United States Court of Appeals 

For the First Circuit 

No. 16-1385 

PEDRO A. FLORES; ESTHER YANES-ÁLVAREZ; ROSA YANES, 

Plaintiffs, Appellants, 

v. 

ONEWEST BANK, F.S.B.; INDYMAC MORTGAGE SERVICES; OCWEN 

SERVICING, LLC; FEDERAL NATIONAL MORTGAGE ASSOCIATION, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Richard G. Stearns, U.S. District Judge] 

Before 

Torruella, Selya, and Barron, 

Circuit Judges. 

Carmenelisa Pérez-Kudzma and Pérez-Kudzma Law Office P.C. on 

brief for appellants. 

Marissa I. Delinks, Maura K. McKelvey, and Hinshaw & 

Culbertson LLP on brief for appellees. 

March 23, 2018 
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BARRON, Circuit Judge. This case concerns an appeal 

from the dismissal of a suit that challenges the lawfulness of a 

2012 foreclosure sale of a home in Massachusetts. The property at 

issue formerly belonged to the plaintiffs: Pedro Flores, Esther 

Yanes-Álvarez, and Rosa Yanes. Their complaint set forth numerous 

claims alleging, among other things, that the defendants -- OneWest 

Bank, Indymac Mortgage Services, Ocwen Servicing, and the Federal 

National Mortgage Association -- had engaged in unfair and 

predatory mortgage lending and loan servicing practices and that 

the foreclosure sale of the property was void. We affirm the 

District Court's order dismissing all of the claims. 

I. 

To set the stage, we recount the following facts as they 

are recited in the amended complaint. On or about April 6, 2007, 

the plaintiffs refinanced their home mortgage loan for their home 

in Everett, Massachusetts. The home mortgage loan was originated 

by Dynamic Capital Mortgage and secured by a mortgage on the 

property with Mortgage Electronic Registration Systems Inc. 

("MERS"), which the mortgage named as mortgagee.

In 2008, the plaintiffs were unable to meet their monthly 

mortgage obligations and eventually defaulted on the mortgage. On 

April 25, 2012, the plaintiffs applied for a loan modification 

from Indymac Mortgage Services, a division of OneWest Bank. On 

May 11, 2012, Indymac denied the plaintiffs' application. OneWest 
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effectuated the foreclosure pursuant to the statutory power of 

sale. Mass. Gen. Laws ch. 183, § 21. Defendant OneWest purchased 

the property at the foreclosure sale.

More than three years later, on November 15, 2015, the 

plaintiffs brought this suit in the District Court for the District 

of Massachusetts. The operative complaint set forth nine claims. 

The defendants moved to dismiss all of the claims, and the District 

Court granted the motion. The plaintiffs now appeal the dismissal 

of eight of the nine claims.1 Our standard of review for an order 

granting a motion to dismiss is de novo. Rodi v. S. New England 

Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004). In performing the 

review, "[n]on-conclusory factual allegations in the complaint 

must . . . be treated as true." Ocasio-Hernández v. FortuñoBurset, 640 F.3d 1, 12 (1st Cir. 2011). 

II. 

The plaintiffs' eight claims, which are all brought 

under Massachusetts law, fall into what amounts to four different 

categories. Three claims seek a judgment declaring that the 

foreclosure sale is void. A fourth claim is for an action to quiet 

title. A fifth claim is for breach of the duty of good faith and 

reasonable diligence. The final three claims at issue are brought 

 1 The one claim that the plaintiffs do not appeal was for 

unjust enrichment. The District Court dismissed that claim on the 

ground that unjust enrichment is a theory of equitable recovery, 

rather than an independent cause of action.
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under two different consumer protection statutes. For the reasons 

that follow, we affirm the dismissal of all of these claims. 

A. 

