Antranig MINASIAN v. PNC BANK, NATIONAL ASSOCIATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Antranig Minasian, appeals from an order dismissing his complaint, which alleged various tort and breach of contract claims stemming from a failed attempt to modify a mortgage loan. For the reasons that follow we vacate the order of dismissal.
Background.2 On March 26, 2007, Minasian executed a $250,000 note with National City Bank. The note was secured by a mortgage on Minasian's property located in Falmouth. National City Bank subsequently merged with the defendant, PNC Bank, National Association (PNC). On or about January 11, 2010, Minasian and PNC entered into a one year short term loan modification agreement. About six months later, in August of 2011, Minasian inquired about making the temporary agreement permanent. Negotiations did not proceed well, and, ultimately, by letter dated March 12, 2015, Minasian was informed that his request for a modification had been denied and PNC would proceed with foreclosure.
Minasian then brought this action against PNC alleging that certain PNC employees had committed various torts including, among other things, negligent misrepresentation and violations of G. L. c. 93A, during the loan modification process and that PNC's foreclosure proceedings were improper and should be enjoined.
PNC filed a motion to dismiss for failure to state a claim pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Following a hearing, a judge of the Superior Court allowed the motion in part. Some claims were dismissed in their entirety, but Minasian's claims for negligent misrepresentation (count one),3 intentional misrepresentation (count two), fraud (count three), breach of the implied covenant of good faith and fair dealing (count six), improper foreclosure under G. L. c. 244 (count ten), and violation of G. L. c. 93A (count eleven) were not dismissed.
PNC then filed a motion for summary judgment on the remaining claims. That motion was heard by a different judge, who held a hearing on August 14, 2019. At the hearing, the attorney representing PNC acknowledged that PNC had agreed it would not proceed to foreclose until the present matter had been resolved. However, on that very same day, PNC served Minasian with a new Soldier's and Sailor's Notice as to a proceeding initiated in the Land Court. Minasian interpreted this action as evidencing an intent to foreclose and immediately filed an “emergency” motion to enjoin PNC from foreclosing. This in turn caused the judge to issue the following show cause order:
“This case arises from issues arising from a [potential] foreclosure in 2015 which never took place. Plaintiff now alleges that a new foreclosure process is underway, which suggests that disputes regarding the never-completed 2015 foreclosure are now moot. Accordingly, the parties shall submit by September 16, 2019 any facts and memoranda which address whether or not this case is now moot.”
Minasian responded as ordered, arguing “that the matter is not moot, [that Minasian] continues to own the property in question and that the actions and claims brought by [PNC] continue to be viable.” Minasian further alleged that he had been “blind-sided” when he was served with the Soldier and Sailor's Notice “indicating PNC's intention to foreclose,” particularly insofar as the parties had at the commencement of the case agreed that PNC would not pursue foreclosure pending resolution of the present action; and he argued that the new proceeding “simply reactivates [PNC]’s original request set out in [Minasian's] [c]omplaint seeking the [c]ourt to enjoin a potential foreclosure, which [PNC] is seeking to do.”
The judge, without hearing, then entered the following order:
“As reflected in the Court's 9/9/19 Order, the parties were ORDERED to file by 9/16/19 any facts and memoranda to show whether or not this case is moot. No filings were made. The case is hereby DISMISSED.”
Judgment then entered. The judge later, on September 25, entered the following order:
“Endorsement on Response to Order to show cause regarding whether the matter is moot [referencing Minasian's docketed response]: Other action taken[.] The matter is MOOT, despite plaintiff's contentions as it relates to a foreclosure process which the defendant has now abandoned. Should plaintiff seek to enjoin a new foreclosure, he must file a new action.”
Discussion. We review the dismissal of a complaint de novo. See Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014). Minasian contends that the case has not become moot because he still seeks equitable relief requiring PNC to agree to a loan modification or prescribing such a modification, and because the question of damages due him as a result of PNC's actions has not been resolved. We agree. A case is moot when there is no longer any need for the relief sought, see Ott v. Boston Edison Co., 413 Mass. 680, 682-683 (1992), or “when the party claiming to be aggrieved ceases to have a personal stake in its outcome.” Commissioner of Correction v. McCabe, 410 Mass. 847, 850 (1991), quoting Attorney Gen. v. Commissioner of Ins., 403 Mass. 370, 380 (1988). See Mullholland v. State Racing Comm'n, 295 Mass. 286, 289 (1936) (case is moot when “the situation is such that the relief sought is no longer available or of any use to the plaintiffs and a decision by the court will not be applicable to existing rights”). Here, the multiple tort and contract claims that allegedly arose out of the original loan modification process have not been addressed and Minasian's entitlement to relief on those claims is unaffected by PNC's commencing or recommencing foreclosure proceedings. As one example, the complaint alleges that a PNC agent misrepresented material facts in connection with modification negotiations. This claim is not rendered moot simply because PNC decided to move forward with foreclosure proceedings. In addition, all of the remaining counts seek damages. See Galiastro, supra at 171 (where plaintiffs stated claim for damages under tort theory, “the complaint should not have been dismissed for failure to state a claim ․ even though [the plaintiffs’] claim for injunctive relief is now moot”). See also Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 535-536 (1937) (claims for damages survived although claim for injunctive relief had become moot); Shedlock v. Department of Correction, 442 Mass. 844, 845 n.2 (2004) (same).
Moreover, we discern no basis for the judge's conclusion that PNC's “new” or “re-initiated” foreclosure process precludes consideration of the remaining tort and contract claims. Even if the judge correctly determined that a “new” foreclosure process was now “underway” and that Minasian's request for an injunction of the prior process therefore was moot, Minasian is not required to file a new complaint. We note that the parties have not changed, the property has not changed, the underlying loan and mortgage have not changed, and the basic facts underlying the foreclosure have not changed. For this reason and those discussed above, we vacate the order dated September 25, 2019, dismissing Minasian's complaint, and remand the case for further proceedings consistent with this decision.
Vacated and remanded
2. We summarize the facts alleged in the complaint and the documents attached thereto, “assuming, as we must, that the facts alleged in the complaint are true” (citation omitted). Galiastro v. Mortgage Elec. Registration Sys., Inc. 467 Mass. 160, 161 n.4 (2014). We summarize the proceedings post filing of the complaint from other documents in the record. Id.
3. Counts one and eleven, for negligent misrepresentation and violation of G. L. c. 93A, were dismissed except “insofar as they concern the misrepresentations that the plaintiff had to be in default for ninety days before PNC could extend his loan modification, and regarding Spulner's [a PNC employee] role.”
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