TORRUELLA, Circuit Judge.
John P. Serra, II ("Serra") asserts that his property was wrongfully sold at foreclosure by a party without any valid legal interest in his mortgage. He also extends claims in wrongful foreclosure and unfair business practices against an earlier mortgage holder that tried, unsuccessfully, to foreclose. All of these claims are predicated on a theory that Mortgage Electronic Registration Systems, Inc. ("MERS") lacked the authority to transfer Serra's
Additionally, Serra claims that subsequent mortgage assignees may incur liability for the allegedly predatory loan terms crafted by his original lender and that his right to rescission was improperly cut short by the sale of his property. Because a review of relevant Massachusetts law shows that these claims are similarly lacking, we affirm.
On May 2, 2007, Serra refinanced his residential home mortgage, taking out a $276,250 loan from EquiFirst Corporation ("EquiFirst")
The Serra mortgage underwent a series of assignments beginning on April 7, 2009, when MERS transferred the mortgage to Barclays Bank, PLC. Barclays immediately transferred the mortgage onwards and, by November 25, 2009, it had been assigned to Quantum Servicing Corp. ("Quantum"). On June 1, 2011, Quantum undertook an additional assignment, transferring the mortgage to Wells Fargo Bank, N.A. as Trustee for RMAC Pass-Through Trust, Series 2010-A ("Wells Fargo"). Quantum remained the loan's servicer.
In October 2010, Serra sent a letter to Quantum — then acting as servicer for Wells Fargo — seeking to rescind his mortgage under the Massachusetts Consumer Credit Cost Disclosure Act ("MCCCDA"). Namely, Serra alleged that a $244.48 credit reporting fee was far above the accepted $50.00 market rate, amounting to a statutory violation sufficient for rescission. Quantum's response letter posed two questions: (1) could Serra tender the loan proceeds in full, and (2) could Serra provide documentation proving rescission was warranted. Quantum never received a response to these inquiries, and subsequently, Wells Fargo sold Serra's property at foreclosure.
Serra's suit, originally brought in state court, was removed on the basis of diversity. Having conducted a foreclosure sale and believing it was owed a deficiency judgment, Wells Fargo counterclaimed before the district court for breach of contract and possession of the foreclosed property. Summary judgment as to all claims was eventually entered in favor of Wells Fargo and Quantum, precipitating this appeal.
Because this appeal is before us as a result of the district court's grant of summary judgment, our review is de novo, and we interpret all facts on the record in support of the nonmoving party below. Bos. Prop. Exch. Transfer Co. v. Iantosca, 720 F.3d 1, 9 (1st Cir.2013). All reasonable inferences that may be extrapolated from the record are drawn in favor of the non-movant, but allegations of a merely
Serra brings claims for wrongful foreclosure against Quantum and Wells Fargo. He also seeks to prove that Quantum engaged in unfair or deceptive business practices. Mass. Gen. Laws ch. 93A ("Chapter 93A"). Because these claims are predicated on the same erroneous legal theory, we review and dismiss them together.
In short, Serra claims that the MERS business model, under which MERS possesses a bare legal interest in a mortgage, transferable among MERS member institutions, is contrary to Massachusetts law. As a consequence, Serra theorizes, MERS lacked legal authority to transfer the Serra mortgage, rendering both its initial assignment and all subsequent transfers of the mortgage invalid.
This argument willfully disregards our holding in Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282 (1st Cir.2013). In Culhane, we ruled unequivocally that MERS may validly possess and assign a legal interest in a mortgage. Id. at 292-93. Far from finding it contrary to law, we remarked that "MERS's role as mortgagee of record and custodian of the bare legal interest as nominee ... fit[s] comfortably within the structure of Massachusetts mortgage law." Id. at 293; see also Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 355 (1st Cir.2013) (applying Culhane to find that "MERS, as the mortgagee of record, possessed the ability to assign [the] mortgage").
Indeed, Serra conceded at oral argument that Culhane invalidates his claims and offered only the suggestion that we disregard the case in reaching our decision, given that the Massachusetts Supreme Judicial Court has not ruled expressly on this issue of state law.
As presciently stated in Culhane itself, where litigants attempt to repackage "old wine in a new bottle ... we see no point in decanting it again." Culhane, 708 F.3d at 294. Put simply, Serra's theory has been foreclosed. The grant of summary judgment
Serra next seeks to have Quantum and Wells Fargo answer for what he believes are structurally unfair loan terms and predatory lending practices engaged in by EquiFirst. See Mass. Gen. Laws ch. 93A, § 2; id., ch. 183, § 28C (the "Borrower's Interest Act"). We need not explore whether the loan terms were in fact unlawful. Rather, because both his Chapter 93A claim for damages and his Borrower's Interest Act claim for equitable relief rise and fall on a common, mistaken, theory of assignee liability, we consider them in tandem.
Serra's argument rests solely on a recent Massachusetts Supreme Judicial Court case, Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 991 N.E.2d 1086 (2013), which he believes establishes assignee liability for his statutory claims. An independent review of Drakopoulos, however, reveals this argument's erroneous underpinnings.
