Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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On the front page of this Forum there is a headline about Massachusetts foreclosures in limbo.  That's great news.  At the end of the article there is a reference to a classl action lawsuit in MA.  Below is the actual txt from the amenced class action complaint.  I had to cut and paste it from the original so the formatting isn't complete but the details are enlightening.

Maybe the Revolution that started in Concord MA over 240 years ago is starting in MA again.

It's a lengthy complaint so go pour something to drink and read on.

Ken

****************************

)
GMAC MORTGAGE, LLC, )
AVELO MORTGAGE, LLC, and )
U.S. BANK NATIONAL ASSOCIATION, )
as Trustee for the Structured )
Asset Securities Corporation Mortgage Pass)
Through Certificates 2006-EQ, on behalf of )
themselves and as representatives for all others )
similarly situated, and HARMON LAW )
OFFICES, P.C. and ABLITT LAW OFFICES, P.C.,)
)
Defendants. )

I. INTRODUCTION
1. In this First Amended Class Action Complaint, Plaintiffs seek, inter alia,
the injunction of various foreclosure and eviction proceedings, for themselves and others similarly situated, based on the Defendants’ routine failure to comply with statutory prerequisites to foreclosure. Plaintiffs, and the class they seek to represent, also seek a determination of the validity of foreclosure sales held in violation of statutory requirements, together with damages and other relief.

2. The Commonwealth of Massachusetts has longstanding, statutorily
prescribed non-judicial foreclosure procedures, by entry and/or by power of sale, with  minimal consumer protections for homeowners. G.L. c. 244 § 1 et seq. Homes are 

Case 1:08-cv-12166-RGS Document 19 Filed 01/13/2009 Page 2 of 38

normally foreclosed pursuant to the statutory power of sale, without a pre-foreclosure  court hearing except to establish that the mortgagor is not in active military service on  duty overseas. G.L. c. 183, § 21; Beaton v. Land Court, 367 Mass. 385 (1975).

3. The law is clear, however, that entities foreclosing on mortgages must
strictly comply with the Commonwealth’s statutory prerequisites to foreclosure. Among other things, as a matter of black letter law, the entity exercising the right to foreclose must have actual legal authority to enter the property and/or to exercise the power of sale. G.L. c. 244, §§ 1, 14; G.L. c. 183, § 21.

4. In recent years, many foreclosing entities, including the Defendants, have
dispensed with this fundamental requirement. Such entities foreclose, through their counsel, without having first obtained assignment of the mortgage and the power of sale on the property they purport to foreclose.
5. Massachusetts’ foreclosure process has become an undisciplined and
lawless rush to seize homes. Many thousands of foreclosures are plainly void under statute and settled Massachusetts case law. Most borrowers never obtain accurate statutorily required notices, Land Court judgments are entered based on foreclosing counsel’s inaccurate recitations concerning ownership of the mortgage, and homes are resold without a proper chain of title.

6. Plaintiffs in this matter seek relief for the Defendants’ wrongful foreclosure practices. They seek declaratory and injunctive relief concerning the validity
of foreclosures conducted by entities who do not hold a power of sale at the time of the sale, injunction of eviction actions pending procedures to verify the validity of the underlying sales, injunction of upcoming sales where there is no proof of assignment, cancellation of fees and costs for invalid sale processes, and damages.

7. Plaintiffs seek such relief on their own behalf and on behalf of a class of
similarly situated individuals.

II. JURISDICTION AND VENUE

8. The Massachusetts Superior Court has jurisdiction over this matter and
these Defendants pursuant to G.L. c. 223A §3, c. 212 §4 and c. 214 §1.

9. Venue lies in this Suffolk County pursuant to G.L. c. 223 § 8 because
some of the Plaintiffs resides in Suffolk County and because the Defendants do business here. Many of the practices described in this Complaint occur in Suffolk County including, without limitation, in pleadings filed with the Land Court.

10. As of the date of filing this First Amended Class Action Complaint, this
action has been removed to the United States District Court for the District of Massachusetts, purportedly because it falls under the aegis of the Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d), 1453. Plaintiffs have moved to remand this matter to the Massachusetts Superior Court because it is a local controversy under CAFA, 28 U.S.C. § 1332(d)(4) & (5), or in the alternative, because the Defendants’ removal petition did not meet their burden to establish that the amount in controversy requirement of CAFA is met.

III. PARTIES

11. Plaintiff Darlene Manson is a natural person who resides at 11 Summer
Street, Stoneham, Massachusetts 02180, a home she owned for more than 35 years. Her home was purportedly foreclosed by an auction held pursuant to the power of sale on March 25, 2008 and she was scheduled to be evicted from the home on November 25, 2008. The eviction was postponed following the filing of the initial complaint in this matter.

12. Plaintiffs Deborah and Keith Nicholas are natural persons who reside at 22 Linvale Terrace, Mattapan, MA 02126, a two family home. Their home was purportedly foreclosed by an auction held pursuant to the power of sale on August 8, 2008. Mr. and Mrs. Nicholas are now subject to eviction roceedings at any time.

13. Plaintiff Germano DePina is a natural person who resides at 5 Tupelo
Street, Roxbury, MA 02119, with his wife and two-year old son. His home is scheduled for a foreclosure sale on January 19, 2008.

14. Defendant GMAC Mortgage, LLC (“GMAC”) is a corporate entity, with a
business address of 1100 Virginia Drive, P.O. Box. 8300, Fort Washington, PA 19034.

GMAC, through various agents, purportedly conducted a foreclosure sale of Ms. Manson’s property. GMAC has or may conduct other foreclosures in Massachusetts.

15. Defendant Avelo Mortgage, LLC (“Avelo”) is a corporate entity, with a
business address of 250 East John Carpenter Freeway, Irving, TX 75062. Avelo, through various agents, purportedly conducted a foreclosure sale of the home of Mr. and Mrs. Nicholas. On information and belief, Avelo has been integrated with another loan servicing company known as Litton Loan Servicing LP. Avelo, as well as its successors, have or may conduct other foreclosures in Massachusetts.

16. Defendant U.S. Bank National Association, as Trustee for the Structured
Asset Securities Corporation Mortgage Pass-Through Certificates 2006-EQ (“U.S. Bank”) is a corporate entity with a business address of 425 Walnut Street, Cincinnati, OH 45202. U.S. Bank, through various agents, is in the process of conducting a foreclosure on Mr. DePina’s home. U.S. Bank acts as trustee for hundreds of similar securitized mortgage pools that have conducted or may conduct foreclosures in Massachusetts on Massachusetts properties.

