NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-11742

LINDA PINTI & another[1]  vs.  EMIGRANT MORTGAGE COMPANY, INC., & another.[2]

Middlesex.     January 8, 2015. – July 17, 2015.

Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

Mortgage, Foreclosure, Real estate.  Real Property, Mortgage, Sale.  Sale, Real estate.  Notice, Foreclosure of mortgage.  Declaratory Relief.  Practice, Civil, Declaratory proceeding, Summary judgment.

Civil action commenced in the Superior Court Department on January 31, 2013.

The case was heard by Maureen B. Hogan, J., on motions for summary judgment.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Richard M.W. Bauer (Stefanie A. Balandis, Amanda B. Loring, & Geoffry Walsh with him) for the plaintiffs.

Howard M. Brown (Sarah Ann Smegal, Tom Looney, & Lauren Solar with him) for Harold Wilion.

Michael P. Robinson for Emigrant Mortgage Company, Inc.

The following submitted briefs for amici curiae:

James P. Long, pro se.

Daniel D. Bahls & Courtney Clemente for Community Legal Aid.

Grace C. Ross, pro se.

BOTSFORD, J.  In 2012, the defendant Emigrant Mortgage Company, Inc. (Emigrant), foreclosed on the mortgage of the plaintiffs Lesley Phillips and Linda Pinti by exercise of the power of sale contained in the mortgage.  Thereafter, the plaintiffs filed this action in the Superior Court against Emigrant and the defendant Harold Wilion, the purchaser of the property at the foreclosure sale, seeking a declaratory judgment that the sale was void because Emigrant failed to comply with paragraph 22 of the mortgage, which concerns the mortgagee’s provision of notice to the mortgagor of default and the right to cure, and also the remedies available to the mortgagee upon the mortgagor’s failure to cure the default, including the power of sale (notice of default provisions).  We agree with the plaintiffs that strict compliance with the notice of default provisions in paragraph 22 of the mortgage was required as a condition of a valid foreclosure sale, and that Emigrant failed to meet the strict compliance requirement.  Accordingly, we reverse the allowance of the defendant Emigrant’s motion to dismiss and of the defendant Wilion’s motion for summary judgment.[3]

Background.[4]  Phillips purchased a condominium unit (property) in Cambridge in 1982.  In 2005, she transferred title to the property by quitclaim deed to herself and her spouse, Pinti, as tenants by the entirety.  On March 13, 2008, Pinti and Phillips granted a mortgage on the property to Emigrant to secure a $ 160,000 loan.[5]  Paragraph 22 of the mortgage provides that, prior to acceleration of the loan following any breach of the mortgage by the plaintiffs, Emigrant is required to notify the plaintiffs of “(a) the default; (b) the action required to cure the default; (c) a date, not less than [thirty] days from the date the notice is given to [the plaintiffs], by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by [the mortgage].”  Paragraph 22 further provides that such notice must inform the plaintiffs “of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of [the plaintiffs] to acceleration and sale” (emphasis added), and adds that upon failure to cure the default, Emigrant may invoke “the statutory power of sale.”[6]

In August and September of 2009, the plaintiffs failed to make the monthly mortgage payments that were due.  On September 29, 2009, Emigrant sent a notice of default to the plaintiffs pursuant to paragraph 22.  The notice stated that the plaintiffs had failed to make monthly mortgage payments, demanded payment of a sum sufficient to satisfy the outstanding amount by December 28, 2009, and noted that the mortgagee could invoke the statutory power of sale if the plaintiffs failed to cure the default in the time allowed.  Finally, the notice stated that “notice is hereby given that [the plaintiffs] have the right to assert in any lawsuit for foreclosure and sale the nonexistence of a default or any other defense [they] may have to acceleration and foreclosure and sale” (emphasis added).

