# Flagstar Bank, FSB v. Kozak

> District Court, D. Massachusetts · September 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10201409

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** September 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

____________________________________
)
FLAGSTAR BANK, INC., )
Plaintiff )
)
) CIVIL ACTION
v. ) NO. 20-40012-TSH
)
)
PEGGY J. KOZAK, )
Defendant. )
____________________________________)

MEMORANDUM OF DECISION AND ORDER
September 26, 2023

HILLMAN, S.D.J.

Background
Plaintiff, Flagstar Bank, Inc. (“Flagstar” or “Plaintiff”) has filed a Complaint against
Peggy J. Kozak (“Kozak” or “Defendant’) in which it has asserted a claim for foreclosure against
Kozak and requests that the Court order the foreclosure sale of the Property (as hereinafter
defined) in accordance with such orders of notice and sale as are equitable.
This Memorandum Of Decision and Order addresses Plaintiff’s Motion for Summary
Judgment (Docket No. 63), Defendant’s Motion to Strike Declaration of Jeffery C. Ankrom
(Docket No. 76), and the Motion to Strike Declaration of Bell Kharson (Docket No. 77). For the
reasons set forth below, Flagstar’s motion for summary judgment is granted, and Kozak’s
motions to strike are denied.
THE MOTIONS TO STRIKE
In support of its motion for summary judgment, Flagstar has relied in part on the
sworn affidavit of Bella Kharson (“Kharson”), the Early Delinquency Manager at
Flagstar, see Declaration of Bella Kharson (Docket No. 65-1)(“Kharson Affidavit”) and

the sworn affidavit of Jeffrey C. Ankrom (“Ankrom”), a lawyer from Locke Lord LLP
representing Flagstar. See Declaration of Jeffrey C. Ankrom (Docket No. 65-2)(“Ankrom
Affidavit”). Ankrom has attested that the factual averments in his affidavit are based on
personal knowledge and Kharson has attested that the factual averments in her affidavit
are based on personal knowledge or her personal review of business records of Flagstar
as to which she is competent to testify.
This Court’s rules of procedure require that affidavits filed in support of motions
for summary judgment “must be made on personal knowledge, set out facts that would be
admissible in evidence and show that the affiant or declarant is competent to testify on
the matters stated.” Fed.R.Civ.P. 56 (c)(4). Kozak makes conclusory allegations that the

Ankrom and Kharson Affidavits are not based on personal knowledge, that the
“competence” they recite are not “‘detailed’ relative competence as to personal
knowledge” and do not include source documents. Kozak does not argue that the
affidavits do not meet the requirements of this Court’s rules applicable to affidavits filed
in support of motions for summary judgment, rather the bulk of her argument focuses on
her assertion that the affidavits do not meet the Massachusetts statutory and regulatory
requirements applicable to affidavits by a mortgage servicer or its agent. Nonetheless,
the Court will assume that Kozak is challenging whether the Ankrom and Kharson
Affidavits satisfy Rule 56(c)(4).1
As argued by Flagstar, the averments made by Ankrom and Kharson are based on
personal knowledge-- that Kozak has a different interpretation of certain events and/or

conversations involving Ankrom, or that she cannot “recall” the same are not grounds for
striking his statements which are based on his personal knowledge. Additionally,
Kharson has attested to matters as to which she has personal knowledge and/or would be
competent to testify based on her review of Flagstar’s business records. Because her
testimony and the underlying documents would be admissible in evidence, her affidavit
complies with the requirements of Rule 56(c)(4) and Kozak has failed to establish any
basis for striking it.2 Accordingly, Kozak’s motions to strike the Kharson and Ankrom
Affidavits are denied.
FLAGSTAR’S MOTION FOR SUMMARY JUDGMENT
Standard of Review

Summary Judgment is appropriate where, “the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing then Fed. R. Civ. P. 56(c) now
Fed.R.Civ. P. 56(a)). “‘A “genuine” issue is one that could be resolved in favor of either party,
and a “material fact” is one that has the potential of affecting the outcome of the case.” Sensing v.