17. In this Complaint, GMAC, Avelo, and U.S. Bank are referred to
collectively as the “Named Foreclosing Defendants.”

18. Defendant, Harmon Law Offices, P.C. (“Harmon Law”), is a private law
firm whose practice includes the execution of thousands of foreclosure sales on an annual basis in the Commonwealth. Harmon Law’s offices are located at 150 California Street, Newton, Massachusetts 02458. Harmon Law conducted the foreclosure sale on Ms. Manson’s property for GMAC and is executing the foreclosure process on Mr. DePina’s home for U.S. Bank.

19. Defendant, Ablitt Law Offices, P.C. (“Ablitt Law”), is a private law firm
whose practice includes the execution of hundreds of foreclosure sales on an annual basis in the Commonwealth. Ablitt Law’s offices are located at 304 Cambridge Road, Woburn, Massachusetts 01801. Ablitt Law conducted the foreclosure sale on the home of Mr. and Mrs. Nicholas for Avelo.

20. In this Complaint, Harmon Law and Ablitt Law are referred to
collectively as the “Law Firm Defendants.” 

IV. LEGAL AND FACTUAL BACKGROUND

21. The latest available data shows that the rate of foreclosures has doubled nationwide in the last year, with one in every 171 houses nationwide receiving a foreclosure notice.1
22. The Commonwealth is also experiencing a foreclosure crisis. From 2006
to 2007, the Massachusetts foreclosure rate nearly tripled. In 2008, the problem
accelerated. Over the course of 2008, there were approximately 22,000 petitions filed in
the Land Court seeking authorization to foreclose.
23. In the past four years, in a rush to foreclose, the Defendants and others
have foreclosed many mortgages in Massachusetts without holding the necessary rights
as the mortgagee or as an assignee of the original mortgagee at the time of foreclosure.
24. Only a “mortgagee” may foreclose by entry under Massachusetts law.
G.L. c. 244, § 1.
25. The statutory power of sale, incorporated by reference in virtually all
Massachusetts residential mortgages, including those at issue in this case, provides for
foreclosure sales only by “the mortgagee or his executor, administrators, successors or
assigns.” G.L. c. 183 § 21.
26. Relevant statutory procedures for exercising the power of sale do not
expand the category of entities authorized to exercise the power. A power of sale may be
exercised only by “the mortgagee or person having his estate in the land mortgaged, or a
1 See J.W. Elphinstone, “U.S. Foreclosure Filings More Than Double” in The Boston
Globe (July 25, 2008) available at
http://www.boston.com/business/articles/2008/07/25/us_foreclosure_filings_more_than_
double_in_2q/
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person authorized by the power of sale, or the attorney duly authorized by a writing under
seal, or the legal guardian or conservator [of any entity or person authorized to exercise a
power of sale].” G.L. c. 244 § 14.
27. The form of foreclosure notice contained in G.L. c. 244, § 14 contains
language that provides that where the foreclosing entity holds “by assignment, or in any
fiduciary capacity” a reference to that instrument must be provided.
28. A recent amendment to the statute also requires that, as a prerequisite to
foreclosure “the mortgagee” give written notice of, inter alia, the right to cure
“containing the name and address of the mortgagee or anyone holding thereunder.”
Acceleration and enforcement of the mortgage cannot occur until at least ninety (90) days
after the date such notice is given. G.L. c. 244, § 35A.
29. Mortgages, and by extension, rights under mortgages may be assigned,
but a valid written assignment, consistent with the statute of frauds, is a prerequisite to
effective assignment. G.L. c. 259, § 1; Warden v. Adams, 15 Mass. 233 (1818). Absent
effective assignment, an entity has no rights as a “mortgagee” to exercise a power of sale
or to send notices required by the statute.
30. Strict compliance with the statutory requirements for exercise of the
power of sale has long been required under Massachusetts law. See, e.g. McGreevey v.
Charlestown Five Cents Savings Bank, 294 Mass. 480, 483-84 (1936); Moore v. Dick,
187 Mass. 207, 211-212 (1905). This longstanding public policy is grounded not just in
protection of property owners, but also in the proper maintenance of title records and the
orderly succession of ownership of land.
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31. A foreclosure sale conducted by an entity that does not have legal
authority to conduct the sale is void under Massachusetts law. G.L. c. 244, § 14; Roche
v. Farnsworth, 106 Mass. 509 (1871); Bottomly v. Kabachnick, 13 Mass. App. Ct. 480,
483-84 (1982).
32. Notices that do not comply with Massachusetts law because they are not
from the mortgagee or someone acting under the authority of the mortgagee are void. See
Roche v. Farnsworth, 106 Mass. 509 (1871); Bottomly v. Kabachnick, 13 Mass. App. Ct.
480, 483-84 (1982).
33. A foreclosing mortgagee owes the mortgagor a duty of good faith and
reasonable diligence in the foreclosure process. See Williams v. Resolution GGF OY, 417
Mass. 377, 382-83 (1994).
34. Knowing failure to send legally correct statutorily required notices is
inconsistent with the duty of good faith and reasonable diligence. Exercise of a power of
sale without proper legal authority is also inconsistent with the duty of good faith and
reasonable diligence.
35. An attorney for a foreclosing mortgagee owes mortgagors a duty of good
faith in the foreclosure process. See, e.g. Clapp v. Gardner, 237 Mass. 187, 190 (1921).
36. Knowing failure to send legally correct statutorily required notices is
inconsistent with the attorney’s duty of good faith. Exercise of a power of sale without
proper legal authority is also inconsistent with the attorney’s duty of good faith and
reasonable diligence.
37. Failure to send proper notice of foreclosure deprives homeowners of a fair
opportunity to prevent the sale. Absent notice and/or evidence of the assignment, notices
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frequently are sent by an entity with whom the homeowner has never had any previous
communication. In addition, some homeowners have multiple mortgages. In some cases,
they cannot tell from the notice which mortgage is being foreclosed.
38. In addition to black letter law on the subject, the Defendants have known
or should have known of the problem of routine unauthorized foreclosure for several
years. GMAC, U.S. Bank and Avelo, have all been involved, either directly or through a
corporate affiliate, in judicial foreclosure proceedings in New York State in which the
existence of a proper assignment to the foreclosing entity was found lacking. See
Ameriquest Mortgage Co. v. Basevich, No. 147/07, 2007 WL 1815992 (N.Y. Sup. Ct.
June 26, 2007) (GMAC); U.S. Bank Nat. Assn. v. Bernard, No. 29003/07, 2008 WL
383814 (N.Y Sup. Ct. Feb. 14, 2008) (U.S. Bank); Wells Fargo Bank, N.A. v. Farmer,
No. 27296/07, 2008 WL (N.Y. Sup. Ct. June 5, 2008) (Avelo via Litton Loan Servicing,
LP).
39. In addition, Joel B. Rosenthal, a United States bankruptcy judge in the
District of Massachusetts recently wrote that rising foreclosures were resulting in a
greater number of lenders that, “in their rush to foreclose, haphazardly fail to comply
with even the most basic legal requirements of the bankruptcy system.” In re Maisel, 378
B. R. 19, 20-21 (Bankr. D. Mass. 2007). Among other things, he has pointed out that
lenders and servicers are seeking to foreclose and otherwise to pursue homeowners in
foreclosure without the requisite legal authority to do so. In re Schwartz, 366 B.R. 265
(Bankr. D. Mass. 2007).
40. Further, numerous state and federal courts have enforced the bedrock rule
that foreclosures cannot be completed without a valid assignment of the underlying
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mortgage including, without limitation, courts in Connecticut, Ohio, Florida, Illinois,
Minnesota and Michigan. See In re Foreclosure Cases, 2007 WL 3232430 (N.D. Ohio
October 31, 2007); Bayview Loan Servicing, L.L.C. v. Nelson, 382 Ill. App. 3d 1184 (Ill.
Ct. App. 2008); Davenport v. HSBC Bank, 275 Mich. App. 344 (Mich. Ct. App. 2007);
Fleet National Bank v. Nazareth, 818 A. 2d 69 (Conn. Ct. App. 2003); Jeff-Ray
Corporation v. Jacobson, 566 So. 2d 885 (Fla. 4th D. Ct. 1990); relying on Marianna &
B.R. Co. v. Maund, 62 Fla. 538 (1911); Moore v. Carlson, 128 N.W. 578 (Minn. 1910).
On information and belief, no states allow foreclosures by entities that do not have a valid
written assignment consistent with the statute of frauds.
V. INDIVIDUAL FACTS
A. Darlene Manson
41. Darlene Manson is a 62 year-old woman, who is significantly and
permanently disabled by multiple sclerosis. She has lived for 35 years at her home, 11
Summer Street in Stoneham (“the Manson Property”), which she purchased with her
husband, who handled the family’s financial affairs.
42. After Ms. Manson’s husband died in 2001, she added her son and his wife
to the deed in order to help them get a start in life and has since owned the property with
them as tenants in common.
43. On or about October 24, 2006, Ms. Manson, her son and his wife entered
into a loan with Aegis Lending Corporation (“Aegis”), a Louisiana-based lender, on
unfair and expensive subprime terms. The complicated terms of the loan made it difficult
or impossible for Ms. Manson to understand. Nine months later, the Commissioner of
Banks revoked Aegis’s license to do business in the Commonwealth. Shortly thereafter,
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Aegis filed for bankruptcy protection in the United States Bankruptcy Court for the
District of Delaware.
44. The mortgage associated with the loan, which expressly incorporates the
statutory power of sale, was made in favor of an entity known as Mortgage Electronic
Registration Systems, Inc. (“MERS”), as nominee for the lender and the Lender’s
successors and assigns.
45. A true and correct copy of the Manson MERS mortgage is attached hereto
and labeled Exhibit A.
46. When Ms. Manson’s son and daughter-in-law separated and her son lost
his job, Ms. Manson began to fall behind on payments.
47. Ms. Manson did not receive notice of assignment of the mortgage by
MERS or Aegis.
48. In or about January 2008, Harmon Law, purporting to act on behalf of
GMAC as plaintiff, initiated a Complaint in the Land Court (“Manson Land Court
Complaint”), seeking to foreclose the Manson Property. The Manson Land Court
Complaint states that GMAC “is the assignee and holder of a mortgage with the statutory
power of sale” on the property.
49. A true and correct copy of the Manson Land Court Complaint is attached
hereto and labeled Exhibit B.
50. At the time of the Manson Land Court Complaint, both GMAC and
Harmon Law knew or should have known that GMAC did not have a valid assignment of
the mortgage, consistent with the statute of frauds, from Aegis or MERS.
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51. An Order of Notice was issued by the Land Court on or about January 22,
2008 (“Manson Order of Notice”). The Manson Order of Notice reflects the
representation in the Manson Land Court Complaint that GMAC is the holder of the
mortgage. Ms. Manson was served with the Manson Order of Notice.
52. A true and correct copy of the Manson Order of Notice is attached hereto
and labeled Exhibit C.
53. At the time of the service of the Manson Order of Notice, both GMAC and
Harmon Law knew or should have known that GMAC did not have a valid assignment of
the mortgage, consistent with the statute of frauds, from Aegis or MERS.
54. On February 19, 2008, Harmon Law, as attorney for GMAC, sent
