United States Court of Appeals For the First Circuit
No. 24-1404
EMIGRANT RESIDENTIAL, LLC,
Plaintiff, Appellee,
v.
LINDA S. PINTI,
Defendant, Appellant,
LESLEY R. PHILLIPS; ANY AND ALL OCCUPANTS,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Montecalvo, Lynch, and Kayatta, Circuit Judges.
Eric E. Renner, with whom Duffy & Sweeney, Ltd., was on brief, for appellant. Brian C. Linehan, with whom Reneau J. Longoria and Doonan, Graves & Longoria, LLC were on brief, for appellee.
April 11, 2025 LYNCH, Circuit Judge. After long-running battles in the
Massachusetts state and federal courts arising from a 2009 default
on mortgage payments, this appeal arrives in a case we will call
Pinti III. This time we affirm the entry of judgment for Emigrant
Residential, LLC ("Emigrant"), which struck a recorded discharge
of a mortgage mistakenly given by Emigrant Mortgage Company (EMC),
a related entity. We also affirm entry of judgment against the
counterclaims brought by appellant Linda Pinti.
I.
We recount the facts of this appeal in the light most
favorable to Pinti and draw all reasonable inferences in Pinti's
favor. See Universal Trading & Inv. Co. v. Bureau for Representing
Ukrainian Ints. in Int'l & Foreign Cts., 87 F.4th 62, 65-66 (1st
Cir. 2023). We review a grant of a motion for summary judgment de
novo, affirming the grant if the record "presents no genuine issue
as to any material fact and reflects the movant's entitlement to
judgment as a matter of law." Mullane v. U.S. Dep't of Just., 113
F.4th 123, 130 (1st Cir. 2024) (quoting McKenney v. Mangino, 873
F.3d 75, 80 (1st Cir. 2017)). In doing so, we "must ignore
conclusory allegations, improbable inferences, and unsupported
speculation." Viscito v. Nat'l Plan. Corp., 34 F.4th 78, 83 (1st
Cir. 2022) (quoting Garcia-Garcia v. Costco Wholesale Corp., 878
F.3d 411, 417 (1st Cir. 2017)).
- 2 - In 1982, Lesley Phillips purchased an apartment located
at 1643 Cambridge Street in Cambridge, Massachusetts, assuming a
preexisting mortgage with a balance of roughly $40,000. Pinti,
Phillips's spouse, lived with Phillips at the property from 1987
onwards and was added to the deed in 2005. As part of refinancing
a 2005 home equity loan, on March 13, 2008, Pinti and Phillips
executed and delivered a promissory note to EMC for $160,000 (the
"Note"). Pinti and Phillips mortgaged the property to EMC to
secure the note and the mortgage was recorded (the "Mortgage").
On August 1, 2009, Pinti and Phillips defaulted on the Note by
failing to make payments. On September 29, 2009, EMC sent Pinti
and Phillips a 90-day notice of right to cure.
Various transactions are relevant between Emigrant
affiliates and Federal Home Loan Bank of New York ("FHLBNY"). In
December 1999, Emigrant's parent company, Emigrant Savings Bank
("Emigrant Bank"), entered into an Advances, Collateral Pledge and
Security Agreement (the "Advances Agreement") with FHLBNY. The
Advances Agreement provided, inter alia, that as security for loans
that FHLBNY may advance to Emigrant Bank, Emigrant Bank "hereby
assigns, transfers, and pledges to [FHLBNY], and grants to [FHLBNY]
a security interest in all of the Capital Stock, Mortgage
Collateral, Securities Collateral and Other Collateral." The
Advances Agreement defined Mortgage Collateral as including "first
- 3 - mortgages and deeds of trust . . . and all notes, bonds or other
instruments evidencing loans secured thereby."
On April 17, 2008, about a month after the execution of
the Note and Mortgage, ESB-MH Holdings, LLC (of which Emigrant,
the appellant, is the successor-by-merger), Emigrant Bank, and
FHLBNY executed a Subsidiary/Affiliate Collateral Pledge and
Security Agreement (the "Pledge Agreement"). The Pledge Agreement
provided that ESB-MH "assigns, transfers, and pledges to [FHLBNY]
and grants [FHLBNY] a security interest in" certain specified
collateral. That collateral also constituted "Collateral for all
purposes under the Advances Agreement," and the Pledge Agreement
established that "in addition to any rights or duties with respect
to the [collateral] otherwise expressly created by this Pledge
Agreement," FHLBNY and ESB-MH "shall have the same rights and
duties with respect to the [collateral] as . . . with respect to
Collateral under the Advances Agreement." The Pledge Agreement
required ESB-MH, inter alia, to deliver the collateral to FHLBNY
on demand.