1 In making her argument, Kozak contests the factual bases and accuracy of many of the averments made
in the affidavits. The Court notes that the sworn factual assertions made by the affiants are supported by citation to
record evidence. Kozak, on the other hand, challenges the truthfulness/accuracy of the affiants’ averments based on
her own unsworn statements without proper citation to record evidence.
2 The Court agrees with Flagstar that the Massachusetts regulations governing affidavits of loan servicers,
or their agents in connection with foreclosure proceedings and the like are not applicable to the Kharson and
Ankrom Affidavits.
Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v.
U.S. Dep’t. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).
When considering a motion for summary judgment, the Court construes the record in the
light most favorable to the nonmoving party and makes all reasonable inferences in favor

thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the
absence of a genuine issue of material fact within the record. Id., at 152. “‘Once the moving
party has pointed to the absence of adequate evidence supporting the nonmoving party’s case,
the nonmoving party must come forward with facts that show a genuine issue for trial.’” Id.
(citation to quoted case omitted). “‘[T]he nonmoving party “may not rest upon mere allegations
or denials of the [movant’s] pleading, but must set forth specific facts showing that there is a
genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden
of proof at trial.” Id. (citation to quoted case omitted). The nonmoving party cannot rely on
“conclusory allegations” or “improbable inferences.” Id. (citation to quoted case omitted).
“‘The test is whether, as to each essential element, there is “sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.”’” Id. (citation to quoted case
omitted).
Facts3
Kozak is a retired medial assistant over the age of 72 who currently lives on a fixed
income. In 1998, Kozak purchased a residence located at 230 Paxton Street, Leicester,
Massachusetts (the “Property”). On or about July 14, 2009, Kozak borrowed $196,343 from

Nations Lending Corp (the “Lender”) and executed a promissory note (the “Note”) to the order
of the Lender, its successors and assigns, in which she promised to repay the loan plus interest, in
monthly payments commencing September 1, 2009.4 To secure the repayment of the Note,
Kozak granted a mortgage (“Mortgage”) against the Property to Mortgage Electronic
Registration Systems, Inc., (“MERS”) as nominee for Lender, and its successors and assigns.
Kozak did not have legal counsel at the closing, she did not receive the closing documents before
the closing and signed them without reviewing them because she was “rushed through the
signing.” The terms of the loan were not explained to her. For example, the “representative” did
not tell her that the Mortgage was going to be sold to another entity, Flagstar, through MERS.5

3 Rather than provide a statement of material facts which she alleges are in dispute as required by this
Court’s Local Rules, see LR,D.Mass. 56.1 (party opposing summary judgment shall include a concise statement of
material facts of record as to which it is contended there exists a genuine issue to be tried with page references to
affidavits, depositions and other documentation), Kozak has filed her own statement of material facts of record.
Moreover, she has not included a supporting affidavit supporting her own factual assertions and does not cite to
record evidence for the same. While she does sign her statement of facts under pains and penalties of perjury, she
does not aver that her factual assertions are based on personal knowledge. Nonetheless, because Flagstar did not
seek to strike Kozak’s statement of material facts and because she is proceeding pro se (and therefore will be
granted some leeway), the Court has considered her statement of material facts and included those that are relevant
to Flagstar’s motion for summary judgment (as will become evident in the Court’s discussion of that motion, many
of Kozak’s factual assertions and legal argument are not relevant to the issues before it). Moreover, the Court has
not adopted the many legal arguments and conclusions asserted by Kozak in her statement of facts.
4 Kozak acknowledges that she sought to refinance the original loan but asserts that she “induced” to sign
the Mortgage, and the loan amount of $196, 343 was more than she had sought. She also contends that for the 2009
tax year, the Town of Leicester valued the Property at $180,000 which was much less than the Lender’s appraised
value (there is no dispute that the amount of the loan was within the Lender’s appraised value of the Property). The
assertion that she was “induced” to sign a loan for more than the Property was worth relate to matters which took
place over 14 years ago and therefore, are likely barred by the applicable statute of limitations. Additionally,
Kozak’s assertions regarding the value of the Property at the time are not supported by qualified, admissible
evidence.
5 Kozak asserts that the Mortgage included a reference to “MERS as Mortgagee” and which “she as a
consumer was to know as Nations Lending Corp.” This statement is vague and confusing. In any event, the terms
Kozak now contends that she was concerned about the viability of the terms of the loan, but
Jeremy Sopko (“Sopko”), a founder of the Lender, persuaded her of her ability to refinance and
therefore, put aside her concerns. Sopko was aware Kozak was an immigrant.
The Mortgage was recorded with the Worcester County Registry of Deeds (“Registry of