correspondence labeled “Notice of Intention to Foreclose Mortgage and of Deficiency
After Foreclosure of Mortgage” (“Manson Notice of Intention”). The Manson Notice of
Intention indicates that GMAC is the present holder of the mortgage, but includes no
reference to an assignment.
55. Received contemporaneously with the Manson Notice of Intention was a
document entitled “Notice of Mortgage Foreclosure Sale” along with a legal description
of the mortgaged property (“Manson Notice of Sale”). The Manson Notice of Sale
appears to be intended to meet the requirements of G.L. c. 244, § 14.
56. The Manson Notice of Sale is signed by GMAC as “present holder” of the
mortgage.
57. The Manson Notice of Sale provides a reference to the recorded mortgage
by deed book and page, but includes no reference to an assignment to GMAC, as
provided for on the form of notice contained in the statute.
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58. True and correct copies of the Manson Notice of Intention and Manson
Notice of Sale are attached hereto together and labeled Exhibit D.
59. At the time of the Manson Notice of Intention and Manson Notice of Sale,
both GMAC and Harmon Law knew or should have known that GMAC did not have a
valid assignment of the mortgage, consistent with the statute of frauds, from Aegis or
MERS.
60. On March 25, 2008, Harmon Law conducted a foreclosure sale by auction
pursuant to the statutory power of sale of the Manson Property on behalf of GMAC.
61. Harmon Law issued a “Certificate of Entry” on March 25, 2008, stating
that GMAC is the current holder of the mortgage (“Manson Certificate of Entry”).
62. A true and correct copy of the Manson Certificate of Entry is attached
hereto and labeled Exhibit E.
63. At the time of the sale and of the Manson Certificate of Entry, both
GMAC and Harmon Law knew or should have known that GMAC did not have a valid
assignment of the mortgage, consistent with the statute of frauds, from Aegis or MERS.
64. The mortgage was not assigned to GMAC by MERS until April 29, 2008,
a date approximately five weeks after the foreclosure sale. A written assignment (“the
Manson Assignment”) was executed on that date.
65. In the Manson Assignment, executed on April 29, 2008, MERS represents
itself to be holder of the mortgage it is assigning to GMAC.
66. The Manson Assignment is executed on behalf of MERS by Andrew S.
Harmon. On information and belief Andrew S. Harmon is an attorney who is a
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shareholder in and an employee of Harmon Law, which also represented GMAC in the
foreclosure proceedings.
67. A true and correct copy of the Manson Assignment is attached hereto and
labeled Exhibit F.
68. The Manson Land Court Complaint, the Manson Order of Notice, the
Manson Notice of Intention, the Manson Notice of Sale and the Manson Certificate of
Entry were all inaccurate when signed and misrepresented the authority of GMAC to act
under the mortgage.
69. The foreclosure sale of the Manson Property is void under Massachusetts
law.
70. On information and belief, Ms. Manson was charged substantial attorneys
fees and costs in excess of $2000 for this invalid foreclosure action.
71. On April 21, 2008, also before the date of the Manson Assignment,
Harmon Law, acting on behalf of GMAC, commenced a summary process eviction
proceeding in Woburn District Court. Harmon Law has obtained judgment and a writ of
execution on that judgment.
72. Ms. Manson was scheduled to be evicted on November 25, 2008, just two days
before Thanksgiving. Following the filing of the initial complaint in this action on
November 20, 2008, Ms. Manson’s eviction was postponed to a date not identified by
Harmon or GMAC. Ms. Manson remains at imminent risk of eviction at any time,
protected only by an agreement that Harmon Law will first provide notice of the eviction
to Ms. Manson’s counsel.
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B. Deborah and Keith Nicholas
73. Deborah and Keith Nicholas, who reside at 22 Linvale Terrace in
Mattapan, Massachusetts (the “Nicholas property”), are husband and wife who are
employed as a security guard and a custodian, respectively. In 2006, they attended a
first-time homebuyer class that was advertised by an outfit named Zeus Funding. A
representative from Zeus Funding told Mr. and Mrs. Nicholas that they had been
approved for a mortgage and set them up with a realtor to find their first home.
Subsequently, Zeus Funding was the subject of an unfair and deceptive trade practices
lawsuit and temporary restraining order by the Massachusetts Attorney General.
74. At the behest of Zeus Funding, Mr. and Mrs. Nicholas entered into a loan
with SouthStar Funding, Inc. on or about June 30, 2006 on unfair and expensive
subprime terms.
75. The mortgage associated with the loan, which expressly incorporates the
statutory power of sale, was made in favor of MERS, as nominee for SouthStar Funding,
Inc.
76. A true and correct copy of the Nicholas MERS mortgage is attached
hereto and labeled Exhibit G.
77. After exhausting their life-savings in an attempt to meet their monthly
mortgage obligation, Mr. and Mrs. Nicholas began to fall behind on payments.
78. Mr. and Mrs. Nicholas did not receive notice of assignment of the
Nicholas MERS mortgage by MERS or any other entity at any time
79. In or about July 2007, Ablitt Law, purporting to act on behalf of Avelo,
filed a Complaint in the Land Court, seeking to foreclose the Nicholas Property
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(“Nicholas Land Court Complaint”). The Nicholas Land Court Complaint states that
Avelo “is the assignee and holder of a mortgage with the statutory power of sale” on the
property.
80. A true and correct copy of the Nicholas Land Court complaint is attached
hereto and labeled Exhibit H.
81. At the time of the Nicholas Land Court complaint, both Avelo and Ablitt
Law knew or should have known that Avelo did not have a valid assignment of the
mortgage, consistent with the statute of frauds, from MERS.
82. An Order of Notice was issued by the Land Court on or about July 26,
2007 (“Nicholas Order of Notice”). The Nicholas Order of Notice reflects Ablitt Law’s
representation in the Nicholas Land Court Complaint that Avelo is the current holder of
the Nicholas MERS mortgage.
83. A true and correct copy of the Nicholas Order of Notice is attached hereto
and labeled Exhibit I.
84. At the time of the service of the Nicholas Order of Notice, both Avelo and
Ablitt Law knew or should have known that Avelo did not have a valid assignment of the
mortgage, consistent with the statute of frauds, from MERS.
85. On or about June 3, 2008, Mr. and Mrs. Nicholas received a Notice of
Intention to Foreclose Mortgage and Deficiency After Mortgage (“Nicholas Notice of
Intention”) together with a “Notice of Mortgage Sale” (“Nicholas Notice of Sale”) from
Ablitt Law. Each of these notices indicated that Ablitt Law was undertaking foreclosure
proceedings on the Nicholas MERS mortgage on behalf of Avelo. Likewise, each of
these notices indicated that Avelo was the current holder of the mortgage. The Nicholas
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Notice of Sale provides a reference to the Nicholas MERS Mortgage by deed book and
page, but includes no reference to an assignment to Avelo, as provided for on the form of
notice contained in the statute.
86. True and correct copies of the Nicholas Notice of Intention and the
Nicholas Notice of Sale are together attached hereto as Exhibit J.
87. On August 8, 2008, Ablitt Law, on behalf of Avelo, conducted a
foreclosure sale by auction pursuant to the statutory power of sale of the Manson
Property contained in the Nicholas MERS Mortgage
88. Ablitt Law issued a “Certificate of Entry” on August 8, 2008 that states
that Avelo is the current holder of the Nicholas MERS mortgage (“Nicholas Certificate of
Entry”).
89. A true and correct copy of the Nicholas Certificate of Entry is attached
hereto and labeled Exhibit K.
90. At the time of the Nicholas Land Court Complaint, the Nicholas Order of
Notice, the Nicholas Notice of Intention, the Nicholas Notice of sale and the Nicholas
Certificate of Entry, both Avelo and Ablitt Law knew or should have known that Avelo
did not have a valid assignment of the Nicholas MERS mortgage, consistent with the
statute of frauds, from MERS.
91. The Nicholas MERS mortgage was not assigned to Avelo by MERS until
November 18, 2008, 2008, a date over three months after the foreclosure sale and
certificate of entry. A written assignment (“the Nicholas Assignment”) was executed on
that date.
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92. In the Nicholas Assignment, executed on November 18, 2008, MERS
represents itself to be holder of the mortgage it is assigning to Avelo, despite Avelo’s
previous representations to the contrary.
93. A true and correct copy of the Nicholas Assignment is attached hereto and
labeled Exhibit L.
94. Each of the Land Court pleadings and the notices listed above were
inaccurate when signed and misrepresented the authority of Avelo to act under the
mortgage.
95. The foreclosure sale of the Nicholas Property is void under Massachusetts
law.
96. On information and belief, Mr. and Mrs. Nicholas were charged
substantial attorneys fees and costs in excess of $2000 for this invalid foreclosure action.
97. Mr. and Mrs. Nicholas continue to live in their home, but are now in
constant fear of an eviction action.
C. Germano DePina
98. Germano DePina resides at 5 Tupelo Road in Roxbury (“the DePina
property”) with his wife and two-year old son. Mr. DePina is employed as a union
warehouseman at for a grocery store chain, although he is currently injured and receiving
worker’s compensation benefits.
99. On or about April 20, 2006, Mr. DePina purchased the DePina property
with two loans from EquiFirst Corporation (“EquiFirst”), both secured by mortgages.
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100. The mortgage associated with the larger loan, which expressly
incorporates the statutory power of sale, was made in favor of MERS as nominee for
EquiFirst (“the DePina MERS Mortgage”).
101. A true and correct copy of the DePina MERS mortgage is attached hereto
and labeled Exhibit M.
102. In or about December 2007, Mr. DePina began to experience financial
difficulty and was unable to obtain refinancing for the DePina Property. He began to fall
behind on the DePina MERS Mortgage payments.
103. On or about January 7, 2008, Harmon Law sent a letter to Mr. DePina
indicating that it was accelerating the note associated with the DePina MERS Mortgage
and indicating that it had been retained by U.S. Bank to foreclose on the DePina property.
104. In or about April 7, 2008, Harmon Law, purporting to act on behalf of
U.S. Bank, caused an Order of Notice to be issued from the Land Court, notifying Mr.
DePina of his rights under the Servicemembers Civil Relief Act (“DePina Order of
Notice”) with regard to its foreclosure of the DePina MERS Mortgage. On information
and belief, the corresponding Land Court Complaint was brought on behalf of U.S. Bank
rather than MERS.
105. At the time of the service of the DePina Order of Notice, both U.S. Bank
and Harmon Law knew or should have known that U.S. Bank did not have a valid
assignment of the DePina MERS Mortgage, consistent with the statute of frauds, from
MERS or any other entity
106. A true and correct copy of the DePina Order of Notice is attached hereto
and labeled Exhibit N.
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107. On or about April 30, 2008, Mr. DePina received a “Notice of Intention to
