Steve Okanlawon v. Deutsche Bank National Trust Company.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-77

STEVE OKANLAWON

vs.

DEUTSCHE BANK NATIONAL TRUST COMPANY. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Steve Okanlawon, appeals from the entry of a

summary judgment dismissing his claims against the defendant,

Deutsche Bank National Trust Company (bank). We affirm.

Background. In 2006, the plaintiff borrowed funds and

executed a promissory note that was secured by a mortgage on the

plaintiff's property granted to Mortgage Electronic Registration

Systems, Inc. (MERS). MERS assigned the mortgage to the bank in

2009, which thereafter held both note and mortgage. In 2010,

the plaintiff and the bank entered into a loan modification

1As trustee for Morgan Stanley ABS Capital, Inc., Trust
2007-HE2. As is our usual practice, we take the parties' names
and capacities as presented in the operative complaint.
agreement that reduced the plaintiff's monthly payments and

modified the note's principal balance. The plaintiff stopped

making monthly payments in August 2013, and the bank initiated

foreclosure proceedings. Between 2016 and 2019, the plaintiff

submitted a series of requests for mortgage assistance. In

response, the bank deemed the plaintiff's applications

incomplete, requested additional information, and proposed

various options to the plaintiff, to which the plaintiff did not

respond. The plaintiff declared bankruptcy in February 2019,

and the bankruptcy court imposed a stay as to the bank's

foreclosure in May 2019, then lifted that stay in June 2019 due

to the plaintiff's failure to make required payments. The bank

foreclosed in October 2019.

After foreclosing on the property, the bank took the

foreclosure title and brought a summary process action against

the plaintiff. The plaintiff brought counterclaims. Pending

resolution of the summary process matter, the bank transferred

its title to a bona fide purchaser, the plaintiff vacated the

property, and the bank moved to dismiss its claims. The judge

allowed the motion and also, sua sponte, dismissed the

plaintiff's counterclaims as moot. On appeal, a panel of this

court vacated so much of the judgment as dismissed the

plaintiff's counterclaims. See Deutsche Bank Nat'l Trust Co. v.

Okanlawon, 101 Mass. App. Ct. 1125 (2022). In an unpublished

2
memorandum and order, the panel acknowledged that because the

"new owner of the subject property has prevailed in a separate

summary process action, and the defendant has voluntarily

vacated the property," the bank's summary process claim for

possession was moot and no further injunctive relief could be

ordered. Id. Nevertheless, the panel ruled that the appeal was

not moot because "[c]laims for monetary damages are not rendered

moot by the unavailability of injunctive relief." Id. The

panel explained that a summary process defendant in Housing

Court may assert counterclaims for damages under, for example,

G. L. c. 93A, § 9, and "[s]uch claims are not dependent on the

action for possession." Id. "[I]ndeed, the Housing Court may

sever the counterclaims, determine possession, and then,

'pursuant to the Housing Court's general jurisdiction under

G. L. c. 185C, § 3, the judge may in a separate proceeding

determine whether the occupant is entitled to monetary damages,

other forms of equitable relief, or attorney's fees'" (citation

omitted). Okanlawon, supra. The panel reversed so much of the

judgment as dismissed the defendant's counterclaims, but noted

that the existence of jurisdiction over those claims did not

"mean that they will necessarily, or even likely, survive a

motion to dismiss or for summary judgment." Id.

On remand, the matter was transferred to the present trial

docket and recaptioned, and the plaintiff filed an amended

3
complaint. The plaintiff asserted claims for breach of the

implied covenant of good faith and fair dealing, violation of

G. L. c. 93A, § 9, and wrongful foreclosure. The claims

involved the bank's alleged conduct in the preforeclosure

modification proceedings, the foreclosure itself, and the bank's

transfer of the foreclosure title to the bona fide purchaser

after initiating the summary process proceedings. The bank

moved for summary judgment, and the judge allowed the motion in

a detailed memorandum of decision.

