          United States Court of Appeals
                     For the First Circuit


No. 16-1385

       PEDRO A. FLORES; ESTHER YANES-ÁLVAREZ; ROSA YANES,

                     Plaintiffs, Appellants,

                               v.

     ONEWEST BANK, F.S.B.; INDYMAC MORTGAGE SERVICES; OCWEN
     SERVICING, LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                             Before

                  Torruella, Selya, and Barron,
                         Circuit Judges.


     Carmenelisa Pérez-Kudzma and Pérez-Kudzma Law Office P.C. on
brief for appellants.
     Marissa I. Delinks, Maura K. McKelvey, and Hinshaw &
Culbertson LLP on brief for appellees.


                         March 23, 2018
           BARRON, Circuit Judge.         This case concerns an appeal

from the dismissal of a suit that challenges the lawfulness of a

2012 foreclosure sale of a home in Massachusetts.          The property at

issue formerly belonged to the plaintiffs:         Pedro Flores, Esther

Yanes-Álvarez, and Rosa Yanes.      Their complaint set forth numerous

claims alleging, among other things, that the defendants -- OneWest

Bank, Indymac Mortgage Services, Ocwen Servicing, and the Federal

National   Mortgage   Association    --   had   engaged    in   unfair    and

predatory mortgage lending and loan servicing practices and that

the foreclosure sale of the property was void.              We affirm the

District Court's order dismissing all of the claims.

                                    I.

           To set the stage, we recount the following facts as they

are recited in the amended complaint.        On or about April 6, 2007,

the plaintiffs refinanced their home mortgage loan for their home

in Everett, Massachusetts.    The home mortgage loan was originated

by Dynamic Capital Mortgage and secured by a mortgage on the

property   with   Mortgage   Electronic     Registration    Systems      Inc.

("MERS"), which the mortgage named as mortgagee.

           In 2008, the plaintiffs were unable to meet their monthly

mortgage obligations and eventually defaulted on the mortgage.            On

April 25, 2012, the plaintiffs applied for a loan modification

from Indymac Mortgage Services, a division of OneWest Bank.               On

May 11, 2012, Indymac denied the plaintiffs' application.          OneWest


                                 - 2 -
effectuated the foreclosure pursuant to the statutory power of

sale.       Mass. Gen. Laws ch. 183, § 21.   Defendant OneWest purchased

the property at the foreclosure sale.

               More than three years later, on November 15, 2015, the

plaintiffs brought this suit in the District Court for the District

of Massachusetts.       The operative complaint set forth nine claims.

The defendants moved to dismiss all of the claims, and the District

Court granted the motion.      The plaintiffs now appeal the dismissal

of eight of the nine claims.1      Our standard of review for an order

granting a motion to dismiss is de novo.         Rodi v. S. New England

Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004).          In performing the

review, "[n]on-conclusory factual allegations in the complaint

must . . . be treated as true."            Ocasio-Hernández v. Fortuño-

Burset, 640 F.3d 1, 12 (1st Cir. 2011).

                                    II.

               The plaintiffs' eight claims, which are all brought

under Massachusetts law, fall into what amounts to four different

categories.        Three claims seek a judgment declaring that the

foreclosure sale is void.      A fourth claim is for an action to quiet

title.       A fifth claim is for breach of the duty of good faith and

reasonable diligence.       The final three claims at issue are brought


        1
       The one claim that the plaintiffs do not appeal was for
unjust enrichment. The District Court dismissed that claim on the
ground that unjust enrichment is a theory of equitable recovery,
rather than an independent cause of action.


                                   - 3 -
under two different consumer protection statutes.               For the reasons

that follow, we affirm the dismissal of all of these claims.

                                        A.

