WELLS FARGO BANK, NATIONAL ASSOCIATION, Trustee v. SCOTT M. TROCKI & Others.

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

23-P-1263

WELLS FARGO BANK, NATIONAL ASSOCIATION, trustee,1

vs.

SCOTT M. TROCKI & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This postforeclosure summary process action is here on

appeal for the second time. In the first appeal, a panel of

this court affirmed the Housing Court's entry of summary

judgment in favor of the plaintiff, Wells Fargo Bank, National

Association, as trustee of the Option One Mortgage Loan Trust

2004-2, Asset-Backed Certificates, Series 2004-2 (Wells Fargo),

on all claims and counterclaims, except for the defendants'

foreclosure-related counterclaims under G. L. c. 93A, which were

remanded to the Housing Court for further proceedings. See

1Of the Option One Mortgage Loan Trust 2004-2, Asset-Backed
Certificates, Series 2004-2.

2Denise M. Trocki, Danielle R. Trocki, Lindsey L. Trocki,
Travis Trocki, and Zachary C. Trocki.
Wells Fargo Bank, National Association v. Trocki, 99 Mass. App.

Ct. 1124 (2021) (Trocki I). On remand, the Housing Court

entered summary judgment in favor of Wells Fargo, dismissing the

defendants' foreclosure-related counterclaims under c. 93A.

This appeal followed.3 We affirm.

Discussion. 1. Standard of review. We review the grant

of summary judgment de novo. See Le Fort Enters., Inc. v.

Lantern 18, LLC, 491 Mass. 144, 149 (2023). "We view the

3 Scott M. Trocki is the only defendant to file a notice of
appeal and brief in this action. We note that he now makes
several claims that were decided in Trocki I and are therefore
not properly before us. Such claims include those related to
possession of the property; disability discrimination and the
failure to make reasonable accommodations; violations of G. L.
c. 239, § 8A, and the implied warranty of habitability; and
violations of G. L. c. 186, § 14. Under the law of the case
doctrine, we will not "reconsider questions decided upon an
earlier appeal in the same case," except in limited
circumstances not present here. King v. Driscoll, 424 Mass. 1,
8, (1996), quoting Peterson v. Hopson, 306 Mass. 597, 599
(1940). Moreover, the aforementioned issues exceed the scope of
the summary judgment entered April 26, 2022, which is the only
judgment on appeal. We therefore decline to revisit these
issues.

Additionally, the appellant claims that Wells Fargo failed
to adequately respond to various discovery requests prior to
Trocki I. The appellant's brief contains no corresponding
citations either to the record or to legal authority in support
of the claim. See Mass. R. A. P. 16 (a) (9) (A), as appearing
in 481 Mass. 1628 (2019) (appellant's brief must contain
"citations to the authorities and parts of the record on which
the appellant relies"). See also Zora v. State Ethics Comm'n,
415 Mass. 640, 642 n.3 (1993) ("bald assertions of error,
lacking legal argument and authority," do not rise to level of
appellate argument). Accordingly, we treat these claims as
waived.

2
evidence in the light most favorable to the nonmoving party."

Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637

(2012). "Summary judgment is appropriate where there is no

material issue of fact in dispute, and the moving party is

entitled to judgment as a matter of law." Berry v. Commerce

Ins. Co., 488 Mass. 633, 636 (2021), citing Kourouvacilis v.

General Motors Corp., 410 Mass. 706, 716 (1991). Where the

party opposing summary judgment bears the burden of proof at

trial, as the defendants did on their counterclaims under

c. 93A, the moving party may prevail "if he demonstrates, by

reference to material described in Mass. R. Civ. P. 56 (c), [as

amended, 436 Mass. 1404 (2002),] unmet by countervailing

materials, that the party opposing the motion has no reasonable

expectation of proving an essential element of that party's

case." Kourouvacilis, supra at 716. "In deciding a motion for

summary judgment[,] the court may consider the pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits." Niles v. Huntington Controls, Inc., 92 Mass. App.

Ct. 15, 18 (2017).

