March/April 2009 - Boston Bar Association

at 744. “We do not agree that the judge applied a new
standard retroactively,” the Court emphasized. Id. at 742.
The SJC’s decision affirmed the preliminary injunction
entered by Judge Gants. Consequently, Fremont must
engage in discussions with the AG’s Office, and seek court
approval, before proceeding to foreclose on these loans. Id.
at 740. However, “the injunction in no way relieved borrowers
of their obligation ultimately to prove that a particular
loan was unfair and foreclosure should not be permitted,
or their obligation to repay the loans they had received.”
Id. at 741. The SJC did not state what will happen with
these loan obligations if the AG ultimately prevails.
Whether Fremont will give rise to class actions by
private plaintiffs remains to be seen. Such plaintiffs would
bear the burden of proving that a violation of Chapter 93A
had occurred, and that they were “injured by” the violation.
Mass. G.L. c. 93A § 9. As the Fremont Court took care to
note, “[n]ot all conduct that is institutionally unsafe and
unsound is harmful to borrowers.” 452 Mass. at 744, n. 19.
In any event, Fremont illustrates that Chapter 93A is a
powerful and flexible enforcement tool in the hands of the
AG’s Office. n
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18 Boston Bar Journal • March/April 2009