1. Standard of review. The plaintiff contends that the

judge erred in granting summary judgment to the bank. "We

review a decision on a motion for summary judgment de novo."

Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 330 (2021)

(Pesa). "Summary judgment is appropriate where there is no

genuine issue of material fact and the moving party is entitled

to judgment as a matter of law." Barbetti v. Stempniewicz, 490

Mass. 98, 107 (2022), quoting Pesa, supra. See Mass. R. Civ. P.

56 (c), as amended, 436 Mass. 1404 (2002).

2. Implied covenant of good faith and fair dealing. The

implied covenant provides that "neither party shall do anything

that will have the effect of destroying or injuring the right of

the other party to receive the fruits of the contract"

(quotation omitted). Anthony's Pier Four, Inc. v. HBC Assocs.,

411 Mass. 451, 471-472 (1991). The scope of the implied

4
covenant is "only as broad as the contract that governs the

particular relationship," Ayash v. Dana-Farber Cancer Inst., 443

Mass. 367, 385, cert. denied sub nom. Globe Newspaper Co. v.

Ayash, 546 U.S. 927 (2005), and a violation of the implied

covenant must involve the manner in which the contract is

performed. See Ayash, supra; Uno Restaurants, Inc. v. Boston

Kenmore Realty Corp., 441 Mass. 376, 385 (2004). Although

"[t]he relationship between a borrower and lender does not give

rise to a duty of care under Massachusetts law," mortgage

holders have a duty to "act in good faith and must use

reasonable diligence to protect the interests of the mortgagor

in the context of an extrajudicial foreclosure and exercise of

power of sale" (quotations and citations omitted). Santos v.

U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 700-701 (2016).

"Lenders also have a duty of good faith and fair dealing in the

performance of their obligations under the mortgage." Id. at

701.

Here, the plaintiff claimed that the bank violated the

implied covenant by wrongfully foreclosing on the property in

September 2019 even though he had filed for a loan modification

in response to the bank's preforeclosure notices. "[N]either

the implied covenant nor the duties arising from foreclosure

extends to preforeclosure loan modification processing where the

mortgage loan documents do not themselves contemplate such

5
modifications." Santos, 89 Mass. App. Ct. at 701. In his

decision, the judge found that the plaintiff's mortgage did not

include any provision creating a "loan modification duty that

the mortgagee owed to him." The judge further found that, in

any event, "there is no evidence in the summary judgment record

that [the bank] acted in bad faith or failed to deal fairly with

[the plaintiff] with respect to his multiple loan modification

applications over the nine-year period from 2010 to 2019." On

appeal, the defendant does not contest the judge's findings or

point to any evidence establishing a genuine issue of material

fact as to his implied covenant claim. Accordingly, we affirm

the entry of summary judgment on this claim.

3. Violation of G. L. c. 93A, § 9. In his amended

complaint, the plaintiff claimed that the bank violated c. 93A

by engaging in unfair acts and practices in connection with the

foreclosure and sale of the property. On appeal, the plaintiff

does not address the bases for the judge's grant of summary

judgment on this claim. In particular, the plaintiff does not

dispute that no loan modification application was pending when

the bank foreclosed on the property in September 2019, or that

the bank "evaluated and promptly addressed at least seven loan

modification applications" filed by the plaintiff over the nine

preceding years. Nor has the plaintiff identified any evidence

in the summary judgment record showing that the bank acted in an

6
unfair or deceptive manner by selling the property to a third

party following the foreclosure. Accordingly, summary judgment

was proper on this claim as well.

4. Wrongful foreclosure. The plaintiff also asserted in

his amended complaint a claim for wrongful foreclosure. In

particular, the plaintiff claimed that he was entitled to

damages as a result of the bank's alleged failure to show the

chain of assignments of the mortgage at the time of foreclosure,

its assignment of the note at the time of foreclosure, and its

subsequent sale of the property to the third party. 2 The judge

entered summary judgment on this claim after concluding, based

on the undisputed facts in the record, that the bank "conducted

the September 27, 2019 foreclosure sale of the property in

strict compliance with the statutory power of sale and the

provisions of G. L. c. 244, §§ 11-15."