We begin with the three claims for which the plaintiffs 

seek a judgment declaring that the foreclosure sale is void. The 

first of these claims contends that the sale is void because the 

defendants failed to comply with Massachusetts General Laws 

Chapter 244, § 15A ("§ 15A") in conducting the sale. Section 15A 

requires a mortgagee conveying title to mortgaged premises 

pursuant to a foreclosure proceeding under the provisions of 

Chapter 244 to: 

[W]ithin thirty days of taking possession or 

conveying title, notify all residential 

tenants of said premises, and the office of 

the assessor or collector of taxes of the 

municipality in which the premises are located 

and any persons, companies, districts, 

commissions or other entities of any kind 

which provide water or sewer service to the 

premises, of said taking possession or 

conveying title. 

Id. 

The complaint alleged that the defendants violated this 

provision's thirty-day notification requirement by notifying the 

municipal tax-collector of the foreclosure sale only in March of 

2013, which was approximately eleven months after the sale had 

occurred. The defendants, in their motion to dismiss, argued that 

this claim was for a tort under Massachusetts law because they 
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contend that it alleged (albeit implicitly) that the defendants 

had conducted the foreclosure sale negligently and in bad faith. 

Accordingly, the defendants contended that this claim was timebarred, because it was filed outside the three-year statute of 

limitations that applies to tort claims under Massachusetts law. 

See Mass. Gen. Laws ch. 260, § 2A. 

The District Court agreed with the defendants. Accordingly, 

the District Court dismissed the claim on that basis. 

The plaintiffs now argue on appeal, as they did below in 

their complaint and in their opposition to defendants' motion to 

dismiss, that the claim is not subject to the three-year statute 

of limitations that applies to tort claims in Massachusetts because 

the claim seeks to declare the foreclosure sale void for having 

been carried out in violation of § 15A. The plaintiffs further 

contend that the claim is timely because no other time bar stands 

in the way of this claim.

The plaintiffs rely for this argument primarily on the 

Massachusetts Supreme Judicial Court's ("SJC") decision in 

Bevilacqua v. Rodriguez, 955 N.E.2d 884 (Mass. 2011). They point 

out that Bevilacqua establishes that, if a foreclosure transaction 

is void, "it is a nullity such that title never left possession of 

the original owner . . . . any effort to foreclose by a party 

lacking 'jurisdiction and authority' to carry out a foreclosure 

under [the relevant] statutes is void." Id. at 897 (internal 
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citations and alterations omitted). And the plaintiffs then 

contend that it follows that "where a cause of action arises out 

of an alleged void transaction, there cannot be a statute of 

limitations because title never left the Appellants' possession." 

Neither the District Court nor the defendants address 

the plaintiffs' contention that, in light of Bevilacqua, the claim 

is not subject to the three-year limitations period that applies 

to tort claims. But, we need not decide whether the plaintiffs' 

argument concerning Bevilacqua has force. Even assuming that it 

does, the plaintiffs' argument that the sale is void in consequence 

of the claimed statutory violation is clearly wrong. And so we 

affirm the dismissal of this claim on that basis. See Otero v. 

P.R. Indus. Comm'n, 441 F.3d 18, 20 (1st Cir. 2006) ("We review 

the district court's order of dismissal de novo and may affirm on 

any ground supported by the record.").

In so ruling, we observe that the plaintiffs base their 

contention that the foreclosure sale is void because it violated 

§ 15A on Paiva v. Bank of N.Y. Mellon, 120 F. Supp. 3d 7 (D. Mass. 

2015). That case correctly noted that the SJC has held that 

violations of certain statutory requirements pertaining to 

foreclosure sales pursuant to Massachusetts General Laws Chapter 

244 would render them void. Id. at 11 (citing Pinti v. Emigrant 

Mortg. Co., 33 N.E.3d 1213, 1224 (Mass. 2015); U.S. Bank Nat. Ass'n 

v. Schumacher, 5 N.E.3d 882, 891 (Mass. 2014) (Gants, J., 
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concurring); Eaton v. Fed. Nat. Mortg. Ass'n, 969 N.E.2d 1118, 

1128 (Mass. 2012); U.S. Bank Nat. Ass'n v. Ibanez, 941 N.E.2d 40, 

49 (Mass. 2011)). And Paiva also concluded that § 15A is one of 

the statutes pertaining to a foreclosure sale for which "the 

consequence of non-compliance is the invalidation of the 

foreclosure sale." Id. 

