Usually not for the lender’s original sins. In this case, the Appeals Court held that a bank that only took an assignment of a mortgage loan could not be made to pay damages under the consumer protection law for alleged predatory lending by the company that made the loan, and that the former owners’ other unfair practice claims failed because they offered no evidence to back them up. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
After a foreclosure, the bank that held the mortgage as trustee brought a summary process case in the Housing Court to remove the former owners from the home. In an earlier appeal, the Appeals Court upheld judgment for the bank on most issues but sent the owners’ foreclosure-related consumer protection counterclaims back to the Housing Court. The owners claimed the loan was predatory and unaffordable, that they were treated unfairly on loan modifications and pre-foreclosure notices, and that the bank mishandled forced insurance, escrow, statements and payment crediting. On remand, the Housing Court granted summary judgment to the bank on all of those counterclaims, and one of the former owners appealed.
What the court decided
The Appeals Court affirmed in Wells Fargo Bank, N.A. v. Trocki, No. 23-P-1263 (Mass. App. Ct. February 18, 2025) (Rule 23.0 decision).
The consumer protection law, G.L. c. 93A, § 2, makes unfair or deceptive acts in trade or commerce unlawful. But the court explained that the bank was an assignee, not the company that originated the loan. Under Drakopoulos v. U.S. Bank Nat’l Ass’n, 465 Mass. 775 (2013), an assignee that took no part in the original lender’s unfair acts ordinarily is not liable for damages for those acts. So the predatory lending theory could not succeed against this bank, whatever the merits of the loan itself.
On the loan modification and notice claims, the bank filed an affidavit describing its history with the owners: modifications granted in 2009 and 2012, a trial modification turned down in 2014, missed payments on a 2015 trial plan, and missing paperwork on a 2016 application. Once the bank made that showing, the owners had to answer with admissible evidence of a real factual dispute. They could not rely on their pleadings or bare claims. Godbout v. Cousens, 396 Mass. 254 (1985). Because they offered nothing showing that the options or notices were unfair or deceptive, summary judgment was proper. Kourouvacilis v. General Motors Corp., 410 Mass. 706 (1991).
The same was true of the insurance, escrow, statement and crediting claims. The bank’s affidavit said it acted under the loan documents, and the owners did not counter it with evidence.
The court also refused to reopen issues decided in the first appeal, including possession, disability accommodation, habitability and related defenses. And it treated a discovery complaint as waived because the brief cited no record or legal support.
What this means for you
This decision is a warning for homeowners fighting an eviction after foreclosure. The company that holds your loan today is often not the company that made it. If your complaint is about how the loan was made, the current holder may not owe you damages for it, unless a statute makes the assignee responsible or the assignee itself took part.
The bigger lesson is about evidence. A summary judgment motion supported by an affidavit can end your claims before trial. A sworn statement from the bank about modification offers, notices and payment records will usually win unless you answer it with your own documents and a detailed affidavit. Saying the bank was unfair is not enough. You need to show what happened, when, and why it was unfair.
Finally, issues decided in an earlier appeal generally stay decided. If you lose an issue in a first appeal, you usually cannot raise it again later in the same case.
What to do now
- Find out who originated your loan and who holds it now. Your loan papers and any recorded assignments will show this.
- Keep every letter about loan modifications, trial plans, notices and denials, along with proof of what you sent and when.
- Save your payment records, escrow statements and any notices about forced insurance so you can compare them to the bank’s account.
- If the bank moves for summary judgment, respond with a sworn affidavit and documents that answer each point, not just your complaint.
- Get legal help early, before deadlines pass and before issues are decided against you.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
