The petitioner failed to carry his burden of showing that adequate alternative remedies were not available here. To the extent he challenged the Appellate Division’s decision affirming the District Court judge’s order declining to waive an appeal bond, “[t]he proper course for [him] to have followed, if [h]e wished further to challenge the bond, was to refuse to pay the bond, suffer the dismissal of [his] summary process appeal, and then appeal to the Appeals Court (on the limited bond issue) from the order of dismissal.”[2] Matter of an Appeal Bond (No. 1), 428 Mass. 1013, 1013 (1998) (collecting cases). See Erickson v. Somers, 446 Mass. 1015, 1015 (2006). To […]
Wells Fargo Bank, N.A. v. Comeau (Lawyers Weekly No. 11-143-17)
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 16-P-335 Appeals Court WELLS FARGO BANK, N.A., trustee,[1] vs. NANCY P. COMEAU. No. 16-P-335. Essex. November 3, 2016. – November 15, 2017. Present: Agnes, Blake, & Desmond, JJ. Subrogation. Mortgage, Priority. Real Property, Mortgage. Civil action commenced in the Superior Court Department on June 17, 2013. The case was heard by Timothy Q. Feeley, J., on motions for summary judgment. Andrew S. Lee for the plaintiff. Gregory N. Eaton for the defendant. AGNES, J. Where, as in this case, the doctrine of equitable subrogation is invoked by a mortgagee, it usually refers to a situation in which that party claims that because it has paid the obligation of another person or entity, it is entitled to be put into the shoes of the party it has paid in order to recover from the person or entity that had the obligation.[2] In the present case, on the other hand, the plaintiff, Wells Fargo Bank, N.A., as trustee for WAMU Mortgage Pass Through Certificates Series 2005-PR2 Trust (Wells Fargo), asks us to employ the doctrine of equitable subrogation to impose on a surviving spouse an obligation to pay the balance of a note that her deceased husband was obligated to pay when he refinanced their home in circumstances in which the surviving spouse was a party to neither the note nor the accompanying mortgage. For the reasons that follow, we reject this novel argument as fundamentally at odds with the framework established by the Supreme Judicial Court in East Boston Sav. Bank v. Ogan, 428 Mass. 327 (1998). Background. Nancy P. Comeau (Nancy) and her husband, William L. Comeau (William),[3] owned a residence as tenants by the entirety in Groveland (locus), which, as of September 22, 2003, was encumbered by a mortgage to the Haverhill Co-Operative Bank (Haverhill) in the amount of $ 150,000. Both William and Nancy were mortgagors-grantors on that mortgage to Haverhill, but Nancy was not a signatory to the note. There is no evidence that Nancy represented, directly or indirectly, that she was bound by the terms of the note. Two years later, in 2005, William refinanced the 2003 loan by executing a note in his name only to Washington Mutual Bank, F.A. (Washington Mutual), in the amount of $ 300,000 secured […]
Valente v. TB Bank, N.A. (Lawyers Weekly No. 11-117-17)
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 16-P-1119 Appeals Court GERALD VALENTE, executor,[1] and trustee,[2] vs. TD BANK, N.A.[3] No. 16-P-1119. Worcester. March 3, 2017. – August 30, 2017. Present: Agnes, Kinder, & Shin, JJ. Bank. Negligence, Bank. Notice, Timeliness. Uniform Commercial Code, Bank, Notice, Payment on negotiable instrument. Negotiable Instruments, Payment. Civil action commenced in the Superior Court Department on October 25, 2011. The case was heard by Daniel M. Wrenn, J., on a motion for summary judgment. Barry A. Bachrach for the plaintiff. Catherine R. Connors for the defendant. AGNES, J. Before a bank customer may sue his bank for honoring a check drawn on his account that bears an “unauthorized signature or alteration,” Massachusetts law requires that the customer notify the bank of the matter within one year after a statement of the account showing the item that was paid is made available to him. G. L. c. 106, § 4-406(f), as appearing in St. 1998, c. 24, § 8.[4] In the present case, the plaintiff, Gerald Valente, in his capacity as the executor of the estate of Mauro Valente (decedent or Mauro) and as trustee of the Valente Family Trust, brought suit against the decedent’s widow, Donna Valente,[5] and her daughter, Lillianna Saari, alleging that they wrongfully misappropriated substantial sums of money from the decedent’s estate and a family trust that were on deposit in TD Bank, N.A. (bank). In the same action, in the only count in the complaint against the bank, the plaintiff alleged that the bank was negligent and thereby liable for damages because it was aware of the wrongful conduct by the decedent’s widow. For substantially the same reasons given by the Superior Court judge below, who allowed the bank’s motion for summary judgment in a thoughtful and comprehensive memorandum of decision, we hold that the one-year notice requirement set forth in G. L. c. 106, § 4-406(f), bars a customer’s lawsuit against his bank for honoring a check with a forgery of the customer’s signature despite an allegation that the bank had actual knowledge of the forgery.[6] Background. The essential facts material to the outcome in this case are not in dispute. The following account is drawn from the materials submitted by the plaintiff and the bank in connection with the bank’s motion for summary judgment. Mauro and Donna […]
