United States Court of Appeals

For the First Circuit

No. 13-2209

JODI B. MATT,

Plaintiff, Appellant,

v.

HSBC BANK USA, N.A., ON BEHALF OF THE TRUST FUND AND

FOR THE BENEFIT OF ACE SECURITIES CORP. HOME EQUITY LOAN

TRUST SERIES 2005-HE4 ASSET BACKED PASS THROUGH CERTIFICATES,

WELLS FARGO BANK, N.A., COUNTRYWIDE SECURITIES

CORPORATION, BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO

BAC HOME LOANS SERVICING, LP, FORMERLY KNOWN AS

COUNTRYWIDE HOME LOANS SERVICING, LP, HSBC BANK USA, N.A.

and ACE SECURITIES CORP.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella, Howard, and Kayatta,

Circuit Judges.

Glenn F. Russell, Jr., with whom Glenn F. Russell, Jr., &

Associates, P.C., was on brief, for appellant.

Courtney L. Benson, with whom James W. McGarry, Chad W.

Higgins and Goodwin Procter LLP, were on brief, for appellees.

April 15, 2015
TORRUELLA, Circuit Judge. In an attempt to avert

foreclosure proceedings in state court, Plaintiff-Appellant Jodi B.

Matt ("Matt") filed this federal case in the District of

Massachusetts against Defendants-Appellees HSBC Bank USA, National

Association on Behalf of the Trust Fund ("HSBC as Trustee") and for

the Benefit of ACE Securities Corp. Home Equity Loan Trust Series

2005-HE4 Asset [Backed] Pass Through Certificates ("Trust"), and

several other defendants (other creditors and servicers that have

previously held rights over the loan). In her complaint, Matt

asserts multiple claims arising from the purportedly invalid

transfer and assignment of a mortgage granted over her home in

Canton, Massachusetts.

While this appeal was pending, Matt and Select Portfolio

Servicing, Inc. ("SPS"), a servicer acting on behalf of HSBC as

Trustee, entered into a Home Affordable Modification Agreement (the

"Loan Modification Agreement"). Pursuant to the Loan Modification

Agreement, Matt renegotiated the terms of her existing mortgage

loan, and, as a result, her mortgage loan is current and she is no

longer subject to any actual or threatened foreclosure proceedings. 

Consequently, we dismiss this appeal as moot.

I. Background

The material facts in this case are undisputed. On

April 6, 2005, Matt obtained a mortgage loan secured by her

property (the "Mortgage") from Northeast Mortgage Corporation

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("Northeast"), and executed a promissory note (the "Note") for

$200,000 in favor of Northeast. On the same day, Northeast

assigned the Mortgage to New Century Mortgage Corporation ("New

Century"). This assignment of the Mortgage to New Century was

recorded in the Norfolk County Registry of Deeds on December 19, 

2006. New Century subsequently assigned the Mortgage to HSBC as

Trustee on November 6, 2007. This subsequent assignment was

recorded in the Norfolk County Registry of Deeds on or about

November 16, 2007.

As of today, HSBC as Trustee is the mortgagee of record. 

The Note pertaining to the Mortgage followed a different track, but

was later conveyed to the Trust. HSBC as Trustee initiated the

foreclosure action on behalf of the Trust in state court to which

Matt responded with the instant case. We explain the facts in more

detail in an attempt to unravel Matt's claims.

A. The Mortgage and Note

As stated, Northeast assigned the Mortgage and endorsed

the Note to New Century. Thereafter, New Century endorsed the Note

in blank so that it became payable to the bearer rather than to a

named payee. The Note was then sold and conveyed by New Century

into the Trust at some point before September 27, 2005. Then, New

Century, which had remained the mortgagee of record, filed for

bankruptcy and entered into a bankruptcy court-approved stipulation

with Countrywide Home Loans, Inc. ("Countrywide") and several

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Countrywide affiliates. The stipulation stated that "Countrywide

has serviced and is servicing loans currently pursuant to

contractual agreement," and that "Countrywide was appointed as New

Century Mortgage's true and lawful attorney-in-fact and granted the

ability to exercise the Power on behalf of New Century Mortgage." 

This "power" included the ability to "execute and file assignments,

mortgages, . . . [and] endorsements . . . relating to . . .