In 2011, Pinti sent Emigrant a “qualified written request” (QWR) that asked Emigrant to identify the holder of the plaintiffs’ mortgage and the owner of Pinti’s loan.[7]  The letter also requested copies of any assignment of the plaintiffs’ mortgage, and of Pinti’s promissory note “in its current condition showing all endorsements and/or allonges.”  Emigrant’s response to the QWR, dated August 22, 2011, indicated that ESB-MH Holdings, LLC (ESB-MH), owned the loan, but that Emigrant held and serviced the loan.  The response enclosed a copy of Emigrant’s assignment of the plaintiffs’ mortgage and note to ESB-MH; the assignment was signed by Filippo Ruggiero, “Vice President” of Emigrant.  It appears on the face of the assignment that Ruggiero executed it on November 30, 2009, but Emigrant’s response to the QWR asserts that “the assignment transferring ownership of the note and mortgage to [ESB-MH] has not been recorded and the original note and mortgage, as well as the assignment of the mortgage[,] are in the possession of [Emigrant,] which is prosecuting the foreclosure action as the holder and servicer of the loan.”  Emigrant’s response to the QWR also enclosed Pinti’s note with an allonge indicating that the note had been paid to the order of ESB-MH without recourse by Emigrant, and then endorsed in blank without recourse by ESB-MH.

     Emigrant published a notice of foreclosure sale regarding the plaintiffs’ property in the Boston Herald on June 12, 19, and 26, 2012.  Wilion purchased the property at the foreclosure sale held on August 9, 2012, and obtained a foreclosure deed from Emigrant dated September 10, 2012.  Wilion then initiated a summary process action against the plaintiffs in the District Court.

     On January 31, 2013, the plaintiffs filed the present action against the defendants in the Superior Court.  The plaintiffs’ complaint sought a judgment declaring that the foreclosure sale was void, and asserted multiple theories supporting this claim, two of which are relevant to this appeal:  (1) Emigrant’s September 29, 2009, notice of default did not comply with paragraph 22 because it did not explicitly inform the plaintiffs of “the right to bring a court action to assert the non-existence of a default or any other defense of [the plaintiffs] to acceleration and sale,” as required by the paragraph; and (2) Emigrant did not hold the relevant mortgage and promissory note when it foreclosed on the property.  In addition, the complaint sought a judgment declaring that Wilion failed to comply with the prerequisites for initiating a summary process action on the ground that Wilion, to whom Emigrant sold the property, did not have superior title to the property because Emigrant did not lawfully foreclose.[8]

Emigrant filed a motion to dismiss the plaintiffs’ complaint under Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974).  Separately, Wilion filed a counterclaim seeking a judgment declaring that the foreclosure and foreclosure sale were valid and, consequently, that Wilion possessed superior title to the property by virtue of the foreclosure deed.  Shortly thereafter, Wilion filed a motion for summary judgment with respect to the plaintiffs’ complaint and his counterclaim, and the plaintiffs filed a cross motion for summary judgment in their favor on both their complaint and Wilion’s counterclaim.

     After a hearing, a judge in the Superior Court allowed Wilion’s motion for summary judgment and denied the plaintiffs’ cross-motion.  The judge rejected the plaintiffs’ argument that Emigrant’s notice of default rendered the foreclosure void, reasoning that Emigrant was not required strictly to comply with a term of the mortgage, such as the notice of default and right-to-cure provisions of paragraph 22, that had no direct relationship to the power of sale.  The judge also determined there was no genuine factual dispute that Emigrant validly held the mortgage and the note at the time of the foreclosure sale.  In accordance with her decision, a judgment entered in favor of Wilion on his counterclaim that declared the foreclosure of the mortgage and the foreclosure sale were valid and, therefore, that Wilion held good title to the property.  In a separate decision, the judge also allowed Emigrant’s motion to dismiss for reasons substantially similar to those in her summary judgment decision.  The plaintiffs timely appealed, and we transferred the appeal to this court on our own motion.

Discussion.  1.  Standard of review.  “We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’”  Juliano v. Simpson, 461 Mass. 527, 529-530 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).  “Because our review is de novo, we accord no deference to the decision of the motion judge.”  DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013).  De novo review also applies to the judge’s dismissal of the plaintiffs’ complaint under Mass. R. Civ. P. 12 (b) (1) and (6).  See Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011).  See also Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007).