Foreclose Mortgage and of Deficiency After Foreclosure of Mortgage” from Harmon
Law (“DePina Foreclosure Notice”). This notice informed Mr. DePina that U.S. Bank
purported to be the holder of the DePina MERS Mortgage and that it intended to
foreclose on or after May 30, 2008.
108. A true and correct copy of the DePina Foreclosure Notice is attached
hereto and labeled Exhibit O.
109. At the time of the DePina Foreclosure Notice, both U.S. Bank and
Harmon Law knew or should have known that U.S. Bank did not have a valid assignment
of the DePina MERS Mortgage, consistent with the statute of frauds, from MERS or any
other entity.
110. The DePina Foreclosure Notice and its accompanying enclosures appear
to be intended to meet the requirement of G.L. c. 244, § 14.
111. The DePina Foreclosure Notice and its enclosures provide reference to the
DePina MERS Mortgage by deed book and page, but include no reference to an
assignment to U.S. Bank, as provided for on the form of notice contained in the statute.
112. At no time relevant to this complaint did Ms. DePina receive notice of
assignment of the DePina MERS Mortgage from U.S. Bank, MERS or any other entity.
113. On or about May 30, 2008, Harmon Law wrote a letter to Mr. DePina
notifying him that the foreclosure sale scheduled for that day would be postponed until
July 16, 2008. While Mr. DePina has attempted to negotiate with his loan servicer, he
has successfully been able to postpone the foreclosure sale on the DePina property. As of
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November 20, 2008, the foreclosure sale of Mr. DePina’s home was scheduled for
December 19, 2008.
114. As of the filing of this First Amended Complaint, the foreclosure sale on
the DePina property is scheduled to occur on January 19, 2009.
115. On information and belief U.S. Bank does not have a valid written
assignment of the DePina MERS Mortgage, consistent with the statute of frauds, from
MERS or any other entity. Based on investigation, no assignment has been recorded with
the Registry of Deeds for Suffolk County.
116. U.S. Bank cannot hold a valid foreclosure sale of the DePina property on
January 19, 2009 because it does not have authority under the power of sale and has not
provided notice of sale consistent with G.L. c. 244, § 14. Nor has it met other statutory
requirements to foreclose.
117. On information and belief, Mr. DePina has already incurred substantial
attorneys fees and costs for this invalid foreclosure action.
D. Additional Factual Allegations
118. The factual circumstances described above affecting the Plaintiffs and
their properties are not isolated occurrences.
119. Failure to obtain valid written assignment prior to commencing the legal
process of noticing and conducting foreclosures has become common and routine.
120. Representations are commonly and routinely made to the Land Court that
a foreclosing Plaintiff is the “assignee” of the mortgage even when no valid assignment
of the mortgage exists.
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121. Representations are commonly and routinely included in notices required
by statute that the party giving notice is the “assignee” of the mortgage even when no
valid assignment of the mortgage exists.
122. Parties that do not hold the statutory power of sale commonly and
routinely conduct foreclosure sales.
123. Law firms routinely bill for foreclosure processes that are invalid under
the law. These charges are then placed on borrowers’ accounts.
124. The conduct identified in this First Amended Class Action Complaint is
willful and knowing.
125. The problems identified in this case are more than simple technical issues.
As more mortgages are securitized, sold into pools and transferred to various entities
across the country, it is entirely possible, if not likely, that more than one entity asserts
rights under the mortgage. The historical legal protection to prevent these conflicts is a
writing that complies with the statute of frauds.
126. In addition to protecting homeowners and others with an interest in the
property being foreclosed, compliance with the technical requirements of the law protects
future owners in the chain of title. Ultimately, compliance with the law is not onerous to
the Defendants. Any burdens are far outweighed by the benefits of a clearly established
written record of transfers that may affect the validity of Massachusetts’ titles.
VI. CLASS ACTION ALLEGATIONS
127. Plaintiffs bring this action on behalf of themselves and a Plaintiffs’ Class
of all other persons similarly situated, against the Law Firm Defendants, the Named
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Foreclosing Defendants and a Defendants’ Class of all other Defendants similarly
situated to the Named Foreclosing Defendants pursuant to Mass. R. Civ. P. 23.
A. The Plaintiffs’ Class
128. The Plaintiffs’ Class includes and is represented by the Plaintiffs and
consists of all Massachusetts residents in the following two subclasses:
(SUBCLASS 1: FORECLOSED BORROWER SUBCLASS)
Individuals whose primary residence was foreclosed by power of sale in the past
four years by a member of the Defendants’ Class that did not have actual written
assignment of the mortgage being foreclosed at the time that Notice of Sale was
sent pursuant to G.L. c. 244, § 14.
(SUBCLASS 2: IMPROPER NOTICE SUBCLASS)
Individuals who presently have a foreclosure sale scheduled by a Member of the
Defendants’ Class that did not have actual written assignment of the mortgage
being foreclosed at the time that notice of sale was sent pursuant to G.L. c. 244 §
14, and/or at the time that notice of the right to cure was sent, if required, pursuant
to G.L. c. § 244, § 35A.
129. There are questions of law and fact common to all members of the
Plaintiffs’ Class, which questions predominate over any question affecting only
individual Plaintiffs’ Class members. The principal common issues are:
a.
whether Defendants or a member of the Defendants’ Class acted without
authority pursuant to a power of sale during the foreclosure process;
b.
For the Foreclosed Borrower Subclass: Whether the foreclosure sales
conducted are void or voidable;
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c.
For the Improper Notice Subclass: Whether pending foreclosure sales
may be conducted; and
d.
Whether Plaintiffs’ Class members are entitled to declaratory judgment,
injunctive relief or damages.
130. The only individual questions concern the identification of members of the
Plaintiffs’ Class. Identification can be made by review of records in possession of the
Defendant Law Firms, members of the Defendants’ Class (defined below) and/or from
public records.
131. Mailed notice can be provided to the Plaintiffs’ Class by various means of
communications, as identified in public records, the records of the Defendant Law Firms,
the records of members of the Defendants’ Class (defined below) and/or in other sources.
Publication notice can be provided to supplement mailed notice.
132. Plaintiffs’ claims are typical of the claims of Plaintiffs’ Class members.
All are based on the same legal and remedial theories.
133. Plaintiffs will fairly and adequately protect the interests of all Plaintiffs’
Class members in the prosecution of this action and in the administration of all matters
relating to claims stated herein. They are similarly situated with, and have suffered
similar injuries as, the members of the class they seek to represent.
134. Plaintiffs have retained counsel experienced in handling defenses to
foreclosure as well as class action suits involving unfair business practices and consumer
law. Neither the named Plaintiffs nor their counsel have any interest that might cause
them not to vigorously pursue this action.
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B. The Defendants’ Class
135. The Defendants’ Class includes and is represented by the Named
Foreclosing Defendants and consists of all entities that within the last four years, have
foreclosed, or are in the process of foreclosing, a mortgage in Massachusetts or who have
sent notices required by G.L. c. 244, §14 or 35A, and who are not mortgagees or entities
authorized to foreclose by the statutory power of sale because such entities have not first
obtained an actual written assignment of the mortgage.
136. There are questions of law and fact common to all members of the
Defendants’ Class, which questions predominate over any question affecting only
individual class members. The principal common issues are:
a.
Whether members of the Defendants’ Class acted without authority
pursuant to a power of sale in the process of foreclosing a mortgage in
Massachusetts;
b.
Whether the foreclosure sales conducted are void or voidable; and
c.
Whether pending future foreclosure sales may be conducted.
137. The only individual questions concern the identification of members of the
Defendants’ Class. Identification can be made by review of records in possession of the
Defendant Law Firms and/or from public records.
138. Notice can be provided to the Defendants’ Class by various means of
communications, as identified in public foreclosure records, the records of the Defendant
Law Firms and/or in other sources.
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139. The Named Foreclosing Defendants are typical of Defendants’ Class
members. All of their potential defenses are based on the same legal and equitable
theories.
140. The Named Foreclosing Defendants can fairly and adequately protect the
interests of all Defendants’ Class members in the defense of this action and in the
administration of all matters relating to claims stated herein. They are similarly situated
with, and have similar defenses to the members of the Defendants’ Class. They can be
expected to retain counsel to vigorously defend this action.
C. Other Class Action Issues
141. A class action is superior to other available methods for the fair and
efficient adjudication of this controversy, in that:
a.
the losses suffered by the Plaintiffs’ Class members are such that
prosecution of individual actions is impractical or economically
unfeasible;
b.
the form of proof required is such that prosecution of individual actions is
impractical or economically infeasible;
c.
in the absence of the class action device, Plaintiffs and Plaintiffs’ Class
Members would be left without a remedy for the wrongful acts alleged,
and the Defendants would be unjustly enriched;
d.
the prosecution of separate lawsuits by individual members of the
Plaintiffs’ Class would create the risk of inconsistent adjudications with
respect to individual class members, which would establish incompatible
standards of conduct for the named Defendants and the Defendants’ Class,
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making concentration of the litigation concerning this matter in this Court
desirable;
e.
the claims of the representative Plaintiffs are typical of the claims of the
class; and
f.
no unusual difficulties are likely to be encountered in the management of
this action as a class action.
142. Both the Plaintiffs’ Class and the Defendants’ Class are so numerous as to
make it impracticable to join all members in this action. Based upon the investigation of
counsel, the number of members of the Plaintiffs’ Class is estimated to be in excess of
1000 persons. The number of members of the Defendants’ Class is estimated to be in
excess of 100 entities.
COUNT I: BY THE FORECLOSED BORROWER SUBCLASS AGAINST THE
LAW FIRM DEFENDANTS AND THE DEFENDANT CLASS
(Wrongful Foreclosure - Violation of Statute: G.L. c. 244 § 14. G.L. c. 183, § 21 –