             We begin with the three claims for which the plaintiffs

seek a judgment declaring that the foreclosure sale is void.                The

first of these claims contends that the sale is void because the

defendants      failed   to   comply    with   Massachusetts     General    Laws

Chapter 244, § 15A ("§ 15A") in conducting the sale.               Section 15A

requires    a    mortgagee    conveying      title   to   mortgaged   premises

pursuant to a foreclosure proceeding under the provisions of

Chapter 244 to:

             [W]ithin thirty days of taking possession or
             conveying title, notify all residential
             tenants of said premises, and the office of
             the assessor or collector of taxes of the
             municipality in which the premises are located
             and   any   persons,   companies,   districts,
             commissions or other entities of any kind
             which provide water or sewer service to the
             premises, of said taking possession or
             conveying title.

Id.

      The   complaint    alleged   that      the   defendants    violated   this

provision's thirty-day notification requirement by notifying the

municipal tax-collector of the foreclosure sale only in March of

2013, which was approximately eleven months after the sale had

occurred.    The defendants, in their motion to dismiss, argued that

this claim was for a tort under Massachusetts law because they



                                       - 4 -
contend that it alleged (albeit implicitly) that the defendants

had conducted the foreclosure sale negligently and in bad faith.

Accordingly, the defendants contended that this claim was time-

barred, because it was filed outside the three-year statute of

limitations that applies to tort claims under Massachusetts law.

See Mass. Gen. Laws ch. 260, § 2A.

      The District Court agreed with the defendants.      Accordingly,

the District Court dismissed the claim on that basis.

          The plaintiffs now argue on appeal, as they did below in

their complaint and in their opposition to defendants' motion to

dismiss, that the claim is not subject to the three-year statute

of limitations that applies to tort claims in Massachusetts because

the claim seeks to declare the foreclosure sale void for having

been carried out in violation of § 15A.        The plaintiffs further

contend that the claim is timely because no other time bar stands

in the way of this claim.

          The plaintiffs rely for this argument primarily on the

Massachusetts   Supreme   Judicial   Court's    ("SJC")   decision   in

Bevilacqua v. Rodriguez, 955 N.E.2d 884 (Mass. 2011).       They point

out that Bevilacqua establishes that, if a foreclosure transaction

is void, "it is a nullity such that title never left possession of

the original owner . . . . any effort to foreclose by a party

lacking 'jurisdiction and authority' to carry out a foreclosure

under [the relevant] statutes is void."         Id. at 897 (internal


                               - 5 -
citations and alterations omitted).              And the plaintiffs then

contend that it follows that "where a cause of action arises out

of an alleged void transaction, there cannot be a statute of

limitations because title never left the Appellants' possession."

             Neither the District Court nor the defendants address

the plaintiffs' contention that, in light of Bevilacqua, the claim

is not subject to the three-year limitations period that applies

to tort claims.      But, we need not decide whether the plaintiffs'

argument concerning Bevilacqua has force.           Even assuming that it

does, the plaintiffs' argument that the sale is void in consequence

of the claimed statutory violation is clearly wrong.              And so we

affirm the dismissal of this claim on that basis.               See Otero v.

P.R. Indus. Comm'n, 441 F.3d 18, 20 (1st Cir. 2006) ("We review

the district court's order of dismissal de novo and may affirm on

any ground supported by the record.").

             In so ruling, we observe that the plaintiffs base their

contention that the foreclosure sale is void because it violated

§ 15A on Paiva v. Bank of N.Y. Mellon, 120 F. Supp. 3d 7 (D. Mass.

2015).    That case correctly noted that the SJC has held that

violations     of   certain   statutory       requirements   pertaining   to

foreclosure sales pursuant to Massachusetts General Laws Chapter

244 would render them void.       Id. at 11 (citing Pinti v. Emigrant

Mortg. Co., 33 N.E.3d 1213, 1224 (Mass. 2015); U.S. Bank Nat. Ass'n

v.   Schumacher,    5   N.E.3d   882,   891    (Mass.   2014)   (Gants,   J.,


                                   - 6 -
concurring); Eaton v. Fed. Nat. Mortg. Ass'n, 969 N.E.2d 1118,

1128 (Mass. 2012); U.S. Bank Nat. Ass'n v. Ibanez, 941 N.E.2d 40,

49 (Mass. 2011)).         And Paiva also concluded that § 15A is one of

the statutes pertaining to a foreclosure sale for which "the

consequence       of     non-compliance    is       the    invalidation     of    the

foreclosure sale."         Id.

