Heard: November 14, 2018
process. Complaint filed in the Nantucket Division of the
District Court Department on July 24, 2012.
case was heard by Joseph I. Macy, J.
Marissa I. Delinks for the plaintiff.
B. Vawter for the defendants.
Present: Wolohojian, Hanlon, & Ditkoff, JJ.
issues before us are (1) whether an affidavit of sale was
erroneously excluded from evidence at trial in this summary
process action, and (2) whether the defendants timely and
fairly raised the issue of whether the plaintiff had complied
with paragraph 22 of the mortgage. We conclude that the
affidavit was erroneously excluded from evidence, and a
limited retrial on the subject matter of the affidavit is
required. We also conclude that, although the paragraph 22
issue was not timely and fairly raised in the trial court
such as to entitle the defendants to the retroactive benefit
of the rule announced in Pinti v.
Emigrant Mtge. Co., 472 Mass. 226, 240 (2015), for
reasons we explain further below, we remand the issue of the
plaintiff's compliance with paragraph 22 for retrial as
plaintiff, Federal Home Loan Mortgage Corporation (Freddie
Mac), brought the underlying summary process action against
the defendants, who continued to live in a property on
Nantucket after they had defaulted on their loan obligations.
Freddie Mac claimed superior right of possession to the
property by virtue of a series of events we describe in the
margin, which culminated in Freddie Mac claiming possession
by virtue of a foreclosure deed. We need highlight only
one additional fact here: Freddie Mac's predecessor in
interest, Provident Funding Associates, L.P. (PFA), recorded
the foreclosure deed on June 12, 2012, which included, among
other things, an affidavit of sale certifying compliance with
G. L. c. 244, § 14. See G. L. c. 244, § 15
(requiring recording of affidavit of sale).
first day of the bench trial, the defendants, relying on
Mass. R. Civ. P. 12 (f), 365 Mass. 754 (1974), filed a motion
to strike the affidavit of sale. Their reliance on that rule
was misplaced because rule 12 (f) provides only a mechanism
by which to strike certain materials from
pleadings.It does not provide a mechanism by
which to exclude potential evidence from trial, as the
defendants sought to do here. Compare Rattigan
v. Wile, 445 Mass. 850, 863 (2006) ("A
pretrial memorandum is not a pleading"). Thus, although
the motion was brought as a motion to strike, it should have
been brought as a motion in limine to exclude evidence;
nonetheless, to avoid confusion and because our standard of
review is the same regardless of the nomenclature, we shall
refer to the motion as it was styled by the defendants below.
See N.E. Physical Therapy Plus, Inc. v.
Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013)
(evidentiary decisions are reviewed for abuse of discretion).
hearing extensive argument, the judge admitted de bene the
affidavit of sale and the foreclosure deed to which it was
attached, subject to further consideration of the motion to
strike. See R. L. Polk & Co. v.
Living Aluminum Corp., 1 Mass.App.Ct. 170, 172
(1973) (order of presentation is within sound discretion of
trial judge, as is admission of evidence de bene). See also
Harris-Lewis v. Mudge, 60
Mass.App.Ct. 480, 485 (2004) (same).
Mac thereafter sought to introduce the affidavit of sale and
the foreclosure deed fully into evidence through Jim
Karanfiloglu, an assistant vice president and legal
department manager of PFA who was also custodian of the
records. Karanfiloglu had personal knowledge of PFA's
business records pertaining to the Nantucket property,
including the foreclosure deed and the attached affidavit. He
testified that the affidavit was prepared and retained by PFA
as a business record "[t]o memorialize the event that
occurred and also according to our business practices and
investor guidelines." Karanfiloglu also testified that
the affidavit was prepared and signed by Edith Cepeda, a
foreclosure specialist at PFA, with whom he had worked for
several years. Cepeda's job responsibilities included
"certifying mortgages that are in default or eligible
for referral to foreclosure. She would manage the foreclosure
file from start to finish, execute any necessary documents.