Sale Void Pursuant to Statute and Common Law)
143. Plaintiffs repeat and reallege all paragraphs above as if set forth fully
herein.
144. Ms. Manson and Mr. and Mrs. Nicholas are representatives of the
subclass for the purposes of this claim.
145. The Named Foreclosing Defendants are representatives of the Defendants’
Class for the purposes of this claim.
146. Throughout the four years prior to the commencement of this action, the
Named Foreclosing Defendants and the Defendants’ Class routinely exercised the
statutory power of sale contained in G.L. c. 183, § 21, under procedures required by G.L.
c. 244 § 14.
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147. Under the statute of frauds, G.L. c. 259 § 1, in order to act as an assignee,
the Named Foreclosing Defendants and the Defendants’ Class are required to possess
such assignment in writing.
148. The Named Foreclosing Defendants and the Defendants’ Class, acting by
and through the Foreclosing Law firms and others, routinely exercised the power of sale,
as in the case of Ms. Manson and Mr. and Mrs. Nicholas, without the requisite legal
authority, pursuant to a valid written assignment that meets the statute of frauds.
149. The resulting foreclosure sales were wrongful, without legal effect, and
are void.
150. The Named Foreclosing Defendants and the Defendants’ Class, acting by
and through the Foreclosing Law firms and others, routinely sent or published statutorily
mandated notices pursuant to G.L. c. 244, §§ 14 and 35A asserting authority to foreclose
by assignments that did not then exist.
151. Said notices do not meet the statutory requirements and are void and
without legal effect. Foreclosures conducted based on improper mailed or published
legal notices are wrongful, void, and without legal affect.
152. The Named Foreclosing Defendants and the Defendants’ Class, acting by
and through the Foreclosing Law firms and others, routinely represented to the Land
Court authority to exercise powers of sale based on assignments that did not exist at the
time of the representation. The misrepresentations result in void or voidable judgments
of the Land Court.
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153. Absent valid written assignment prior to notice required by G.L. c. 244, §
35A and/or G.L. c. 244, § 14, foreclosure sale are wrongful and improper under
Massachusetts law.
154. The foreclosure sales conducted by such entities are also void or voidable
as against public policy.
155. The Foreclosed Borrower Subclass suffered damages as a result of the
conduct of the Named Foreclosure Defendants and all others similarly situated.
156. The Foreclosed Borrower Subclass is entitled to a declaratory judgment
determining that the foreclosure sales of their properties is void and setting aside those
sales.
COUNT II: BY THE IMPROPER NOTICE SUBCLASS AGAINST THE
LAW FIRM DEFENDANTS AND THE DEFENDANT CLASS
(Violation of Statute: G.L. c. 244 § 14, Notices Void Under Statute and
Common Law)
157. Plaintiffs repeat and reallege all paragraphs above as if fully set forth
herein.
158. Mr. DePina is a representative of the subclass for the purposes of this
claim.
159. The Named Foreclosing Defendants are representatives of the Defendants’
Class for the purposes of this claim.
160. Throughout the four years prior to the commencement of this action, the
Named Foreclosing Defendants and the Defendants’ Class routinely sent statutorily
required notices necessary to exercise the power of sale contained in G.L. c. 183, § 21,
under procedures mandated by G.L. c. 244 § 14.
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161. Under the statute of frauds, G.L. c. 259 § 1, in order to act as an assignee,
the Named Foreclosing Defendants and the Defendants’ Class are required to possess
such assignment in writing.
162. The Named Foreclosing Defendants and the Defendants’ Class, acting by
and through the Foreclosing Law firms and others, routinely send or publish statutorily
mandated notices pursuant to G.L. c. 244, §§ 14 and 35A asserting authority to foreclose
by assignments that did not then exist.
163. Said notices do not meet the statutory requirements and are void and
without legal effect. Foreclosure sales are routinely scheduled without proper mailed and
published legal notices. If conducted, such sales would be void, improper and without
legal effect.
164. The Named Foreclosing Defendants and the Defendants’ Class, acting by
and through the Foreclosing Law firms and others, routinely represented to the Land
Court authority to exercise powers of sale based on assignments that did not exist at the
time of the representation. The misrepresentations result in void or voidable judgments
of the Land Court.
165. The Improper Notice Subclass is entitled to a declaratory judgment that
the notices of sale they have received are without legal effect and cannot meet statutory
requirements for a valid foreclosure sale.
166. The Improper Notice Subclass is entitled to an injunction preventing
foreclosure sale of their properties until such time as proper notice is made pursuant to
the statute.
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167. The Improper Notice Subclass suffered damages as a result of the conduct
of the Named Foreclosure Defendants and all others similarly situated.
COUNT III: BY THE PLAINTIFF CLASS (BOTH SUBCLASSES)
AGAINST THE LAW FIRM DEFENDANTS AND THE DEFENDANT
CLASS
(Breach of duty of good faith and reasonable diligence)

