(with first initial, no space for Sullivan, Dorsey, and
Walsh): Yarashus, Valerie A., J.
MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR
PARTIAL SUMMARY JUDGMENT AS TO INTEREST
Valerie A. Yarashus Justice Superior Court
case arises out of a foreclosure which was determined to be
void by the Supreme Judicial Court in Pinti v. Emigrant
Mortgage Co., 472 Mass. 226 (2015). As a result of that
decision, the sale of the property was void, the transaction
was unwound and the purchase price was returned to the buyer
more than three years after the sale. The plaintiff, Stewart
Title Guaranty Company ("Stewart Title"),
and the defendant, Emigrant Mortgage Co.
("Emigrant") have now cross moved for partial
summary judgment on the sole issue of whether, as a matter of
law, Emigrant was required to refund not only the purchase
price to the buyer, Harold Wilion, but also interest
from the date of the sale to the date the funds were
returned. For the reasons stated below, Stewart Titleâs
Motion for Partial Summary Judgment on this issue is ALLOWED
and Emigrantâs Cross Motion for Summary Judgment is
relevant facts in this matter are not disputed. On March 13,
2008, Linda S. Pinti and Lesley R. Phillips (collectively,
"Pinti") purchased the property located at 1643
Cambridge Street, Unit 52, in Cambridge, Massachusetts (the
"Property"). Pinti executed and delivered a
promissory note to Emigrant in the amount of $160, 000.00. To
secure the loan obligation, Pinti gave a mortgage for the
Property to Emigrant on the same date. Eventually, Pinti
defaulted on the loan and Emigrant initiated foreclosure
conducted its foreclosure sale of the Property on August 9,
2012. The original plaintiff in the instant action, Harold
Wilion ("Wilion"), was the highest bidder and
purchased the Property at this foreclosure sale. In exchange
for the purchase price of $260, 000.00, Emigrant gave Wilion
a foreclosure deed to the Property on September 10, 2012. In
connection with this foreclosure sale, Wilion obtained a
policy of title insurance which was underwritten by Stewart
remained at the Property, and so Wilion filed a summary
process action for possession in the Cambridge District Court
against Pinti. Pinti defended the summary process action and
raised issues of the validity of the foreclosure sale in the
Superior Court action of Pinti v. Emigrant Mortgage Co.,
Inc., Civil Action No. 1381CV00348. The Superior Court
entered judgment against Pinti, who appealed. The Supreme
Judicial Court accepted the matter sua sponte for
direct appellate review. On July 17, 2015, the SJC issued its
decision in Pinti and held that Emigrant failed to
comply strictly with the notice provision set forth in
paragraph 22 of the Propertyâs mortgage and therefore the
foreclosure sale to Wilion was void. See 472 Mass. at
227, 242. The SJC gave its decision in Pinti
prospective application only, but applied its decision to the
parties in Pinti. Id. at 243.
result of the decision and a demand letter, Emigrant returned
the purchase price of $260, 000.00 to Wilion by check with a
cover letter dated October 8, 2015. Although Wilion included
a demand for interest, Emigrant declined to include interest
with its check, based on its interpretation that interest was
made a claim to Stewart Title on the policy of title
insurance he purchased in connection with the foreclosure
deed. Stewart Title paid Wilion $120, 000.00 (including the
interest that is the subject of these cross motions for
partial summary judgment), and the parties executed a Release
and Settlement Agreement as well as an Assignment of Claims.
has refused to pay Wilion any additional amount for interest
or otherwise, and has refused Stewart Titleâs similar demands
as subrogee and assignee to Wilionâs rights. Statutory
interest on $260, 000.00 from September 10, 2012 (date of
foreclosure sale) through October 13, 2015 (date of repayment
of the purchase price) calculated at 12% per annum pursuant
to G.L.c. 231, § 6C equals $96, 420.82.
Standard for Summary Judgment
judgment is granted where there are no genuine issues of
material fact and where the moving party is entitled to
judgment as a matter of law. Mass.R.Civ.P. 56(c);
Cassesso v. Commissioner of Corr.,390 Mass. 419,
422 (1983); Community Natâl Bank v. Dawes, 369 Mass.
550, 553 (1976). The moving party bears the burden of
affirmatively demonstrating the absence of a triable issue,
and that the summary judgment record entitles the moving
party to judgment as a matter of law. Flesner v.
Technical Commcâns Corp.,410 Mass. 805, 808-09 (1991);
Pederson v. Time, Inc.,404 Mass. 14, 16-17 (1989);
see Kourouvacilis v. General Motors Corp., 410 Mass.
706, 716 (1991). The court considers the evidence presented
in the light most favorable to the nonmoving party.
Mass.R.Civ.P. 56(c); Augat, Inc. v. Liberty Mut. Ins.
Co.,410 Mass. 117, 120 (1991); Parent v. Stone &
Webster Engâg Corp.,408 Mass. 108, 113 (1990);
Flynn v. Boston,59 Mass.App.Ct. 490, 491 (2003).
The nonmoving party, however, cannot rest on his or her
pleadings and mere assertions of disputed facts to defeat ...