She is granted the title of assistant vice president to
execute foreclosure documents in that capacity. She's
also an appointed MERS [Mortgage Electronic Registration
Systems, Inc., ] signing officer as well." Karanfiloglu,
who was familiar with Cepeda's signature, identified
Cepeda's signature on the affidavit. See
Commonwealth v. Ryan, 355 Mass.
768, 770-771 (1969) ("A witness who is familiar with a
person's handwriting may give an opinion as to whether
the specimen in question was written by that person").
In addition, he testified that Cepeda told him she had signed
multiple junctures during Karanfiloglu's testimony,
Freddie Mac asked that the certified copy of the affidavit of
sale (as well as the foreclosure deed of which it was a
part), as recorded at the registry of deeds, be admitted.
Relying on Federal Nat'l Mtge. Ass'n
v. Hendricks, 463 Mass. 635 (2012), and
Deutsche Bank Nat'l Trust Co. v.
Gabriel, 81 Mass.App.Ct. 564 (2012), Freddie Mac
contended that the documents were admissible both as
certified copies of public records and as business records.
Ultimately, the trial judge struck the affidavit of sale,
apparently accepting the defendants' arguments that
Hendricks and Gabriel were limited to the
admissibility of certified copies of affidavits of sale
within the context of summary judgment motions, and that
Karanfiloglu did not have personal knowledge of the contents
of the affidavit. However, the judge admitted the certified
copy of the foreclosure deed. This ruling occurred on the
second day of trial, over Freddie Mac's properly
although Freddie Mac presented additional evidence through
several witnesses, none bore on the subject matter of the
affidavit of sale, namely, compliance with the notice and
publication requirements of G. L. c. 244, § 14. Freddie
Mac then rested. The defendants -- having succeeded in
keeping the affidavit of sale out of evidence -- rested
without presenting any evidence, including with respect to
their affirmative defenses. They then filed a motion for
involuntary dismissal pursuant to Mass. R. Civ. P. 41 (b)
(2), 365 Mass. 803 (1974). In addition, in their posttrial
request for findings of fact and rulings of law,
the defendants argued that there had been a failure to comply
with paragraph 22 of the mortgage. See Pinti, 472
Mass. at 240. This was the first time the Pinti
issue had been raised.
trial judge denied the motion for involuntary dismissal, and
entered judgment of possession in favor of Freddie Mac
without making written findings or rulings of law. The judge
did not award Freddie Mac use and occupancy damages.
defendants appealed to the Appellate Division of the District
Court, see G. L. c. 231, § 108; Rule 1(a) of the
Dist./Mun. Cts. Rules for Appellate Division Appeal (1994);
Crystal Constr. Corp. v. Hartigan,
56 Mass.App.Ct. 324, 330 (2002), arguing that the trial judge
erred in denying their motion for involuntary dismissal, and
that the trial judge was required (but failed) to make
written findings and rulings. The Appellate Division reversed
the judge's decision denying the motion for involuntary
dismissal and ordered that judgment of possession be awarded
in the defendants' favor. The Appellate Division reached
that conclusion on two grounds. First, it concluded that,
without the affidavit, Freddie Mac failed to prove that it
had complied with the notice and publication provisions of G.
L. c. 244, § 14. Second, the Appellate Division
concluded that, in any event, Freddie Mac failed to prove
that it had satisfied the notice requirements of paragraph 22
of the mortgage. Of note, the Appellate Division did not
review the trial judge's decision to strike the
affidavit, stating that it believed "the wisdom of the
judge's decision [to exclude so much of the foreclosure
deed that contained the affidavit of sale] is not before
us" and that it was unnecessary to reach the issue in
any event because of the alternate grounds of its holding.
appeal followed, in which Freddie Mac argues (1) that the
statutory affidavit was improperly struck, and if the
affidavit had been admitted, the evidence was sufficient to
prove a prima facie case of Freddie Mac's superior right
to possession, and (2) ...