Deeds”) on August 7, 2009. On August 6, 2013, MERS assigned the Mortgage to Flagstar and
the assignment was recorded in the Registry of Deeds on or about August 15, 2013. Kozak
asserts that the assignment was made without money consideration and without a signatory
authority having been referenced. Flagstar is the current owner of the Note and, directly or
through an agent, is in physical possession of it.
In 2011, Kozak’s employer of twenty-six (26) years retired and she became unemployed;
she remained unemployed for over a year. Kozak filed a Chapter 7 voluntary petition in the U.S.
Bankruptcy Court for the District of Massachusetts on April 17, 2012. In the bankruptcy case,
Ms. Kozak did not contest Flagstar’s ownership of the Note and Mortgage or otherwise assert
that she had any claims concerning the Note and Mortgage. A meeting of creditors was held on

May 17, 2012, and no creditors appeared to contest discharging of debts including the mortgage
debt. On July 19, 2012, the United States Bankruptcy Court for the District of Massachusetts
entered an order discharging her personal liability on her debts under Chapter 7 of the
Bankruptcy Code.6 Kozak had made all payments due on the Note and Mortgage to Flagstar
from September 1, 2009 through December 2012. In late December 2012, Kozak contacted
Flagstar seeking a loan modification because she was having difficulty making her loan
payments. An unnamed representative told her to stop making her loan payments for three

of the Mortgage are clear and speak for themselves.
6 Although not mentioned in either party’s statement of material facts, Kozak has included copies of
documents from her bankruptcy case and it is clear that the Mortgage/Note debt was not discharged.
months after which she would be eligible to seek a loan modification under programs offered to
distressed homeowners. She then defaulted on the Note and Mortgage by failing to make the
monthly payment due January 1, 2013, and all subsequent payments. On February 13, 2013,
Flagstar sent a default /right to cure letter to Kozak which she never received.7 Kozak was never

sent an offer for a face-to-face meeting within ninety (90) days of the default and was never
“visited” and offered a face-to-face meeting at a branch within 200 miles of the Property within
ninety (90) days of the default even though Flagstar had a branch in Boston (which is within 200
miles of the Property).
On August 1, 2014, Flagstar petitioned the Massachusetts Land Court for permission to
foreclose on the Property. In May 2015, Kozak submitted a HAMP application.8 Over a 9–12-
month period, Kozak faxed requested paperwork to Flagstar more than six (6) times because
Flagstar lost it, claimed it did not receive it, could not access it or needed the information
updated. Kozak never received a written loan modification agreement from Flagstar. On June 18,
2014, she received a letter stating she was ineligible for a loan modification even though she was

making more money in 2014 (approximately $2,500.00 per month) than when she received the
loan (approximately $2092.00 per month). She never received a Net Present Value calculation
nor notification that she was eligible to receive one. Kozak contends that a HAMP directive
provided that “servicers should not proceed with a foreclosure sale until the borrower has been
evaluated for the program and, if eligible, an offer to participate in HAMP has been made.” 9

7 Kozak contends she never received this notice until it was provided to her in discovery by Flagstar in
November 2022. While the Court has included factual assertions made by Kozak related to the initial foreclosure
proceedings, the Housing Court ultimately rescinded the foreclosure. Simply put, as will be briefly touched upon in
the discussion portion of this opinion, the circumstances and events related to the original foreclosure are not
relevant to the issues before the Court.
8 HAMP stands for the Home Affordable Modification Program. HAMP’s goal is to offer homeowners at
risk of foreclosure reduced monthly mortgage payments that are affordable and sustainable over the long-term.
9 The Court will assume that this statement accurately reflects a HAMP directive in effect at the time
Flagstar instituted the initial foreclosure proceeding against the Property. Kozak then asserts that Flagstar did not
On June 24, 2015, a Power of Attorney, dated that same date, was filed at the Oakland
[sic.] County Registry of Deeds appointing an agent of the bank to right to act for Flagstar to
make entry on the Property for purposes of foreclosing on the Mortgage as the result of breaches
of conditions thereof and to execute all necessary paperwork. On or about May 17, 2016,

