March 11, 2019.
N.E.3d 399] SUMMARY PROCESS. Complaint filed in the Attleboro
Division of the District Court Department on November 16,
2015. SUMMARY PROCESS. Complaint filed in the Southeast
Division of the Housing Court Department on September 21,
transfer to the Southeast Division of the Housing Court
Department and consolidation, the case was heard by Timothy
F. Sullivan, J., on motions for summary judgment.
F. Camara, for the defendants.
M. Masterson, Pawtucket, for the plaintiff.
Massing, Ditkoff, & Wendlandt, JJ.
defendants, homeowners and occupants of a home in Attleboro,
appeal from the entry of summary judgment in favor of the
plaintiff, Bank of New York Mellon as trustee for
investors in a security (bank), in consolidated
postforeclosure summary process cases in the Housing Court.
We conclude that the notice to cure required by G. L. c. 244,
� 35A, does not apply after a proper acceleration of a
mortgage debt but that here there is a genuine issue of
material fact whether the debt was accelerated within the
statutory time period. We further conclude that there are
genuine issues of material fact whether the bank fulfilled
its statutory duty under G. L. c. 244, � 35B, to take all
reasonable steps and make a good faith effort to avoid
foreclosure, and whether the foreclosure [136 N.E.3d 400]
sale actually occurred. Accordingly, we reverse.
Defendants Timothy and Nancy Morin (borrowers) purchased 122
Emory Street in Attleboro (property) in 1989 and have resided
there since. In 2005, the borrowers took out a loan from
Countrywide Home Loans, Inc. (Countrywide), executing an
"interest only fixed rate note" in the amount of
$206,125. As security for the note, the borrowers executed a
thirty-year mortgage in favor of Mortgage Electronic
Registration Systems, Inc., as nominee for Countrywide.
April 2008, the borrowers defaulted. On May 5, 2008,
Countrywide sent the borrowers a notice, pursuant to G. L. c.
244, � 35A, informing them that they were in default and had
a right to cure the default within ninety days and avoid
acceleration of the loan. The borrowers promptly cured the
2009, the borrowers again fell behind on their monthly loan
payments. On December 21, 2010, the loan servicer, Bank of
America Home Loans, sent the borrowers a notice of intention
to foreclose. The letter informed the borrowers of their
right (derived from the mortgage) to cure the default within
thirty days. The letter stated, "If the default is not
cured on or before January 20, 2011, the mortgage payments
will be accelerated with the full amount remaining
accelerated and becoming due and payable in full, and the
mortgagee may take steps to terminate [the borrowers’]
ownership in the property by a foreclosure proceeding."
The note and mortgage were thereafter transferred to the
bank. The borrowers failed to cure the second default.
March 6, 2012, the bank filed an action against the borrowers
under the Servicemembers Civil Relief Act. On March 13, 2012,
the bank’s attorney sent the borrowers a letter that stated,
"[The bank] has brought to our attention your delinquent
mortgage account regarding the property located at 122 Emory
Street, Attleboro, MA, and the acceleration of the entire
The letter further informed the borrowers that they had
thirty days to notify the bank of any dispute as to the
validity of the debt, but that this would not necessarily
prevent the bank from filing a complaint to foreclose the
mortgage within that time.
2014 to early 2015, the borrowers’ household income
increased, such that they were now able to afford a
substantial monthly payment. The parties agreed that
"[t]he [borrowers] wanted to avoid foreclosure and, had
they been notified of the foreclosure protections provided by
M.G.L. c. 244 � 35B, they would have taken advantage of such
statutory protections." On March 4, 2015, Green Tree
Servicing LLC (Green Tree), the loan servicer for the bank,
generated a letter to the borrowers informing them that they
were ineligible for the Home Affordable Modification Program
(HAMP) because they did not return all the required documents
and that they had thirty days to appeal that determination.
March 9, 2015 (five days later), the bank sent the borrowers
a letter notifying them of the bank’s intention to foreclose
by sale on or after March 30, 2015, at 12 P.M. The bank
published a notice of the foreclosure sale in the Sun
Chronicle newspaper on March 9, 16, and 23, 2015. On March
20, 2015, however, the bank sent the borrowers a letter
notifying them that the auction "was postponed by public
proclamation of the auctioneer" to April 30, 2015, at 10
A.M. The letter indicated that the sale would still take
place at the property. The bank purports to have held an
auction and purchased the property on April 30, 2015. The
borrowers, however, aver that they were physically present at
[136 N.E.3d 401] the property on both scheduled auction days
and no bank personnel appeared.
October 21, 2015, the bank served the borrowers with a notice
to quit and vacate a property located at 146 Margin Street,
Lawrence, rather than the borrowers’ Attleboro home. The
notice was addressed to the borrowers -- Timothy and Nancy
Morin -- but neglected to name the other three adult
occupants residing at the Attleboro home. On November 4,
2015, the bank served the borrowers with a copy of the
summons and complaint. Again, the other occupants were not
named. The bank rectified this error by serving a separate
summary process action against the other occupants and
consolidating the two actions.
July 12, 2016, the bank filed a motion for summary judgment
on its claim for possession of the property. The defendants
filed a cross-motion for summary judgment and counterclaims
for violations of G. L. c. 93A. The judge ...