            Assuming that there was a violation of § 15A, the problem

for the plaintiffs is that Paiva is a federal district court

decision that expressly noted that there was, at the time of that

decision, no state court precedent that directly addressed whether

a violation of § 15A would render a foreclosure sale pursuant to

Massachusetts General Laws Chapter 244 void.                      Id. at 11 & n.3.

And since Paiva, the Massachusetts Appeals Court has held, albeit

in an unpublished decision, that a mortgagee's failure to provide

notice    under    the    requirements    of    §    15A   does    not   render   the

foreclosure sale void under Massachusetts law.                Kiah v. Carpenter,

47 N.E.3d 53 (Mass. App. Ct. 2016), appeal denied, 56 N.E.3d 829

(Mass. 2016).

            We see no reason to doubt Kiah's reading of Massachusetts

law.     See Stoner v. New York Life Ins. Co., 311 U.S. 464, 467

(1940) ("[F]ederal courts, under the doctrine of Erie Railroad Co.

v. Tompkins . . .        must follow the decisions of intermediate state

courts in the absence of convincing evidence that the highest court

of the state would decide differently."). We thus affirm the


                                     - 7 -
dismissal of this claim on the ground that the sale is not void,

even assuming it was carried out in violation of § 15A.

            The   plaintiffs      also    challenge    the      District      Court's

decision to dismiss as time-barred two of their other claims in

which they seek to have the foreclosure sale deemed void.                        The

plaintiffs do so by, once again, contending that, because these

claims    seek    to    declare     the     foreclosure      sale      void     under

Massachusetts law, the claims are not subject to the three-year

limitations period that applies to tort claims in Massachusetts

that the District Court applied in dismissing each of these claims.

And the plaintiffs once again rely on Bevilacqua in so arguing.

            These      two   claims      allege,    respectively,        that     the

foreclosure sale was void because it was carried out in violation

of Massachusetts General Laws Chapter 244, § 35A ("§ 35A") and

that the foreclosure sale was void because it was carried out in

violation of paragraph twenty-two of the mortgage instrument.

Section 35A gives a mortgagor a ninety-day right to cure a payment

default     before     foreclosure       proceedings      may     be    commenced.

Paragraph    twenty-two      of   the    mortgage   instrument      concerns     the

mortgagee's provision of notice to the mortgagor of its default,

its right to cure, and the remedies that are available to the

mortgagee upon the mortgagor's failure to cure the default.

            The District Court ruled that each of these claims was

time-barred without addressing the plaintiffs' contrary contention


                                        - 8 -
based   on   Bevilacqua,         although     the    plaintiffs      did   raise     that

argument below.        And the defendants do not address that argument

on appeal.     Nevertheless, we may bypass the plaintiffs' contention

about how Bevilacqua bears on whether these claims are time-barred,

because these claims fail on the merits.

             The claim that the sale is void because it was carried

out in violation of § 35A fails because the SJC held in Schumacher

that    an   alleged    violation       of    that    statute   does       not    void   a

foreclosure sale.          5 N.E.3d at 890.          The claim that the sale is

void because it was carried out in violation of paragraph twenty-

two of the mortgage instrument fares no better.                       The plaintiffs

point out that the SJC in Pinti did rule that a sale carried out

in violation of the very same provision of the mortgage instrument

that    is   set   forth    in    paragraph       twenty-two    of    this       mortgage

instrument is void. But, Pinti expressly provided that this ruling

was to be given prospective effect only, 33 N.E.3d at 1226-27, and

the    foreclosure     sale      in   this    case   took   place     before       Pinti.

Accordingly, we affirm the order of dismissal as to these two

claims as well.

                                             B.

             We next turn to the plaintiffs' challenge to the District

Court's dismissal of the claim in which they seek to quiet title.

The District Court dismissed this claim on the ground that the

plaintiffs did not have standing to bring it, because, in light of


                                        - 9 -
the foreclosure sale, they do not hold both equitable and legal

title to the property.        See Bevilacqua, 955 N.E.2d at 889 n.5.