Flagstar recorded an Affidavit Regarding Note Secured by Mortgage to be Foreclosed (“Note
Affidavit”) with the Registry of Deeds. The Note Affidavit confirms that Flagstar Bank, FSB is
the holder of the Note and certifies that the requirements of Mass. Gen. Laws ch. 244, § 35B
have been met. On an unspecified date, Kozak was visited by a member of the Worcester Anti-
Foreclosure Team which notified her of the upcoming foreclosure action which had been noticed
in a local newspaper, the Worcester Telegram & Gazette. The notice included the applicable
terms of sale.
On August 16, 2016, Flagstar conducted a foreclosure sale of the Property. Flagstar
bought the Property. No representative of Flagstar entered onto the Property in connection with
the foreclosure proceedings because a resident of the house, Jacob Bruning, prevented them from

doing so. Mr. Bruning did not observe any proceedings that looked like an auction. Kozak never
received a post-foreclosure letter identifying the purchaser at auction nor an accounting of the
sale.
On December 1, 2017, Flagstar filed an action against Ms. Kozak seeking possession of
the Property in Massachusetts Central Housing Court (“Housing Court”). On January 10, 2019,
Flagstar filed a motion for summary judgment in the Housing Court Case. On February 7, 2019,
the Housing Court (Salvidio, J.) denied Flagstar’s motion for summary judgment, finding “that

suspend the foreclosure while Kozak was being considered for a HAMP modification. First, it is not clear that the
language cited is mandatory. Additionally, Kozak’s own statement of the facts indicate that the foreclosure sale took
place well after her HAMP application was denied.
the question of whether the Defendant was prejudiced by the lack of a face-to-face meeting to be
a genuine issue of material fact precluding summary judgment.” A renewed motion for
summary judgment was denied on the same grounds.
On March 11, 2019, Flagstar voluntarily filed a motion to set aside the foreclosure sale

and rescind the foreclosure deed. Ms. Kozak assented to the motion which also removed the
certificate of entry. On March 14, 2019, the Housing Court granted the motion to set aside the
foreclosure and entered an order rescinding the August 16, 2016 foreclosure sale and declaring
Kozak to be the owner of the Property. The Housing Court never made any findings of fact and
never entered any order prohibiting Flagstar from filing a new action for foreclosure or
exercising the power of sale. After March 14, 2019, Kozak was given an opportunity to cure the
default, but did not make any payments. On June 19, 2019, Flagstar sent Kozak a notice of
default (“Notice of Default”) informing her that she must pay $100,006.86, plus any additional
regular monthly payment or payments, late charges, fees and charges, which become due, before
September 17, 2019, to cure the default on the Mortgage. Kozak failed to cure the default before

the date specified in the Notice of Default. On June 19, 2019, Flagstar also sent Kozak a letter
entitled “90-Day Right to Cure Your Mortgage Default” in compliance with Mass. Gen. Laws
ch. 244 § 35A (“35A Letter”). Kozak failed to cure the default before the date specified in the
35A Letter. Enclosed with the 35A Letter, Flagstar sent Kozak a letter entitled “Right to Request
a Modified Mortgage Loan” in compliance with Mass. Gen. Laws ch. 244 § 35B (“35B Letter”).
Kozak did not send Flagstar an application for modification options at any time after Flagstar
sent her the 35B Letter.
On June 6, 2019, Flagstar, through counsel, sent a letter to Kozak by first class and
certified mail offering to engage in a face-to-face meeting to discuss options to resolve the
delinquency on the Mortgage. On July 9, 2019, Flagstar’s counsel received a letter from Kozak
requesting information regarding “previous face to face meetings, defaults and Right to Cure
letters” and related notices sent to her. On August 9, 2019, Flagstar, through counsel, sent a
second letter to Kozak by first class and certified mail offering to engage in a face-to-face

meeting to discuss options to resolve the delinquency on the Mortgage, and including copies of
the Notice of Default, the 35A Letter, the 35B Letter, and a payoff statement good through
September 1, 2019. On August 22, 2019, Flagstar’s counsel, made one trip to see her at the
Property to make a reasonable effort to arrange a face-to-face meeting. At that time, Flagstar’s
counsel hand-delivered a letter at the Property that requested Kozak call him to arrange a face-to-
face meeting. However, Kozak did not call Plaintiff’s counsel to arrange a face-to-face meeting
after receiving the hand-delivered letter. On February 17, 2020, Kozak wrote a letter to Flagstar
requesting an original copy of the Mortgage which was not provided.
On March 23, 2020, Flagstar, through counsel, sent a letter to Kozak by Federal Express
and enclosed copies of the following documents:

• the August 9, 2019 letter;
• the June 19, 2019 Notice of Default;
• the June 19, 2019 35A Letter;
• the June 19, 2019 35B Letter;
• a payoff statement good through September 1, 2019;
• Flagstar’s responses to Kozak’s request for production of documents
from the Housing Court matter;
• the Mortgage;
• the Note;
• the Assignment;
• a recorded limited power of attorney;
• the May 17, 2016 Note Affidavit;
• a Certificate of Entry related to the August 12, 2016 foreclosure;

