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14-P-1963                                               Appeals Court

         DEVENIA MACK    vs.   WELLS FARGO BANK, N.A., & others.1


                               No. 14-P-1963.

         Worcester.       October 5, 2015. - December 1, 2015.

              Present:    Vuono, Carhart, & Sullivan, JJ.


Practice, Civil, Summary judgment. Real Property, Mortgage.
     Mortgage, Foreclosure. Consumer Protection Act, Mortgage
     of real estate. Massachusetts Civil Rights Act. Immunity
     from suit. Rules of Professional Conduct.


     Civil action commenced in the Superior Court Department on
October 15, 2010.

     The case was heard by Brian A. Davis, J., on motions for
summary judgment.


     Robert M. Mendillo for Harmon Law Offices, P.C., & another.
     James L. O'Connor, Jr. (Barry M. Altman with him) for the
plaintiff.


     CARHART, J.      In this mortgage foreclosure action, the

plaintiff alleges that Harmon Law Offices, P.C. (Harmon), as

counsel for mortgagor Wells Fargo Bank, N.A. (Wells Fargo), and

     1
       Harmon Law Offices, P.C.; Commonwealth Auction Associates,
Inc.; Mortgage Electronic Registration Systems, Inc. (MERS); and
MERSCORP.
                                                                    2


Commonwealth Auction Associates, Inc. (Commonwealth), violated

G. L. c. 93A, §§ 2 and 9, and the Massachusetts Civil Rights

Act, G. L. c. 12, § 11I (MCRA), by continuing to advertise and

schedule foreclosure auctions of her property in violation of a

temporary restraining order and preliminary injunction

prohibiting them from doing so.2   Harmon and Commonwealth

(together, the defendants) moved for summary judgment, arguing,

among other things, that the "litigation privilege" immunizes

them from civil liability for their actions.   Summary judgment

was denied, and the defendants seek interlocutory review.     See

Visnick v. Caulfield, 73 Mass. App. Ct. 809, 811 n.4 (2009).

     We agree that Commonwealth's actions are not privileged as

a matter of law and affirm the order denying Commonwealth's

motion for summary judgment.   However, because we conclude that

Harmon's actions are protected by the litigation privilege, we

reverse the denial of Harmon's motion for summary judgment and

remand for the entry of summary judgment in Harmon's favor.

     Background.   The following material facts are undisputed.

On May 28, 2010, Harmon notified the plaintiff that it had been

retained by Wells Fargo to foreclose on her mortgage.    On

September 10, 2010, Harmon sent the plaintiff notice pursuant to


     2
       By stipulation, Wells Fargo was dismissed from the action
with prejudice. A motion to dismiss by MERS and MERSCORP was
allowed. Wells Fargo, MERS, and MERSCORP are not parties to
this appeal.
                                                                     3


G. L. c. 244, §§ 14 and 17B, of Wells Fargo's intent to

foreclose on the mortgage and to collect from her any

deficiency.    The notice also advised the plaintiff that a

mortgage foreclosure sale of her property would take place on

October 18, 2010.    On October 13, 2010, the plaintiff's attorney

wrote to Harmon and challenged Wells Fargo's standing to

foreclose.    The plaintiff's attorney requested a postponement of

the scheduled foreclosure auction and stated that, "[i]n the

event [he did] not receive written confirmation of a

postponement from [Harmon] by 4:00 P.M. on October 14, 2010, [he

would] seek a temporary restraining order in a court of

competent jurisdiction."

    On October 15, 2010, the plaintiff filed a wrongful

foreclosure suit against Wells Fargo.   She applied for a

preliminary injunction and was granted a temporary restraining

order (TRO), which stated:

    "The Defendant Wells Fargo Bank, N.A., together with its
    agents, attorneys and others acting in its behalf are
    hereby ordered and temporarily restrained from foreclosing,
    advertising for sale or otherwise transferring the real
    estate of [the plaintiff] located at 25 Nichols Street,
    Westminster, Massachusetts."

