September 27, 2016
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY
B. Krupp, Justice
plaintiff Harold Wilion purchased certain residential
property at 1643 Cambridge Street in Cambridge (" the
property") from defendant Emigrant Mortgage Company,
Inc. (" Emigrant") at a foreclosure sale, the
Supreme Judicial Court found Emigrant's foreclosure
invalid because Emigrant had failed to comply with the notice
of default provisions in the mortgage. Pinti v. Emigrant
Mortgage Co., Inc. (" Pinti "), 472
Mass. 226, 231-44, 33 N.E.3d 1213 (2015). This action
followed. Plaintiff seeks to recover his costs and associated
damages in connection with his purchase of the property,
which Emigrant, it turned out, did not have the lawful right
to convey. Before me are cross motions for summary judgment.
After hearing, and consideration of the parties'
post-hearing submissions,  the plaintiff's motion is
ALLOWED and defendant's cross motion is DENIED.
2008, Linda Pinti and Lesley Phillips (together, "
Pinti") owned the property. In March 2008, Pinti gave
Emigrant a mortgage on the property in exchange for a loan.
Pinti defaulted on the loan in December 2009 and Emigrant
initiated foreclosure proceedings. On August 9, 2012,
Emigrant held a foreclosure sale of the property. Plaintiff
was the highest bidder. See generally Pinti, 472
Mass. at 227-29.
August 9, 2012, plaintiff and Emigrant executed a Memorandum
of Sale (" the MOS") for the property and plaintiff
paid an initial $5, 000 deposit. At argument, the parties
agreed the MOS was drafted by Emigrant. The MOS defined
Emigrant as " the Bank" and plaintiff as "
Buyer." As is relevant to this case, Section 6 of the
In the event the Bank for any reason cannot convey title
to the Property as stipulated, the deposit, and if
applicable, the balance of the purchase price, shall be
refunded and all rights hereunder shall cease, and the Buyer
shall have no recourse against the Bank, or its
employees, agents and representatives, whether at law or in
equity; provided, however, that Buyer shall have the
election to accept such title as the Bank can deliver to the
Property in its then condition and to pay
therefore the purchase price without deduction, in which
event the Bank shall convey such title. In the event of such
election by Buyer, the Bank shall have no duty or obligation
to remove any cloud or defect in title.
The Bank reserves the right to cancel this
Memorandum in the event that . . . (d) as a result
of claims asserted by third parties against the Bank or
against the Property the Bank determines that it is not in
the best interest of the Bank and/or the mortgagor(s) to
convey the Property to Buyer. In the event of such
cancellation by the Bank, the deposit, and, if applicable,
the balance of the purchase price, shall be refunded and all
rights hereunder shall cease, and the Buyer shall have no
recourse against the Bank, its employees, agents,
attorneys or representatives, whether at law or in equity.
September 10, 2012, Emigrant conveyed the property to
plaintiff for the purchase price of $260, 000.
Pinti, 472 Mass. at 229.
plaintiff purchased the property, Pinti remained at the
property. Plaintiff filed a summary process action for
possession. In defense, Pinti challenged the validity of
Emigrant's foreclosure sale. In October 2013, the
Superior Court upheld the foreclosure process and entered
judgment in favor of plaintiff [31 Mass.L.Rptr. 528]. Pinti
appealed. In a decision dated July 17, 2015, a divided
Supreme Judicial Court reversed, finding that Emigrant failed
strictly to comply with the notice of default provision in
the mortgage and therefore that the foreclosure sale was
void. Pinti, 472 Mass. at 227, 232-42.
himself divested of title to the property by the decision in
Pinti, plaintiff sought to recover his damages from
Emigrant. On September 25, 2015, plaintiff's
counsel sent a letter to Emigrant's counsel demanding
that Emigrant pay plaintiff the then-fair market value of the
property, which he contended had appreciated considerably
beyond the $260, 000 purchase price, plus his out-of-pocket
expenses incurred as a result of Emigrant's invalid
foreclosure of the property. When the parties were unable to
reach an agreement, on September 30, 2015, plaintiff's
counsel demanded at least " that Emigrant refund the
purchase price immediately, without any conditions and
without any party releasing rights, claims or defenses."
According to plaintiff's counsel, plaintiff " is in
desperate need of his funds that are being wrongly held by
Emigrant." In response, on October 2, 2015,
Emigrant's counsel requested plaintiff's address in
order " to cut the check." Plaintiff's counsel
responded on the same day by providing plaintiff's
address, directing Emigrant to send the check directly to
plaintiff, and wrote: " To avoid any later confusion, I
should again [s]ay that the receipt of this payment is
without prejudice and without waiver of any rights or
defenses of any party." 
sent plaintiff a check dated October 5, 2015 for $260, 000
with a cover letter dated October 8, 2015. The cover
Emigrant is returning Mr. Wilion's purchase funds in
accordance with the terms of the Memorandum of Sale executed
by Mr. Wilion on August 9, 2012. Pursuant to the terms of the
Memorandum of Sale, the return of these monies constitutes
full satisfaction of any obligations Emigrant may have had ...