Heard: January 12, 2018.
process. Complaint filed in the Boston Division of the
Housing Court Department on February 1, 2010. Civil action
commenced in the Superior Court Department on April 8, 2011.
review by the Supreme Judicial Court of the Superior Court
action, 462 Mass. 569 (2012), the Housing Court action was
transferred to the Superior Court; following consolidation,
the cases were heard by Merita A. Hopkins, J., on motions for
I. Kurtz (H. Esme Caramello also present) for Henrietta
Hackett for Federal National Mortgage Association &
Present: Meade, Sullivan, & Kinder, JJ.
November, 2009, Green Tree Servicing, LLC (Green Tree),
foreclosed on Henrietta Eaton's home, exercising the
power of sale contained in her mortgage. Green Tree, acting
as servicer for Federal National Mortgage Association (Fannie
Mae), offered the highest bid at the auction. As Green
Tree's assignee, Fannie Mae purchased the property and
then brought an eviction action in Housing Court. On the
theory that the foreclosure was void because Green Tree did
not hold the mortgage note at the time of the foreclosure
sale, Eaton brought her own declaratory judgment action in
Superior Court and obtained a preliminary injunction against
the eviction, an injunction which resulted in the Supreme
Judicial Court's oft-cited opinion in Eaton v.
Federal Natl. Mort. Assn., 462 Mass. 569 (2012)
the remand in Eaton I, the Housing Court matter was
transferred to the Superior Court and the two cases were
consolidated. In September, 2016, on cross motions for
summary judgment, a Superior Court judge entered judgment for
Fannie Mae and Green Tree in the consolidated cases.
now appeals, making three arguments. First, she claims a
genuine issue of fact exists regarding the physical
possession of her promissory note at the time of the
foreclosure. Second, she asserts that a preforeclosure right
to cure notice sent by Fannie Mae's predecessor,
BankUnited, FSB (BankUnited), did not strictly comply with
the terms of her mortgage, as required by Pinti v.
Emigrant Mort. Co., 472 Mass. 226 (2015). Third, Eaton
contends that a question of fact exists as to
BankUnited's authority to send the right to cure notice.
We vacate the judgment on the narrow issue of
BankUnited's authority to send the right to cure notice,
and affirm the judgment in all other respects, albeit on
somewhat different grounds.
general background of the case is set forth in Eaton
I, which, as we have noted, considered the grant of a
preliminary injunction. We recite the facts from the summary
judgment record, reserving certain additional facts for later
signed the original note payable to BankUnited on September
12, 2007. On or about October 1, 2007, Fannie Mae purchased a
pool of loans from BankUnited, including Eaton's loan.
Eaton defaulted, and BankUnited sent her a right to cure
notice dated November 14, 2008. In November of 2009, Green
Tree, which had been made Fannie Mae's servicer,
conducted the foreclosure auction that resulted in this
review of the allowance of summary judgment is de novo,
"because we examine the same record and decide the same
questions of law" as the motion judge. Kiribati
Seafood Co., LLC v. Dechert LLP, 478 Mass. 111, 116
(2017) . And, given that "both parties have moved for
summary judgment, [we view] the evidence ... in the light
most favorable to the party against whom judgment is to
enter." Albahari v. Zoning Bd. of Appeals of
Brewster, 76 Mass.App.Ct. 245, 248 n.4 (2010) .
Physical possession of the note at the time of
Eaton's view, Fannie Mae must demonstrate that there is
no dispute of fact that it had physical possession of the
note at the time of the foreclosure. See Eaton I, 462
Mass. at 571 (construing "mortgagee" as used in
certain foreclosure-related statutes as "the person or
entity then holding the mortgage and also either holding the
mortgage note or acting on behalf of the note holder").
Citing Eaton I, 462 Mass. at 571 & n.2, Fannie
Mae disagrees, stating that it is enough for it to have
"owned" the note, regardless of whether it
physically possessed the note, where Green Tree was an
authorized servicer, acting on behalf of Fannie Mae. Thus,
says Fannie Mae, any factual dispute over physical possession
of the note is immaterial. The motion judge agreed, and, on
this basis, declined to determine whether there were facts in
dispute as to whether Fannie Mae had physical possession of