Jose v. Wells Fargo Bank, N.A. (Lawyers Weekly No. 11-089-16)
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 15-P-835 Appeals Court TOMAS JOSE vs. WELLS FARGO BANK, N.A. No. 15-P-835. Essex. May 6, 2016. – July 22, 2016. Present: Cohen, Green, & Hanlon, JJ. Mortgage, Foreclosure. Real Property, Mortgage. Administrative Law, Agency’s interpretation of regulation. Civil action commenced in the Superior Court Department on March 5, 2012. The case was heard by Thomas Drechsler, J., on a motion for summary judgment. Thomas J. Gleason for the plaintiff. David Fialkow for the defendant. GREEN, J. Regulations promulgated by the Federal Department of Housing and Urban Development (HUD) require a mortgage lender to conduct a face-to-face meeting with defaulting borrowers before foreclosing on certain federally insured mortgages. The defendant, Wells Fargo Bank, N.A., (Wells Fargo), acknowledges that failure to comply with those regulations may serve as a basis to invalidate its foreclosure of the mortgage it held on the plaintiff’s property, but asserts that it qualifies for an exemption. We conclude that Wells Fargo does not qualify for the exemption from the face-to-face meeting requirement, and reverse so much of the judgment as dismissed that part of the plaintiff’s complaint. Background. On March 28, 2005, the plaintiff, Tomas Jose, executed a promissory note in the amount of $ 440,002 to refinance a prior mortgage loan on 499 Boston Street in Lynn (property). To secure the note, Jose granted a mortgage (mortgage) to Mortgage Electronic Registration Systems, Inc. (MERS), solely as nominee for the lender and the lender’s successors and assigns. The mortgage was insured by the Federal Housing Administration, and incorporated applicable HUD regulations by reference. More specifically, under par. 9(d) of the mortgage, acceleration or foreclosure of the mortgage is not authorized “if not permitted by regulations of the [HUD] Secretary.” On February 4, 2009, MERS assigned the mortgage to Wells Fargo. At all relevant times, Wells Fargo serviced Jose’s mortgage loan. Wells Fargo does not maintain a servicing branch within 200 miles of the property. However, Wells Fargo does maintain deposit and home loan origination branch offices within 200 miles of the property. Wells Fargo never scheduled or conducted a face-to-face meeting with Jose to discuss an alternative to foreclosure. Despite the absence of a face-to-face meeting, however, Wells Fargo and Jose entered into several forbearance agreements and three permanent modifications. Jose breached each […]
Bank of America, N.A. v. Prestige Imports, Inc., et al. (Lawyers Weekly No. 11-087-16)
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 15-P-248 Appeals Court BANK OF AMERICA, N.A.[1] vs. PRESTIGE IMPORTS, INC., & others.[2] No. 15-P-248. Norfolk. January 11, 2016. – July 20, 2016. Present: Grainger, Rubin, & Milkey, JJ. Attorney at Law, Attorney-client relationship, Lien, Contingent fee agreement, Withdrawal. Damages, Quantum meruit. Civil action commenced in the Superior Court Department on February 1, 1991. A motion to adjudicate an attorney’s lien, filed on December 9, 2013, was heard by Patrick F. Brady, J. Steven J. Bolotin for George Deptula. Timothy J. Fazio (Jennifer L. Morse with him) for the defendants. RUBIN, J. In 1992, attorney George Deptula agreed to represent Prestige Imports, Inc., and its principals, Helmut Schmidt and his wife Renate Schmidt[3] (collectively, Prestige), on a contingent fee basis in litigation with South Shore Bank and, later, its acquirer, Bank of America, N.A. (Bank of America), in exchange for a nonrefundable retainer and a percentage of any recovery on Prestige’s counterclaims.[4] After victories at two trials and a reversal of those victories by this court, see Bank of America, N.A. v. Prestige Imports, Inc., 75 Mass. App. Ct. 741 (2009) (Prestige Imports), Deptula withdrew from the case without Prestige’s consent in April, 2010. Represented by different counsel, Prestige won a judgment of $ 27,031,568.12, including statutory interest, at a third trial. While that judgment was on appeal at this court, Deptula filed a notice of attorney’s fees lien pursuant to G. L. c. 221, § 50. Prestige brought a motion to adjudicate this lien, arguing that Deptula forfeited it by withdrawing without Prestige’s consent and without good cause. After a jury-waived trial, a Superior Court judge — who was also the trial judge for the third trial in the underlying litigation — ordered the entry of judgment for Prestige. Deptula appealed that judgment and, for the reasons stated infra, we reverse. Background. The litigation between Bank of America and Prestige involved claims by Bank of America for repayment of loans, and counterclaims by Prestige chiefly alleging Uniform Commercial Code violations, violation of G. L. c. 93A, and negligence, arising out of Bank of America’s handling of certain checks and its issuance of treasurer’s checks by which the comptroller of Prestige embezzled substantial funds from Prestige. Detailed facts about that litigation are set forth in Prestige Imports, supra at 742-752. We summarize here […]