On August 4, 2009, FHLBNY demanded that Emigrant Bank
deliver the collateral to FHLBNY. FHLBNY informed Emigrant Bank
that it had "moved Emigrant [Bank] to the Listing & Segregation II
collateral category for all its mortgage collateral" and referred
Emigrant Bank to FHLBNY's Members Product Guide and an attached
Delivery of Mortgage Collateral Procedures document. The Listing
- 4 - & Segregation II category imposed on Emigrant Bank and ESB-MH
certain requirements for maintaining collateral, including
endorsing each promissory note in blank and preparing individual
mortgage assignments to FHLBNY in recordable form. ESB-MH was
also required to stamp loan files as assigned to FHLBNY and
maintain the files in a separate vault or storage area marked
"Federal Home Loan Bank of New York." Between roughly November
2009 and January 2010, ESB-MH prepared mortgage assignments and
note allonges for mortgage collateral pledged or to be pledged as
security for loans from FHLBNY.
More specifically, as to Pinti's Note and Mortgage, on
November 30, 2009, EMC assigned the Mortgage to ESB-MH. At the
same time, ESB-MH endorsed the Note in blank and executed another
assignment of the Mortgage to FHLBNY. EMC never physically
delivered that assignment to FHLBNY, but Pinti argues, and Emigrant
disputes, that the assignment was delivered in 2009 based on the
terms of the Advances Agreement and the Pledge Agreement.
On December 28, 2009, the Notice of Right to Cure
expired, and EMC initiated foreclosure proceedings on the
property. Between 2010 and February 2011, Pinti filed for Chapter
7 bankruptcy and obtained a discharge. On August 22, 2011, EMC
issued a written response to a Qualified Written Request from Pinti
and Phillips, stating that ESB-MH was the owner of the loan and
EMC was the servicer of the loan. EMC further stated that the
- 5 - assignment transferring ownership of the Note and Mortgage to ESB-
MH had not been recorded and that the Note, Mortgage, and
assignment were in EMC's possession.
EMC proceeded with a foreclosure sale and sold the
property to Harold Wilion on August 9, 2012. EMC recorded the
foreclosure deed. Joel Marcano, EMC's assistant treasurer,
attested that under "EMC's established loan servicing policies and
procedures, upon receipt of the foreclosure sale proceeds from a
third[-]party purchaser following a foreclosure sale, EMC's loan
servicing department is to prepare a Memorandum" to EMC's loan
payoff department. The memorandum advises the loan payoff
department "of the amount of funds received, confirming that the
funds were received following a foreclosure sale to a third party
and, accordingly, instructing the department that a Discharge of
Mortgage should not be prepared and sent to the foreclosed
borrower." Moreover, Marcano attested that "[n]either EMC nor
Emigrant have ever had a policy of preparing or otherwise providing
a Discharge of Mortgage to a borrower upon receiving proceeds from
a third-party purchaser following a foreclosure sale."
On September 18, 2012, an EMC employee named Anna
Sorvillo prepared a memorandum for another EMC employee attaching
Wilion's check from the foreclosure sale and identifying the check
as "the amount of a Third Party Sale to payoff this loan." The
memorandum requested that the recipient credit $48,289.92 to an
- 6 - account for "Legal, RESPA and appraisal" and provide another EMC
employee with "a copy of the credit advice." On October 3, 2012,
Peter Koys, a Vice President at EMC, prepared a discharge of the
Pinti mortgage (the "Discharge"). EMC sent the Discharge to Pinti
and, in an accompanying letter, instructed her that "it is [in]
your best interests to record the Discharge and accompanying
documentation as soon as possible." At no point did EMC or
Emigrant return the Note to Pinti or otherwise cancel it.
State Court Proceedings
On October 29, 2012, Wilion filed a summary process
action in Massachusetts state court against Pinti and Phillips for
possession of the property. Pinti and Phillips then filed a
separate action in state court against Wilion and EMC challenging
the foreclosure sale. On July 17, 2015, the Massachusetts Supreme
Judicial Court ("SJC") ruled that the foreclosure sale was void
because the Notice of Right to Cure did not strictly comply with
the Mortgage's notice provisions. See Pinti v. Emigrant Mortg.
