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Case 1:10-cv-11621-PBS Document 117 Filed 10/30/12 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS JODI B. MATT, Plaintiff, v. HSBC BANK USA, N.A., et al., Defendants. CERTAIN DEFENDANTS STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Pursuant to Local Rule 56.1, Defendants Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loans Servicing, LP (Bank of America), HSBC Bank USA, N.A. (HSBC), HSBC Bank USA, N.A., on Behalf of the Trust Fund and for the Benefit of ACE Securities Corp. Home Equity Loan Trust Series 2005-HE4 Asset Backed Pass Through Certificates (HSBC as Trustee), Countrywide Securities Corporation (Countrywide), Wells Fargo Bank, N.A. (Wells Fargo) and ACE Securities Corp. (ACE) (collectively, the Moving Defendants) submit this Statement of Undisputed Material Facts in Support of their Motion for Summary Judgment, which seeks summary judgment on all counts of the Complaint filed by Plaintiff Jodi B. Matt (Plaintiff). Deposition transcript excerpts, deposition exhibits and documents referenced herein are attached as exhibits to the Affidavit of Maria Osinski in Support of the Moving Defendants Motion for Summary Judgment and the Affidavit of Courtney Benson in Support of the Moving Defendants Motion for Summary Judgment. As required by Local Rule 5.3, all personal data identifiers in the exhibits have been redacted. STATEMENT OF UNDISPUTED MATERIAL FACTS 1.
LIBA/2338701.2

Civil Action No. 1:10-cv-11621-PBS

Plaintiff applied for a mortgage loan with Northeast Mortgage Corporation

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(Northeast) on or around March 18, 2005. See Deposition of Jodi Matt (Matt Dep.) 20:4-9, Sept. 26, 2012. The initial Truth-in-Lending Disclosure Statement that Northeast provided to Plaintiff on March 18, 2005 indicated that the mortgage loan could bear an annual percentage rate (APR) of 8.158% and an initial monthly payment of $1,329.26. See March 18, 2005 Truth-in-Lending Disclosure Statement, Exh. A. See id.; see also Matt Dep. 21:8-18. 2. On or around April 6, 2005, Plaintiff executed an adjustable rate promissory note

(the Note) for $200,000 in favor of Northeast. See Note, Exh. B. The Note is secured by a mortgage (the Mortgage, together with the Note, the Mortgage Loan) that Plaintiff also executed on or around April 6, 2005 in favor of Northeast. See Mortgage, Exh. C. The Mortgage is secured by the Property. See id. The Note provided for an initial monthly payment in the amount of $1,429.37 and interest rate of 7.725%. See Note, Exh. B. The Truth-inLending Disclosure Statement provided to Plaintiff at closing also indicated that the initial monthly payment would be $1,429.37, and it informed Plaintiff of the 10.528% APR. See April 6, 2005 Truth-in-Lending Disclosure Statement, Exh. D. 3. On the same date that Plaintiff obtained the Mortgage Loan from Northeast, April

6, 2005, Northeast assigned the Mortgage to New Century Mortgage Corporation (New Century). See Affidavit of Courtney L. Benson (Benson Aff.) 6; see also Assignment to New Century, Exh. 4. The assignment was recorded in the Norfolk County Registry of Deeds at Book 24374, Page 436 on or around December 19, 2006. See id. 4. Note, Exh. B. 5. New Century assigned the Mortgage to HSBC as Trustee on or around November The Note was endorsed from Northeast to New Century without recourse. See

6, 2007. See Benson Aff. 8; see also Assignment to HSBC as Trustee, Exh. 6. The assignment

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was recorded in the Norfolk County Registry of Deeds at Book 25302, Page 102 on or around November 16, 2007. See id. 6. 7. New Century then endorsed the Note in blank. See id. Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP,

formerly known as Countrywide Home Loans Servicing, LP (Bank of America), serviced the Mortgage Loan until October 1, 2012, when the servicing rights transferred to Select Portfolio Servicing, Inc. See Affidavit of Maria Osinski (Osinski Aff.) 3. 8. Plaintiff initially defaulted on the Mortgage Loan by failing to timely make her