Bank of America, N.A. v. Commissioner of Revenue (Lawyers Weekly No. 10-096-16)
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-11995 BANK OF AMERICA, N.A., trustee,[1] vs. COMMISSIONER OF REVENUE. Suffolk. March 7, 2016. – July 11, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Trust, Taxation. Taxation, Trust, Income tax. Fiduciary. Domicil. Words, “Inhabitant.” Appeal from a decision of the Appellate Tax Board. The Supreme Judicial Court granted an application for direct appellate review. Kevin P. Martin (Joshua M. Daniels with him) for the taxpayer. Kirk G. Hanson, Assistant Attorney General, for Commissioner of Revenue. Phoebe A. Papageorgiou, of the District of Columbia, & Brad S. Papalardo, for Massachusetts Bankers Association & another, amici curiae, submitted a brief. BOTSFORD, J. In this case, we consider whether Bank of America, N.A. (bank), in its capacity as a corporate trustee of several inter vivos trusts, qualifies as an “inhabitant” and accordingly is subject to the fiduciary income tax under G. L. c. 62, § 10, even though the bank is not domiciled in Massachusetts. Considering the bank’s appeal from a decision of the Appellate Tax Board (board) in which the board determined that the bank did qualify as an inhabitant, we affirm the board’s decision on the record of this case, but on somewhat different grounds.[2] Background.[3] The bank is a national banking association authorized to act as a fiduciary. At all relevant times, the bank’s commercial domicil was in North Carolina, with its principal place of business in Charlotte, North Carolina. This case concerns appeals by the bank from the denials, by the Commissioner of Revenue (commissioner), of applications for abatement of fiduciary income taxes paid by thirty-four inter vivos trusts. The taxes were paid by the bank in its capacity as trustee or co-trustee of each of the thirty-four trusts;[4] the taxes paid related to the tax year ended December 31, 2007 (tax year at issue). In 2011, the bank took the position that these thirty-four and similar inter vivos trusts of which the bank served as trustee or co-trustee did not qualify as “resident inter vivos trusts,” as described in 830 Code Mass. Regs. § 62.10.1(1) (b) (2016),[5] and therefore were not subject to fiduciary income tax under G. L. c. 62, § 10 (§ 10). Accordingly, the bank filed with the commissioner 2,987 applications for abatement of the tax and […]
Bank of America, N.A. v. Casey (Lawyers Weekly No. 10-083-16)
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-11943 BANK OF AMERICA, N.A. vs. DEBORA A. CASEY, trustee.[1] February 11, 2016. – June 16, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Validity. Real Property, Mortgage. Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Adam C. Ponte for the defendant. Mark B. Johnson for the plaintiff. Lawrence P. Heffernan & Danielle Andrews Long, for The Abstract Club & another, amici curiae, submitted a brief. BOTSFORD, J. We consider two questions certified to this court by the United States Court of Appeals for the First Circuit (First Circuit).[2] The questions, which arise in connection with a bankruptcy proceeding, concern the power and effect of an affidavit of an attorney executed pursuant to G. L. c. 183, § 5B, in relation to a mortgage containing a defective certificate of acknowledgment. The two questions ask: “1. May an affidavit executed and recorded pursuant to [G. L. c.] 183, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, correct what the parties say is a material defect in the Certificate of Acknowledgment of that mortgage? “2. May an affidavit executed and recorded pursuant to [G. L. c.] 183, § 5B, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgment that omits the name of the mortgagor, provide constructive notice of the existence of the mortgage to a bona fide purchaser, either independently or in combination with the mortgage?” For the reasons that follow, we answer both questions yes, in certain circumstances.[3] 1. Background.[4] By quitclaim deed dated September 29, 1999, Alvaro and Lisa Pereira (collectively, Pereiras) acquired title to the property located at 107 Colonial Drive in New Bedford (property). On October 1, 1999, the deed was recorded with the Southern Bristol County registry of deeds (registry). On December 27, 2005, the Pereiras refinanced the property, granting to Bank of America, N.A. (bank), a mortgage in the principal amount of $ 240,000. The Pereiras individually initialed the bottom of each page of the mortgage agreement except the signature page, on which the full signature of each appears. Attorney Raymond J. Quintin also signed […]
Wells Fargo Bank, N.A. v. Anderson (Lawyers Weekly No. 11-050-16)