The same day, Wells Fargo postponed the scheduled foreclosure

auction until November 1, 2010, and Harmon received actual

notice of the TRO.
                                                                   4


    Harmon routinely hires Commonwealth, with which it shares a

common address and mutual officers, to conduct foreclosure

auctions for Harmon's clients.   From October 15 through 18,

2010, Commonwealth continued to list the plaintiff's property on

its foreclosure auction Web site.   However, at Harmon's

direction, it changed the status of the auction to "postponed."

On October 18, 2010, a Commonwealth agent appeared at the

property to publicly proclaim postponement of the sale to

November 1, 2010.   On October 20, 2010, in response to a demand

from the plaintiff's attorney, Harmon told Commonwealth to

remove the plaintiff's property from its auction listing Web

site.

    On October 28, 2010, after a hearing, a judge in the

Superior Court granted the plaintiff's request for a preliminary

injunction.   An order entered enjoining and restraining Wells

Fargo, "its agents, servants, attorneys and deputies . . . from

foreclosing on the property owned by the plaintiff."   The next

day, Harmon sent the plaintiff a letter "to inform [her] that

the foreclosure sale on [her] property which was scheduled for

November 1, 2010 has been postponed until January 26, 2011 at

10:00 a.m." (emphasis in original).   On November 1, 2010, a

Commonwealth agent appeared at the plaintiff's home and publicly

proclaimed that the foreclosure auction had been postponed.
                                                                    5


    On December 23, 2010, the plaintiff filed a first amended

complaint naming Harmon and Commonwealth as additional

defendants, and alleging violations by them of G. L. c. 93A, §§

2 and 9, and MCRA.   The first amended complaint alleged that the

defendants communicated directly with the plaintiff on October

29, 2010, while knowing her to be represented by an attorney;

engaged in conduct intended to harass, oppress, or abuse the

plaintiff in connection with the collection of a debt; and

continued to schedule and advertise foreclosure auctions of the

plaintiff's home in violation of the TRO and preliminary

injunction.   On January 6, 2011, the plaintiff filed a verified

complaint for contempt, in which she alleged that the

defendants' rescheduling of the foreclosure auction for January

26, 2011, constituted contempt of the preliminary injunction.

In November, 2011, the plaintiff filed a second amended

complaint alleging the same violations of G. L. c. 93A and MCRA

by the defendants.

    On July 13, 2012, a judge of the Superior Court dismissed

the plaintiff's contempt complaint after concluding that she had

failed to sustain her burden of proving "a clear and undoubted

disobedience of a clear and unequivocal command of the court."

On February 19, 2014, the defendants moved for summary judgment

and the plaintiff filed a cross motion for summary judgment as

to liability only.   A different Superior Court judge denied both
                                                                        6


summary judgment motions, ruling that the defendants' alleged

actions in violation of the TRO and preliminary injunction do

not fall within the scope of the "litigation privilege" because

"they were undertaken solely for the purpose of effecting a non-

judicial foreclosure of the Plaintiff's interest in the

Property."     The defendants appeal from the judge's decision

insofar as it denied summary judgment "based upon their defense

of absolute litigation privilege."

    Discussion.      1.   Standard of review.   We review the judge's

decision de novo, Miller v. Cotter, 448 Mass. 671, 676 (2007),

looking to the summary judgment record to determine "whether,

viewing the evidence in the light most favorable to the

nonmoving party, all material facts have been established and

the moving party is entitled to a judgment as a matter of law."

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

We will uphold an order denying summary judgment "if the trial

judge ruled on undisputed material facts and his ruling was

correct as a matter of law."     Commonwealth v. One 1987 Mercury

Cougar Auto., 413 Mass. 534, 536 (1992).

    2.   The litigation privilege.     Our courts have held that

"statements by a party, counsel or witness in the institution

of, or during the course of, a judicial proceeding are

absolutely privileged provided such statements relate to that

proceeding."    Sriberg v. Raymond, 370 Mass. 105, 108 (1976)
                                                                      7


(Sriberg).   The privilege applies "[w]here a communication to a

prospective defendant relates to a proceeding which is

contemplated in good faith and which is under serious

consideration," id. at 109, but does not encompass "attorneys'

conduct in counselling and assisting their clients in business

matters generally."     Kurker v. Hill, 44 Mass. App. Ct. 184, 192

(1998).   "The privilege applies not only to defamation claims

brought against an attorney, but to civil liability generally,"

Bartle v. Berry, 80 Mass. App. Ct. 372, 378 (2011), and is based

on "[t]he public policy of permitting attorneys complete freedom

of expression and candor in communications in their efforts to

secure justice for their clients."     Sriberg, supra at 108.