2.  Compliance with paragraph 22.  The plaintiffs argue that Emigrant was required to conduct the foreclosure sale in strict compliance with paragraph 22.  They reason that under this court’s decisions, compliance with the terms of the mortgage describing the steps that lead up to foreclosure, beginning with the notice of default provision spelled out in paragraph 22, is a necessary component of the power of sale provided in the mortgage as well as of the statutory power of sale set out in G. L. c. 183, § 21 (§ 21).[9]  Conversely, the defendants contend that this court’s decision in U.S. Bank Nat’l Ass’n v. Schumacher, 467 Mass. 421, 422 (2014) (Schumacher), concerning the notice of default and right-to-cure notice provisions of G. L. c. 244, § 35A (§ 35A), and the relationship between § 35A and the power of sale in § 21, dictates that strict compliance with the analogous contractual notice of default provision of paragraph 22 was not required because like § 35A, paragraph 22 is not part of the power of sale.  Agreeing with the motion judge, they argue that Emigrant’s notice of default was required only to comply with paragraph 22 substantially, not strictly, and that the notice sent by Emigrant to the plaintiffs met this standard.  Even if we were to assume that Emigrant’s notice did qualify as “substantial compliance” with the notice of default provisions of paragraph 22, we disagree that such compliance was sufficient for a valid foreclosure sale in this case; strict adherence to the notice of default provisions in the paragraph was required.

“Massachusetts does not require a [mortgagee] to obtain judicial authorization to foreclose on a mortgaged property.”  U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 645-646 (2011) (Ibanez).   Accordingly, a mortgagee may conduct a foreclosure by exercise of the statutory power of sale set out in § 21, where, as here, the mortgage itself gives the mortgagee a power of sale and includes by reference the statutory power.  See Ibanez, supra at 646.  Under the terms of the statutory power of sale, the power may be exercised “upon any default in the performance” of a condition of the mortgage, such as the mortgagor’s failure to pay the note underlying the mortgage.  G. L. c. 183, § 21.  Exercise of the power entitles a mortgagee to sell the mortgaged property at public auction, convey the property to the purchaser in fee simple, “and such sale shall forever bar the mortgagor and all persons claiming under him from all right and interest in the mortgaged premises, whether at law or in equity.”  Id.  See Ibanez, supra.  Section 21 expressly requires, however, that to effectuate a valid foreclosure sale pursuant to a power of sale, the mortgagee must “first comply[] with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale.”

This court has recently reemphasized the point that in light of “the substantial power that the statutory scheme affords to a [mortgagee] to foreclose without immediate judicial oversight, we adhere to the familiar rule that ‘one who sells under a power [of sale] must follow strictly its terms’”; the failure to do so results in “no valid execution of the power, and the sale is wholly void.”  Ibanez, 458 Mass. at 646, quoting Moore v. Dick, 187 Mass. 207, 211 (1905).  See Pryor v. Baker, 133 Mass. 459, 460 (1882) (“The exercise of a power to sell by a mortgagee is always carefully watched, and is to be exercised with careful regard to the interests of the mortgagor”).  This is true with respect to terms that are connected to the power of sale contained in the mortgage instrument itself,[10] and to terms contained in § 21, the statutory power of sale, or in one of “the statutes relating to the foreclosure of mortgages by the exercise of a power of sale” to which § 21 refers.[11]

Wilion asserts, correctly, that in a number of our foreclosure cases requiring strict compliance with mortgage terms relating to a power of sale, the terms at issue were connected to the foreclosure sale itself.  See McGreevey v. Charlestown Five Cents Sav. Bank, 294 Mass. 480, 481, 484 (1936) (although mortgaged property was located in Medford, in Middlesex County, mortgage required foreclosure sale to be advertised and held in Suffolk County; advertisement in Medford newspaper complied with statutory requirement in G. L. [Ter. Ed.] c. 244, § 14, but did not comply with terms of mortgage, rendering foreclosure sale void); Moore, 187 Mass. at 210-212 (noncompliance with mortgage term identifying newspaper in which foreclosure sale was to be advertised rendered foreclosure sale void).  But none of these cases indicates or even suggests that the court’s holding turned on the fact that the terms of the mortgage with which the mortgagee failed to comply related directly to the foreclosure sale.  Rather, the point was the more general one that the terms of the power of sale, whatever they might be, demanded strict compliance.  Indeed, our cases have indicated consistently that the mortgagee, to effect a valid foreclosure sale, must strictly comply not only with the terms of the actual power of sale in the mortgage, but also with any conditions precedent to the exercise of the power that the mortgage might contain.  See Roarty v. Mitchell, 7 Gray 243, 243-244 (1856) (where mortgage provided that upon default of payment by mortgagor, mortgagee “may enter and take possession of said premises immediately, and may sell and dispose of the same, on giving two weeks’ notice thereof publicly,” entry and possession by mortgagee were conditions precedent to exercise of power of sale; absence of entry and possession by mortgagee prior to foreclosure sale rendered it void); Smith v. Provin, 4 Allen 516, 516, 518 (1862) (mortgage contained power of sale to be exercised upon default by mortgagor, plus certain “conditions annexed to the power of sale,” including requirement that within one year following foreclosure sale, mortgagee was to make and record affidavit of compliance with requirements of deed; mortgagee’s failure to comply with this “annexed” condition rendered foreclosure sale void); Rogers v. Barnes, 169 Mass. 179, 184 (1897) (“Still the general rule is that conditions precedent to the execution of a power of sale must be strictly complied with”); McGreevey, 294 Mass. at 484 (“This court has said that the general rule is that conditions precedent to the execution of a power of sale must be strictly complied with”  [quotation and citation omitted]).  See also Foster, Hall & Adams Co. v. Sayles, 213 Mass. 319, 321-324 (1913).[12]

