United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
Dennis Saylor, United States District Judge.
an action seeking to forestall a mortgage foreclosure.
Plaintiff Matthew Vanderhoop, who has been in default on his
mortgage for more than ten years, seeks to enjoin defendant
Wilmington Savings Funds Society FSB
(“Wilmington”) from foreclosing on his property.
The Court previously dismissed all claims except for a claim
that Wilmington did not comply with the foreclosure
requirements set forth in Mass. Gen. Laws ch. 244, §
35B. Wilmington has now moved for summary judgment on that
claim. For the following reasons, the motion will be granted.
following facts are as set forth in the record.
quitclaim deed dated January 7, 1995, Matthew and Rachel
Vanderhoop became record owners of real property located at
17 Old South Road (the “property”) in Aquinnah,
Massachusetts. (Zerulik Aff. ¶ 5). On April 24,
2007, Vanderhoop executed a promissory note to borrow $850,
000 from Sovereign Bank. (Def. Ex. A). The note required him
to make monthly payments of $5, 090.72. (Id.). That
same day, Vanderhoop also granted a mortgage on the property
in favor of Sovereign Bank. (Def. Ex. B).
has not made the required monthly payment since October 2008,
more than ten years ago. (Def. Ex. I). Nonetheless, he
continues to possess the property, On September 9, 2014,
Santander Bank, the successor-in-interest to Sovereign Bank,
assigned the mortgage to MTGLQ Investors, L.P. (Def. Ex. C).
It appears that the assignment was not recorded in the Dukes
County Registry of Deeds until May 1, 2015. (Id.).
February 2, 2015, MTGLQ Investors assigned the mortgage to
Wilmington. (Def. Ex. D). It is uncertain when the assignment
was recorded. However, Wilmington attests that the assignment
was recorded on Page 876 of Book 1375 of the Registry.
(Zerulik Aff. ¶ 7).
January 10, 2018, Wilmington assigned the mortgage back to
MTGLQ Investors. (Def. Ex. E). It appears that the assignment
was not recorded until February 14, 2018. (Id.).
February 6, 2018, MTGLQ Investors assigned the mortgage to
Wilmington for a second time. (Def. Ex. F). It appears that
the assignment was not recorded until February 14, 2018.
relevant times, Selene Finance LP has been the servicer of
the note. (Zerulik Aff. ¶ 2). Selene mailed a letter by
First Class and Certified Mail to Vanderhoop dated June 6,
2017, titled “Right to Request a Modified Mortgage
Loan” (the “Section 35B letter”). (Def. Ex.
G, H). The Section 35B letter stated that Vanderhoop was
eligible under Massachusetts law to “request a
modification of [his] mortgage with Selene Finance LP.”
(Id.). The letter also included various enclosures,
including a “Mortgage Modification Options form.”
(Id.). That form offered four choices, including the
option to “request a loan modification.”
(Id.). In order to qualify for a loan modification,
Vanderhoop would have had to, among other things, attach a
complete statement of his total income, assets, and debts.
sent a second letter by First Class and Certified Mail to
Vanderhoop also dated June 6, 2017, titled “90 Day
Right to Cure Your Mortgage Default” (the
“Section 35A letter”). (Def. Ex. I). The Section
35A letter warned that Vanderhoop owed $457, 031.52 and that
the full amount was due by September 4, 2017, or 90 days from
the date of the notice. (Id.). Otherwise, Wilmington
would conduct a foreclosure sale. (Id.).
undisputed that Vanderhoop did not complete and return the
attachments included in the Section 35A and 35B letters, or
otherwise cure the mortgage default before the 90-day
deadline elapsed. (Def. Ex. L).
September 13, 2017, Wilmington filed a complaint against
Vanderhoop pursuant to the Servicemembers Civil Relief Act in
the Land Court. (Zerulik Aff. ¶ 14). The Land Court