Heard: November 3, 2015.
Process. Complaint filed in the Northeast Division of the
Housing Court Department on August 31, 2012. Motions for
partial summary judgment were heard by Timothy F. Sullivan,
J., and a motion to dismiss counterclaims was also heard by
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Michael Weinhold for the defendants.
Richard E. Briansky for the plaintiff.
J. Santolucito & Danielle C. Gaudreau, for Real Estate
Bar Association for Massachusetts, Inc., & another, amici
curiae, submitted a brief.
Bahls & Amanda Winalski, for Community Legal Aid, amicus
curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
plaintiff, Federal National Mortgage Association (Fannie
Mae), filed a complaint for summary process in the Housing
Court to establish its right to possession of a house that
had been owned by Edward M. Rego and Emanuela R. Rego (Regos)
that Fannie Mae purchased at a foreclosure sale. In response,
the Regos argued that the foreclosure sale conducted by the
bank that held the mortgage on the property, GMAC Mortgage,
LLC (GMAC), was void because GMAC's attorneys had not
been authorized by a prior writing to undertake the actions
set forth in G. L. c. 244, § 14 (§ 14). The Regos
also asserted an equitable defense and counterclaims pursuant
to G. L. c. 93A. A Housing Court judge allowed Fannie
Mae's motion for summary judgment "as to possession
only, " and scheduled a bench trial on the Regos'
counterclaims under G. L. c. 93A. Thereafter, Fannie Mae
moved to dismiss the counterclaims for lack of subject matter
jurisdiction; that motion was allowed. Final judgment for
possession entered in favor of Fannie Mae, and the Regos
appealed. We transferred the case to this court on our own
confronted with two issues in this appeal. First, we
consider the meaning of the language in § 14,
authorizing "the attorney duly authorized by a writing
under seal" to perform acts required by the statutory
power of sale. We conclude that the expression is a term of
art that refers to a person authorized by a power of attorney
to act in the place of the person granting that power. At the
time the provision was enacted by amendment in 1906, the
phrase "power of attorney" had the same meaning as
a "power under seal." Here, because no person
purported to act under a power of attorney, but only as legal
counsel acting on behalf of a client, the statutory language
on which the Regos rely to challenge the validity of the
foreclosure is inapplicable. We conclude also that legal
counsel may perform the acts at issue in this case without
written authorization, as the "person acting in the name
of such mortgagee." G. L. c. 244, § 14. The
foreclosure therefore suffers no defect on the asserted
ground that GMAC failed to provide such authorization to its
we consider whether, in a postforeclosure summary process
action, the Housing Court may consider defenses and
counterclaims seeking relief pursuant to G. L. c. 93A, and
conclude that the Housing Court has limited authorization to
entertain such claims. To the extent that the Regos appear to
assert an equitable defense to the foreclosure sale and seek,
in addition to damages, the relief of voiding the sale, the
judge properly could have addressed those claims in the
summary process action. It is not apparent from the
judge's decision that he considered these claims when
deciding the parties' cross motions for summary judgment.
We therefore vacate the judgment and remand for further
proceedings consistent with this opinion.
Regos purchased a house on Green Street in Billerica in 1976.
In 1995, they refinanced the home mortgage loan by borrowing
$122, 000 from Empire of America Realty Credit Corporation,
and executed a promissory note and mortgage in its favor.
Empire of America Realty Credit Corporation assigned the
mortgage to Wells Fargo Bank, and the following year, Wells
Fargo Bank assigned the mortgage to GMAC Mortgage
Corporation. Eventually, GMAC Mortgage Corporation assigned
the mortgage to a related entity, GMAC, which ultimately
foreclosed on the property.
2008, GMAC notified the Regos by mail that they were in
default under the terms of the mortgage loan because they had
missed one monthly payment in the amount of $1, 723.12, and
that, in addition, they owed $77.52 in late charges and
$11.25 in fees. In April, 2010, GMAC notified the Regos that
they were eligible for the Federal Home Affordable
Modification Program, 12 U.S.C. § 5219 (HAMP), and
offered modified terms of payment.The Regos rejected the offer,
explaining that they could not afford the modified terms and
requesting a more affordable modification. The next month,
GMAC sent a second HAMP modification offer, proposing terms
similar to the first offer, which the Regos also apparently
rejected. On March 15, 2011, GMAC notified the Regos that
GMAC was now due a total of $35, 803, including mortgage loan
payments, late charges, and fees, and informed them that they
had thirty days in which to cure the default.
4, 2011, the law firm of Orlans Moran, on behalf of its
client, GMAC, sent the Regos a "Notice of Intention to
Foreclose." The notice was in letter form, on Orlans
Moran letterhead, and was signed, "GMAC Mortgage, LLC,
By its Attorneys, Orlans Moran PLLC." Orlans Moran
attached to the letter a copy of the mortgagee's notice
of sale of real estate, which it published in the Billerica
Minuteman on May 5, 12, and 19, 2011. The notice identified
the property and contained information concerning a public
auction to be held on May 27, 2011. The following information
was set forth at the end of the notice of sale: "GMAC
Mortgage, LLC, Present Holder of said Mortgage, By its
Attorneys, Orlans Moran PLLC."
23, 2011, the Regos sent GMAC a facsimile transmission
requesting a "negotiated pay-off" to avoid the
pending foreclosure, scheduled for May 27, 2011. The Regos
explained that they were attempting to obtain a reverse
mortgage loan, but that the new loan amount would still leave
them $10, 000 short of the pay-off amount. They asked GMAC
for "compassion" in negotiating a pay-off agreement
to help them stay in their home. On May 25, 2011, GMAC
acknowledged the Regos' request, informed them that the
request was being processed, and stated that GMAC would not
"conduct a foreclosure sale" while the request was
under review. The next day, GMAC denied the loan modification
request. GMAC proceeded with the foreclosure auction the
following day, where it was the highest bidder. GMAC
eventually assigned its bid to Fannie Mae, and executed a
Mae served the Regos with a notice to quit and subsequently
filed a summary process complaint for ...