The plaintiffs in Drakopoulos brought six claims, three of which are relevant here. While two of these claims matched Serra's own, arising under Chapter-93A and the Borrower's Interest Act, the third arose under the Predatory Home Loan Practices Act ("PHLPA"), Mass. Gen. Laws ch. 183C. See Drakopoulos, 991 N.E.2d at 1091. As recognized by the Supreme Judicial Court, PHLPA's text expressly includes a broad grant of assignee liability. Id. at 1092 n. 11; see also Mass. Gen. Laws ch. 183C, § 15(a) ("Any person who purchases or is otherwise assigned a high-cost home mortgage loan shall be subject to all affirmative claims and any defenses with respect to the loan that the borrower could assert against the original lender...."). Thus, PHLPA expands the common law of assignee liability in the limited instance of certain "high cost" loans. Drakopoulos, 991 N.E.2d at 1092 ("To the extent that the bank may [] have liability as an assignee by virtue of the act, it would extend to ... statutory [Chapter 93A and Borrower's Interest Act claims, as well]." (emphasis added)).
In relying on Drakopoulos, Serra fails to acknowledge that his complaint alleged no violation of PHLPA,
In the absence of such statutorily created liability, Serra cannot hold Quantum and Wells Fargo responsible for the allegedly predatory practices of their predecessor-in-interest. Ford Motor Credit Co. v. Morgan, 404 Mass. 537, 545, 536 N.E.2d 587, 591 (1989)("The common law principle that the assignee stands in the assignor's
Serra also seeks the post-foreclosure-sale rescission of his mortgage and, in the alternative, damages for the disregard of his initial rescission request, which predated the sale of his property. This claim for rescission is predicated on an alleged violation of MCCCDA § 10(i)(2), which holds that the under-reporting of a finance charge by more than $35.00 may amount to a statutory violation. That is, while Serra paid $244.48 for a credit report, he alleges that the reasonable market rate was never more than $50.00. This $194.48 difference, he claims, was improperly excluded from the calculation of his finance charge, resulting in the understatement of the amount financed and annual percentage rate.
The district court granted summary judgment on this claim,
We need not retread each step along the district court's detailed analytical path, for its eventual conclusion neatly highlights the fatal flaw in Serra's claim. That is, having failed to sufficiently plead any valid basis to rescind his mortgage loan at any time, Serra has presented no genuine issue of material fact sufficient to require this court to delve into the remainder of his claims regarding the precise scope and duration of his rescission rights.
Although it may be, arguendo, that a spurious $194.48 charge would — on a different record — suffice to establish an MCCCDA violation for which rescission might lie, Serra has failed to provide any evidentiary support for the claim that $50.00 was the appropriate market rate. In fact, having reviewed the full record, the sole reference to $50.00 as the accepted rate is found in Serra's pleadings. This, without more, is insufficient to survive summary judgment. Transurface Carriers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir.1984) (finding no genuine issue of material fact where a party offered "no more than argument," unsupported by "affidavits, deposition, or other appropriate materials raising a question of fact" (internal citation omitted)).
If factual, Serra must necessarily have derived this $50.00 figure from some verifiable
The final issue remaining on appeal is Serra's claim that summary judgment was wrongly awarded to Wells Fargo on its counterclaims for breach of contract and possession.
As to breach of contract, we note that Serra dedicates less than five lines of his appellate brief to this issue and offers only the theory that summary judgment is inappropriate given the "erroneous application of the law described [elsewhere in his brief.]" Even were such briefing not ripe for a finding of waiver, see Mass. Sch. of Law at Andover, Inc. v. American Bar Ass'n, 142 F.3d 26, 43 (1st Cir.1998), we have identified no such "erroneous application" of law and thus see no viable grounds to disturb the district court's finding.
The claim regarding possession gives us no greater pause, as Serra now forwards arguments which were never raised below, and are thus barred by our waiver doctrine. Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir.2000). In fact, before the district court, Serra argued only that Wells Fargo had to prove strict compliance with Massachusetts' statutory foreclosure requirements, Mass. Gen. Laws ch. 244, § 14, and the governing documents of the RMAC Pass-Through Trust, Series 2010-A. Now, he abandons that argument in favor of the suggestion that mere adherence to those statutory requirements and trust documents is insufficient, a party must further bring a claim for "summary process" under Mass. Gen. Laws ch. 239.
Even were this argument not waived, it is clear that "summary process" is not the exclusive means by which a foreclosing entity make seek possession of real property in Massachusetts. See Mass. Gen. Laws ch. 184, § 18 ("No person shall attempt to recover possession of land ... other than through an action brought pursuant to chapter two hundred and thirty-nine or such other proceedings authorized by law." (emphasis added)). Having failed to articulate any clear theory as to why a properly filed counterclaim before the district court would not constitute such an alternative means to establish possession, Serra's claim must fail.
In the absence of a dispute of law or fact sufficient to survive summary judgment, we affirm.