Argued: November 4, 2015.
Summary process. Complaint filed in the Southeast Division of the Housing Court Department on February 6, 2012.
The case was heard by Anne Kenney Chaplin, J., and a motion for reconsideration was heard by her.
Paul R. Collier, III, for the defendant.
Shawn Michael Masterson for the plaintiff.
Present: Berry, Meade, & Maldonado, JJ.
Walter Murphy purchased his home in 2007 with a mortgage loan from GreenPoint Mortgage Funding, Inc. (GreenPoint). In November of 2010, Murphy received a notice from Aurora Loan Services, LLC (Aurora), notifying him that he had defaulted on his loan. The letter also informed him of his right to cure the default, or to assert the nonexistence of a default or any other defense to acceleration of the loan in a foreclosure proceeding. Acting as nominee for GreenPoint, Mortgage Electronic Registration Systems, Inc. (MERS), assigned the mortgage to Aurora on April 13, 2011. In October, 2011, Aurora foreclosed on
and purchased the property in an extrajudicial foreclosure auction. Thereafter, Aurora commenced a summary process action to evict Murphy.
In the Housing Court, the judge determined that Aurora, as mortgage servicer, adequately complied with the requirements under G. L. c. 244, § 35A, as mortgagee, and granted it summary process to recover possession of the premises. On appeal from the judgment, Murphy claims that, pursuant to the Supreme Judicial Court's recent decision in Pinti v. Emigrant Mort. Co., 472 Mass. 226, 33 N.E.3d 1213 (2015), Aurora's failure to strictly comply with the notice of foreclosure procedures contained in Murphy's mortgage renders the subsequent foreclosure void. Asserting that a ruling in his favor would not impair existing property interests and doing so would apply Pinti 's otherwise prospective limitation equitably and without appearing arbitrary and capricious, Murphy claims the Pinti ruling ought to extend to cases pending on appeal (when the claim was raised and preserved) at the time of the Pinti decision's release. We agree and therefore reverse.
Murphy purchased 245 Holmes Street in Halifax on March 13, 2007, through a mortgage loan secured from GreenPoint in the principal amount of $230,000. The mortgage conveys a security interest in Murphy's home and explicitly sets out the rights, powers, and obligations of the parties. Under its terms, Murphy was the mortgagor (borrower), and GreenPoint was the mortgagee and lender, with MERS as nominee for its successors and assigns.
Paragraph 22 of the mortgage describes in bold print the terms of a power of sale -- including the circumstances in which Murphy's home could be foreclosed upon and sold at auction, the appropriate process for doing so, and the entity with the right to initiate and to conduct such a sale -- in the event that ...