Assuming that there was a violation of § 15A, the problem 

for the plaintiffs is that Paiva is a federal district court 

decision that expressly noted that there was, at the time of that 

decision, no state court precedent that directly addressed whether 

a violation of § 15A would render a foreclosure sale pursuant to 

Massachusetts General Laws Chapter 244 void. Id. at 11 & n.3. 

And since Paiva, the Massachusetts Appeals Court has held, albeit 

in an unpublished decision, that a mortgagee's failure to provide 

notice under the requirements of § 15A does not render the 

foreclosure sale void under Massachusetts law. Kiah v. Carpenter, 

47 N.E.3d 53 (Mass. App. Ct. 2016), appeal denied, 56 N.E.3d 829 

(Mass. 2016). 

We see no reason to doubt Kiah's reading of Massachusetts 

law. See Stoner v. New York Life Ins. Co., 311 U.S. 464, 467 

(1940) ("[F]ederal courts, under the doctrine of Erie Railroad Co. 

v. Tompkins . . . must follow the decisions of intermediate state 

courts in the absence of convincing evidence that the highest court 

of the state would decide differently."). We thus affirm the 
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dismissal of this claim on the ground that the sale is not void, 

even assuming it was carried out in violation of § 15A. 

The plaintiffs also challenge the District Court's 

decision to dismiss as time-barred two of their other claims in 

which they seek to have the foreclosure sale deemed void. The 

plaintiffs do so by, once again, contending that, because these 

claims seek to declare the foreclosure sale void under 

Massachusetts law, the claims are not subject to the three-year 

limitations period that applies to tort claims in Massachusetts 

that the District Court applied in dismissing each of these claims. 

And the plaintiffs once again rely on Bevilacqua in so arguing. 

These two claims allege, respectively, that the 

foreclosure sale was void because it was carried out in violation 

of Massachusetts General Laws Chapter 244, § 35A ("§ 35A") and 

that the foreclosure sale was void because it was carried out in 

violation of paragraph twenty-two of the mortgage instrument. 

Section 35A gives a mortgagor a ninety-day right to cure a payment 

default before foreclosure proceedings may be commenced. 

Paragraph twenty-two of the mortgage instrument concerns the 

mortgagee's provision of notice to the mortgagor of its default, 

its right to cure, and the remedies that are available to the 

mortgagee upon the mortgagor's failure to cure the default. 

The District Court ruled that each of these claims was 

time-barred without addressing the plaintiffs' contrary contention 
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based on Bevilacqua, although the plaintiffs did raise that 

argument below. And the defendants do not address that argument 

on appeal. Nevertheless, we may bypass the plaintiffs' contention 

about how Bevilacqua bears on whether these claims are time-barred, 

because these claims fail on the merits. 

The claim that the sale is void because it was carried 

out in violation of § 35A fails because the SJC held in Schumacher 

that an alleged violation of that statute does not void a 

foreclosure sale. 5 N.E.3d at 890. The claim that the sale is 

void because it was carried out in violation of paragraph twentytwo of the mortgage instrument fares no better. The plaintiffs 

point out that the SJC in Pinti did rule that a sale carried out 

in violation of the very same provision of the mortgage instrument 

that is set forth in paragraph twenty-two of this mortgage 

instrument is void. But, Pinti expressly provided that this ruling 

was to be given prospective effect only, 33 N.E.3d at 1226-27, and 

the foreclosure sale in this case took place before Pinti. 

Accordingly, we affirm the order of dismissal as to these two 

claims as well. 

B. 

We next turn to the plaintiffs' challenge to the District 

Court's dismissal of the claim in which they seek to quiet title. 

The District Court dismissed this claim on the ground that the 

plaintiffs did not have standing to bring it, because, in light of 
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the foreclosure sale, they do not hold both equitable and legal 

title to the property. See Bevilacqua, 955 N.E.2d at 889 n.5. 

