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
Free access — add to your briefcase to read the full text and ask questions with AI
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
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.