Heard: March 11, 2019.
Process. Complaint filed in the Southeast Division of the
Housing Court Department on September 21, 2016.
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 for the plaintiff.
Present: 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 sale actually occurred. Accordingly, we reverse.
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 indebtedness." 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
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
the property on both scheduled auction days and no bank
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.
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 granted summary
judgment and possession to the bank. This appeal followed.