Foreclosure. Notice, Foreclosure of mortgage. Real Property,
T. Sherwin for the plaintiff.
Marissa I. Delinks for Deutsche Bank Trust Company Americas.
Francis J. Nolan, John Pagliaro, & Martin J. Newhouse,
for New England Legal Foundation & others, amici curiae,
submitted a brief.
plaintiff, Sandro Turra, commenced this action against
Deutsche Bank Trust Company Americas, as trustee for RALI
2007QS7, care of GMAC Mortgage, LLC (Deutsche Bank), seeking
a declaration that Deutsche Bank's foreclosure of the
mortgage on his home was invalid and seeking to quiet title
to the property. A judge in the Superior Court allowed
Deutsche Bank's motion to dismiss the complaint, and
Turra appealed. The appeal raises a single issue:
whether a foreclosing mortgagee's failure to comply with
G. L. c. 244, § 15A, by failing to send the
postforeclosure notices required by the statute, renders the
foreclosure void. We conclude, as did the trial court judge,
that it does not, and we therefore affirm.
April 3, 2007, Turra executed a mortgage on the property in
question to Mortgage Electronic Registration Systems, Inc.
(MERS), as mortgagee. The lender was Homecomings Financial,
LLC. On August 12, 2010, MERS assigned the mortgage to
Deutsche Bank. Then, on November 8, 2010, Deutsche Bank,
through its servicing agent GMAC Mortgage, LLC, notified
Turra that he was in default under the terms of the mortgage.
Deutsche Bank subsequently foreclosed on the home on January
15, 2013. In April, 2013, Deutsche Bank commenced a summary
process action against Turra in the District Court. Turra
then commenced this action in the Superior Court, where his
motion to transfer the summary process action and consolidate
it with this case was allowed.
response to Deutsche Bank's motion to dismiss his
complaint, Turra argued, among other things, that the
foreclosure was void because Deutsche Bank failed to strictly
comply with the power of sale as set forth in G. L. c. 183,
§ 21, and further regulated by G. L. c. 244,
§§ 11-17C. See U.S. Bank Nat'1
Ass'n v. Ibanez, 458 Mass. 637,
646 (2011) (Ibanez). In particular, Turra argued
that Deutsche Bank failed to comply with G. L. c. 244, §
15A, which provides that
"a mortgagee conveying title to mortgaged premises
pursuant to the provisions of this chapter shall, within
thirty days of taking possession or conveying title, notify .
. . the office of the assessor or collector of taxes of the
municipality in which the premises are located and any
persons, companies, districts, commissions or other entities
of any kind which provide water or sewer service to the
premises, of said taking possession or conveying title."
Bank did not dispute that it did not provide the required
postforeclosure notifications, but argued that this did not
render the foreclosure void. The trial judge agreed, noting
that the duty of notification imposed by § 15A arises
after foreclosure and is not a duty that affects the right to
as here, a mortgage grants the mortgage holder the power of
sale, "it includes by reference the power of sale set
out in G. L. c. 183, § 21, and further regulated by G.
L. c. 244, §§ 11-17C." Ibanez, 458
Mass. at 646. As we stated in the Ibanez case, one
who sells under that power of sale "must follow strictly
its terms" or the sale will be "wholly void."
Id., quoting Moore v.
Dick, 187 Mass. 207, 211 (1905). In several
subsequent cases, we further considered the requirement of
strict compliance and when it is, and is not, necessary. See,
e.g., Pinti v. Emigrant Mtge. Co.,
472 Mass. 226, 227, 239-240 (2015) (failure to strictly
comply with power of sale contained in mortgage renders
foreclosure void); U.S. Bank Nat'1 Ass'n
v. Schumacher, 467 Mass. 421, 422, 429
(2014) (failure to strictly comply with G. L. c. 244, §
35A, will not render foreclosure void because § 35A is
not part of foreclosure process); Eaton v.
Federal Nat'1 Mtge. Ass'n, 462 Mass. 569,
571, 580-581 (2012) (failure to comply with G. L. c. 244,
§ 14, renders foreclosure void).
these cases have in common, as is relevant here, is their
reference to certain statutory provisions in G. L. c. 244
that regulate the power of sale. That is, in each of these
cases we referred to "§§ 11-17C"
collectively as the provisions that further regulate the
power of sale set forth in G. L. c. 183, § 21. That
collective reference leads directly to Turra's argument:
the section with which he is concerned, § 15A, obviously
falls into the "§§ 11-17C" group. His
argument, then, that Deutsche Bank's failure to strictly
comply with the requirements of § 15A renders the
foreclosure void is not entirely unfounded. It is also,
cases in which we have made broad reference to the power of
sale provisions in §§ 11-17C, we have been
concerned with actions taken by the foreclosing party that
are part of the foreclosure process and that occur prior to
the actual foreclosure. The issue in the Ibanez
case, for example, was whether the foreclosing party was
actually the mortgage holder at the time of the foreclosure.
See Ibanez, 458 Mass. at 638. Similarly, in the
Eaton case, we addressed whether the mortgage holder
who did not also hold the underlying note had the authority
to foreclose, pursuant to statutory power of sale. See
Eaton, 462 Mass. at 571. And in ...