• the foreclosure deed recorded on August 28, 2017; and
• a notice of default dated February 26, 2013.
Kozak, her daughter and her grandchildren, one of which has a serious disability/illness,
continue to reside at the Property. They have suffered and continue to suffer distress and
financial harm as a result of facing homelessness. Kozak, who is proceeding pro se, contends that
during the foreclosure period, she has been unemployed and lost all her savings and other liquid
resources while spending money on legal help. Her credit has been seriously damaged because of
the foreclosure proceedings.
Discussion

Flagstar requests that the Court approve its right to foreclose on the Property, that is, that
the Court issue a judgement of foreclosure. In support thereof, Flagstar asserts that it has met all
the prerequisites for foreclosure under the Mortgage and Massachusetts law. Kozak does not
meaningfully contest that in its latest attempt to foreclose on the Property Flagstar has complied
with its obligations under the Mortgage and Massachusetts law. Rather, she argues that the
remedy that Flagstar requests is not available under Massachusetts law (no discussion of this
argument is merited; simply put, Kozak is wrong). She also asserts based on the Housing Court’s
order rescinding the August 2016 foreclosure sale that the doctrine of res judicata bars Flagstar
from ever foreclosing on the Property. Kozak further asserts that Flagstar has not established
sufficient interest in the alleged controversy to pursue a foreclosure action, i.e., it lacks standing.

Finally, Kozak contends that Flagstar is not entitled to a judgment of foreclosure because she
was the victim of predatory lending. Essentially, Kozak seeks to retain ownership of the
Property, to dissolve Mortgage, and have her loan forgiven. While Kozak presents a sympathetic
figure (she, her daughter and her grandchildren, one of whom has a disability, reside at the
Property), for the reasons set forth below, the law does not allow for such an outcome.

Whether Flagstar is Entitled to an Order of Foreclosure
The Court finds that Flagstar is the holder of both the Note and Mortgage. Moreover, on
the record before it, there is no genuine issue of material fact that with respect to the instant
foreclosure proceedings, Flagstar has complied with its statutory obligations under
Massachusetts law and its obligations under the Mortgages and has made a reasonable, good
faith effort to have a face-to-face meeting with Kozak in accordance with HUD regulations (an
attempt which Kozak has continuously and intentionally rebuffed). Accordingly, unless Kozak
has a valid affirmative defense to Flagstar’s foreclosure of the Property, Flagstar’s motion for
summary judgment must be granted.
Kozak’s Affirmative Defenses

Kozak has raised a myriad of affirmative defenses which she argues undermine Flagstar’s
right to foreclose on the Property. First, Kozak questions whether Flagstar has sufficient interest
in the “controversy” to pursue this action. The uncontested facts clearly establish that Flagstar is
the legal owner of the Note and that the Mortgage was validly assigned to it. Since Flagstar holds
both the Mortgage and the Note, it has standing to bring this action. See Culhane v. Aurora Loan
Servs. of Nebraska, 708 F.3d 282, 291 (1st Cir. 2013)(MERS held bare legal title as mortgagee
of record and therefore, MERS assignment of mortgage to loan servicer was legitimate and loan
servicer who then held both in interest in the mortgage and the note had the right to exercise the
statutory power of sale).
Kozak argues that she was the victim of predatory lending because the loan amount of
$196,343, was more than she was originally seeking from the Lender and assessed value of the
Property for the 2009 tax year was $180,000, i.e., the loan was for an amount far greater than the
Property was worth. It is undisputed that the loan amount was within the value ascribed to the

Property by the Lender’s appraiser. Moreover, Kozak has not proffered any admissible evidence
which support her assertion that the loan amount far exceeded the value of the Property, nor has
she made any other assertions, supported by admissible evidence or otherwise, that a would
support a finding that the loan was predatory. Her statements that the Lender knew she was in
immigrant and a woman without more cannot not support a finding that she was the victim of
predatory lending and/or discrimination.
Kozak’s primary defense to this action is that principles of res judicata bar Flagstar from
seeking a judgment of foreclosure. More specifically, she argues that the Housing Court’s 2019
order rescinding the August 2016 foreclosure sale bars this action. Kozak is relying on the
doctrine of claim preclusion under which a valid, final judgment is conclusive on the parties and