168. Plaintiffs repeat and reallege all paragraphs above as if set forth fully
herein.
169. All of the individual Plaintiffs named in this action are representatives of
the Plaintiffs’ Class for the purposes of this claim.
170. The Named Foreclosing Defendants are representatives of the Defendants’
Class for the purposes of this claim.
171. As the entities responsible for exercising the statutory power of sale, the
Named Foreclosing Defendants and the Defendants’ Class owed the Plaintiffs and the
Members of the Plaintiffs’ Class a duty of good faith and reasonable diligence in the
conduct of the foreclosure proceedings.
172. By conducting foreclosure proceedings without assignment of the relevant
mortgage, the Named Foreclosure Defendants violated this duty.
173. The Law Firm Defendants owed Plaintiffs and the members of the
Plaintiffs’ class whose mortgages they foreclosed a duty of good faith in the conduct of
the foreclosure proceedings.
174. By the routine conduct described herein, the Law Firm Defendants
violated this duty.
175. The Law Firm Defendants were aware of and participated in the wrongful
conduct described herein, both as agent and on their own behalf. The Law Firm
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Defendants received substantial fees and profits for acting for members of the Defendant
Class on foreclosures. These fees and charges, for foreclosures that did not meet
statutory requirements, were ultimately placed, with the Law Firms Defendants’
knowledge and acquiescence, as charges on the accounts of members of the Plaintiffs’
class.
176. Members of the Plaintiffs’ Class were damaged by these breaches of duty
including without limitation, by loss of equity, by lost opportunities to workout their
mortgage delinquencies, by early loss of shelter, and by imposition of inappropriate
foreclosure fees and costs on their accounts.
177. The Foreclosed Borrower Subclass is entitled to a declaratory judgment
determining that the foreclosure sales of their properties is void and setting aside those
sales.
178. The Foreclosed Borrower Subclass is entitled to an injunction requiring
that the Named Foreclosure Defendants and all others similarly situated take all steps
necessary to restore the legal title to the property to the same condition as if no
foreclosure sale had ever occurred.
179. The Improper Notice Subclass is entitled to an injunction preventing
foreclosure sale of their properties until such time as proper notice is made pursuant to
the statute.
180. The Plaintiffs Class is entitled to cancellation of costs and fees assessed to
them for wrongful foreclosures, together with additional damages.
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COUNT IV: BY DARLENE MANSON AGAINST DEFENDANTS
HARMON LAW AND GMAC (“MANSON DEFENDANTS”),
INDIVIDUALLY
(Claim for Injunctive Relief: Wrongful Foreclosure – Breach of Statute and
Breach of Duty)

