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Flores v. Onewest Bank, F.S.B.

United States Court of Appeals, First Circuit

March 23, 2018

PEDRO A. FLORES; ESTHER YANES-ÁLVAREZ; ROSA YANES, Plaintiffs, Appellants,
v.
ONEWEST BANK, F.S.B.; INDYMAC MORTGAGE SERVICES; OCWEN SERVICING, LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants, Appellees.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Richard G. Stearns, U.S. District Judge

          Carmenelisa Pérez-Kudzma and Pérez-Kudzma Law Office P.C. on brief for appellants.

          Marissa I. Delinks, Maura K. McKelvey, and Hinshaw & Culbertson LLP on brief for appellees.

          Before Torruella, Selya, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         This case concerns an appeal from the dismissal of a suit that challenges the lawfulness of a 2012 foreclosure sale of a home in Massachusetts. The property at issue formerly belonged to the plaintiffs: Pedro Flores, Esther Yanes-Álvarez, and Rosa Yanes. Their complaint set forth numerous claims alleging, among other things, that the defendants -- OneWest Bank, Indymac Mortgage Services, Ocwen Servicing, and the Federal National Mortgage Association -- had engaged in unfair and predatory mortgage lending and loan servicing practices and that the foreclosure sale of the property was void. We affirm the District Court's order dismissing all of the claims.

         I.

         To set the stage, we recount the following facts as they are recited in the amended complaint. On or about April 6, 2007, the plaintiffs refinanced their home mortgage loan for their home in Everett, Massachusetts. The home mortgage loan was originated by Dynamic Capital Mortgage and secured by a mortgage on the property with Mortgage Electronic Registration Systems Inc. ("MERS"), which the mortgage named as mortgagee.

         In 2008, the plaintiffs were unable to meet their monthly mortgage obligations and eventually defaulted on the mortgage. On April 25, 2012, the plaintiffs applied for a loan modification from Indymac Mortgage Services, a division of OneWest Bank. On May 11, 2012, Indymac denied the plaintiffs' application. OneWest effectuated the foreclosure pursuant to the statutory power of sale. Mass. Gen. Laws ch. 183, § 21. Defendant OneWest purchased the property at the foreclosure sale.

         More than three years later, on November 15, 2015, the plaintiffs brought this suit in the District Court for the District of Massachusetts. The operative complaint set forth nine claims. The defendants moved to dismiss all of the claims, and the District Court granted the motion. The plaintiffs now appeal the dismissal of eight of the nine claims.[1] Our standard of review for an order granting a motion to dismiss is de novo. Rodi v. S. New England Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004). In performing the review, "[n]on-conclusory factual allegations in the complaint must . . . be treated as true." Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

         II.

         The plaintiffs' eight claims, which are all brought under Massachusetts law, fall into what amounts to four different categories. Three claims seek a judgment declaring that the foreclosure sale is void. A fourth claim is for an action to quiet title. A fifth claim is for breach of the duty of good faith and reasonable diligence. The final three claims at issue are brought under two different consumer protection statutes. For the reasons that follow, we affirm the dismissal of all of these claims.

         A.

         We begin with the three claims for which the plaintiffs seek a judgment declaring that the foreclosure sale is void. The first of these claims contends that the sale is void because the defendants failed to comply with Massachusetts General Laws Chapter 244, § 15A ("§ 15A") in conducting the sale. Section 15A requires a mortgagee conveying title to ...


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