October 2005 monthly payment. See Payment History, Exh. E; see also Osinski Aff. 9. After bringing her loan current in January 2007, Plaintiff again defaulted in April 2007. See Osinski Aff. 9. Plaintiff sought to refinance with Countrywides Full Spectrum Lending Division in or around February 2007. See Letter to Matt, Feb. 28, 2007, Exh. F. Countrywide provided Plaintiff with terms of the proposed refinance. See id. Plaintiff chose not to refinance, however. See Matt Dep. 56:3-57:1. Instead, Plaintiff reinstated her loan in April 2008 by making a lump sum payment of $34,898.35. See Letter to Matt from Stanton & Davis, Apr. 4, 2008, Exh. G; see also Matt Dep. 64:13-65:4; see also Osinski Aff. 9. Plaintiff defaulted again in May 2008. 9. Plaintiff has not made a single payment on the Mortgage Loan since August 2008.

See Payment History, Exh. E; see also Osinski Aff. 9. 10. Plaintiff applied for, and Bank of America offered Plaintiff, a loan modification in

June 2009. See Modification Offer, June 5, 2009, Exh. H. Plaintiff did not accept the loan modification offer because she did not believe Bank of America could establish ownership of the Mortgage Loan. See Pl.s Response to Def. Bank of Americas Interrogatory No. 11, Exh. 2. Plaintiff also stated that she believed the modification offer should have contained a 6.99%

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interest rate, with no escrow, and with arrears calculated from the date of her default based on communications from time to time with BOA. See Pl.s Response to Def. Bank of Americas Interrogatory No. 7, Exh. 2. 11. Bank of America sent Plaintiff a Notice of Intention to Foreclose on September

14, 2009. See Letter to Matt, Sept. 14, 2009, Exh. I. The Notice provided Plaintiff the opportunity to cure her default. See id. Plaintiff did not cure the default. See Matt Dep. 74:1623. 12. Certain mortgage loans, including the Plaintiffs Mortgage Loan, was deposited

into ACE Securities Corp. Home Equity Loan Trust Series 2005-HE4 Asset Backed Pass Through Certificates Trust (the Trust) by either the Trusts Closing Date, June 29, 2005, or by the end of the Trusts Pre-Funding Period, September 27, 2005. See Benson Aff. 7; see also Affidavit of Timothy P. Crowley, Exh. 5. Plaintiffs Mortgage Loan is listed at line 4893 on the Mortgage Loan Schedule. See id. Plaintiffs Mortgage Loan was deposited into the Trust by September 27, 2005. See id. 13. Prior to the execution of the assignment of the Mortgage from New Century to

HSBC as Trustee, New Century filed for Chapter 11 bankruptcy in the United States District Court for the District of Delaware, and, as a part of the bankruptcy, the court approved a stipulation between New Century and Countrywide Home Loans, Inc. See Benson Aff. 9; see also Order, Exh. 7. The stipulation states that on November 11, 2002, New Century and Countrywide Home Loans, Inc. entered into a Limited Power of Attorney agreement. See id. Pursuant to the Limited Power of Attorney, Countrywide Home Loans, Inc. was appointed as New Centurys true and lawful attorney-in-fact. See id. It granted Countrywide Home Loans, Inc. the ability to exercise powers on behalf of New Century, including executing assignments

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of mortgage[s] and to do any other act or complete any other document that arises in the normal course of servicing. See id. The approved stipulation also modified the automatic stay to the extent necessary for Countrywide Home Loans, Inc. to initiate and pursue foreclosure proceedings, including to execute and file assignments. See id. 14. Countrywide Home Loans, Inc. authorized a certain list of employees to take

actions on behalf of the Corporation, for the purpose of signing foreclosure documents, including but not limited to, Substitutions of Trustee, affidavits, assignments, and warranty deeds, and related documents and instruments, and carrying out such other day-to-day operational and/or administrative functions in connection with the servicing of mortgage loans via a Designation and Authorization by an Authorized Officer dated October 25, 2007. See Designation, Exh. J. Kimberly Dawson, the Countrywide Home Loans, Inc. employee who executed the assignment from New Century to HSBC on November 6, 2007 is listed as one of the authorized officers on the designation. See id. 15. Plaintiff cannot identify evidence supporting her alleged belief that the

