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Turra v. Deutsche Bank Trust Co. Americas

Supreme Judicial Court of Massachusetts

January 30, 2017

SANDRO TURRA
v.
DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee, [1] & another.[2]

         Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Real Property, Mortgage.

          Adam 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.

         The 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.[3] 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.

         Background.

         On April 3, 2007, Turra executed a mortgage on the property in question to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee.[4] 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.

         In 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."

         Deutsche 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 foreclose.[5]

         Discussion.

         Where, 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).

         What 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, however, unavailing.

         In the 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 ...


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