181. Plaintiffs repeat and reallege all paragraphs above as if fully set forth
herein.
182. The Manson Defendants owed Ms. Manson a duty of good faith and/or
reasonable diligence in the commencement and conduct of foreclosure proceedings.
183. The foreclosure sale of Ms. Manson’s home was executed by the Manson
Defendants in violation of their duty of good faith.
184. By commencing, noticing, conducting and executing a foreclosure by
power of sale at a time when GMAC did not actually hold a written assignment of the
mortgage, and by misrepresenting GMAC’s status to the Land Court, the Manson
Defendants did not exercise good faith and/or reasonable diligence, and violated G.L. c.
183, § 21, and G.L. c. 244, § 14.
185. Ms. Manson is entitled to an injunction to stay her pending eviction, now
scheduled for November 25, 2008, pending a determination of the outcome of these
proceedings including, without limitation, a determination of the validity of the
foreclosure sale of her property.
186. Ms. Manson is also entitled to relief as a member of the Plaintiffs’ Class
and Foreclosed Borrower Subclass on the claims as aforesaid.
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COUNT V: BY DEBORAH AND KEITH NICHOLAS AGAINST
DEFENDANTS ABLITT LAW AND AVELO (“NICHOLAS
DEFENDANTS”), INDIVIDUALLY
(Claim for Injunctive Relief: Wrongful Foreclosure – Breach of Statute and
Breach of Duty)

