Santos v. U.S. Bank National Association, et al. (Lawyers Weekly No. 11-081-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-334 Appeals Court MILTON R. SANTOS[1] vs. U.S. BANK NATIONAL ASSOCIATION, trustee,[2] & others.[3] No. 15-P-334. Suffolk. February 24, 2016. – July 8, 2016. Present: Katzmann, Milkey, & Blake, JJ. Bank. Loan. Mortgage, Real estate, Foreclosure. Real Property, Mortgage. Notice. Practice, Civil, Motion to dismiss, Summary judgment, Summary process. Summary Process. Civil action commenced in the Superior Court Department on March 28, 2011. The case was heard by Heidi E. Brieger, J., on a motion for summary judgment. Michael J. Traft (Robert Graves with him) for the plaintiff. Sean R. Higgins (Michael Stanley with him) for the defendants. KATZMANN, J. The plaintiff mortgagor Milton R. Santos appeals from orders of a Superior Court judge dismissing his claim that the mortgagee and mortgage servicing defendants violated G. L. c. 244, § 35A, and granting summary judgment to the defendants on his claim that U.S. Bank National Association (U.S. Bank) negligently processed his loan modification applications made pursuant to the Home Affordable Modification Program (HAMP). We affirm. Background. We recite the facts alleged in Santos’s complaint as supplemented by the undisputed facts in the summary judgment record and descriptions of HAMP from case law. HAMP.[4] “HAMP was part of Congress’s response to the financial and housing crisis that struck the country in the fall of 2008.” Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 772 (4th Cir. 2013). Acting under authority conferred by the Emergency Economic Stabilization Act of 2008 (EESA), 12 U.S.C. § 5201 et seq. (and specifically the Troubled Asset Relief Program [TARP], 12 U.S.C. §§ 5211–5241), and in conjunction with the Federal Housing Finance Agency, the Federal National Mortgage Association (Fannie Mae), and the Federal Home Loan Mortgage Corporation (Freddie Mac), the Secretary of the Treasury (Secretary) introduced the Making Home Affordable Program in February, 2009. HAMP, which is administered by Fannie Mae, is part of this initiative. Markle v. HSBC Mort. Corp. (USA), 844 F. Supp. 2d 172, 176 (D. Mass. 2011). “HAMP aims to provide relief to borrowers who have defaulted on their mortgage payments or who are likely to default by reducing mortgage payments to sustainable levels. . . . Under HAMP, loan servicers receive incentive payments for each permanent loan modification completed. . . . Mortgage lenders approved by Fannie Mae […]
Commonwealth v. Santos (Lawyers Weekly No. 10-123-13)
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‑11235 COMMONWEALTH vs. FERNANDO SANTOS. Hampden. March 4, 2013. ‑ July 10, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Rape. Indecent Assault and Battery. Constitutional Law, Search and seizure. Search and Seizure, Consent, Buccal swab. Practice, Criminal, Motion to suppress. Evidence, Buccal swab, Intoxication, First complaint. Deoxyribonucleic Acid. Intoxication. Indictments found and returned in the Superior Court Department on September 2, 2009. A pretrial motion to suppress evidence was heard by Constance M. Sweeney, J., and the cases were tried before her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Emily A. Cardy, Committee for Public Counsel Services (Nikolas Andreopoulos, Committee for Public Counsel Services, with her) for the defendant. Katherine E. McMahon, Assistant District Attorney, for the Commonwealth. Allison Callahan, Assistant District Attorney, for District Attorney for the Suffolk District, amicus curiae, submitted a brief. IRELAND, C.J. A Hampden County jury found the defendant guilty of rape of a child with force, in violation of G. L. c. 265, § 22 (a), and indecent assault and battery of a child under fourteen (three indictments), in violation of G. L. c. 265, § 13 (b).[1] The defendant timely appealed, and we transferred the case here on our own motion. He argues that a Superior Court judge erred when she denied his motion to suppress evidence obtained from a warrantless search of his apartment, and when she determined that he understood English and was not too incapacitated by alcohol to voluntarily provide a sample of his deoxyribonucleic acid (DNA). He also argues that first complaint testimony admitted at trial impermissibly influenced the jury. Because we conclude that, in the circumstances here, the police possessed sufficient factual information when they determined that a person who appeared to have authority had given consent to enter the defendant’s apartment, and because there is no merit to his other claims of error, we affirm the defendant’s convictions. 1. Motion to suppress. We recite the facts found by the judge at the hearing on the motion to suppress, supplemented by undisputed facts in the record consistent with the judge’s findings.[2] See Commonwealth v. Butler, 423 Mass. 517, 526 n.10 (1996) (we use uncontroverted facts that do not contradict judge’s findings). The victim lived in a second-floor […]
Dos Santos, et al. v. Coleta, et al. (Lawyers Weekly No. 10-084-13)
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‑11188 CLEBER COLETA DOS SANTOS[1] & another[2] vs. MARIA A. COLETA & another.[3] Suffolk. January 10, 2013. ‑ May 15, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Negligence, One owning or controlling real estate, Swimming pool, Open and obvious danger, Duty to warn, Standard of care. Practice, Civil, Instructions to jury. Civil action commenced in the Superior Court Department on July 25, 2008. The case was tried before Mitchell H. Kaplan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Lisa DeBrosse Johnson (Steven E. Ernstoff with her) for the plaintiffs. Mark F. Mahnken for the defendants. Timothy C. Kelleher & J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. CORDY, J. The plaintiff Cleber Coleta Dos Santos was injured when he unsuccessfully attempted to flip into an inflatable pool from a trampoline that had been set up directly adjacent to it in the backyard of a property he was renting from the defendants, Maria A. and Jose T. Coleta.[4] He brought an action in the Superior Court against the defendants, claiming that they were negligent in setting up and maintaining the trampoline next to the pool and in failing to warn him of the danger of jumping from the trampoline into the pool.[5] The jury returned a verdict for the defendants. The plaintiff appealed, arguing that the judge erred in instructing the jury on the “open and obvious danger” rule without giving a requested instruction on a recognized exception to that rule, based on the Restatement (Second) of Torts § 343A, at 220 (1965) (§ 343A), and posing a corresponding special question. The Appeals Court affirmed, Dos Santos v. Coleta, 81 Mass. App. Ct. 1 (2011) (Dos Santos), and we granted the plaintiff’s application for further appellate review. Because we conclude that a landowner has a duty to remedy an open and obvious danger, where he has created and maintained that danger with the knowledge that lawful entrants would (and did) choose to encounter it despite the obvious risk of doing so, we now reverse.[6] 1. Evidence at trial. In the summer of 2005, the plaintiff lived with his wife and son in one unit of a two-family home in Framingham […]