Aja v. Ocwen Loan Servicing LLC ( 2019 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 18-1026
DORITA AJA,
Plaintiff, Appellant,
v.
OCWEN LOAN SERVICING LLC,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter, Associate Justice,*
and Lipez, Circuit Judge.
Nelson P. Lovins and Lovins & Metcalf on brief for appellant.
Marissa I. Delinks, Maura K. McKelvey, and Hinshaw &
Culbertson LLP on brief for appellee.
February 26, 2019
*Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Per Curiam. After carefully considering the parties'
briefs and the record on appeal, we conclude that the district
court's grant of summary judgment for Ocwen should be affirmed.
We briefly explain our decision because our reasoning differs from
the rationale articulated by the district court. See Audette v.
Town of Plymouth, MA, 858 F.3d 13, 20 (1st Cir. 2017) (noting that
we may affirm a grant of summary judgment on any basis supported
by the record).
On appeal, Aja contends that the district court erred in
entering summary judgment for Ocwen on her two Chapter 93A1 claims
because Ocwen "had a duty under the Consent Judgment or at common
law to offer [her] a loan modification in good faith." On de novo
review, we conclude that Ocwen did not have such a duty under the
consent judgment. The consent judgment on its face applies only
to loans "originated by Sand Canyon [Corporation]," formerly
Option One Mortgage Corporation. It is undisputed that Aja's loan
originated with Shamrock Financial Corporation. Therefore, Ocwen
had no duty to offer a loan modification under the terms of the
consent judgment. Aja has offered no legal or factual argument
that would cause us to go beyond the consent judgment's plain
language. Nor has Aja pointed to any alternative basis for the
1 Mass. Gen. Laws ch. 93A, §§ 2(a), 9.
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proposition that Ocwen was required to offer her a loan
modification. See MacKenzie v. Flagstar Bank, FSB, 738 F.3d 486,
493 (1st Cir. 2013) (holding that a mortgagee has no general duty
to modify a loan after default).
Finally, even assuming Ocwen voluntarily assumed a duty
to offer a loan modification in good faith when it extended
modification offers to Aja, there is simply no evidence in the
record that Ocwen's offers were so unfair or deceptive as to run
afoul of Massachusetts law. See Cummings v. HPG Int'l, Inc., 244
F.3d 16, 25 (1st Cir. 2001) ("Conduct is unfair or deceptive [under
Chapter 93A] if it is 'within at least the penumbra of some common-
law, statutory, or other established concept of unfairness' or
'immoral, unethical, oppressive, or unscrupulous.'" (quoting PMP
Assocs., Inc. v. Globe Newspaper Co., 321 N.E.2d 915, 917 (Mass.
1975))).
Affirmed. See 1st Cir. Rule 27.0(c).
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