Defendants worked together to induce her into the Mortgage Loan. See Pl.s Response to Def. HSBC as Trustees Interrogatory No. 15, Exh. 3. 16. Plaintiff claims that the agreement she alleges existed between the Defendants to

commit a wrongful act is articulated in the Plaintiffs [sic] Complaint. See Pl.s Response to Def. HSBC as Trustees Interrogatory No. 3, Exh. 3. 17. Plaintiff claims that the agreement to commit a wrongful act that existed between

the Defendants and Bank of America was that BOA and its predecessors has [sic] at all times collected or sought mortgage payments from Plaintiff on behalf of entities that it knew or should have known did not have the right of collections. See Pl.s Response to Def. Bank of Americas

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Interrogatory No. 16, Exh. 2. 18. Plaintiff states that HSBC as Trustee directed unspecified conduct of the Moving

Defendants. See Pl.s Response to Def. HSBC as Trustees Interrogatory No. 1, Exh. 3. 19. Plaintiff stated that she received two (2) copies of the Notice of the Right to

Cancel and other documentation, as provided in exhibit 2 of the Plaintiffs verified complaint within a couple of days of the closing of the Mortgage Loan. See Pl.s Response to Def. HSBC as Trustees Interrogatory No. 8, Exh. 3. Exhibit 2 of the Complaint contains a Truth-in-Lending Disclosure. See Compl. Exh. 2. 20. Plaintiff stated that she did not receive copies of any documents at the closing of

the Mortgage Loan because Tomasello claimed she was sick and pregnant and needed to use [Plaintiffs] bathroom. She appeared to be rushed and said she would send us the documents. See Pl.s Response to Def. HSBC as Trustees Interrogatory No. 7, Exh. 3. 21. Plaintiff claims that she detrimentally relied on HSBC as Trustees alleged false

statements by being [f]orced to defend the land court action and the instant action [d]ue to the defendants assertion of the ownership of [sic] note and mortgage. See Pl.s Response to Def. HSBC as Trustees Interrogatory No. 14, Exh. 3. 22. Plaintiff stated that the basis for her belief that Bank of America misrepresented

that it would evaluate her Mortgage Loan for a modification requires speculation. See Pl.s Response to Def. Bank of Americas Interrogatory No. 10, Exh. 2. 23. Plaintiff stated that she did not accept the June 5, 2009 loan modification because

BOA could not provide any evidentiary foundation to support its claim of ownership of the Note and Mortgage and because BOA would not agree to indemnify the Plaintiff against any future claims to the said note and mortgage. See Pl.s Response to Def. Bank of Americas

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Interrogatory No. 9, Exh. 2. 24. Plaintiff stated that her basis for believing that the defendants induced her to enter

into the Mortgage Loan agreement was that she started out owing Northeast Mortgage and has since had defendants either claiming to service, own or have some involvement in the collection of the loan. See Pl.s Response to Def. Bank of Americas Interrogatory No. 15, Exh. 2.

Dated: October 30, 2012

Respectfully submitted, BANK OF AMERICA, N.A., HSBC BANK USA, N.A., HSBC AS TRUSTEE, COUNTRYWIDE SECURITIES CORPORATION, WELLS FARGO BANK, N.A. AND ACE SECURITIES CORP., By their attorneys, /s/ Courtney Benson Courtney L. Benson (BBO# 675679) Chad W. Higgins (BBO# 668924) GOODWIN PROCTER LLP Exchange Place 53 State Street Boston, MA 02109 Tel. 617-570-1000 Fax. 617-523-1231 courtneybenson@goodwinprocter.com chiggins@goodwinprocter.com

CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on October 30, 2012.

/s/ Courtney Benson