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Case Information
Filed
2023-04-14
Status
Closed
Type
Eqa Equitable Action Involving Any Right, Title Or Interest In Land, G.l. Chapter 185, 1 (k)
Docket
33 entries
Disposition
judgment of dismissal
Parties
Plaintiff
Trans Am Holdings, Llc
Defendant
Gateway Funding Diversified Mortgage Services L.p.|Gundersen, Van Le|Hoang, Ngoctrang Thi|Le, Xuandao Thi|Mr., Cooper,
Lawyers
Docket Entries
- Judgment of Dismissal - Mass.R.Civ.P. 41(a)(2).
- Case assigned to the Average Track per Land Court Standing Order 1:04.
- Land Court miscellaneous filing fee Receipt: 440145 Date: 04/14/2023
- Land Court surcharge Receipt: 440145 Date: 04/14/2023
- Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
- The case has been assigned to the A Track. Notice sent. Notice of Judge and Track Assignment was generated and sent to: Plaintiff: Shylah N Maloney, Esq. [email protected] Sent On: 04/20/2023 15:16:17
- Event Scheduled Judge: Rubin, Hon. Diane R. Event: Case Management Conference Date: 06/02/2023 Time: 11:00 AM Counsel notified via email.
- Plaintiff's Case Status Statement, filed.
- Event Resulted: Case Management Conference scheduled on: 06/02/2023 11:00 AM Has been: Case management conference held via videoconference. Attorney Shylah Maloney appeared on behalf of the plaintiff and Defendants Xuandao Le, Van Le Gundersen, and Ngoctrang Hoang ("Individual Defendants") each appeared pro se. Court is in receipt of Plaintiff's Case Status Statement. Court first explained to Individual Defendants what being a pro se party entails, including that the same rules of evidence and procedure apply to both represented and pro se litigants, and that the court cannot provide any legal assistance or advice. Court further advised them of the limited assistance representation ("LAR") program, and encouraged them to file Notices of Appearance in this case, so as to receive copies of filings and be provided an opportunity to be heard. By way of background, Attorney Maloney advised that Plaintiff has possession of the note secured by a second mortgage (the "Second Mortgage") granted by Van Le Gundersen on the property at 20 Carpenter Street, Attleboro, and now seeks equitable assignment of that Second Mortgage. Attorney Maloney further advised that the note is now delinquent, and Defendants explained that they understood the Second Mortgage to have been extinguished when the first mortgage was refinanced and that they have not received any notices related to the Second Mortgage. Attorney Maloney advised that she is working with her client to obtain any copies of notices sent regarding the Second Mortgage, and court encouraged the parties to consider settlement discussions and a potential loan modification to reach a mutually agreeable resolution. Following colloquy, Plaintiff to file an Amended Complaint naming the holder of the first mortgage as a party, with Plaintiff to consider filing a verified complaint. With respect to service, Attorney Maloney to file returns of service with the court, as well as an Affidavit of Due Diligence outlining all efforts to locate and serve Defendant Gateway Funding Diversified Mortgage Services L.P., or the partners thereof, along with a Motion for Service by Publication, as may be appropriate. Status conference scheduled for July 26, 2023, at 10:00 A.M. Hon. Diane R. Rubin, Presiding Counsel and Pro Se defendants notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 07/26/2023 Time: 10:00 AM
- Amended Complaint, filed.
- Plaintiff's Motion for Publication, filed.
- Summons returned to Court with service on Van Le Gundersen, Ngoctrang Thi Hoang, Xuandao Thi Le filed. Van Le Gundersen served IN HAND on June 23, 2023; Ngoctrang Thi Hoang served at the last and usual place of abode and left with Van Le Gundersen on June 23, 2023 and mailed first class mail on June 24, 2023; and Xuandao Thi Le served at the last and usual place of abode and left with Van Le Gundersen on June 23, 2023 and mailed first class mail on June 24, 2023.
- Summons returned to Court without service on Gateway Funding Diversified Mortgage Services L.P. filed. Service attempted on July 18, 2023 but was vacant.
- Affidavit of Xuandao Le, filed.
- Event Resulted: Status Conference scheduled on: 07/26/2023 10:00 AM Has been: Status conference held via videoconference. Attorney Shylah Maloney appeared on behalf of the plaintiff and Defendants Xuandao Le, Van Le Gundersen, and Ngoctrang Hoang ("Individual Defendants") each appeared pro se. Court is in receipt of Plaintiff's Amended Complaint and the Plaintiff's Motion for Publication, which included the Plaintiff's Affidavit of Due Diligence. Attorney Maloney advised that based on her research, it appears as though Defendant Gateway Funding Diversified Mortgage Services L.P., may have been acquired in or around 2015 and she has not yet endeavored to locate or identify its officers, directors, or partners. Following colloquy, Attorney Maloney to undertake additional due diligence to establish whether Gateway merged and to identify its former officers, directors, or partners, and file a supplemental affidavit of due diligence in support of Plaintiff's Motion to Serve by Publication by August 25, 2023, at which time the Court will rule on the Plaintiff's Motion for Publication. In addition, in order to assist Defendants to gain a better understanding of the status of the second mortgage of the property, Attorney Maloney to send copies of all statements and any requests for payment to Defendant Xuandao Le, on behalf of the three Defendants (the other two Defendants agreeing that Plaintiff will send information to Xuandao Le by email). Court inquired if mediation with Land Court Mediator Attorney Barbara Macy might assist the parties to reach a negotiated loan modification. Parties to email the Sessions Clerk if they believe mediation could be helpful by August 2, 2023. Status conference scheduled for October 5, 2023, at 11:00 A.M. Hon. Diane R. Rubin, Presiding Counsel and Pro Se Defendants notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference Date: 10/05/2023 Time: 11:00 AM
- Atty. Maloney emailed the court a status: "The Defendants contacted Attorney Barbara Macy. The Plaintiff does not want to proceed with mediation as it quite premature for this. I informed the Defendants yesterday of the same, shared that they should contact TransAm Holding directly if they are interested in discussing a repayment plan, and provided them with a loss mitigation application."
