DUPLESSIS v. WELLS FARGO BANK NATIONAL ASSOCIATION (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On remand from this court, plaintiff Jean Duplessis's sole remaining claim alleged that the defendant, Wells Fargo Bank, National Association, as trustee for Securitized Asset Backed Receivables LLC Trust 2005-FR2 Mortgage Pass-Through Certificates, Series 2005-FR2 (Wells Fargo), had breached the mortgage contract by sending a notice of default which was statutorily and contractually deficient.⁴ Following the remand, however, Wells Fargo issued a new notice of default which restarted the foreclosure process. In light of the new notice, the Superior Court judge deemed the remaining count (count three) of Duplessis's complaint moot, and granted summary judgment in favor of Wells Fargo. We affirm.⁵

Discussion. Massachusetts courts “ordinarily refuse to render decisions in the absence of an actual controversy.” Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 418 (1992). Although a case may involve a live controversy at its inception, a material change in circumstances can render the issue moot. See Commissioner of Correction v. Ferguson, 383 Mass. 651, 654 (1981). This is precisely what occurred here.

Upon remand, Wells Fargo issued new notices of foreclosure that restarted the foreclosure process. The new notices put to rest, therefore, any controversy that existed over the purported deficiencies in the original notices. See Olmstead v. Department of Telecomm. & Cable, 466 Mass. 582, 592-593 (2013) (complaint moot where, after issuing deficient notice, defendant issued new notice compliant with applicable regulations). Accordingly, the complaint raises no actual controversy and is now moot.⁶

Judgment affirmed.

FOOTNOTES

4.   After remand, defendants Michienzie and Sawin, LLC; and Ocwen Loan Servicing are no longer involved parties.

5.   The parties have represented that Duplessis filed for bankruptcy between the period when the judge granted summary judgment, and when Duplessis filed his appeal. As such, Duplessis may lack standing to pursue this appeal. See In re Furlong, 660 F.3d 81, 86 (1st Cir. 2011), quoting 11 U.S.C. § 541(a)(1) (2014) (“ ‘[A]ll legal or equitable interests of the debtor in property’ as of the commencement of bankruptcy, including causes of action, become property of the bankruptcy estate”). See also City Sanitation, LLC v. Allied Waste Servs. of Mass., LLC, 656 F.3d 82, 90 (1st Cir. 2011) (“It is common ground that when a cause of action belongs to the bankruptcy estate, the trustee has the exclusive right to assert it”). Because we conclude that Duplessis's claim is moot, and because the record lacks documents relating to the bankruptcy proceeding, we do not reach the standing issue here.

6.   We reject Duplessis's argument that a controversy exists over whether he is entitled to damages arising from the original notice. It is undisputed that Duplessis has been in default since before the original notice was sent. Section H of the mortgage assigns all rents to the lender if Duplessis is in default. As such, Duplessis would not be entitled to retain any rents collected and would not be entitled to damages.