NATIONSTAR MORTGAGE LLC v. STEVEN ROBERTS (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Steven M. Roberts, appeals from a Housing Court judge's grant of summary judgment awarding possession of a residential premises to the plaintiff, Nationstar Mortgage LLC, doing business as Mr. Cooper, and dismissing the defendant's claims without prejudice. For the reasons that follow, we affirm.

Background. This case arises out of a postforeclosure residential summary process action whereby the plaintiff sought to recover possession of property located in Westfield. The defendant answered with both affirmative defenses and counterclaims and, as relevant here, asserted that he “was treated unfairly with respect to loan modification,” in violation of G. L. c. 93A.

The plaintiff filed a motion for summary judgment and the defendant filed an opposition.³ After a hearing, the judge granted the plaintiff's motion, stating that the plaintiff had “met its burden of proof that it has superior right to possession as against the defendant[ ] ․ and that there are no dispute [sic] of facts that require a trial on the issue of possession.” The judge also dismissed, without prejudice, the defendant's claims, “including [his] claim that the plaintiff violated laws pertaining to pre-foreclosure loan modifications and related violations of [G. L. c. 93A].” This appeal followed.⁴

Discussion. We review the judge's grant of summary judgment de novo. See Galenski v. Erving, 471 Mass. 305, 307 (2015). “Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Barbetti v. Stempniewicz, 490 Mass. 98, 107 (2022), quoting Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 330 (2021).

In a postforeclosure summary process case, a plaintiff “may make a prima facie showing of its right to possession by producing an attested copy of the recorded foreclosure deed and affidavit of sale under G. L. c. 244, § 15.” Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012). “If a plaintiff makes a prima facie case, it is then incumbent on a defendant to counter with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact to avoid summary judgment against him.” Id. at 642. Here, the plaintiff presented a prima facie case of its right to possession by providing the judge with the “foreclosure deed [and] the assignment,” as well as the affidavit of sale. Therefore, the defendant was required to show the existence of a genuine issue of material fact regarding the plaintiff's right to possession. See id.

The defendant argues that the plaintiff “did not meet its obligations under the loan modification process,” and therefore it was error for the judge to enter summary judgment in favor of the plaintiff.⁵ The record before us reveals that the plaintiff produced several letters that were sent to the defendant informing him that additional documents were necessary to evaluate his loan modification applications, and noting which requirements were satisfied. Although the defendant claims that he sent the requested documents to the plaintiff, and they were “reject[ed]” or overlooked, there is no evidence of this in the record. “[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207, 209 (1989), citing Community Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976). Moreover, the plaintiff provided documents demonstrating that it complied with other preforeclosure statutory requirements, and there is no evidence that disputes this.⁶

Additionally, “neither the implied covenant [of good faith and fair dealing] nor the duties arising from foreclosure extend[ ] to preforeclosure loan modification processing where the mortgage loan documents do not themselves contemplate such modifications.” Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 701 (2016). The defendant has not provided evidence that the mortgage loan documents contemplated any such duties. See Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004) (covenant of good faith and fair dealing may not “be invoked to create rights and duties not otherwise provided for in the existing contractual relationship”).

Based on the limited record before us, we conclude that the judge properly allowed the plaintiff's motion for summary judgment. See LaLonde, 405 Mass. at 209.

Judgment affirmed.

FOOTNOTES

3.   Neither party provided the motion, or the opposition to the motion, in the record.

4.   Although the defendant did not provide an adequate record for appellate review, we exercise our discretion to reach the merits of his claims. See G.B. v. C.A., 94 Mass. App. Ct. 389, 397 n. 13 (2018); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019).

5.   Specifically the defendant argues the plaintiff violated its “duty to act in good faith,” by delaying or failing to process submitted documents in a timely manner; the plaintiff failed to acknowledge evidence that “stated [the defendant's father] did not live at [the defendant's] address”; the plaintiff erred by assigning multiple loan specialists to the defendant's case; the plaintiff erred by providing him an “outdated loan modification form”; and the plaintiff breached “its obligations under the loan modification program and violated applicable consumer protection laws.”

6.   The plaintiff provided: (1) letters to the defendant notifying him of his default and right to cure; (2) letters notifying the defendant of his right to request a modified mortgage loan; (3) an affidavit attesting that the plaintiff complied with G. L. c. 244, § 35B, “by taking reasonable steps and making a good faith effort to avoid foreclosure”; (4) two letters advising the defendant of his right to a face-to-face meeting; (5) two additional default letters; and (6) notice of foreclosure sale letters. The plaintiff also published the notice of foreclosure sale in the Westfield News three times, and a public foreclosure auction was held.