The plaintiffs do not contest the fact that, under Massachusetts 

law, they must have both legal and equitable title to the property 

to bring their quiet title action. But, while the plaintiffs 

contend that they do have the requisite title because the 

foreclosure sale is void, we have already explained why the 

plaintiffs' arguments in support of that contention lack merit. 

As the plaintiffs advance no other argument that suffices to show 

that the District Court erred in dismissing this claim for lack of 

standing, we affirm the dismissal of this claim. 

C. 

The plaintiffs next contend that the District Court 

erred in dismissing their claim for breach of the duty of good 

faith and reasonable diligence due to their having "reject[ed] an 

alternative to foreclosure and refusing to delay the foreclosure 

to fully consider a loan modification." The District Court 

concluded, however, that the plaintiffs failed to point to any 

contract that required defendants to take the affirmative step of 

considering a loan modification and thus that there was no such 

duty. See F.D.I.C. v. LeBlanc, 85 F.3d 815, 822 (1st Cir. 1996). 

And the plaintiffs identify no authority on appeal that suggests 

otherwise. We thus affirm the District Court's ruling on this 

score as well. 
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D. 

Finally, we turn to the plaintiffs' challenge to the 

dismissal of their statutory consumer protections claims. The 

plaintiffs brought two of these claims pursuant to, respectively, 

Massachusetts General Laws Chapter 183, § 28C and Massachusetts 

General Laws Chapter 93A on the ground that, because the 

plaintiffs' April 6, 2007, loan was "unaffordable from the start," 

it was "unfair and illegal." The plaintiffs separately contend 

that the District Court also erred in dismissing their additional 

claim under Chapter 93A, in which they alleged that the 

"[d]efendants acted in an unfair and deceptive manner" when they 

refused to modify the loan.

The District Court dismissed all three of these claims 

on the ground that, as consumer protection claims, they were filed 

too late to comply with the four-year statute of limitations that 

applies to such claims pursuant to Massachusetts General Laws 

Chapter 260, § 5A. In so ruling, the District Court did not engage 

with the argument made by the plaintiffs that the statute of 

limitations should not apply because there were various 

irregularities in the loan. But, the plaintiffs provided no legal 

authority below, nor do they identify any on appeal, that would 

support their conclusory assertions that, in consequence of these 

alleged irregularities, the limitations period never began to run. 

Accordingly, these arguments fail. United States v. Zannino, 895 
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F.2d 1, 17 (1st Cir. 1990) (issues adverted to in a perfunctory 

manner are deemed waived). 

The plaintiffs do argue that the "discovery rule" should 

apply to toll the statute of limitations "until the plaintiff knew 

[or] should have known of the alleged injury." Abdallah v. Bain 

Capital LLC, 880 F. Supp. 2d 190, 195 (D. Mass. 2012) (internal 

quotation marks omitted). But, the plaintiffs fail to specify 

what injury they had not discovered when the loan closed. Instead, 

they simply assert -- without explanation -- that it is of import 

that the loan in question was an interest only loan for the first 

ten years. Thus, this argument for tolling the statute of 

limitations fails as well.2 Zannino, 895 F.2d at 17. 

The plaintiffs also point out that, with respect to their 

claim under Chapter 93A that the defendants acted unfairly and 

deceptively when they refused to modify their loan, the injury

occurred in May 2012. Thus, they contend that -- contrary to the 

District Court's ruling -- they brought their claim within the 

 2 The plaintiffs argue on appeal, for the first time, that 

the District Court was wrong to hold that a Chapter 183, § 28C 

claim should be subject to the time bar for consumer protection 

claims. The plaintiffs argue that a five-year statute of 

limitations should apply to that claim pursuant to Mass. Gen. Laws 

ch. 183C, § 15(b)(1). But even aside from the fact that this 

argument is made for the first time on appeal, see Me. Green Party 

v. Me. Sec'y of State, 173 F.3d 1, 4 (1st Cir. 1999), the argument 

is of no moment. The plaintiffs still can only avoid the time bar 

that they claim does apply to this claim if their tolling argument 

is correct, given that the time otherwise has run under that longer 

statute of limitations as well. 
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four-year statute of limitations for consumer protection claims 

because they filed their complaint in 2015.

