OSHESKIE v. HARMON LAW OFFICES PC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, David E. Osheskie, filed two separate complaints in the Superior Court against Harmon Law Offices PC (Harmon Law), Wells Fargo Bank N.A. (Wells Fargo), and HSBC Bank (HSBC), challenging the foreclosure of his home in Quincy (property). In each action, a judge allowed motions to dismiss Osheskie's complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). We now affirm the judgments in each case.

1. Background. Osheskie purchased the property in April 2007. He executed a promissory note in the amount of $403,655, secured by a mortgage on the property, in favor of Wells Fargo. In 2010, Osheskie defaulted on the loan after he was unable to make his monthly payments.

In August 2011, Wells Fargo assigned the note and mortgage to HSBC, but Wells Fargo continued to service the loan. In March 2017, Wells Fargo recorded an affidavit in the Norfolk County Registry of Deeds, certifying that it had complied with G. L. c. 244, § 35B, and that HSBC was the holder of the note secured by the mortgage.⁴ On September 18, 2017, HSBC sent Osheskie notice of a foreclosure sale by public auction on October 19, 2017. The notice included a required certification stating that HSBC was the current mortgagee and owner of the note, and setting forth each recorded assignment of the mortgage. See 209 Code Mass. Regs. § 18.21A(2)(c) (2013). A copy of the note, which was endorsed by Wells Fargo in blank, was included with the certification. Notice of the public auction was published in a local newspaper for three consecutive weeks. See G. L. c. 244, § 14.

According to Wells Fargo and HSBC (together, banks), when the highest bidder at the foreclosure sale decided not to move forward with the purchase, the banks commenced a new foreclosure proceeding. On April 16, 2018, HSBC sent Osheskie notice of a foreclosure sale by public auction on May 15, 2018. The notice again included the required certification stating that HSBC was the current mortgagee and owner of the note, and setting forth each recorded assignment of the mortgage. A copy of the note, which was endorsed by Wells Fargo in blank, was included with the certification. Notice of the public auction was published in a local newspaper for three consecutive weeks. The property was sold at the auction to HSBC.

2. Appeal 18-P-1443. On November 6, 2017, Osheskie filed a complaint against Harmon Law and the banks for temporary injunctive relief, alleging mortgage fraud (first complaint). He sought to halt the completion of the initial foreclosure sale. Following a hearing, a judge denied Osheskie's request for a preliminary injunction. As already stated, that sale did not close and he has not appealed that decision.

The banks filed a motion to dismiss Osheskie's complaint under rule 12 (b) (6) for failure to state a claim on which relief could be granted. They also filed an affidavit of compliance with Rule 9A of the Rules of the Superior Court (2017) in which they stated that they did not receive an opposition to their motion from Osheskie. Separately, Harmon Law filed a motion to dismiss under rule 12 (b) (6), and an affidavit of compliance with rule 9A in which it stated that no opposition was received from Osheskie. In its motion, Harmon Law asserted that it was only named as a defendant in Osheskie's complaint because it had provided legal representation to the banks during the foreclosure proceedings. The judge allowed both motions to dismiss, noting that each was unopposed, and judgments entered dismissing Osheskie's complaint. The present appeal ensued.

The essence of Osheskie's arguments is that the banks did not have the legal authority to foreclose on the property where they failed to prove that the holder of the promissory note was also the holder of the mortgage. That being the case, Osheskie contends that the judge should not have dismissed his complaint. We disagree.

As the judge correctly noted, Osheskie did not oppose either motion to dismiss. Osheskie claims that he was following the deadline dates indicated on the civil tracking order from the Superior Court. However, when the banks served Osheskie with their motion to dismiss, they specifically informed him that it was being filed pursuant to rule 9A, and that he should return his response, if any, within the time frame set forth under the rule. See Rule 9A (b) (3), (4) (i) of the Rules of the Superior Court (opposition to motion to dismiss shall be served within thirteen days where motion was served by mail). The banks also provided Osheskie with a copy of rule 9A. When no opposition was received, the banks filed an affidavit of compliance with rule 9A, which was served on Osheskie. Similarly, Harmon Law filed and served an affidavit of compliance with rule 9A. Osheskie never advised the court that he had failed to oppose the motions to dismiss because he had mistakenly relied on the civil tracking order. Moreover, after the judge allowed the motions, Osheskie did not file a motion for relief from judgment under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974).⁵ We conclude that the judge properly dismissed Osheskie's complaint.⁶ As discussed infra, we also note that the banks established that HSBC was the holder of both the mortgage and the note at the time the notice of the foreclosure sale was issued to Osheskie. See Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 571 (2012); U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 651 (2011).