Emigrant contends that cases such as Foster, Hall & Adams Co., supra; Moore, supra; and Smith, supra, are inapplicable here because they predate the enactment of the statutory power of sale set forth in § 21, which was enacted in 1912.  See St. 1912, c. 502, § 6.  The argument is unavailing.  “Mortgages containing a power of sale existed at least as early as one hundred years before enactment of the statutory power.”  Eaton v. Federal Nat’l Mtge. Ass’n, 462 Mass. 569, 580 n.16 (2012).  As reflected in the title of the act that established the statutory power of sale, “An Act to shorten the forms of deeds, mortgages and other instruments relating to real property,”[13] § 21 was enacted to give the power of sale “statutory form to shorten the length of mortgage instruments.”  Eaton, supra.  Nothing in the language or history of § 21 suggests that the Legislature intended the statute to disavow or alter this court’s rulings that mortgage terms associated with the power of sale must be followed strictly.  Indeed, § 21 by its terms offers explicit support for this conclusion, in expressly directing that one who seeks to conduct a foreclosure sale pursuant to the statutory power of sale must first comply with “the terms of the mortgage” and “the statutes relating to the foreclosure of mortgages by the exercise of a power of sale,” and taking care to list these two requirements separately.  See note 9, supra.

In advancing their argument, the plaintiffs correctly do not contend that to effectuate a valid exercise of a power of sale contained in a mortgage, a mortgagee must demonstrate punctilious performance of every single mortgage term.  As illustrated by the cases previously discussed, our decisions suggest that the mortgage terms requiring strict compliance are limited to (1) terms directly concerned with the foreclosure sale authorized by the power of sale in the mortgage, and (2) those prescribing actions the mortgagee must take in connection with the foreclosure sale — whether before or after the sale takes place.[14]  Insofar as the plaintiffs’ mortgage is concerned, paragraph 22 begins by requiring notice of default to be given prior to any acceleration of the sums secured by the mortgage; then specifically prescribes the contents of the notice of default; and then provides that, if the default is not cured before the date specified in the notice, the mortgagee may invoke the statutory power of sale (as well as pursue other remedies).  As the paragraph is written, therefore, the sending of the prescribed notice of default is essentially a prerequisite to use of the mortgage’s power of sale, because the power of sale may be invoked only if the default is not cured within the time specified in the notice of default.  In this regard, we agree with the plaintiffs that the “terms of the mortgage” with which strict compliance is required — both as a matter of common law under this court’s decisions and under § 21[15] — include not only the provisions in paragraph 22 relating to the foreclosure sale itself, but also the provisions requiring and prescribing the preforeclosure notice of default.  See Foster, Hall & Adams Co., 213 Mass. at 322-324.[16]