Defaulted Loans [. . .] ." Acting under said power of attorney on

behalf of New Century, Countrywide -- which at that point only held

bare record title because the loan itself had been conveyed to the

Trust -- assigned Matt's Mortgage to HSBC as Trustee. HSBC then

became the mortgagee of record.

B. The Loan's Servicing and the Filing of the Instant Case

Bank of America, N.A., successor by merger to BAC Home

Loans Servicing, LP, formerly known as Countrywide Home Loans

Servicing, LP ("Bank of America") serviced the mortgage loan until

October 1, 2012, when the servicing rights were transferred to SPS. 

Matt initially defaulted on the mortgage loan in October 2005, when

she failed to make her monthly payments. After bringing her loan

current several times, she defaulted on her payment obligations in

August 2008, and had made no further payments until the

modification. Bank of America sent Matt a "Notice of Intention to

Foreclose" on September 14, 2009, which provided Matt with the

opportunity to cure her default. Matt did not cure the default. 

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On January 27, 2010, HSBC as Trustee filed a complaint in the

Massachusetts Land Court as a preliminary step to foreclose on the

house. On September 23, 2010, Matt filed the instant case. The

district court granted summary judgment in favor of DefendantsAppellees and this appeal ensued.

C. The Appeal

Matt reiterates her claims on appeal. She argues (1)

that she only granted the power of sale of her property to

Northeast, not to any other assignee of the Mortgage and Note; (2)

that HSBC as Trustee has only proffered a sworn statement by its

agent showing that the loan was conveyed to the Trust; (3) that the

Mortgage was assigned to the Trust after the date established by

the Pooling Service Agreement of the Trust for depositing assets

into it, thus never becoming an asset of Trust; (4) that an

"Acquisition Memo" showed that the loan had been acquired by the

"HE-2" trust rather than the "HE-4" trust, i.e.,the Trust, that was

now seeking foreclosure through its Trustee, and thus it must be

another trust that holds the assets; (5) that somehow New Century

was impeded from transferring its claim in the loan for reason of

being in bankruptcy, even though the transfers were done under the

supervision and with approval of the bankruptcy court; (6) and, in

sum, that "[a]ll [Matt] ever wanted was to glean who it is,

precisely, that owns the legal claim to the [Mortgage] to her real

property, and precisely who it is that has the legal right and

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authority to accept her monthly principal and interest payments,"

but that each of those issues invalidates the transfer of the

Mortgage and Note from Northeast to HSBC as Trustee.

Matt stresses throughout her opening brief that every

argument made referring to the alleged errors committed by the

district court is relevant because it affects the district court's

conclusion that HSBC as Trustee is the party with "proper

jurisdiction and authority to act under the strict requirements of

[Mass. Gen. Laws ch.] 244, § 14, to utilize the harsh Massachusetts

non judicial foreclosure statue." That is, every argument advanced

by Matt concludes that any right HSBC as Trustee may have to act

under Mass. Gen. Laws ch. 244, § 14 is void. That section refers

to "foreclosure under the power of sale" and provides the

procedural and formal requirements to mortgagees seeking such

remedies. Finally, Matt perfunctorily reiterates her request for

retrospective relief in the form of damages for unjust enrichment,

civil conspiracy, and other common law claims, which derive

directly from her contention that HSBC as Trustee is not her

creditor because each of the aforementioned transfers of the

Mortgage and Note are void.

D. Recent Developments

At oral argument, this Court was blindsided by the fact

that the parties had reached some kind of workout agreement many

months before and that the loan was current as a result of

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settlement negotiations to avoid foreclosure. We requested the

