U.S. BANK, NATIONAL ASSOCIATION, trustee, 
STEVEN L. MILAN & another.
Heard: March 1, 2017.
process. Complaint filed in the Northeast Division of
the Housing Court Department on July 23, 2012. The case was
heard by David D. Kerman, J., on motions for summary
Michael R. Murphy (Michael R. Stanley also present) for the
D. Goodman for the defendants.
Present: Green, Wolohojian, & Sullivan, JJ.
plaintiff (U.S. Bank) appeals from a judgment of a Housing
Court judge, dismissing its complaint for summary process.
The Housing Court judge based his order of dismissal on the
failure of U.S. Bank's notice of default to comply
strictly with the requirements of paragraph 22 of the
mortgage it foreclosed against the defendants, Steven and
Karen Milan (Milans), incident to U.S. Bank's acquisition
of title to the property. In so doing, the judge applied the
holding of Pinti v. Emigrant Mort.
Co., 472 Mass. 226, 241-242 (2015) (Pinti), to
invalidate U.S. Bank's claim of title. We conclude that
was error, and reverse.
Milans are the former owners and current occupants of
residential property located at 56 Jasper Road in Saugus. On
May 16, 2005, incident to a loan refinance, the Milans
granted to Mortgage Electronic Registration Systems, Inc.
(MERS), a mortgage on the property to secure a note made to
Saugus Federal Credit Union. In 2007, the Milans defaulted on the
mortgage loan, and on June 18, 2007, U.S. Bank's
servicing agent (which had succeeded MERS as mortgagee by
assignment) sent to the Milans the first of several notices
of default. The Milans assert, and the Housing
Court judge concluded, that the notices did not comply
strictly with the requirements specified for such notices in
paragraph 22 of the mortgage. Thereafter, U.S. Bank conducted a
foreclosure auction, pursuant to the statutory power of sale
contained in the mortgage, and (as U.S. Bank was the
successful bidder at the auction) a foreclosure deed in favor
of U.S. Bank was recorded on June 21, 2012. The Milans
remained in possession of the property, prompting U.S. Bank
to initiate the present summary process action in the Housing
Court on July 23, 2012.
describe in some detail the trajectory of the summary process
action as it progressed to the judgment of dismissal, as the
parties' conduct of the matter bears on a determination
whether the Pinti rule applies to it. On July 26,
2012, the Milans filed their answer to U.S. Bank's
complaint. The answer used a printed form answer, with a
series of blanks and checkboxes completed by hand, and a
handwritten legend stating that it was "prepared with
the assistance of counsel" appears at the bottom of the
first page. On the second page of the printed form, within
the section captioned to list defenses based on a claim that
the tenancy was "not properly terminated and/or case not
properly brought, " a check appears next to a box
reading "The landlord does not have a superior right to
possession and/or does not have standing to bring this
action." As reflected on the docket, on September 24,
2012, U.S. Bank served discovery requests on the Milans. At
some point thereafter, but apparently before November 30,
2012, the Milans served on U.S. Bank their responses to U.S.
Bank's discovery requests. Among other interrogatories, U.S.
Bank's interrogatory no. 8 asked the Milans to
"[p]lease state in full and complete detail every fact
and reason why you believe that the [p]laintiff does not have
a superior right to possess the [p]roperty and/or lacks
standing to bring this action." The Milans responded as
"We, Karen and Steven Milan of 56 Rear Jasper Street,
Saugus, MA 01906 do not believe that plaintiff [sic]
has the right to possess, foreclose or evict us for the
"We signed closing papers for a mortgage of $524, 000.00
to Saugus Federal Credit Union on May 10, 2005. Closing was
done by Attorney Timothy J. Doyle, 99 Walnut Street - Suite
A, Saugus North Professional Building, Saugus, MA 01906. We
acknowledge signing these mortgage papers. We also have the
letter from Attorney Timothy J. Doyle to Sebastian Insurance
Agency of Saugus, MA requesting an insurance binder for the
closing on May 10, 2005. We also have a copy of said binder.
This mortgage of May 10, 2005, is our true and correct
mortgage. Mortgage was recorded at Southern Essex County
Registry of Deeds, Salem, MA on May 13, 2005.
"Another mortgage for $524, 000.00 to Saugus Federal
Credit Union was done on May 16, 2005, by Attorney Timothy J.
Doyle, 99 Walnut Street - Suite A, Saugus North Professional
Building, Saugus, MA 01906. This mortgage assigned our
mortgage to MERS. This mortgage was recorded at Southern
Essex County Registry of Deeds, Salem, MA on May 18, 2005. We
did not sign this mortgage. Also, our true mortgage of May
10, 2005, was still open and not discharged. Therefore, there
5, 2014, the Milans' present counsel entered his
appearance on their behalf in the Housing Court. Shortly
thereafter, on May 14, 2014, U.S. Bank filed its motion for
summary judgment. In response, the Milans filed an
"emergency motion to stay plaintiff's motion for
summary judgment pursuant to M.R.C.P. 56(f)" and a
separate "motion for leave to conduct discovery."
In support of both motions, the Milans asserted that the
mortgage on which U.S. Bank had foreclosed was procured by
fraud, and that the Milans' signatures appearing thereon
were forged; accordingly, the Milans suggested they were
entitled to conduct discovery into the question of fraud or
forgery, including a deposition of the closing attorney and
procurement of a handwriting ...