United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
September 8, 2016, the court granted summary judgment in
favor of defendant Bank of New York Mellon
("BONYM") on plaintiff Steven Carver's petition
to try title to his Marshfield, Massachusetts home (the
"Property"). See September 8, 2016 Memorandum and
Order (Docket No. 121) at 16, ¶2. It also granted
summary judgment in favor on BONYM's on three out of four
counterclaims. See id. ¶3. The court then
ordered the parties to file reports addressing the damages
due to BONYM on its breach of contract counterclaim. See
id. ¶4. The parties filed their reports on
September 22, 2016.
report, BONYM asserts that it is entitled to recover the
outstanding principal on Carver's loan, plus interest,
late charges, and advances, less the proceeds from the
foreclosure sale. See BONYM Report (Docket No. 124)
at 1-3. It further asserts that it is entitled to
attorney's fees and costs for both the foreclosure sale
and the instant litigation. See id. at 3. In total,
BONYM seeks a judgment for a deficiency in the amount of
$390, 928.60. See id. BONYM also seeks use and
occupancy payments from March 2016 to the present, pursuant
to the Magistrate Judge's July 29, 2015 Order. See
id. at 4.
report, Carver argues that BONYM is barred from recovering a
deficiency because it failed to comply strictly with Mass.
Gen. Laws c. 244, §17B. See Carver Report
(Docket No. 125) at 1, ¶2. Specifically, he argues that
the affidavit in support of BONYM1s notice of intent to seek
a deficiency was legally insufficient. See id. at 5,
¶¶11-13. Carver has not addressed whether BONYM is
entitled to legal fees or whether he is liable for use and
occupancy of the property.
Gen. Laws c. 244, §17B provides, in relevant part:
No action for a deficiency shall be brought . . . unless a
notice in writing of the mortgagee's intention to
foreclose the mortgage has been mailed, postage prepaid, by
registered mail with return receipt requested, to the
defendant sought to be charged with the deficiency at his
last address then known to the mortgagee, together with a
warning of liability for the deficiency, in substantially the
form below, not less than twenty-one days before the date of
the sale under the power in the mortgage, and an affidavit
has been signed and sworn to, within thirty days after the
foreclosure sale, of the mailing of such notice.
c. 24 4, §17B. Failure to comply with the notice
requirement of §17B prevents a mortgagor from seeking a
deficiency, even if the mortgagee had actual notice of the
mortgagor's intent to do so. See Bead Portfolio, LLC
v. Follayttar, 47 Mass.App.Ct. 533, 535 (1999) (citing
Fairhaven Sav. Bank v. Callahan, 391 Mass. 1011,
the court has found no decisions holding that failure to
comply with the affidavit requirement for §17B
bars an action for a deficiency. Indeed, the Supreme Judicial
Court of Massachusetts has held, in the context of notice of
intent to foreclose under Mass. Gen. Laws c. 244 §14,
[A] deficient affidavit of sale does not void a foreclosure
sale or the right to possession. See Burns v.
Thayer, 115 Mass. 89, 93 (1874). A deficient affidavit
may be cured by extrinsic evidence that the power of sale was
exercised properly and the foreclosure was valid. See
O'Meara v. Gleason, 246 Mass. 136, 139, 140 N.E. 426
Fed. Nat. Mortgage Ass'n v. Hendricks, 463 Mass.
635, 637 (2012). At least one court in this district has
applied Hendricks to §17B, concluding that
"the timely preparation of a §17B affidavit is not
a condition precedent to a deficiency action, but rather a
matter of proof." Santander Bank, Nat. Ass'n v.
Sturgis, No. CIV.A. 11-10601-DPW, 2013 WL 6046012, at
*10 (D. Mass. Nov. 13, 2013).
court agrees with the reasoning of Hendricks and
Sturgis. Even if BONYM's affidavit is legally
insufficient under §17B, that fact does not bar its
current action for a deficiency. Accordingly, ...