3. Appeal 19-P-484. On May 7, 2018, Osheskie filed another complaint against Harmon Law and the banks for temporary injunctive relief, again alleging mortgage fraud (second complaint). He sought to halt the second foreclosure sale. Following a hearing, a judge denied Osheskie's request for injunctive relief, concluding that the issue already had been litigated in his prior case, that nothing in Osheskie's second complaint justified revisiting the matter, and that Osheskie had not demonstrated a reasonable likelihood of success on the merits.

The banks then filed a motion to dismiss Osheskie's second complaint under rule 12 (b) (6) for failure to state a claim on which relief could be granted. Harmon Law filed a separate motion to dismiss under rule 12 (b) (6), asserting that where the banks had properly foreclosed on the property, there could be no claims against Harmon Law. Osheskie opposed the motions to dismiss. Following a hearing, the judge allowed both motions, and judgments entered dismissing Osheskie's second complaint. The present appeal ensued.

Our review of the motion judge's decision is de novo. See Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 635 (2012). “We accept as true the facts alleged in [Osheskie's] complaint as well as any favorable inferences that can reasonably be drawn from them.” Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). “However, we do not accept legal conclusions cast in the form of factual allegations.” Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). To survive a motion to dismiss, a complaint must include factual allegations sufficient “to raise a right to relief above the speculative level.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Osheskie continues to challenge the banks' legal authority to foreclose on the property in conformity with the statutory power of sale in the mortgage. The banks established that HSBC was the holder of both the mortgage and the note at the time the notice of the foreclosure sale was issued to Osheskie. See Eaton, 462 Mass. at 571; Ibanez, 458 Mass. at 651. Relying on G. L. c. 106, § 3-309 (a) (i), Osheskie contends that the motions to dismiss must fail because the banks have not provided the original promissory note and a complete chain of assignments of the note for his inspection. The statute cited by Osheskie is found within Article 3 of the Uniform Commercial Code as adopted in Massachusetts at G. L. c. 106, § 1-101 et seq. (UCC), which, along with Article 4, sets forth the law of negotiable instruments in this Commonwealth. Section 3-309 (a) permits a person not in possession of an instrument to enforce it in certain conditions. A mortgage is not a negotiable instrument. It is, instead, “a transfer of legal title to the mortgage property ․ made in order to secure a debt, [which is] defeasible when the debt is paid.” Eaton, supra at 575. Article 3 of the UCC, as adopted in Massachusetts, does not govern mortgages. Moreover, the record establishes that HSBC possessed the note and the mortgage at all relevant times.

We also agree with Harmon Law that where the banks properly foreclosed on the property, Osheskie has failed to state a claim for mortgage fraud against Harmon Law, which merely provided legal representation to the banks. See Galiastro, 467 Mass. at 174 (provision of legal representation does not alone suggest plausible claim for relief). Accordingly, the judge did not err in dismissing Osheskie's second complaint.⁷

Judgments affirmed.

FOOTNOTES

4.   General Laws c. 244, § 35B (b), provides that, with regard to certain loans, a creditor must take reasonable steps and make a good faith effort to avoid foreclosure before publishing notice of a foreclosure sale.

5.   “Despite their lack of legal training, pro se litigants are held to the same standards as practicing members of the bar.” Commonwealth v. Jackson, 419 Mass. 716, 719 (1995).

6.   We have considered Osheskie's additional claims that (1) statements made by the judge during the hearing on injunctive relief, pertaining to Osheskie's request for original loan documents, suggested that the judge did not understand Massachusetts law; and (2) the judge erroneously thought that Osheskie had failed to pay real estate taxes and insurance premiums for the property. We conclude that these claims have no merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) (“Other points, relied on by the [plaintiff] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion”).

7.   With regard to additional claims raised by Osheskie, we conclude that they do not merit further discussion. See Domanski, 332 Mass. at 78.