parties to submit a joint stipulation detailing the new agreement

and explaining whether this case is moot as a result of this

agreement. The parties could not agree and opted for filing

separate statements. Matt conceded that she had executed the Loan

Modification Agreement with SPS after a process in which, on

August 30, 2013, "SPS on behalf of HSBC," had received her

application for the modification. HSBC as Trustee included a copy

of the Loan Modification Agreement with their statement and argued

that Matt's loan has been permanently modified by SPS under the

federal Home Affordable Modification Program ("HAMP").1

 The Loan

Modification Agreement defines SPS as the "Lender" and provides

that it is intended to modify Matt's existing contractual

agreements. It also: (1) establishes a new principal balance for

the mortgage loan, a new maturity date, and a payment and escrow

schedule; (2) states that all the original loan documents of the

Mortgage are modified by it and that said loan documents are "duly

valid, binding agreements, enforceable in accordance with their

1 HAMP was established by the Secretary of the Treasury under a

section of the Troubled Asset Relief Program that "requires the

Secretary to 'implement a plan that seeks to maximize assistance

for homeowners and . . . encourage the servicers of the underlying

mortgages . . . to take advantage of . . . available programs to

minimize foreclosures.'" Markle v. HSBC Mortgage Corp. (USA), 844

F. Supp. 2d 172, 176 (D. Mass 2011) (quoting 12 U.S.C. § 5219(a));

see id. at 176-177 (explaining the eligibility and approval process

required under HAMP). See also In re JPMorgan Chase Mortg.

Modification Litig., 880 F. Supp. 2d 220, 225-28 (D. Mass 2012).

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terms and are hereby reaffirmed;" (3) establishes that all the

terms of the original loan documents remain in full force and that

"[Matt] will be bound by and will comply with, all the terms and

conditions of the loan documents;" and (4) provides that "[Matt]

will cooperate fully with [SPS] in obtaining any title

endorsement(s), or similar title insurance product(s), and/or

subordination agreement(s), that are necessary or required by

[SPS's] procedures to ensure that the modified mortgage loan is in

first lien position and/or is fully enforceable upon modification

. . . ."

Despite reaffirming her loan documents and negotiating a

Loan Modification Agreement with SPS, Matt continues to reject that

HSBC as Trustee is her valid creditor. In light of the conflicting

statements, we ordered the district court to hold an evidentiary

hearing to clarify whether: (1) SPS was acting on behalf of HSBC as

Trustee when it executed Matt's Loan Modification Agreement, (2)

this Loan Modification Agreement applied specifically to the

Mortgage and Loan in controversy in the instant case, and (3) Matt

is no longer subject to any actual or threatened foreclosure.

The district court held a hearing and found that, while

Matt continues to dispute the validity of the transfers and

assignments of the Mortgage and Note to HSBC as Trustee, SPS did

act on behalf of HSBC as Trustee when it executed the Loan

Modification Agreement, that said agreement in fact pertains to the

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Mortgage in controversy in the instant case, and that Matt is no

longer subject to any actual or threatened foreclosure. Matt does

not dispute these findings.

Faced with this new scenario, we decide this case on

mootness grounds and do not reach the merits. Our examination of

this controversy is limited to the arguments presented in Matt's

opening brief, which are directed at the district court's purported

errors in finding that HSBC as Trustee was in a position to

exercise foreclosure -- a remedy no longer sought.

II. Discussion

A. Lack of jurisdiction

Mootness is a jurisdictional matter. Horizon Bank &

Trust v. Massachusetts, 391 F.3d 48, 53 (1st Cir. 2004). 

Consequently, it can be raised by a federal court sua sponte. See

North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam). The

reason for this rule is that an actual controversy must exist at

all stages of proceedings, both at the trial and appellate levels. 

Ramírez v. Sánchez Ramos, 438 F.3d 92, 97 (1st Cir. 2006); United

States Parole Comm'n v. Geraghty, 445 U.S. 388, 396-97 (1980). "A

case becomes moot -- and therefore no longer a 'Case' and

'Controversy' for purposes of Article III -- when the issues

presented are no longer 'live' or the parties lack a legally

cognizable interest in the outcome." Already, LLC v. Nike, Inc.,

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133 S. Ct. 721, 726 (2013) (per curiam) (quoting Murphy v. Hunt,

455 U.S. 478, 481 (1982)) (some internal quotation marks omitted).

In other words, if a court may not provide "any

'effectual relief' to the potentially prevailing party," the case

is moot. Horizon Bank & Trust, 391 F.3d at 53 (quoting Church of

Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)); see

also Pallazola v. Rucker, 797 F.2d 1116, 1128 (1st Cir. 1986)

("[F]ederal courts are without power to decide questions that

cannot affect the rights of litigants in the case before them.")

(quoting Rice, 404 U.S. at 246) (internal quotation marks omitted). 

When a case is moot, "dismissal of the action is compulsory." 

Overseas Military Sales Corp. v. Giralt-Armada, 503 F.3d 12, 17

(1st Cir. 2007) (quoting Cruz v. Farquharson, 252 F.3d 530, 533

(1st Cir. 2001)).

