Where a plaintiff borrower has alleged that a foreclosure was unlawful under G.L.c. 183, the defendants' lack of a power of attorney did not render the foreclosure invalid.
Accordingly, the defendants will be awarded summary judgment.
"Plaintiff Josephine Donahue ("Donahue") has filed this lawsuit against Defendants Federal National Mortgage Association and Ocwen Loan Servicing, LLD ("Ocwen") (collectively, "Defendants") alleging violations of Mass. Gen. L. c. 183, S32 and Mass. Gen. L. 183, S4 (Count I), breach of the duty of good faith and reasonable dilligence (Count II) and breach of contract and the covenant of good faith and fair dealing (Count III). ...
"Donahue asserts that the foreclosure of the Property was unlawful under Mass. Gen. L.c. 183 S32 and Mass. Gen. L. 183, S41 because Defendants lacked a Power of Attorney ('POA') from Ginnie Mae...
"Even assuming there is a private right of action under the statutes which Ocwen contests, the record does not reflect that Ocwen executed a conveyance of the Property on behalf of another entity, such that Ocwen required a POA from Ginnie Mae or any other entity to foreclose...the Court, therefore, holds that Ocwen is entitled to summary judgment on Count I. ..."Donahue also alleges a breach of the duty of good faith and reasonable diligence based on Defendants' failure to comply with 24 CFR S 203.604(b). Although Donahue bases this claim on the lack of a face-to-face meeting, "the mortgage's duty of good faith and reasonable diligence is focused on its conduct of the foreclosure sale". Donahue's claim regarding the lack of a face-to-face meeting one year before the foreclosure sale, therefore, does not give rise to the claim that she alleges in Count II for a breach of the duty of good faith and reasonable diligence.
"Specifically, Donahue does not address Ocwen's conduct at the foreclosure sale under Count II of the complaint or connect it to the duty of good faith and reasonable diligence in her pleading. In her opposition to summary judgment, however, Donahue asserts that Ocwen's conduct at the sale caused her damages because Ocwen paid less than market value for the Property at the foreclosure sale...To the extent Donahue is indirectly invoking the price Ocwen paid for the Property as a breach of the duty of good faith and reasonable diligence, this claim, too, must fail...
"Donahue alleges the Defendants breached the contract between the parties by failing to comply with Paragaph 9(d) of the Mortgage...
"Here, the record reflects that Ocwen sent at least the February 2016 letter by providing a copy of the letter, a USPS tracking number, two Ortwerth affidavits validating that the letter was sent in accordance with Ocwen's regular practices and a corroborating entry from Donahue's file with Ocwen...The Court concludes that even just the February letter satisfied Ocwen's burden to send 'at least one' face-to-face letter to Donahue. 24 C.F.R. S203.604(b)...
"The undisputed evidence, however, shows that Ocwen did not strictly comply with 24 C.F.R. S203.604(b), because by Ocwen's own account, it both mailed the February 2016 face-to-face letter and visited the Property almost one year after Donahue went into default. As discussed above, S203.604(b) requires that a lender make a 'reasonable effort' to arrange a face-to-face meeting 'before three full monthly installments due on the mortgage are unpaid.' 24 C.F.R. S203.604(b). Accordingly, the Court must consider whether strict compliance with the timeline established in S203.604(b) is required.
"..Donahue, however has not identified a case that holds that a reasonable effort toward conducting a face-to-face meeting is condition precedent that requires strict compliance. Several courts have explicitly determined that strict compliance with the three-month window is not required...
"Even if Donahue could show a breach of contract based on Ocwen's failure to comply strictly with S203.604(b), Count III would still fail because Donahue has not met her burden of establishing disputed material facts showing that this alleged breach by Defendants resulted in damages.
"The court concludes that there is no evidence of Ocwen having a 'dishonest purpose' or having acted with 'conscious wrongdoing' that could sustain a claim of a breach of the duty of good faith and fair dealing..."
Donahue v. Federal National Mortgage Association, et al.