Co., 33 N.E.3d 1213, 1225-26 (Mass. 2015) ("Pinti I"). EMC
returned the foreclosure sale proceeds to Wilion. On July 29,
2015, shortly after the Pinti I decision, Pinti and Phillips
recorded the Discharge. Pinti and Phillips did not make any
further mortgage payments and have not exercised their right of
redemption in the property by satisfying the total debt owed on
- 7 - the loan. Pinti has continued to pay taxes, insurance, and
condominium fees.
First Federal Court Proceeding
On June 17, 2016, EMC brought an action in diversity
against Pinti and Phillips in Massachusetts federal district court
seeking, inter alia, a judgment striking the Discharge from title
to the property. See Complaint at 6-7, Emigrant Mortg. Co. v.
Pinti, No. 16-cv-11136 (D. Mass. Jan. 17, 2019) ("Pinti II").
Pinti and Phillips counterclaimed for a judgment that they owned
the property free of the Mortgage and a claim for negligent
infliction of emotional distress. EMC moved for summary judgment,
and the district court allowed the motion with respect to Pinti
and Phillips's claim for negligent infliction of emotional
distress but otherwise denied it. The district court held a
two-day bench trial and subsequently dismissed the action without
prejudice, holding that EMC was not the mortgagee of the loan
because the Note had previously been assigned to ESB-MH. EMC moved
for reconsideration, arguing that it did have standing in light of
a subservicing agreement authorizing it to commence proceedings on
behalf of ESB-MH and requiring it to indemnify ESB-MH. The
district court denied the motion because EMC had not raised the
argument at trial, and it stated that in another case "the
noteholder . . . could . . . again seek to strike the allegedly
mistaken discharge of the mortgage." Memorandum and Order at 7,
- 8 - Emigrant Mortg. Co. v. Pinti, No. 16-cv-11136 (D. Mass. Sept. 13,
2019), ECF No. 121.
After this ruling, on September 30, 2019, FHLBNY
executed and sent Emigrant an assignment of the Pinti Mortgage in
an apparent attempt to solidify Emigrant's ownership of the
Mortgage. Emigrant recorded both that assignment and the 2009
assignment the same day. The Note is currently in Emigrant's
possession through counsel.
Second Federal Court Proceeding
On November 4, 2019, Emigrant filed the instant action
on the basis of diversity in Massachusetts federal district court.
Pinti and Phillips filed a motion to dismiss, which the district
court denied, and Pinti and Phillips then filed various
counterclaims against Emigrant. Emigrant moved for summary
judgment on all claims, and Pinti and Phillips moved for discovery
under Fed. R. Civ. P. 56(d). The district court granted Emigrant's
motion for summary judgment and denied Pinti and Phillips's motion
for discovery. Pinti and Phillips appealed, and this court
affirmed in part and reversed in part, vacating the order granting
the motion for summary judgment and remanding the case for
supplemental briefing and limited discovery regarding "the chain
of custody and authenticity of the Note" and "the 2019
assignments." See Emigrant Residential LLC v. Pinti, 37 F.4th
717, 726-28 (1st Cir. 2022).
- 9 - On remand and following the additional discovery, the
district court "decided the summary judgment motion . . . anew"
and held in favor of Emigrant. See Emigrant Residential LLC v.
Pinti, 707 F. Supp. 3d 52, 63, 77 (D. Mass. 2023). The district
court first concluded that Emigrant's claim was not barred by the
doctrine of res judicata because the Pinti II court had not issued
a final judgment on the merits. The district court held that
Emigrant had standing to strike the Discharge as it was both the
bearer of the Note and assignee of the Mortgage.
Turning to the merits, the district court held that the
"record establishes that the Discharge occurred due to an
administrative error" such that it could be set aside. Id. at 67.
The district court "rel[ied] upon Marcano's sworn statement to
conclude that the Discharge was in error" and concluded that
Sorvillo's deposition testimony did not create a factual dispute
as to that issue. Id. at 68-69. The district court also determined
that "Emigrant's continued possession of the unreleased Pinti Note
is further evidence that the [D]ischarge was unintentional." Id.
at 69.
The district court next held that Emigrant could recover
in equity, rejecting Pinti and Phillips's arguments that Emigrant
acted with unclean hands, equitable relief was inappropriate
because Pinti and Phillips could not be restored to their status
quo ante position, Emigrant had perpetrated a fraud on the court,
- 10 - and a laches defense defeated Emigrant's claim. As to Pinti and
Phillips's counterclaims, the district court held that (1) the
applicable statute of limitations barred their claim under Mass.