187. Plaintiffs repeat and reallege all paragraphs above as if fully set forth
herein.
188. The Nicholas Defendants owed Mr. and Mrs. Nicholas a duty of good
faith and/or reasonable diligence in the commencement and conduct of foreclosure
proceedings.
189. The foreclosure sale of Mr. and Mrs. Nicholas’s home was executed by
the Nicholas Defendants in violation of their duty of good faith.
190. By commencing, noticing, conducting and executing a foreclosure by
power of sale at a time when Avelo did not actually hold a written assignment of the
mortgage, and by misrepresenting Avelo’s status to the Land Court, the Avelo
Defendants did not exercise good faith and/or reasonable diligence, and violated G.L. c.
183, § 21, and G.L. c. 244, § 14.
191. Mr. and Mrs. Nicholas are entitled to an injunction to stay their imminent
eviction, pending a determination of the outcome of these proceedings including, without
limitation, a determination of the validity of the foreclosure sale of their property.
192. Mr. and Mrs. Nicholas are also entitled to relief as members of the
Plaintiffs’ Class and Foreclosed Borrower Subclass on the claims as aforesaid.
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COUNT VI: BY GERMANO DEPINA AGAINST DEFENDANTS
HARMON LAW AND U.S. BANK (“DEPINA DEFENDANTS”),
INDIVIDUALLY
(Claim for Injunctive Relief: Breach of Statute and Breach of Duty)

193. Plaintiffs repeat and reallege all paragraphs above as if fully set forth
herein.
194. As the entities responsible for exercising the statutory power of sale, the
DePina Defendants owed Mr. DePina a duty of good faith and/or reasonable diligence in
the commencement and conduct of foreclosure proceedings.
195. The foreclosure sale of Mr. DePina’s home was commenced and noticed
by the DePina Defendants without the requisite good faith.
196. By commencing and sending notice of the foreclosure process at a time
when U.S. Bank did not actually hold a written assignment of the mortgage, and by
misrepresenting U.S. Bank’s status to the Land Court, the DePina Defendants did not
exercise good faith and/or reasonable diligence, and violated G.L. c. 183, § 21, and G.L.
c. 244, § 14.
197. Due to the conduct of the DePina Defendants, Mr. DePina is entitled to an
injunction preventing the foreclosure sale of her home, presently scheduled for January
19, 2009, from proceeding, pending a determination of the outcome of these proceedings
including, without limitation, a determination of the validity of the legal notices of sale
sent to Mr. DePina concerning foreclosure of her property.
198. Mr. DePina is also entitled to relief as a member of the Plaintiffs’ Class
and Improper Notice Subclass on the claims as aforesaid.
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PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs respectfully request that this honorable Court:
a.) assume jurisdiction over this matter;
b.) certify this case as a Plaintiffs’ class action and appoint Darlene Manson,
Deborah and Keith Nicholas, and Germano DePina to be Plaintiffs’ Class
and Subclass representatives and their counsel to be class counsel;
c.) certify this case as a Defendants’ class action and appoint GMAC, Avelo
and U.S. Bank as class representatives for the Defendants’ Class and their
counsel to be class counsel;
d.) as to the Foreclosed Borrower Subclass, issue declaratory and/or
injunctive relief setting aside the foreclosure sales of their homes as void
or voidable and in violation of statute and public policy;
e.) as to the Improper Notice Subclass, issue declaratory and/or injunctive
relief preventing foreclosure sales of Class Members’ property pending
proper notices of sale;
f.) as to the Plaintiffs’ Class issue an injunction and/or declaratory relief to
prevent further improper foreclosure related proceedings;
g.) as to the Plaintiffs’ Class issue an injunction preventing assessment or
collection of attorneys’ fees and charges for improper foreclosure
proceedings, together with an order of restitution or disgorgement with
respect to such fees and charges already paid;
h.) award damages, attorney’s fees and costs to the Plaintiffs and the class on
each claim set forth above;
i.) as to Darlene Manson, issue a temporary and/or permanent injunction of
the eviction proceedings pending against her;
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Case 1:08-cv-12166-RGS Document 19 Filed 01/13/2009 Page 37 of 38
j.) as to Deborah and Keith Nicholas, issue a temporary and/or permanent
injunction of the eviction proceedings pending against them;
k.) as to Germano DePina, issue a temporary and/or permanent injunction of
the foreclosure proceeding and foreclosure sale now pending;
l.) award such other relief as the Court deems necessary in equity and the
interests of justice.
Respectfully Submitted,
Darlene Manson, Deborah and Keith
Nicholas, and Germano DePina, on
behalf of all others similarly situated,
By their attorneys,
/s/ Gary Klein
Gary Klein BBO, No. 560769
Shennan Kavanagh, BBO No. 655174
Kevin Costello, BBO No. 669100
Roddy, Klein & Ryan
727 Atlantic Ave., 2nd floor
Boston, MA 02111
Tel. 617-357-5500
Fax. 617-357-5030
John R. Bryden, BBO No. 062240
John R. Bryden Attorney At Law
One Elm Square, Suite 300
Andover, MA 01810
Tel. 978-470-3650
Fax. 978-470-3662
[for Darlene Manson]
Dated: January 13, 2009
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CERTIFICATE OF SERVICE
I, Gary Klein, 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 and paper copies will be sent to the non-registered participants by first
class mail, postage prepaid, on January 13, 2009.
/s/ Gary Klein
Gary Klein
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