Because the plaintiffs entered into their mortgage with Emigrant in Massachusetts, a nonjudicial foreclosure State, the default provision in paragraph 22 of their mortgage provided that Emigrant’s notice regarding the plaintiffs’ default and right to cure had to inform the plaintiffs of “the right to bring a court action to assert the non-existence of a default or any other defense of [the plaintiffs] to acceleration and sale” (emphasis added).  See Beaton v. Land Court, 367 Mass. 385, 392-393 (1975) (discussing mortgagor’s avenues of relief from foreclosure through court actions).  The language that Emigrant used in the default notice that it actually sent to the plaintiffs — that the plaintiffs “have the right to assert in any lawsuit for foreclosure and sale the nonexistence of a default or any other defense [they] may have to acceleration and foreclosure and sale” (emphasis added) — presumably would comply with the requirements of paragraph 22 in a judicial foreclosure State,[17]but not in Massachusetts.  If, as the defendants argue, “substantial compliance” with paragraph 22 were sufficient, and if the erroneous information sent to the plaintiffs constituted substantial compliance, it is obvious that Massachusetts mortgagors, including the plaintiffs, could be misled into thinking that they had no need to initiate a preforeclosure action against the mortgagee but could wait to advance a challenge or defense to foreclosure as a response to a lawsuit initiated by the mortgagee — even though, as a practical matter, such a lawsuit would never be brought.[18]^,[19]  It is hardly unfair or burdensome to require a mortgagee such as Emigrant to comply with the provisions of paragraph 22 in one of its own mortgages by sending a notice that conforms to the language of the paragraph.  Given this, we find no compelling reason to bless a notice of default that fails accurately to notify Massachusetts mortgagors of their right, and need, to initiate a legal action if they seek to challenge the validity of the foreclosure.[20]

Nevertheless, the defendants argue that our decision in Schumacher, 467 Mass. 421, controls the result in this case and signifies that strict compliance with paragraph 22 is not required as a condition of a valid foreclosure sale.[21]  In Schumacher, the mortgagor, who was in default, received a notice of default from a mortgage servicer that inaccurately identified the current mortgagee, id. at 423-424; the mortgagor argued that this false identification resulted in a failure to satisfy the requirements of G. L. c. 244, § 35A, and invalidated the subsequent foreclosure sale of his property.[22]  Id. at 427-428.  The legal issue presented on appeal was “whether § 35A is part of the foreclosure process itself and, if so, whether a mortgagee’s failure to comply strictly with its provisions, particularly the notice requirements, renders a foreclosure sale void.”  Id. at 422.  Resolution of this issue required consideration of § 35A in relation to the statutory power of sale in § 21, and in particular § 21′s provision that upon default a mortgagee may sell the mortgaged premises, but only after first complying “with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale” (emphasis in original).  Schumacher, 467 Mass. at 430, quoting G. L. c. 183, § 21.  The mortgagor in Schumacher contended that § 35A was such a statute and, accordingly, that the mortgagee was obligated to comply fully with § 35A’s provisions as a condition of a valid foreclosure sale.  Schumacher, supra.  We disagreed.  We noted the statutes that have been identified as governing the power of sale, see id. at 429, but concluded that § 35A had a different purpose.  Id. at 431.  In particular, § 35A was specifically designed to protect existing and new homeowners by giving them a reasonably generous period of time to cure a default without loan acceleration and the threat of foreclosure.  See id. at 430-431.  As such, we held, § 35A was “not one of the statutes ‘relating to the foreclosure of mortgages by the exercise of a power of sale.’”  Id. at 431, quoting G. L. c. 183, § 21.  We concluded, therefore, that strict or exact compliance with all the provisions of § 35A was not a prerequisite of a valid foreclosure.  Schumacher, supra at 430-431.

We recognize, as the defendants argue, that there are substantive similarities between § 35A and paragraph 22:  both require notice of default, of the right to cure, of the deadline by which the default must be cured, and that failure to cure the default may result in acceleration and foreclosure by sale.  But we disagree that Schumacher controls in this case, and signifies that a mortgagee need not comply strictly with paragraph 22.  This is so because the notice provisions in paragraph 22 are “terms of the mortgage,” not terms of a statute “relating to the foreclosure of mortgages by the exercise of a power of sale.”  G. L. c. 183, § 21.  See Wells Fargo Bank, N.A. v. Cook, 87 Mass. App. Ct. 382, 389-390 (2015) (Schumacher does not control where issue is whether mortgagee must comply with certain terms of mortgage as opposed to statute relating to foreclosure).