2 Because the issue was not raised by the bank in its
summary judgment motion or addressed by the judge in his
decision, we do not address whether a plaintiff may pursue a
claim for wrongful foreclosure where, as here, the bank
transferred its title to a bona fide purchaser, the plaintiff
has vacated the property, and the new owner has prevailed in a
separate summary process action. See generally Duross v.
Scudder Bay Capital, LLC, 96 Mass. App. Ct. 833, 840-841 (2020).
This issue was not decided by the prior panel in this case,
which noted that even though the Housing Court had jurisdiction
over the plaintiff's counterclaims, it did not follow that those
counterclaims would "necessarily, or even likely, survive a
motion to dismiss or for summary judgment." Okanlawon, 101
Mass. App. Ct. 1125.

7
We reject the plaintiff's argument that genuine issues of

material fact precluded summary judgment on this claim. In his

brief, the plaintiff contends that his complaint "challenged and

raised questions as to whether the [bank] both owned the

promissory note . . . and had the original, wet-ink, note in its

possession despite the [bank's] claims [emphasis omitted]."

"When a motion for summary judgment is made and supported,"

however, "an adverse party may not rest upon the mere

allegations or denials of his pleading, but his response, by

affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial."

Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). Nor were the

conclusory statements and general denials included in the

plaintiff's opposition or made by his counsel at the motion

hearing sufficient to defeat summary judgment. See Madsen v.

Erwin, 395 Mass. 715, 721 (1985). Rather, after the bank

presented evidence, including the foreclosure deed and affidavit

of sale, showing that the foreclosure sale was valid, the burden

shifted to the plaintiff to demonstrate the existence of a

genuine issue of material fact. See Federal Nat'l Mtge. Ass'n

v. Hendricks, 463 Mass. 635, 642 (2012). Because the plaintiff

did not present any competent evidence controverting the bank's

prima facie case, summary judgment was correctly entered against

him. Id. at 643.

8
5. Discovery order. The plaintiff also argues that,

nearly a year before summary judgment entered, the judge

improperly denied his requests for additional discovery and,

postjudgment, approved his application for a waiver of fees and

costs for only one of three requested transcripts. Although the

plaintiff did not cite the pertinent prejudgment discovery order

in his notice of appeal, the appeal from the final judgment

suffices to bring it before us. See Aiello v. Aiello, 447 Mass.

388, 398 (2006); Roberson v. Boston, 19 Mass. App. Ct. 595, 597

(1985) (appeal from summary judgment "brings up with it the

interlocutory order").

We see no abuse of discretion in the judge's rulings. See

Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 302

(2009). The undisputed record shows that the parties conducted

substantial discovery even after the scheduled discovery

deadline, and the plaintiff moved for a further extension of

discovery less than a week before the deadline for filing of

summary judgment motions. Further, beyond referring generally

to the "inadequacy of what was provided," the plaintiff does not

explain how the additional discovery he was denied could have

shed any light on his claims. See id. (appellate court

generally "uphold[s] discovery rulings unless the appellant can

demonstrate an abuse of discretion that resulted in prejudicial

error" [quotation and citation omitted]). Similarly, the

9
plaintiff has not identified any prejudice that he suffered as

the result of the judge's decision to waive fees and costs for

the transcript of the hearing on the summary judgment motion,

but not for two earlier hearings.

Judgment affirmed.

Order entered November 19,
2024, approving waiver of
costs with respect to
transcript dated January
16, 2024, affirmed.

By the Court (Blake, C.J.,
Hand & Toone, JJ. 3),

Clerk

Entered: December 17, 2025.

3 The panelists are listed in order of seniority.

10