Pursuant to G. L. c. 93A, § 2 (a), it is unlawful to employ

"unfair or deceptive acts or practices in the conduct of any

trade or commerce." Whether "conduct violates G. L. c. 93A is a

legal, not a factual, determination[,] . . . [a]lthough whether

3
a particular set of acts, in their factual setting, is unfair

. . . is a question of fact." Klairmont v. Gainsboro

Restaurant, Inc., 465 Mass. 165, 171 (2013), quoting Casavant v.

Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011). Factors

informing whether a business practice is unfair include "(1)

whether the practice . . . is within at least the penumbra of

some common-law, statutory, or other established concept of

unfairness; (2) whether it is immoral, unethical, oppressive, or

unscrupulous; [and] (3) whether it causes substantial injury to

consumers (or competitors or other businessmen)." Barron

Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group,

469 Mass. 800, 811 (2014), quoting PMP Assocs., Inc. v. Globe

Newspaper Co., 366 Mass. 593, 596 (1975).

2. Predatory lending. The appellant claims that Wells

Fargo is liable under c. 93A because the loan was "predatory,

unfair, and/or was unaffordable based on my income." The judge

correctly concluded that, irrespective of the purported

unfairness of the loan, Wells Fargo cannot be held liable under

this theory, as Wells Fargo is merely an assignee, and not the

originator, of the loan at issue.4 See Drakopoulos v. United

States Bank Nat'l Ass'n, 465 Mass. 775, 787 n.16 (2013) ("Where

4 The originator of the loan was Option One Mortgage
Corporation.

4
an assignee played no part in the unfair or deceptive acts of an

assignor, principles of assignee liability ordinarily will not

render the assignee liable for affirmative damages for those

acts").

3. Loan modification and pre-foreclosure notices. The

appellant also claims that Wells Fargo is liable under c. 93A

because he was "treated unfairly with respect to loan

modification and/or alternatives to foreclosure . . . [and] pre-

foreclosure notices." In support of its motion for summary

judgment, Wells Fargo produced an affidavit stating that,

following defaults on their loan repayment obligations, the

defendants were granted loan modifications in 2009 and 2012;

rejected a 2014 trial modification offer; failed to make the

payments under a 2015 trial modification offer; and failed to

timely provide required documentation in connection with a 2016

loan modification application. After Wells Fargo met its

initial burden under Mass. R. Civ. P. 56 (c), "the burden

shifted to the [defendants] to show with admissible evidence the

existence of a dispute as to material facts." Godbout v.

Cousens, 396 Mass. 254, 261 (1985). "[T]he opposing party

cannot rest on his or her pleadings and mere assertions of

disputed facts to defeat the motion for summary judgment."

LaLonde v. Eissner, 405 Mass. 207, 209 (1989). The record does

5
not show that the defendants set forth specific facts showing

that there is a genuine issue for trial regarding the unfairness

or deceptiveness of the several avenues that were offered to

avoid foreclosure, nor of the pre-foreclosure notices that were

provided, which is an essential element of the counterclaims

brought under c. 93A. See Kourouvacilis, 410 Mass at 716. In

the absence of such countervailing materials, the judge did not

err in allowing Wells Fargo's motion for summary judgment on

these counterclaims.

4. Other unfair practices. We likewise conclude that

Wells Fargo was entitled to summary judgment on the defendants'

c. 93A counterclaims alleging the following conduct: "forced

insurance, improper crediting, no statements, escrow management

and discovery." Wells Fargo's affidavit states that Wells Fargo

acquired lender placed insurance on the defendants' property,

made escrow advances, provided mortgage statements, and properly

credited all payments made by the defendants to their loan

balance, in accordance with Wells Fargo's rights and obligations

under the loan documents. The record does not show that the

defendants offered countervailing evidence regarding the

unfairness or deceptiveness of such conduct, which, again, is an

essential element of the c. 93A counterclaims. See

Kourouvacilis, 410 Mass. at 716. The judge therefore did not

6
err in allowing Wells Fargo's motion for summary judgment on

these counterclaims.

Conclusion. For the foregoing reasons, we conclude that

the judge properly allowed Wells Fargo's motion for summary

judgment as to the defendants' foreclosure-related counterclaims

under c. 93A.

Judgment entered April 26,
2022, affirmed.

By the Court (Meade, Sacks &
Hodgens, JJ.5),

Clerk

Entered: February 18, 2025.

5 The panelists are listed in order of seniority.

7