SUSAN K. YOUNG, Plaintiff, Appellant,
WELLS FARGO BANK, N.A., as Trustee for Option One Mortgage Loan Trust 2007-CP1, Asset Backed Certificates, Series 2007-CP1; HOMEWARD RESIDENTIAL, INC., f/k/a American Home Mortgage Servicing, Inc., Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]
Anthony Alva, for appellant.
Marissa I. Delinks, with whom Maura K. McKelvey and Hinshaw &
Culbertson LLP were on brief, for appellees.
Howard, Chief Judge, Torruella and Barron, Circuit Judges.
TORRUELLA, Circuit Judge.
Susan K. Young, previously before us after her action was
dismissed under Federal Rule of Civil Procedure 12(b)(6),
Young v. Wells Fargo Bank, N.A. (Young I),
717 F.3d 224 (1st Cir. 2013), again attempts to avert the
foreclosure of her home after seeking a mortgage modification
under the Home Affordable Modification Program
("HAMP"). We had vacated the district court's
dismissal of her claims for breach of contract, unfair debt
collection under Massachusetts General Laws ch. 93A
("Chapter 93A"), and derivative equitable relief.
Id. at 242. We found that Young adequately pled a
breach of contract by alleging that the defendants failed to
offer her a mortgage modification in a timely manner, and
that she had sufficiently pled damages for her Chapter 93A
claim. On remand, the district court granted summary judgment
in favor of defendants-appellees Wells Fargo Bank, N.A.
("Wells Fargo") and Homeward Residential, Inc.
("Homeward") on Young's remaining claims. She now
appeals. We affirm.
purposes of summary judgment, we recite the facts in the
light most favorable to Young as the nonmoving party. See
Collazo v. Nicholson, 535 F.3d 41, 43 (1st Cir. 2008).
bought the property where she built her home in Yarmouth
Port, Massachusetts, in September of 1997. Nine years later,
in September of 2006, she refinanced the property, obtaining
an adjustable rate mortgage ("ARM") of $282, 000.
Wells Fargo is the trustee of the trust that holds her
mortgage and Homeward the loan servicer.
with financial difficulties, Young fell behind on her
mortgage payments in 2007 and 2008. In August of 2008, she
noticed a mortgage payment for $2, 600 that she sent Homeward
had not been processed. At that time, she also received a
notice on her door stating that her mortgage payment was
late, but that she could ignore the notice if she had made
the payment. Young called Homeward and learned that Homeward
refused to process her payment because her account was in
asked Homeward how she could avoid foreclosure. After much
back and forth, Homeward offered to send Young a forbearance
agreement if she submitted an upfront payment of $5, 628.42
before September 5. Young did so and, when she did not
receive the promised agreement, called Homeward on September
8. A representative told Young, "there is no
agreement." Young then spoke to a supervisor, Maryann
Connor, who informed her that, had her check for $2, 600 been
processed in August of 2008, her account never would have
been put into foreclosure. Connor also told Young that
Homeward "was handling this situation incorrectly and
[was] at fault for not processing the agreement."
faxed Young a forbearance agreement on September 10, 2008.
The agreement provided that "the total sum necessary to
bring the Loan current" was $10, 738.41 and required,
among other things, that Young make monthly payments of $3,
144.32 (whereas her mortgage provided for initial monthly
payments of $2, 030.03). Young worried that she could not
afford the increased monthly payments but nevertheless signed
the agreement that same day. Young tried to discuss the
agreement with Connor but was unable to reach her. Young
feared that, if she did not sign the forbearance agreement
immediately, Homeward would refuse to work with her.
struggled to make payments under the forbearance agreement.
Several months after signing the agreement, Young consulted
with various lawyers and learned that a mortgage modification
may be available through HAMP, a federal program that
provides incentives for loan servicers and lenders to give
permanent loan modifications to struggling
homeowners. With the help of a paralegal, Jerry
DeSalvatore, she applied for a HAMP modification. On October
6, 2009, Homeward sent Young a letter indicating that she was
eligible for a mortgage modification through HAMP. The letter
indicated that Young needed to comply with a Trial Period
Plan ("TPP") to receive a HAMP modification. The
TPP required, among other things, that she make three
payments of $1, 368.94 on or before November 1, 2009,
December 1, 2009, and January 1, 2010. According to the TPP,
Young would receive a mortgage modification for which her
first payment would be due "on the first day of the
month following the month in which the last Trial Period
Payment is due, " or February 1, 2010.
sent her December payment on November 30, 2009, and it was
received by Homeward on December 2, 2009. She sent her
January payment December 30, 2009, and it was received on
January 2, 2010. She included a cover letter with her January
payment indicating that she "expect[ed] the final
modification agreement to be sent . . . by February 1, 2010
without further delay, as per our agreement." On January
13, 2010, Young received a letter indicating that she was
"ineligible for a HAMP modification" because her
payments were untimely under the TPP. The letter stated that
Homeward had "not receive[d] all Trial Period Plan
payments on or before the 30th day from the due date of the
last Trial Period Plan payment." On February 14, 2010,
Young received a notification informing her that the interest
rate on her mortgage was scheduled to change with her payment
due April 1, 2010 (the "ARM Change Notification").
February 17, 2010, DeSalvatore called Homeward to contest the
January letter deeming Young ineligible for a HAMP
modification. He spoke with a Homeward representative named
Diane, who "admitted that the letter of rejection was a
mistake" and explained that "the loan modification
should be at [Young's] door within three to four
weeks." DeSalvatore sent a follow-up letter to Diane the
next day confirming the conversation and explaining that
"Young [would] make her February payment ...