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-1156 Appeals Court WELLS FARGO BANK, N.A., trustee,[1] vs. IAN B. ANDERSON. No. 14-P-1156. Bristol. September 8, 2015. – May 11, 2016. Present: Kafker, C.J., Trainor, & Massing, JJ. Mortgage, Assignment, Foreclosure. Real Property, Mortgage. Assignment. Practice, Civil, Standing, Summary judgment, Summary process. Summary Process. Summary process. Complaint filed in the Attleboro Division of the District Court Department on September 1, 2011. After transfer to the Southeastern Division of the Housing Court Department, the case was heard by Anne Kenney Chaplin, J., on motions for summary judgment. Thomas B. Vawter for the defendant. David A. Marsocci for the plaintiff. TRAINOR, J. The defendant, Ian B. Anderson, former homeowner of property located in Norton and holdover in possession after the bank foreclosed, appeals from a Housing Court judgment granting possession of his former home to plaintiff Wells Fargo Bank, N.A. (bank). Anderson argues that the judge erroneously granted summary judgment to the bank. He argues that the judge incorrectly interpreted G. L. c. 183, § 54B, by allowing the bank to rely on certain documents without the need to further substantiate their validity, and that the judge’s interpretation of G. L. c. 183, § 54B, violated his due process rights. Facts. The following facts are undisputed and are taken from the judge’s memorandum of decision on the parties’ cross motions for summary judgment and the summary judgment record. On June 20, 2005, Anderson executed a promissory note and a mortgage in favor of Option One Mortgage Corporation (Option One) using the property as collateral. The mortgage was recorded in the Bristol County registry of deeds, northern district (Bristol registry). On January 2, 2009, Option One assigned Anderson’s mortgage to the bank. The assignment of mortgage was recorded in the Bristol registry and included an effective date of August 14, 2007. On October 15, 2010, Sand Canyon Corporation (Sand Canyon), formerly known as Option One, assigned Anderson’s mortgage to the bank. The assignment of mortgage was recorded in the Bristol registry. After a default by Anderson, the bank through its loan servicer, American Home Mortgage Servicing, Inc., initiated an action in the Land Court on October 25, 2010 under the Servicemembers Civil Relief Act. Judgment entered in favor of the bank and it proceeded with the sale of the property in accordance with the mortgage. On May 5, 2011, the […]
Khalsa, et al. v. Sovereign Ban, N.A. (Lawyers Weekly No. 11-005-16)
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-1898 Appeals Court GURU JIWAN SINGH KHALSA & another[1] vs. SOVEREIGN BANK, N.A. No. 14-P-1898. Suffolk. November 2, 2015. – January 11, 2016. Present: Milkey, Carhart, & Massing, JJ. Mortgage, Foreclosure, Real estate. Real Property, Mortgage. Negotiable Instruments, Note. Agency, What constitutes. Civil action commenced in the Superior Court Department on January 8, 2013. The case was heard by Robert B. Gordon, J., on motions for summary judgment. James L. Rogal for the defendant. Leonard M. Singer for the plaintiffs. MASSING, J. To effect a valid foreclosure sale, the foreclosing mortgage holder must also hold the underlying note or be acting on behalf of the note holder. Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 571 (2012) (Eaton). This appeal requires us to consider how a mortgagee may show that it is acting “as the authorized agent of the note holder,” id. at 586, for summary judgment purposes. On cross motions for summary judgment, a judge of the Superior Court judge entered a declaratory judgment in favor of the plaintiff borrowers, Khalsa and Kaur, and against the defendant mortgagee, Sovereign Bank, N.A. (Sovereign), declaring that the foreclosure sale of the plaintiffs’ residence was void because Sovereign had failed to show that it was acting as the authorized agent of the note holder, Federal Home Loan Mortgage Corporation (Freddie Mac). Sovereign appeals. Because the summary judgment materials create a genuine issue of fact concerning Sovereign’s authorization to foreclose on Freddie Mac’s behalf, we vacate the judgment and remand the case for further proceedings. Background. On April 2, 2008, the plaintiffs executed a promissory note payable to Sovereign in the original principal amount of $ 274,000 to finance the purchase of their home in Millis. To secure the note, the plaintiffs granted Sovereign a mortgage on the property. Shortly thereafter, Freddie Mac purchased the note from Sovereign, retaining Sovereign as servicer of the note and mortgage. On April 22, 2011, Sovereign notified the plaintiffs that they were in default on their loan for nonpayment. Sovereign held a foreclosure sale on January 18, 2013. Although Sovereign held itself out as the “Lender” in the default notice, the note had been indorsed in blank, and at the time of the sale, Freddie Mac had physical possession of the note. See G. L. c. 106, […]
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 […]