    "Whether an absolute privilege applies . . . is determined

on a case-by-case basis, after a fact-specific analysis."

Giuffrida v. High Country Investor, Inc., 73 Mass. App. Ct. 225,

242 (2008) (Giuffrida).     As the parties seeking summary judgment

on the basis of the privilege, the defendants bear the burden of

demonstrating the absence of a triable issue on whether their

acts of sending letters to the plaintiff, appearing at her home

to announce the postponement of the foreclosure auctions, and

continuing to list the plaintiff's property on an auction Web

site, are privileged.    See Smith v. Suburban Restaurants, Inc.,

374 Mass. 528, 531 (1978).
                                                                     8


    The judge correctly concluded that Commonwealth cannot

sustain this burden.   The undisputed facts demonstrate that

Commonwealth appeared at the plaintiff's property, and continued

to list the property on its auction Web site, in furtherance of

Wells Fargo's foreclosure of the plaintiff's mortgage.

"Massachusetts does not require . . . judicial authorization to

foreclose on a mortgaged property," U.S. Bank Natl. Assn. v.

Ibanez, 458 Mass. 637, 645-646 (2011) (Ibanez), and "[t]he

privilege extends [only] to circumstances where the statements

are made preliminary to a proposed or contemplated judicial

proceeding" (emphasis added).   Fisher v. Lint, 69 Mass. App. Ct.

360, 366 (2007).   Commonwealth was not named as a defendant in

the plaintiff's original wrongful foreclosure complaint, and it

was neither "a party, counsel [n]or witness in the institution

of, or during the course of, [that] judicial proceeding" when it

engaged in the conduct complained of.   Sriberg, supra.    While

Commonwealth was later named as a defendant in the first amended

complaint, and "it is well-established that communications by a

party preliminary to a proposed judicial proceeding also are

entitled to protection," Giuffrida, supra, nothing in the

summary judgment record supports an inference that Commonwealth

took the actions complained of in contemplation of being named

as a party to the plaintiff's wrongful foreclosure suit.     Thus,
                                                                   9


as a matter of law, Commonwealth is not immune from civil

liability for its actions.

     However, "the undisputed facts fully support the

application of the privilege" to Harmon.   Ibid.   Attorney Andrew

Harmon states in his affidavit in support of the motion for

summary judgment that (1) Harmon was retained by Wells Fargo to

foreclose on the plaintiff's mortgage; (2) in the course of this

representation, Harmon failed to advise Commonwealth of the TRO

until October 20, 2010, because it did not consider the postings

to violate the TRO; (3) Harmon sent the plaintiff a letter in

the course of its representation of Wells Fargo "advising that

the November 1, 2010 foreclosure sale was postponed until

January 26, 2011"; and (4) "[t]he letter was sent directly to

[the plaintiff] because [of] Harmon's legal interpretation of

the relevant statutes and case law."   It is undisputed that

Harmon was pursuing the foreclosure in its role as attorney for

Wells Fargo; that the plaintiff advised Harmon of her intent to

file suit if Wells Fargo did not postpone the foreclosure

auction; and that Harmon represented Wells Fargo with respect to

that suit when it sent the October 29, 2010, letter to the

plaintiff.3   Accordingly, it is undisputed that the statements


     3
       An October 19, 2010, electronic mail message (e-mail) from
Harmon's attorney to the plaintiff's attorney, stating that
"Harmon Law Office has not been retained to represent Wells
Fargo" with respect to the plaintiff's suit, is insufficient to
                                                                  10


and actions about which the plaintiff complains were "made by an

attorney engaged in his function as an attorney . . . in the

institution or conduct of litigation or in . . . communications

preliminary to litigation."   Sriberg, supra at 109.   The

statements were "relevant or pertinent to the judicial

proceedings" instituted by the plaintiff against Wells Fargo,

Robert L. Sullivan, D.D.S., P.C. v. Birmingham, 11 Mass. App.