The defendants respond, however, that, because they had 

no duty or obligation to consider the loan modification, there 

could not have been a violation of Massachusetts General Laws 

Chapter 93A, see Charest v. Fed. Nat. Mortg. Ass'n, 9 F. Supp. 3d 

114, 125 (D. Mass. 2014) ("[A] failure to modify a loan under HAMP, 

without more, does not constitute a Chapter 93A violation.") 

(internal quotations and alterations omitted), and thus that we 

may affirm the dismissal of this claim on this alternative basis. 

As the plaintiffs did not reply to this argument and provide no 

authority to support the unlikely proposition that, where no 

express contractual or statutory obligation to modify a loan 

exists, a decision to deny a request to modify alone in and of 

itself states a claim under Chapter 93A, we affirm the dismissal 

of this claim. See Otero, 441 F.3d at 20. 

Finally, the plaintiffs challenge the District Court's 

dismissal of their claim alleging unfair and deceptive practices 

in violation of the Federal Trade Commission Act ("Act"). See 15 

U.S.C. § 45. The District Court ruled that the Act does not 

authorize a private right of action and therefore dismissed the 

claim on that basis. See Lee v. BAC Home Loans Servicing, LP, 

2013 WL 212615, at *4 (D. Mass. Jan. 18, 2013).
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The plaintiffs contend that the District Court 

misapprehended the nature of this claim. They contend that this 

claim was brought pursuant to Chapter 93A and merely alleged that 

the violation of that state law was predicated on the fact that 

the defendants had violated the federal statute. 

Although the complaint did not reference Massachusetts 

General Laws Chapter 93A in this particular count, it did reference 

"unfair and deceptive practices." And plaintiffs did argue to the 

District Court prior to its ruling, as they argue on appeal, that 

this count alleged a Chapter 93A claim premised on a violation of 

the Act and not a claim under the Act itself.

But, even if the complaint may be read in the plaintiffs' 

preferred manner, we still affirm the dismissal of this claim. As 

the defendants note, Chapter 93A "requires claimants to set out 

specifically any activities in their demand letter as to which 

they seek relief. Separate relief on actions not so mentioned is 

foreclosed as a matter of law." Passatempo v. McMenimen, 960 

N.E.2d 275, 293 (Mass. 2012) (quoting Clegg v. Butler, 676 N.E.2d 

1134 (Mass. 1997)). Yet, as the defendants also note, and as the 

plaintiffs do not dispute, the plaintiffs' June 5, 2012, demand 

letter that stated claims under Chapter 93A made no mention of 

there having been any violation of the Act.

The demand letter was not attached to the complaint nor 

expressly incorporated by it, and thus consideration of this 
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document would normally be forbidden in the context of a motion to 

dismiss unless the proceeding was properly converted into one for 

summary judgment under Rule 56. See Fed. R. Civ. P. 12(b)(6). 

However, we have held that we may make "narrow exceptions for 

documents the authenticity of which are not disputed by the 

parties; for official public records; for documents central to 

plaintiffs' claim; or for documents sufficiently referred to in 

the complaint." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). 

And here, the plaintiffs did not dispute the authenticity of the 

demand letter when it was appended by defendants; the demand letter 

was central to plaintiffs' Chapter 93A claim; and the document was 

referred to in plaintiffs' complaint as a necessary "special 

element" of a Chapter 93A cause of action. See Entrialgo v. Twin 

City Dodge, Inc., 333 N.E.2d 202, 204 (Mass. 1975) (noting that 

for Chapter 93A cause of action, plaintiff's complaint must allege 

that the plaintiff sent a demand letter to the defendant). Thus, 

because the demand letter made no mention of a violation of the 

Act, we affirm the dismissal of this claim, too. 

III. 

For the foregoing reasons, we affirm the order of 

dismissal.