Gen. Laws ch. 93A, (2) their claim for negligent infliction of
emotional distress failed on the merits and as a matter of res
judicata, and (3) their claim for intentional infliction of
emotional distress failed on the merits and was precluded.
Phillips subsequently passed away, and Pinti's counsel filed a
suggestion of death on April 22, 2024.
On appeal, Pinti contests only the district court's
determinations as to standing, Emigrant's claim to strike the
Discharge, unclean hands, restoration to the status quo, and
Pinti's Chapter 93A claim.
II.
A. Standing
Pinti's lead argument on appeal that Emigrant lacks
standing to challenge the Discharge is flatly wrong. The record
establishes that Emigrant is the holder of the Note. That is more
than enough to give it standing under Article III.1 See, e.g.,
TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (holding that
plaintiffs in federal court must show "an injury in fact that is
1 This holding is consistent with Pinti II, which held that EMC (as opposed to Emigrant) was not the holder of the Note at the time of that litigation and that EMC had assigned the Note to ESB-MH (Emigrant's predecessor) in 2009.
- 11 - concrete, particularized, and actual or imminent," "likely caused
by the defendant," and that "would likely be redressed by judicial
relief" (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992))). Pinti inappropriately relies on inapposite
Massachusetts law about parties seeking to foreclose, which is not
the issue here.2 See U.S. Bank Nat'l Ass'n v. Ibanez, 941 N.E.2d
40, 50-51 (Mass. 2011); Eaton v. Fed. Nat'l Mortg. Ass'n, 969
N.E.2d 1118, 1121 (Mass. 2012). As we held in Fustolo v. Select
Portfolio Servicing, Inc., 123 F.4th 528 (1st Cir. 2024),
possessing a mortgage note that has been indorsed in blank creates
an interest in the mortgaged property under Massachusetts law.
Id. at 532; see also Mass. Gen. Laws ch. 106, § 3-205(b) (2024).
Massachusetts courts have further explained that a mortgage note
includes an equitable interest in the mortgage, even when the
noteholder does not also hold the mortgage itself. See Ibanez,
941 N.E.2d at 54 (holding that a noteholder "has an equitable right
to obtain an assignment of the mortgage, which may be accomplished
by filing an action in court and obtaining an equitable order of
assignment"); Eaton, 969 N.E.2d at 1125 (holding that a party
2 The Pinti II court declined to consider whether Massachusetts law imposes different standing requirements on parties seeking to strike a discharge and parties seeking to foreclose because "Emigrant did not before or at trial argue that Massachusetts law is different [from foreclosure by entry] with regard to a request to strike the discharge of a mortgage." In this action, Emigrant raised the argument both before the district court and on appeal, and we address it accordingly.
- 12 - holding a mortgage "no doubt holds the same in trust for the party
owning the [note]" (citation omitted)). Because Emigrant did not
need to hold both the Mortgage and the Note to have standing, we
need not reach the issues of whether the Mortgage was delivered to
FHLBNY in 2009 and, if so, whether the 2019 post-Discharge
assignment validly assigned the Mortgage to Emigrant.3
B. The District Court Correctly Struck the Mistaken Discharge
Under Massachusetts law, "[i]t is the general rule that,
where a mortgage has been discharged by mistake, equity will set
the discharge aside and reinstate the mortgage to the position the
parties intended it to occupy, where the rights of intervening
lienors have not been affected." E. Bos. Sav. Bank v. Ogan, 701
N.E.2d 331, 328 (Mass. 1998) (quoting N. Easton Coop. Bank v.
MacLean, 15 N.E.2d 241, 245 (Mass. 1938)). No genuine material
dispute of fact exists here that the Discharge occurred in error.
The record demonstrates that neither EMC nor Emigrant had a policy
of discharging mortgages to a borrower upon receiving proceeds
from a third-party purchaser after a foreclosure sale; rather,
3 Emigrant has standing even assuming in Pinti's favor that (1) the mortgage was delivered to FHLBNY in 2009 and (2) Massachusetts law requires Emigrant to have some further interest in the Mortgage in addition to holding the Note to bring this action. FHLBNY assigned the mortgage back to Emigrant in 2019, and the SJC has found that holding a post-discharge assignment of the mortgage and the note creates standing for an action challenging a discharge as mistaken. See Gleason v. Dorney, 127 N.E.2d 184, 184 (Mass. 1955).