Ct. 359, 362 (1981) (Sullivan), and "the absolute privilege

which attaches to those statements protects the maker from any

civil liability thereon."   Doe v. Nutter, McClennen & Fish, 41

Mass. App. Ct. 137, 140 (1996).   Thus, as a matter of law, the

plaintiff may not recover of Harmon under G. L. c. 93A, or MCRA.

    We note that this conclusion is required by the undisputed

facts of this case.   Our decision should not be interpreted as

condoning the actions taken by Harmon.   We agree with the

plaintiff that Harmon's acts of communicating directly with her

while knowing her to be represented by counsel, failing to

advise Commonwealth that it was prohibited by the TRO from

advertising a sale of her property, and scheduling a foreclosure



create a genuine dispute as to whether litigation privilege
applies, where it is undisputed that Harmon represented Wells
Fargo in the foreclosure action that formed the basis of the
plaintiff's complaint; Harmon was notified of the plaintiff's
intention to file suit before it engaged in the acts complained
of; and, two days later on October 21, 2010, Harmon's attorney
sent the plaintiff's attorney another e-mail stating that Harmon
"ha[s] been retained to represent Wells Fargo in this case."
                                                                  11


sale of the property despite being prohibited by the preliminary

injunction from conducting any such sale, are troubling.     These

actions may not have risen to the level of contempt,4 but they

arguably violate our Rules of Professional Conduct.5   However, an

attorney's liability to a person injured by his misconduct "must

be based on a recognized and independent cause of action and not

on ethical violations."   Sullivan, supra at 368.   Absent

allegations that support a claim that is not barred by the

absolute privilege, see, e.g., Harmon Law Offices, P.C. v.

Attorney Gen., 83 Mass. App. Ct. 830, 837 n.9 (2013) (noting

that "a law firm may be liable under c. 93A if it engages in

conduct beyond the functions of traditional representation");

Akar v. Federal Natl. Mort. Assn., 843 F. Supp. 2d 154, 163-164

(D. Mass. 2012) (holding that litigation privilege does not bar


     4
       As noted infra, a judge in the Superior Court found that
the defendants were not in contempt of the preliminary
injunction.
     5
       See Mass.R.Prof.C. 4.2, as appearing in 471 Mass. 1440
(2015) ("In representing a client, a lawyer shall not
communicate about the subject of the representation with a
person the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other
lawyer or is authorized to do so or by law or a court order");
Mass.R.Prof.C. 4.4(a), as appearing in 471 Mass. 1443 (2015)
("In representing a client, a lawyer shall not use means that
have no substantial purpose other than to embarrass, delay or
burden a third person"); Mass.R.Prof.C. 8.4, as appearing in 471
Mass. 1482-1483 (2015) ("It is professional misconduct for a
lawyer to . . . [c] engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation; [or] [d] engage in conduct
that is prejudicial to the administration of justice").
                                                                   12


claims under Fair Debt Collection Practices Act, 15 U.S.C.

§§ 1692 et seq.); In re Lynn-Weaver, 385 B.R. 7, 11-12 (Bankr.

D. Mass. 2008) (holding that Harmon's acts of postponing

foreclosure sales after filing of bankruptcy petition violate

automatic stay provisions of 11 U.S.C. § 362[a]), we are

constrained to conclude that, in this case, Harmon "ha[s] an

absolute defense to all of the plaintiff's claims for relief."

Sullivan, supra.

     3.   Conclusion.   In light of the foregoing, we affirm the

order denying Commonwealth's motion for summary judgment on the

basis that it is immune from civil liability under the

litigation privilege.   However, because the privilege applies to

Harmon's actions, the order denying Harmon's motion for summary

judgment is reversed, and the matter is remanded for the entry

of summary judgment in favor of Harmon.6

                                     So ordered.




     6
       The plaintiff's request for appellate attorney's fees and
costs is premature, and denied without prejudice.
