Macoviak v. Chase Home Mortgage Corp.

667 N.E.2d 900, 40 Mass. App. Ct. 755, 1996 Mass. App. LEXIS 741
CourtMassachusetts Appeals Court
DecidedJuly 22, 1996
DocketNo. 95-P-1438
StatusPublished
Cited by39 cases

This text of 667 N.E.2d 900 (Macoviak v. Chase Home Mortgage Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Macoviak v. Chase Home Mortgage Corp., 667 N.E.2d 900, 40 Mass. App. Ct. 755, 1996 Mass. App. LEXIS 741 (Mass. Ct. App. 1996).

Opinion

Smith, J.

The plaintiff, John A. Macoviak, appeals from the granting of summary judgment by a Superior Court judge [756]*756in favor of the defendants, Chase Home Mortgage Corporation (Chase), Mortgage Max, Inc. (Mortgage Max), and Fidelity Appraisal Group, Inc. (Fidelity). For purposes of our review, we consider the evidence in the light most favorable to the plaintiff. Conley v. Massachusetts Bay Transp. Authy., 405 Mass. 168, 173 (1989). We summarize the relevant facts.

On March 16, 1990, the plaintiff signed a purchase and sale agreement to purchase property in Ipswich. The property consisted of 4.6 acres of land improved by a large house, a cottage, and a bam with stables. The agreed purchase price was $765,000. The agreement provided a standard financing contingency clause which conditioned the plaintiff’s purchase of the property upon his ability to obtain financing in an amount of $535,000 or seventy per cent of the purchase price.

The plaintiff submitted a loan application to Mortgage Max, a mortgage broker. In his application, he applied for $573,700, which equalled seventy-five per cent of the purchase price for the property, the full amount of financing available. Mortgage Max informed the plaintiff, among other things, that it would approach Chase, a mortgage lender, to provide the mortgage loan to the plaintiff.2 Mortgage Max also told the plaintiff that for loans the size that he sought, Chase would require an appraisal of the property in order to ensure that the amount of the note to be secured by the mortgage on the property did not exceed seventy-five per cent of the value of the property. The plaintiff paid for the appraisal.

Mortgage Max, acting as Chase’s agent, hired Fidelity to perform the appraisal on the property. Fidelity knew the identity of the purchaser, that the contract price for the sale was $765,000, and that the appraisal was being sought in connection with the plaintiff’s application for a mortgage in the amount of $573,700.

The initial appraisal report was based on an inspection of the property and three comparable sales in Ipswich, Hamilton and Wenham. Fidelity reported the market value of the property, as of March 26, 1990, to be $765,000, the exact purchase price. The report expressly stated that the real estate market in the area appeared to be “stable.” Chase rejected the report and informed the plaintiff that no financing would [757]*757be extended unless Chase obtained from Fidelity two additional comparable sales supporting its opinion of the value of the property from the same town and also a more detailed explanation of why it used a comparable sale of property located some distance from the subject property. Fidelity responded to Chase that Ipswich was a marketplace of limited sales and that it was appropriate to utilize comparables from Hamilton and Wenham, because they were abutting communities of Ipswich and were of similar market desire and appeal. Fidelity also explained that it used the challenged comparable sale even though it was some distance from the challenged property because “in a marketplace of limited comparable sales, it became necessary to utilize this sale.” Chase did not request any further information and approved the loan in the amount of $573,700. Chase based its approval upon the plaintiffs credit-worthiness and the appraisal report setting forth the value of the property. On May 7, 1990, the plaintiff purchased the property for $765,000. He financed $573,700 of that amount by giving a note to Chase secured by a first mortgage on the property.

About ten months after his purchase, the plaintiff accepted a new position in California and placed the property on the market at $765,000, the price he had paid. He did not receive any offers and gradually lowered his asking price but still was not able to solicit interested buyers even within the $575,000 price range. Later, the plaintiff obtained a “retroactive” appraisal report from an appraiser, not Fidelity, which stated that the value of the property as of the date the plaintiff purchased it was $625,000.

In his complaint against all of the defendants, the plaintiff alleged negligence (including gross negligence) in the preparation and use of Fidelity’s report, fraud, and violations of G. L. c. 93A based on the defendants’ alleged negligence and fraud.3

After considerable discovery by the parties, the defendants filed motions for summary judgment. They argued that, at least in regard to the negligence claims, G. L. c. 184, § 17C, [758]*758barred the plaintiffs action.4 In regard to the plaintiffs claims of fraud and violation of c. 93A, the defendants contended that the plaintiff had no reasonable expectation of proving the essential elements of fraud, or a violation of c. 93A. The plaintiff responded with affidavits, including one from an individual identified as an expert witness, who opined that the use of two of the comparable sales made the appraisal unreliable on its face.

After hearing arguments, a Superior Court judge granted summary judgment in favor of the defendants. In regard to the plaintiffs claims of negligence, the judge acknowledged that the plaintiff had alleged deficiencies in the way that Fidelity had prepared its report and that Chase and Mortgage Max acted negligently in view of the alleged deficiencies on the face of the report. However, the judge concluded that those claims were directed at the contents of the appraisal report. Therefore, the judge ruled that because the basis for at least the negligence claims was the contents of the appraisal report submitted by Fidelity, G. L. c. 184, § 17C, barred those claims. The judge also ruled that in regard to the claims of fraud and the alleged violation of G. L. c. 93 A, the plaintiff failed to demonstrate a genuine issue of material fact.

On appeal, the plaintiff argues that the judge misinterpreted G. L. c. 184, § 17C, because the statute was not intended to insulate appraisers and lenders from responsibility for the preparation and the use of facially deficient appraisals. In addition, he claims that a genuine issue of material fact existed [759]*759as to the allegation of fraud and the alleged violation of G. L. c. 93A.

1. Negligence claims and G. L. c. 184, § 17C. The language of G. L. c. 184, § 17C (1988 ed.), is clear and unambiguous and, therefore, must be given its plain meaning. Telesetsky v. Wright, 395 Mass. 868, 872 (1985). Weitzel v. Travelers Ins. Cos., 417 Mass. 149, 153 (1994).

According to the statute, if a lender, in connection with a loan application, utilizes an appraisal report that contains an opinion as to the value of the residential property on which the mortgage is sought, it must make that report available, on written request, to the borrower. Thus, the statute imposes a disclosure obligation upon lenders as to appraisers’ reports once a borrower’s application for real estate financing has been accepted or denied.

However, the statute commands, without equivocating, that:

“A mortgagee, appraiser, or employee or other agent of the mortgagee shall not be liable in damages to the applicant [borrower] ... on account of the disclosure or the contents of any such [appraisal] report.”

Thus, the statute explicitly restricts a borrower’s rights with respect to the disclosure or the contents of an appraisal report.

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Bluebook (online)
667 N.E.2d 900, 40 Mass. App. Ct. 755, 1996 Mass. App. LEXIS 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macoviak-v-chase-home-mortgage-corp-massappct-1996.