- Appearance of Meredith Ann Swisher, Esq. for Cooper, Mr., filed
- Plaintiff, TransAm Holdings, LLC's, Motion to Withdraw its Motion for Publication, filed.
- Supplemental Diligent Search Affidavit as to Gateway Funding Diversified Mortgage, filed.
- Appearance of Todd Dion, Esq. for Van Le Gundersen, Ngoctrang Thi Hoang, Xuandao Thi Le, filed
- Answer of Van Le Gundersen, Ngoctrang Thi Hoang, Xuandao Thi Le to amended complaint filed.
- Plaintiff, TransAm Holdings, LLC's, Motion to Withdraw its Motion for Publication ALLOWED. Counsel notified via email. Judge: Rubin, Hon. Diane R.
- Summons returned to Court with service on Gateway Funding Diversified Mortgage Services L.P. filed. Served in hand to Receptionist on September 20, 2023.
- Event Resulted: Status Conference scheduled on: 10/05/2023 11:00 AM Has been: Status conference held via videoconference. Attorney Shylah Luna appeared on behalf of plaintiff, Attorney Todd Dion appeared on behalf of defendants Van le Gunderson, Ngoctrang Thi Hoang, and Xuandao Thi Le, with Ms. Le present, and Attorney Meredith Swisher appearing on behalf of defendant Mr. Cooper. Before the court was plaintiff's Supplemental Diligent Search Affidavit as to Gateway Funding Diversified Mortgage. Attorney Luna advised of her efforts to serve Gateway Funding Diversified Mortgage Services L.P. ("Gateway") and the officers of the limited partnerships. Based on due diligence regarding that entity, she further advised that she intends to move to amend the complaint to include the proper name of the successor organization ("Gateway Funding Diversified Mortgage Services L.P. now known as America Mortgage, LLC"). Attorney Dion advised of his efforts to familiarize himself with this case since being retained as counsel and reported that he may require discovery. Following colloquy, Attorney Luna to provide any mortgage notices and any other available documentation to Attorney Dion so that he can determine if formal discovery is necessary. Court encouraged parties to consider alternative dispute resolution including a loan modification or the filing of an agreement for judgment to avoid the time, expense, and risk of litigation. By October 13, 2023, Attorney Luna to file an amended complaint naming Gateway's successor and curing a misnomer (adding an "s" to "TransAm"). Status conference scheduled for December 20, 2023, at 11:30 A.M. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Scheduled Judge: Rubin, Hon. Diane R. Event: Status Conference VIA ZOOM. Date: 12/20/2023 Time: 11:30 AM
- Second Amended Complaint, filed.
- Certificate of Compliance, filed.
- Defendants, Van Le Gunderson, Ngotrang Thi Hoang and Xuandao Thi Le's Answer to Second Amended Complaint, filed.
- Plaintiff's Motion to Dismiss, filed.
- Event Resulted: Status Conference scheduled on: 12/20/2023 11:30 AM Has been: Status conference held via videoconference. Attorney Shylah Luna appeared on behalf of plaintiff, Attorney Todd Dion appeared on behalf of the borrower defendants, with Xuandao Le present, and Attorney Meredith Swisher appeared on behalf of defendant Mr. Cooper. Court is in receipt of the Second Amended Complaint, Defendants, Van Le Gunderson, Ngotrang Thi Hoang and Xuandao Thi Le's Answer to Second Amended Complaint, and Plaintiff's Motion to Dismiss. Attorney Luna first confirmed that the missing assignment of mortgage underlying this case has been remedied with the recording of a mortgage assignment from Mortgage Electronic Registration Systems, Inc., as nominee for Gateway Funding Diversified Mortgage Services L.P. n/k/a Finance of America Mortgage LLC, thus rendering moot the relief sought in plaintiff's complaint. Further, Attorney Swisher advised that defendant Mr. Cooper would not oppose plaintiff's motion to dismiss. Attorney Dion acknowledged that the entity holding the mortgage is no longer in question, but opposed the motion to dismiss based on a concern that a judgment in this case might hinder efforts to effectuate a loan modification. Following colloquy, court ALLOWS plaintiff's motion to dismiss its complaint pursuant to Mass. R. Civ. P. 41(a)(2), with court to issue an order of dismissal without prejudice. Attorneys Luna and Dion agreed to confer and continue efforts to determine whether a loan medication may be achieved with their assistance. Hon. Diane R. Rubin, Presiding Counsel notified via email.
- Order of Dismissal, issued. (Copies emailed to Attorneys Meredith Swisher, Shylah Maloney, and Todd Dion) Judge: Rubin, Hon. Diane R.
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