- 13 - EMC's policy was to prepare a memorandum informing the loan payoff
department that the funds had been received in a foreclosure sale
and that a discharge should not be prepared and sent to the
foreclosed-on party. As Marcano attested, the Discharge occurred
by mistake after Sorvillo's memo "through inadvertent error and/or
omission . . . did not indicate that the funds were received
pursuant to a foreclosure sale to a third party purchaser, as
opposed to an entity related to Emigrant or EMC," and thus "failed
to properly inform [the relevant EMC employee] that a Discharge of
Mortgage should not be prepared and sent to [Pinti and Phillips.]"
Sorvillo likewise testified that her memorandum could have been
the basis for a mistaken discharge if the recipient misunderstood
what she meant by "third-party sale payoff."
It is also undisputed that EMC and Emigrant never
returned the Note to Pinti or otherwise canceled it, further
evidence that there was no intention to discharge the loan (even
if, as Pinti contends, returning the Note was not required to
effect a discharge).4 Additional evidence that a mistake took
place includes the fact that the Discharge identified EMC as the
holder of the mortgage, even though EMC had assigned the mortgage
4 Moreover, the record does not indicate any basis for the Discharge besides error (for example, it is undisputed that Pinti and Phillips had not paid off the loan in full), and Pinti does not contend that there was one.
- 14 - to ESB-MH in 2009. On this record, no reasonable jury could
conclude otherwise than the Discharge was a mistake.
Pinti focuses on attacking the admissibility of the
Marcano affidavit. It was clearly admissible for purposes of
considering a motion for summary judgment under Rule 56(e)(4).
See Melino v. Bos. Med. Ctr., 127 F.4th 391, 396-97 (1st Cir. 2025)
(district court's decision whether or not to strike evidence from
the summary judgment record reviewed for abuse of discretion).
Pinti mistakenly argues that Marcano's testimony is not based on
his personal knowledge and is inadmissible under Fed. R. Evid.
602. On the contrary, Marcano's affidavit establishes that his
testimony is based on his personal experience as Assistant
Treasurer at EMC (a position that he held at the time of the
Discharge), and "upon . . . review of the servicing records for
the subject property, which records were made and maintained in
the regular or ordinary course of business of EMC, as the
authorized servicer acting on behalf of [Emigrant]." Marcano
"work[s] in the Foreclosure Bankruptcy Department" and "oversee[s]
a portfolio of loans that are in foreclosure or bankruptcy,"
including the Pinti loan. Marcano had knowledge of Emigrant's
policies and practices with regards to handling foreclosure sale
proceeds and discharges, since EMC acted as Emigrant's loan
servicer at the time of the discharge. See R.G. Fin. Corp. v.
Vergara-Nuñez, 446 F.3d 178, 187 (1st Cir. 2006) ("Typically, a
- 15 - mortgage servicer acts as the agent of the mortgagee to effect
collection of payments on the mortgage loan.").
Pinti also argues that paragraphs 18-19 and 23-27 of the
affidavit are inadmissible hearsay "as they were offered to prove
the contents of the original records." See Fed. R. Civ. P. 602.
The argument is inaccurate. Paragraphs 18-19 refer to "policies
and procedures," not written records, and paragraphs 23-27
referred to and attached Sorvillo's memorandum. See Trailways of
New England, Inc. v. Amalgamated Ass'n of St., Elec. Ry. & Motor
Coach Emps., 343 F.2d 815, 818 (1st Cir. 1965) (holding that
reliance on affidavit presented with business records was
appropriate).5
Pinti's argument fares no better that Marcano's
affidavit conflicts with Sorvillo's deposition testimony. It does
not. As the district court correctly noted, Marcano's affidavit
speaks not to whether Sorvillo subjectively believes that she made
a mistake but whether EMC issued the discharge in error. Pinti
also misleadingly cites to a section of Sorvillo's deposition
testimony discussing a memorandum separate from the September 2012
Pinti also argues that Marcano's testimony violates the best 5
evidence rule and that it falls within the scope of the sham-affidavit doctrine. Pinti did not raise these arguments before the district court and has waived them. See Iverson v. City of Bos., 452 F.3d 94, 102 (1st Cir. 2006).
