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Biltcliffe v. CitiMortgage, Inc.

United States Court of Appeals, First Circuit

November 25, 2014

JAMES BILTCLIFFE, Plaintiff, Appellant,
v.
CITIMORTGAGE, INC., Defendant, Appellee

Page 926

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. F. Dennis Saylor IV, U.S. District Judge.

Evan P. Lowney, with whom Mazonson Law Office, P.C. was on brief, for appellant.

Donald E. Frechette and Joseph A. Farside, Jr., with whom Edwards Wildman Palmer LLP was on brief, for appellee.

Before Howard, Selya, and Stahl, Circuit Judges.

OPINION

Page 927

STAHL, Circuit Judge.

After Defendant-Appellee initiated foreclosure proceedings on Plaintiff-Appellant's house, he filed suit, alleging breach of contract, unjust enrichment, and breach of the covenant of good faith and fair dealing. The district court granted summary judgment to Defendant on all counts, and denied Plaintiff's motion for reconsideration. We affirm.

I. Facts & Background

James and Kathleen Biltcliffe purchased a home in Bridgewater, Massachusetts in 2004. The Biltcliffes' mortgage was ultimately assigned to Defendant CitiMortgage, Inc. The mortgage agreement allows for acceleration of the debt in the event of default, provided the mortgagee gives the mortgagor notice and the opportunity to cure. The agreement permits CitiMortgage to invoke the statutory power of sale if the borrower fails to cure the default or pay the accelerated debt. The mortgage document also provides that the lender " may accept any payment or partial payment . . . without waiver of any rights hereunder."

The Biltcliffes defaulted on their mortgage payments in 2008. While Plaintiff avers that the couple never received written notice of default, Defendant provided the district court with two demand letters addressed to Plaintiff's home, one dated September 4, 2008 and the other September 24, 2008. Both letters gave the Biltcliffes ninety days to make up missed payments and late fees,[1] warning that " [f]ailure to cure . . . may result in the acceleration of all sums due." Plaintiff did not make up the payments and Citi accordingly accelerated the debt, notifying the couple by letter dated April 9, 2010

Page 928

and addressed to their home. Although Plaintiff's complaint alleged that he " can find no record of notice of any such acceleration ever having occurred," Defendant submitted an affidavit from one of its attorneys verifying the authenticity of the acceleration notice and confirming that it was sent.

Plaintiff and his wife filed for Chapter 13 bankruptcy in March of 2011. Five months later, in August, Defendant sent the Biltcliffes a Home Affordable Modification Program (HAMP)[2] modification offer. The HAMP offer stated explicitly that the loan documents " will not be modified unless and until . . . the Lender accepts this Agreement by signing and returning a copy of it to [the borrower]." Plaintiff and his wife signed the HAMP agreement and returned it to Defendant. Though ...


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