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Bank of New York Mellon v. Morin

Appeals Court of Massachusetts, Bristol

November 18, 2019

BANK OF NEW YORK MELLON[1]
v.
TIMOTHY MORIN & others. [2]

          Heard: March 11, 2019.

         Summary Process. Complaint filed in the Southeast Division of the Housing Court Department on September 21, 2016.

          After 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.

          Laura F. Camara for the defendants.

          Shawn M. Masterson for the plaintiff.

          Present: Massing, Ditkoff, & Wendlandt, JJ.

          DITKOFF, J.

         The 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.

         1. Background.

         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.

         In 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 default.

         In 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.

         On 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.

         In late 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.

         On 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 personnel appeared.

         On 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.

         On 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 granted summary judgment and possession to the bank. This appeal followed.

         2. Standa ...


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