- 16 - Discharge memorandum. Moreover, Sorvillo did not, as Pinti claims,
testify that there were no policies in place at EMC in 2012
regarding the preparation of such memoranda. Rather, Sorvillo
testified that there were "[p]rocedure[s] or something, yes." No
genuine dispute of material fact exists.
C. Emigrant Was Entitled to the Equitable Relief of Striking the Discharge
"[W]e review a district court's decision to grant or
deny equitable relief only for abuse of discretion." Aresty Int'l
L. Firm, P.C. v. Citibank, N.A., 677 F.3d 54, 57 (1st Cir. 2012).
Pinti argues that Emigrant was not entitled to equitable relief,
asserting that Emigrant sought equity without doing equity and
acted with unclean hands.6 Pinti did not develop a
he-who-seeks-equity-must-do equity argument before the district
court, mentioning the maxim only briefly and failing to make any
argument under it distinct from the unclean hands issue. As such,
we consider the argument waived. See McCoy v. Mass. Inst. of
Tech., 950 F.2d 13, 22 (1st Cir. 1991) ("Overburdened trial judges
cannot be expected to be mind readers. If claims are merely
insinuated rather than actually articulated in the trial court, we
6 The two doctrines are distinct: unclean hands is a complete defense against a party seeking an equitable remedy, whereas the "he who seeks equity must do equity" doctrine provides that a party seeking the enforcement of equitable rights must consent to the defendant receiving any correlative equitable rights arising out of the same subject matter. See Worthington v. Anderson, 386 F.3d 1314, 1319 (10th Cir. 2004).
- 17 - will ordinarily refuse to deem them preserved for appellate
review.").7
"The doctrine of unclean hands denies equitable relief
'to one tainted with the inequitableness or bad faith relative to
the matter in which [it] seeks relief.'" Murphy v. Wachovia Bank
of Del., N.A., 36 N.E.3d 48, 54 (Mass. App. Ct. 2015) (quoting
Fidelity Mgmt. & Rsch. Co. v. Ostrander, 662 N.E.2d 699, 704 (Mass.
App. Ct. 1996)). The doctrine "only applies when the claimant's
misconduct is directly related to the merits of the controversy
between the parties." Travers v. Flight Servs. & Sys., Inc., 808
F.3d 525, 538 (1st Cir. 2015) (quoting Texaco P.R., Inc. v. Dep't
of Consumer Affs., 60 F.3d 867, 880 (1st Cir. 1995)). The record
supports the district court's conclusion that Emigrant did not act
with bad faith or commit intentional misconduct and that Emigrant
did not benefit from the Discharge and thereby profit from its own
alleged misconduct. The district court also properly considered
and rejected the arguments that Emigrant was dilatory in addressing
the mistaken Discharge and that Emigrant's purported actions with
regards to other mortgage assignments have any bearing on this
dispute.
Considerations of any contributions by Pinti to the equity 7
in the apartment may well continue to be appropriate for consideration, and nothing in this opinion precludes such consideration.
- 18 - The district court also noted that Massachusetts law
does not preclude rescission even when the court cannot restore
the exact status quo ex ante. See May v. SunTrust Mortg., Inc.,
7 N.E.3d 1036, 1042 (Mass. 2014) (holding that "strict return to
[the] status quo [is] not essential in suit for rescission" (citing
J.C. Penney Co. v. Schulte Real Est. Co., 197 N.E. 458, 460 (Mass.
1935))); Levy v. Bendetson, 379 N.E.2d 1121, 1125 (Mass. App. Ct.
1978) (holding that rescission was appropriate even when restoring
parties to their original position was "not feasible"). The
district court correctly determined that Pinti's litigation
expenses do not factor into the analysis. See, e.g., May, 7 N.E.3d
at 1042-43 (holding that common law rescission involves undoing
the transaction and returning the money and property involved, and
not including attorneys' fees as a consideration).
This appeal affirms the order striking the Discharge.
Emigrant may well take further steps under Massachusetts law to
obtain payment on the debt or to secure possession of the
apartment.
D. Pinti's 93A Counterclaim
Pinti argues that her 93A counterclaim is not time-
barred because (1) Pinti only discovered Emigrant's conduct on
January 11, 2019 with the district court's Pinti II ruling, and
(2) Pinti should be allowed to bring her 93A claim defensively in
recoupment and/or setoff. Pinti failed to raise either argument
- 19 - before the district court and has waived them. See Iverson, 452
F.3d at 102.
We affirm the district court's grant of summary judgment
to Emigrant. No costs are awarded.
- 20 -