those in privy with them and prevents re-litigation of all matters that were or could have been
adjudicated in the prior action. “Application of the doctrine to preclude a subsequent claim
requires that the moving party satisfy three elements: 1) identity or privity of the parties to the
present and prior actions, 2) identity of the causes of action, and 3) a prior final judgment on the
merits.” Emigrant Mortg. Co., Inc. v. Bourke, 626 F. Supp. 3d 223, 229 (D. Mass. 2022),
reconsideration denied, No. CV 21-11133-JCB, 2023 WL 421147 (D. Mass. Jan. 26, 2023).
Kozak is effectively arguing that the Housing Court’s order rescinding the August 2016
foreclosure forever bars Flagstar from enforcing it rights under the Mortgage. There are
numerous problems with Kozak’s legal arguments regarding this defense, however, the Court
need only address one. The Court will assume identity of the parties and that the causes of action
are identical. Kozak’s argument fails on the third prong—there was never a “final judgment on
the merits” which would bar Flagstar from bringing a subsequent foreclosure action. On the
contrary-- the Housing Court denied Flagstar’s motions for summary judgment on its action

seeking possession of the Property after the August 2016 foreclosure sale on the grounds that
there was a genuine issue of material fact as to whether Kozak was prejudiced by Flagstar’s
failure to initiate a face-to-face meeting with her prior to the foreclosure sale as required under
HUD regulations. After the Housing Court’s denial of its motions for summary judgment,
Flagstar filed a motion to set aside the foreclosure sale and rescind the foreclosure deed. Kozak
assented to the motion. In doing so, the Housing Court noted that both parties’ claims would be
dismissed without prejudice. The Housing Court made no finding that the Mortgage and/or Note
were invalid. Given that the violation by Flagstar was eminently curable, there is nothing in the
Housing Court’s ruling that would bar Flagstar from seeking to institute a new foreclosure
proceeding at some future date. Kozak clearly understood that the rescission did not bar Flagstar

from instituting a future foreclosure action as evidenced by her “motion to dismiss” in which she
acknowledged that dismissal of Flagstar’s action under such circumstances is generally without
prejudice but asked that the Housing Court dismiss Flagstar’s action with prejudice. The Housing
Court declined to do so and made clear that the dismissal was without prejudice. Accordingly,
the principles of res judicata do not bar Flagstar from bringing the instant action.10

10 To the extent that Kozak argues that Flagstar is barred from foreclosing on the Property because she did
not reinstate the Mortgage after the August 2016 foreclosure sale was rescinded, a protracted discussion is not
warranted as the First Circuit has made clear that a mortgage does not become unenforceable five years after either a
default or acceleration (the passing of five years being the basis of her argument). Hayden v. HSBC Bank USA, 956
F.3d 69, 71 (1st Cir. 2020); Harry v. Countrywide Home Loans, Inc., 902 F.3d 16, 19 (1st Cir. 2018). Additionally,
the many arguments and factual assertions which Kozak make regarding matters that would invalidate the August
2016 foreclosure sale (such as the Flagstar’s alleged failure to send her a right to cure letter in 2013) are irrelevant to
this subsequent foreclosure proceeding and will not be addressed. Kozak’s multiple other affirmative defenses are
On the record before the Court, there is no genuine issue of material fact regarding
Flagstar’s right to foreclose on the Property and its motion for summary judgment is granted.
Judgment shall enter for Flagstar, however, the Court shall retain jurisdiction to the extent that
Flagstar requires Court orders relative to carrying out the foreclosure sale. Accordingly, on or

before October 20, 2017, Flagstar shall submit proposed orders for notice, publication, and sale
in accordance with the statutory power of sale.11
Conclusion
It is hereby Ordered that:
1. Plaintiff’s Motion for Summary Judgment (Docket No. 63) is granted;

2. Defendant’s Motion to Strike Declaration of Jeffery C. Ankrom (Docket No. 76) is
denied; and

3. the Motion to Strike Declaration of Bell Kharson (Docket No. 77) is denied.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
SENIOR DISTRICT JUDGE

irrelevant and/or totally lacking in merit and require no further discussion other than the Court will note it agrees
with Flagstar’s arguments summarily dismissing each such defense.

11 While the Court has ordered that judgment enter for Flagstar, it would encourage the parties to engage in
discussions as to whether a loan modification would be available to Kozak or given the present state of the real
estate market, whether the parties could jointly agree to a sale of the Property for fair market value that would pay
off Kozak’s deficiency and pay any excess amount realized to her.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10201409. Public record. Not legal advice.