Opinion
16-P-502
04-26-2017
Carl P. PETERSON v. FCI LENDER SERVICES, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Carl P. Peterson, filed a complaint in the Superior Court alleging that the defendant, FCI Lender Services, Inc., engaged in unfair and deceptive trade practices in violation of G. L. c. 93A and breached its duty of good faith and reasonable diligence in denying his requests for a loan modification before foreclosing on his mortgage. After the plaintiff's request for a preliminary injunction was denied and his motion for approval of a memorandum of lis pendens was allowed, the defendant filed a special motion to dismiss the complaint and to dissolve the lis pendens. The plaintiff appeals from the order allowing the special motion.
Under G. L. c. 184, § 15(b ), as appearing in St. 2002, c. 496, § 2, to obtain a memorandum of lis pendens a party must file a verified complaint that "include[s] a certification by the claimant made under the penalties of perjury that the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom." The verification of the complaint here did not include the certification that "no material facts have been omitted therefrom," an omission that we have held to constitute a "material deficiency" in a lis pendens application. DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903, 906 (2016). The omission of the certification alone is a ground for the dissolution of a memorandum of lis pendens. Ibid. The motion judge did not commit an error of law or abuse his discretion in dissolving the memorandum of lis pendens. See Galipault v. Wash Rock Invs.,LLC, 65 Mass. App. Ct. 73, 82-83 (2005) ; McMann v. McGowan, 71 Mass. App. Ct. 513, 519-520 (2008).
Not only was the certification insufficient, the complaint failed to disclose an important fact: that the plaintiff had failed to pay real estate taxes for three years, resulting in a $7,000 tax lien. The plaintiff contends that even though his complaint was silent regarding his tax debts, the fact that he was behind on his taxes, as well as his mortgage payments, could be inferred from his complaint. He also argues that his tax status was disclosed in the exhibits to his complaint because he checked a box on the modification application stating that his tax and insurance payments were not current, and because one document listed a "past due" amount of $526.18 for his 2015 taxes. We disagree. Hints sprinkled sparsely among documents attached to a complaint (numbering more than 150 pages in this case) are not an adequate substitute for disclosure of a $7,000 tax lien, especially in light of the certification requirement of § 15. Given the expedited and mandatory nature of the lis pendens procedure, see Sutherland v. Aolean Dev. Corp., 399 Mass. 36, 40-41 (1987) ; DeCroteau, supra, a judge must be able to rely on the face of the verified complaint to determine whether to endorse a lis pendens request.
Moreover, the omission was material. "A ‘material fact’ is one that is ‘significant or essential to the issue or matter at hand.’ " McMann, supra at 520, quoting from Black's Law Dictionary 629 (8th ed. 2004). The basis of the plaintiff's complaint is that the defendant did not properly calculate and weigh his income and debts in determining whether he qualified for loan modification. The extent of the plaintiff's tax debt, and the fact that the property was encumbered by a tax lien, were certainly matters that a prudent lender would take into account in assessing a request for a loan modification.
This material omission supported the judge's allowance of the special motion to dismiss. Such a motion "shall be granted" upon a finding that "the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds." G. L. c. 184, § 15(c ). "A party's failure to include all material facts may result in the dismissal of that party's claims where the omitted facts establish that those claims are devoid of reasonable factual support or arguable basis in law." McMann, supra at 519-520. The plaintiff's omission here substantially undermined the factual basis for a complaint that was already based on tenuous legal grounds. In light of this material omission, the judge did not abuse his discretion in dismissing the action as frivolous.
Judgment affirmed.