Here, "there is literally no controversy left for the

court to decide -- the case is no longer 'live.'" ACLU of Mass. v.

U.S. Conference of Catholic Bishops, 705 F.3d 44, 53 (1st Cir.

2013) (citing Powell v. McCormack, 395 U.S. 486, 496 (1969)).

B. There is no Live Controversy

Matt admits that she brought this claim to avoid

foreclosure. The eleven counts included in her complaint aimed at

establishing that HSBC as Trustee lacked standing to proceed under

the Massachusetts power of sale provision contained in Mass. Gen.

Laws ch. 244, § 14, and the legality of HSBC's demands for

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payments. Additionally, Matt's opening brief is premised on her

desire to avert foreclosure by having us reverse the district

court's finding that HSBC as Trustee had standing to pursue such

remedy.2

Here, foreclosure is no longer sought because of Matt's

own actions in pursing and executing the Loan Modification

Agreement. Matt reaffirmed her debt with HSBC's servicer and

brought her loan current. The validity of the Loan Modification

Agreement is not questioned by the parties. Therefore, because

"federal courts are not in the business of pronouncing that past

actions which have no demonstrable continuing effect were right or

wrong," we decline to issue any injunctive or declaratory relief

and resolve this case on mootness grounds. ACLU of Mass., 705 F.3d

at 53 (quoting Spencer v. Kenma, 523 U.S. 1, 18 (1998)). Since the

circumstances have evolved in a way that this Court cannot provide

2 "The failure of [HSBC] to provide these particulars, would

clearly leave [HSBC], on behalf of the . . . Trust, beyond the

ability to claim sufficient interest in [Matt's] mortgage to

legally enforce the power of sale . . . ." Appellant's Br. at 23. 

"[T]herefore, [HSBC] would not be a proper party with jurisdiction

and authority under the specific wording of the Massachusetts state

statute at issue, to utilize the harsh and draconian non judicial

foreclosure process." Id. Matt then goes on to conclude each of

her arguments with a similar statement. "[U]nlike the Magistrate

Judge's inference that the Defendants are not required to prove

their standing to foreclose judicially, under the Massachusetts

non-judicial statutory construct, [HSBC] must establish its

'jurisdiction and authority' . . . to carry out the Massachusetts

non-foreclosure of [Matt's] residence under the state statute

. . . ." Id. at 30. For other similar statements see also id. at

34-35, 43, 47, 49, and 51-52.

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effectual relief to the parties, there is no longer a live case or

controversy and we lack jurisdiction to issue an advisory opinion

as to the parties' rights and Matt's attempt to avoid foreclosure.

Finally, in order for a court to issue declaratory

relief, as Matt is now seeking -- having realized that injunctive

relief against a non-existent risk of foreclosure is unavailable --

"the facts alleged must show that there is a substantial

controversy . . . of sufficient immediacy and reality to warrant

the issuance of a declaratory judgment." Id. at 53-54 (citing

Preiser v. Newkirk, 422 U.S. 395, 402 (1975)) (alteration in

original) (internal quotation marks omitted). We find no such

showing of a substantial controversy of sufficient immediacy in

light of the parties' adherence to the Loan Modification Agreement. 

Therefore, we decline to consider declaratory relief on the merits.

C. Other Common Law Claims

Matt mentions in passing that the district court erred in

ruling that her claims for civil conspiracy and unjust enrichment

were disallowed by the fact that HSBC had established its status as

mortgagee. To support this argument on appeal, Matt simply states

that "the Magistrate Judge erred under a Rule 56 analysis, and

therefore there remain issues in dispute." That is the entire

extent of her argument. To say the least, these challenges are

presented in a perfunctory and undeveloped manner, and thus, are

considered waived. Rodríguez v. Municipality of San Juan, 659 F.3d

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168, 175 (1st Cir. 2011); United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990). These issues are stated "in the most skeletal

way, leaving the court to do counsel's work, create the ossature

for the argument, and put flesh on its bones." Zannino, 895 F.2d at

17. This we will not do. Id. Therefore, Matt's bare mentioning

of these potential issues does not change our conclusion on

mootness.

III. Conclusion

This appeal is dismissed as moot. Costs are taxed

against Matt.

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