As Schumacher, 467 Mass. at 429, suggests, there is a well-established set of statutes relating to mortgage foreclosures effected pursuant to a power of sale:  § 21 and G. L. c. 244, §§ 11–17C.  See Eaton, 462 Mass. at 581 (“In addition to G. L. c. 183, § 21, itself, the ‘statutes relating to the foreclosure of mortgages by the exercise of a power of sale,’ id., are set out in G. L. c. 244, §§ 11-17C”); Ibanez, 458 Mass. at 646 (power of sale in mortgage includes reference to G. L. c. 183, § 21, and is “further regulated by G. L. c. 244, §§ 11-17C”).  Each of the statutes included within G. L. c. 244, §§ 11-17C, pertains to the process and mechanics of the foreclosure sale itself.  But as the discussion supra reflects, our cases concerned with mortgage terms requiring strict compliance have never identified a specific set of such terms, and have not limited the need for strict compliance to terms concerned directly with the foreclosure sale itself.  Rather, they have taken a more flexible approach.  Accordingly, although § 21 requires in the same sentence a foreclosing mortgagee to comply with both “the terms of the mortgage” and with “the statutes relating to the foreclosure of mortgages by the exercise of a power of sale,” we read each of these requirements as being separately grounded and having an independent meaning.  The fact that § 21 does not incorporate § 35A into the fixed set of foreclosure sale statutes demanding strict compliance does not mean that strict compliance with the notice provisions in paragraph 22 is not required.  In sum, Schumacher does not alter our conclusion that, in the Emigrant mortgage instrument executed by the plaintiffs, the provisions of paragraph 22 constitute “terms of the mortgage” governing the power of sale, and that, in order to conduct a valid foreclosure, Emigrant was obligated to comply strictly with paragraph 22′s notice of default provisions.

Given our conclusion, the question presents itself whether Emigrant’s failure to comply strictly with the default notice provisions of paragraph 22 renders the title obtained by Wilion as a result of the subsequent foreclosure sale voidable rather than void.[23]  See Chace v. Morse, 189 Mass. 559, 561-562 (1905), and cases cited.  As the court observed in Chace, this is not always an easy question to answer:

“The distinction between the two classes of cases [void and voidable] has not been very clearly defined, and the decisions in the different jurisdictions do not entirely agree.  It has repeatedly been said that in order to make a valid sale under a power in a mortgage, the terms of the power must be strictly complied with.  Roarty v. Mitchell, 7 Gray, 243 [(1856)]; Smith v. Provin, 4 Allen, 516 [(1862]) . . . .  Where the sale is to foreclose a mortgage for a breach of the condition, there is no authority to sell unless there is a breach, and an attempted sale would be without effect upon the right of redemption.  So, where a certain notice is prescribed, a sale without any notice, or upon a notice, lacking the essential requirements of the written power, would be void as a proceeding for foreclosure.  Moore v. Dick, 187 Mass. 207 [(1905)].  But if everything is done upon which jurisdiction and authority to make a sale depend, irregularities in the manner of doing it, or in the subsequent proceedings, which may affect injuriously the rights of the mortgagor, do not necessarily render the sale a nullity.  The sale will be invalid so far as to enable the mortgagor, or perhaps the purchaser, to avoid it, and still be effectual if all the parties interested desire to have it stand.”

Id.  See Bevilacqua v. Rodriguez, 460 Mass. 762, 778 (2011) (“Generally, the key question in this regard is whether the transaction is void, in which case it is a nullity such that title never left possession of the original owner, or merely voidable, in which case a bona fide purchaser may take good title”).

As the quoted passage from Chace, supra, suggests, a bona fide purchaser’s “title is not to be affected by mere irregularities in executing a power of sale contained in a mortgage, of which irregularities he has no knowledge, actual or constructive.”  Rogers, 169 Mass. at 183-184.  As applied to this case, therefore, the question of void versus voidable may be reframed to ask whether the failure of Emigrant, as the mortgagee, to send the plaintiffs a notice of default providing the actual information required by the terms of the mortgage concerning the plaintiffs’ right “to bring a court action” in order to raise any defense to the foreclosure sale is a “mere irregularity” that does not affect the validity of the property’s title.  As previously discussed, in a nonjudicial foreclosure jurisdiction like Massachusetts, misstating this information in a way to suggest that a mortgagor with a defense does not need to initiate a lawsuit but may wait to respond to a foreclosure lawsuit filed by the mortgagee can have disastrous consequences for the mortgagor:  if the mortgagor has a valid defense to the foreclosure sale going forward, but is not made aware that he or she must initiate an action in court against the mortgagee to raise that defense, the sale may well proceed and result in title passing to a bona fide purchaser without knowledge of the issue — at which point, and depending on the nature of the defense, the mortgagor’s right to redeem his or her home may well be lost.  See Bevilacqua, 460 Mass. at 777-778.[24]  Emigrant’s failure to provide the required and correct information on this point in the notice of default cannot fairly be described as a “mere irregularit[y] in executing a power of sale contained in a mortgage.”  Rogers, supra.  Contrast Chace, 189 Mass. at 562.  The failure renders the subsequent foreclosure sale to Wilion void.