The plaintiffs do not contest the fact that, under Massachusetts

law, they must have both legal and equitable title to the property

to bring their quiet title action.             But, while the plaintiffs

contend    that   they   do   have   the    requisite   title   because   the

foreclosure sale is void, we have already explained why the

plaintiffs' arguments in support of that contention lack merit.

As the plaintiffs advance no other argument that suffices to show

that the District Court erred in dismissing this claim for lack of

standing, we affirm the dismissal of this claim.

                                       C.

             The plaintiffs next contend that the District Court

erred in dismissing their claim for breach of the duty of good

faith and reasonable diligence due to their having "reject[ed] an

alternative to foreclosure and refusing to delay the foreclosure

to fully consider a loan modification."                 The District Court

concluded, however, that the plaintiffs failed to point to any

contract that required defendants to take the affirmative step of

considering a loan modification and thus that there was no such

duty.     See F.D.I.C. v. LeBlanc, 85 F.3d 815, 822 (1st Cir. 1996).

And the plaintiffs identify no authority on appeal that suggests

otherwise.     We thus affirm the District Court's ruling on this

score as well.


                                     - 10 -
                                           D.

            Finally, we turn to the plaintiffs' challenge to the

dismissal of their statutory consumer protections claims.                            The

plaintiffs brought two of these claims pursuant to, respectively,

Massachusetts General Laws Chapter 183, § 28C and Massachusetts

General    Laws    Chapter    93A    on     the     ground     that,    because      the

plaintiffs' April 6, 2007, loan was "unaffordable from the start,"

it was "unfair and illegal."              The plaintiffs separately contend

that the District Court also erred in dismissing their additional

claim     under   Chapter    93A,     in        which   they   alleged        that   the

"[d]efendants acted in an unfair and deceptive manner" when they

refused to modify the loan.

            The District Court dismissed all three of these claims

on the ground that, as consumer protection claims, they were filed

too late to comply with the four-year statute of limitations that

applies to such claims pursuant to Massachusetts General Laws

Chapter 260, § 5A.     In so ruling, the District Court did not engage

with the argument made by the plaintiffs that the statute of

limitations       should    not     apply        because     there     were     various

irregularities in the loan.          But, the plaintiffs provided no legal

authority below, nor do they identify any on appeal, that would

support their conclusory assertions that, in consequence of these

alleged irregularities, the limitations period never began to run.

Accordingly, these arguments fail.                United States v. Zannino, 895


                                      - 11 -
F.2d 1, 17 (1st Cir. 1990) (issues adverted to in a perfunctory

manner are deemed waived).

           The plaintiffs do argue that the "discovery rule" should

apply to toll the statute of limitations "until the plaintiff knew

[or] should have known of the alleged injury."            Abdallah v. Bain

Capital LLC, 880 F. Supp. 2d 190, 195 (D. Mass. 2012) (internal

quotation marks omitted).      But, the plaintiffs fail to specify

what injury they had not discovered when the loan closed. Instead,

they simply assert -- without explanation -- that it is of import

that the loan in question was an interest only loan for the first

ten   years.   Thus,   this   argument    for   tolling   the   statute   of

limitations fails as well.2     Zannino, 895 F.2d at 17.

           The plaintiffs also point out that, with respect to their

claim under Chapter 93A that the defendants acted unfairly and

deceptively when they refused to modify their loan, the injury

occurred in May 2012.    Thus, they contend that -- contrary to the

District Court's ruling -- they brought their claim within the


      2The plaintiffs argue on appeal, for the first time, that
the District Court was wrong to hold that a Chapter 183, § 28C
claim should be subject to the time bar for consumer protection
claims. The plaintiffs argue that a five-year statute of
limitations should apply to that claim pursuant to Mass. Gen. Laws
ch. 183C, § 15(b)(1).    But even aside from the fact that this
argument is made for the first time on appeal, see Me. Green Party
v. Me. Sec'y of State, 173 F.3d 1, 4 (1st Cir. 1999), the argument
is of no moment. The plaintiffs still can only avoid the time bar
that they claim does apply to this claim if their tolling argument
is correct, given that the time otherwise has run under that longer
statute of limitations as well.


