U.S. Bank National Association v. Schumacher (Lawyers Weekly No. 10-041-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11490   U.S. BANK NATIONAL ASSOCIATION, trustee,[1]  vs.  JOHN SCHUMACHER & another.[2] Worcester.     November 7, 2013.  ‑  March 12, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Mortgage, Foreclosure, Real estate.  Summary Process.  Practice, Civil, Summary process.  Jurisdiction, Summary process, Housing Court, Equitable.  Notice.  Housing Court, Jurisdiction.       Summary process.  Complaint filed in the Worcester County Division of the Housing Court Department on April 12, 2010.   The case was heard by Timothy F. Sullivan, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Max Weinstein (Paul R. Collier, III, with him) for the defendants. Jeffrey S. Patterson (Morgan T. Nickerson with him) for the plaintiff. The following submitted briefs for amici curiae: Allen Acosta, Sora J. Kim, & Uri Y. Strauss for Community Legal Aid, Inc. Geoffry Walsh for National Consumer Law Center.   Benjamin O. Adeyinka for Real Estate Bar Association for Massachusetts, Inc., & another. Martha Coakley, Attorney General, & M. Claire Masinton, Lisa R. Dyen, & Stephanie Kahn, Assistant Attorneys General, for the Commonwealth. Grace C. Ross, pro se.     SPINA, J.  General Laws c. 244, § 35A, inserted by St. 2007, c. 206, § 11, gives a mortgagor of residential real property in the Commonwealth a ninety-day right to cure a payment default before foreclosure proceedings may be commenced.  In this summary process action, we consider 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.  The property at issue was owned by the defendant, John Schumacher, and is located partially in the town of Clinton and partially in the town of Lancaster, at 1204 Main Street (property).  On April 12, 2010, U.S. Bank National Association, as trustee for Bear Stearns Asset-Backed Securities Trust 2004-AC4 (bank), filed a summons and complaint in the Worcester County Division of the Housing Court Department against Schumacher, seeking to evict him from the property following its sale to the bank at a foreclosure auction.  On May 25, 2012, a judge entered judgment in favor of the bank for possession, plus court costs.  Schumacher appealed, and we transferred the case to this court on our own motion.  We now conclude that G. L. c. 244, § 35A, is not part of […]

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