The position taken by the dissent is that strict compliance by Emigrant with the notice of default provisions in paragraph 22 was required, but that Emigrant’s failure to do so did not render the foreclosure sale void.  See post at    .  In the dissent’s view, the result in this case is essentially controlled by our decision in Schumacher.  See post at    .  The dissent reasons that § 35A, the subject of Schumacher, and the notice of default provisions in paragraph 22 are birds of a feather in terms of purpose and operation; that for the same reasons Schumacher concludes § 35A was not a statute relating to the foreclosure by sale, so paragraph 22 is not a term of the mortgage concerned with foreclosure by sale; and, consequently, as was the case in Schumacher, Emigrant’s defective notice of default rendered the foreclosure sale only voidable, not void.

We disagree.  The dissent fails to take into account the distinction –- reflected in our cases and in the language of § 21 — between the “terms of the mortgage” instrument relating to foreclosure by exercise of the power of sale, and “statutes” relating to foreclosure by the power of sale.  But this distinction is a critical one.  As discussed previously, that § 35A is not one of the statutes relating to foreclosure by the power of sale to which § 21 refers does not answer whether the provisions of paragraph 22 qualify as “terms of the mortgage” relating and integrally connected to the power of sale under § 21.  And as to that question, this court’s decisions about mortgage terms indicate that by structure and content, the notice of default required to be given under paragraph 22 is integrally connected, and operates as a prerequisite, to the proper exercise of the mortgage instrument’s power of sale.  Emigrant’s strict compliance with the notice of default required by paragraph 22 was necessary in order for the foreclosure sale to be valid; Emigrant’s failure to strictly comply rendered the sale void.

We turn to the question whether our decision in this case should be given prospective effect only, because the failure of a mortgagee to provide the mortgagor with the notice of default required by the mortgage is not a matter of record and, therefore, where there is a foreclosure sale in a title chain, ascertaining whether clear record title exists may not be possible.  We confronted the same issue in Eaton, 462 Mass. at 586-587.  As Eaton also indicates, in the property law context, we have been more willing to apply our decisions prospectively than in other contexts.  See id. at 588.  We conclude that in this case, because of the possible impact that our decision may have on the validity of titles, it is appropriate to give our decision prospective effect only:  it will apply to mortgage foreclosure sales of properties that are the subject of a mortgage containing paragraph 22 or its equivalent and for which the notice of default required by paragraph 22 is sent after the date of this opinion.  As in Eaton, however, and for the reasons stated there, we will apply our ruling to the parties in the present case.  See id. at 589, and cases cited.[25]

The dissent questions the efficacy of prospective relief to alleviate the consequences of this decision for future purchasers because there is no requirement that in the case of a standard mortgage instrument containing paragraph 22 (see note 16, supra), a foreclosing mortgagee record the notice of default sent to the mortgagor pursuant to that paragraph.  Post at    .  There may not be a statutory requirement at this time, but a mortgagee remains free to execute and then record an affidavit of compliance with the notice provisions of paragraph 22 that includes a copy of the notice that was sent to the mortgagor pursuant to that paragraph, and we presume that going forward, as a general matter, mortgagees will do so.  See G. L. c. 183, § 5B.[26]

3.  Mortgage and note.  Given our conclusion that the foreclosure sale was void, we need not decide the plaintiffs’ alternative claim that the motion judge erred in allowing Wilion’s motion for summary judgment because there was a genuine issue of material fact in dispute concerning whether Emigrant was actually the mortgagee at the time of the foreclosure sale or had previously assigned the mortgage to ESB-MH.

Conclusion.  The declaratory judgment of the Superior Court and the orders allowing Wilion’s motion for summary judgment and dismissing the plaintiffs’ complaint are reversed.  The case is remanded to the Superior Court for proceedings consistent with this opinion.

So ordered.