                                 - 12 -
four-year statute of limitations for consumer protection claims

because they filed their complaint in 2015.

          The defendants respond, however, that, because they had

no duty or obligation to consider the loan modification, there

could not have been a violation of Massachusetts General Laws

Chapter 93A, see Charest v. Fed. Nat. Mortg. Ass'n, 9 F. Supp. 3d

114, 125 (D. Mass. 2014) ("[A] failure to modify a loan under HAMP,

without more, does not constitute a Chapter 93A violation.")

(internal quotations and alterations omitted), and thus that we

may affirm the dismissal of this claim on this alternative basis.

As the plaintiffs did not reply to this argument and provide no

authority to support the unlikely proposition that, where no

express contractual or statutory obligation to modify a loan

exists, a decision to deny a request to modify alone in and of

itself states a claim under Chapter 93A, we affirm the dismissal

of this claim.   See Otero, 441 F.3d at 20.

          Finally, the plaintiffs challenge the District Court's

dismissal of their claim alleging unfair and deceptive practices

in violation of the Federal Trade Commission Act ("Act").   See 15

U.S.C. § 45.     The District Court ruled that the Act does not

authorize a private right of action and therefore dismissed the

claim on that basis.    See Lee v. BAC Home Loans Servicing, LP,

2013 WL 212615, at *4 (D. Mass. Jan. 18, 2013).




                              - 13 -
          The   plaintiffs   contend    that    the   District   Court

misapprehended the nature of this claim.       They contend that this

claim was brought pursuant to Chapter 93A and merely alleged that

the violation of that state law was predicated on the fact that

the defendants had violated the federal statute.

          Although the complaint did not reference Massachusetts

General Laws Chapter 93A in this particular count, it did reference

"unfair and deceptive practices."   And plaintiffs did argue to the

District Court prior to its ruling, as they argue on appeal, that

this count alleged a Chapter 93A claim premised on a violation of

the Act and not a claim under the Act itself.

          But, even if the complaint may be read in the plaintiffs'

preferred manner, we still affirm the dismissal of this claim.     As

the defendants note, Chapter 93A "requires claimants to set out

specifically any activities in their demand letter as to which

they seek relief.   Separate relief on actions not so mentioned is

foreclosed as a matter of law."        Passatempo v. McMenimen, 960

N.E.2d 275, 293 (Mass. 2012) (quoting Clegg v. Butler, 676 N.E.2d

1134 (Mass. 1997)).   Yet, as the defendants also note, and as the

plaintiffs do not dispute, the plaintiffs' June 5, 2012, demand

letter that stated claims under Chapter 93A made no mention of

there having been any violation of the Act.

          The demand letter was not attached to the complaint nor

expressly incorporated by it, and thus consideration of this


                              - 14 -
document would normally be forbidden in the context of a motion to

dismiss unless the proceeding was properly converted into one for

summary judgment under Rule 56. See Fed. R. Civ. P. 12(b)(6).

However, we have held that we may make "narrow exceptions for

documents the authenticity of which are not disputed by the

parties; for official public records; for documents central to

plaintiffs' claim; or for documents sufficiently referred to in

the complaint."     Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).

And here, the plaintiffs did not dispute the authenticity of the

demand letter when it was appended by defendants; the demand letter

was central to plaintiffs' Chapter 93A claim; and the document was

referred to in plaintiffs' complaint as a necessary "special

element" of a Chapter 93A cause of action.           See Entrialgo v. Twin

City Dodge, Inc., 333 N.E.2d 202, 204 (Mass. 1975) (noting that

for Chapter 93A cause of action, plaintiff's complaint must allege

that the plaintiff sent a demand letter to the defendant).             Thus,

because the demand letter made no mention of a violation of the

Act, we affirm the dismissal of this claim, too.

                                      III.

             For   the   foregoing   reasons,   we   affirm   the   order   of

dismissal.




                                     - 15 -
