You can, but you have to show the servicer’s mistakes actually harmed you. The Appeals Court affirmed summary judgment for a mortgage servicer and lender because the homeowners showed no damages from alleged loan modification violations, and it held that a claim about the pre-foreclosure default notice was premature when no foreclosure had started. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
Update (October 2026): On September 9, 2026, the homeowners asked the Supreme Judicial Court for further appellate review of this decision (FAR-31122). As of October 2026, the SJC had not ruled on that request.
What happened
Two homeowners sued their mortgage servicer and the trust that held their loan. Their first claim was that the servicer broke a federal rule on how it must handle loan modification applications. They said they got two different explanations for the denial of their fourth modification application, that a notice about an earlier application went to their bankruptcy lawyer, and that a decision letter was late and went to the wrong lawyer.
Their second claim was breach of contract. They said the lender started foreclosure without sending the notice of default and acceleration that paragraph 22 of their mortgage requires. The homeowners filed suit after the lender filed a Servicemembers Civil Relief Act case and accelerated the loan. A judge granted summary judgment for the defendants, and the homeowners appealed.
What the court decided
The Appeals Court affirmed in Madoshus v. Nationstar Mortgage LLC, No. 25-P-839 (Mass. App. Ct. August 20, 2026) (Rule 23.0 decision).
The loan modification claim. Federal Regulation X, 12 C.F.R. § 1024.41, sets the rules for loss mitigation. When a servicer gets a complete application more than 37 days before a foreclosure sale, it generally must decide within 30 days and send a written notice of which options, if any, it will offer. If it denies a loan modification, the notice must give the specific reasons. Borrowers enforce these rules through the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605(f).
The court assumed, without deciding, that the homeowners could prove the violations they claimed: the misdirected notice, the late letter, and a real dispute over whether the true reason for the denial was given. The claim still failed. RESPA lets an individual borrower recover actual damages caused by a violation, plus limited extra damages if the borrower proves a pattern or practice of noncompliance. The homeowners’ lawyer conceded at argument that none of the individual violations caused any damages. The homeowners mentioned the pattern or practice provision once but never argued it, so the court treated that argument as waived.
The paragraph 22 claim. The trial judge ruled this claim was not ripe, and the Appeals Court agreed. A Servicemembers Civil Relief Act case, under 50 U.S.C. §§ 3901 et seq., is filed so the lender can get clean title after any later foreclosure. The Supreme Judicial Court has held that these steps are not themselves foreclosure proceedings in any ordinary sense. Beaton v. Land Court, 367 Mass. 385, 390 (1975). Here, no foreclosure had actually started. Because paragraph 22 lists steps the lender must take before a foreclosure can lawfully go forward, it could not yet have been breached.
What this means for you
This decision shows two traps for homeowners.
First, proving that a servicer broke the loss mitigation rules is not enough. You need evidence of what the violation actually cost you. If you cannot show any harm, the only other path is a pattern or practice of violations, and you have to actually argue it with facts.
Second, timing matters. Receiving notice of a Servicemembers Civil Relief Act case is a warning sign that foreclosure may be coming, but under this decision it does not by itself start the foreclosure. A claim that the lender failed to send a proper default notice may be too early until the lender takes an actual foreclosure step. That does not mean you should wait to get help. It means the right claim has to be brought at the right time.
What to do now
- Keep every letter, envelope and email from your servicer, and note the date each one arrived and who it was addressed to.
- Keep a record of the money and time each servicer error cost you, such as fees, interest, missed deadlines or extra costs.
- Write down every time the servicer gives you a different reason for a denial, and request the reasons in writing.
- If you receive court papers about the Servicemembers Civil Relief Act or a foreclosure notice, read them right away and note every deadline.
- Talk to a lawyer about which claims are ready to bring now and which must wait for a foreclosure step.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
