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Wells Fargo Bank, N.A. v. Cook, et al. (Lawyers Weekly No. 11-051-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   14-P-381                                        Appeals Court   WELLS FARGO BANK, N.A.  vs.  NANCY B. COOK & another.[1] No. 14-P-381. Suffolk.     January 7, 2015. – May 19, 2015.   Present:  Kafker, Meade, & Maldonado, JJ.     Summary Process.  Mortgage, Foreclosure, Acceleration clause.  Real Property, Mortgage.  Regulation.  Practice, Civil, Summary judgment, Summary process.       Summary Process.  Complaint filed in the Boston Division of the Housing Court Department on August 6, 2012.   The case was heard by MaryLou Muirhead, J., on motions for summary judgment.     Julia E. Devanthery for the defendants. David E. Fialkow for the plaintiff.     KAFKER, J.  Nancy and Abena Cook appeal from the judgment entered in favor of Wells Fargo Bank, N.A. (Wells Fargo), in its postforeclosure summary process action against them in the Boston Housing Court.  The Cooks contend that the judge erred in granting summary judgment for Wells Fargo on its claim for possession because (1) the judge should have considered the United States Department of Housing and Urban Development (HUD) Handbook No. 4330.1 REV-5, Administration of Insured Home Mortgages (1994) (HUD Handbook), as interpretive guidance to discern the meaning of the HUD regulations incorporated into the mortgage, and (2) the August 12, 2008, meeting Wells Fargo held at Gillette Stadium for defaulting mortgagors did not satisfy the procedural or substantive requirements set out in the HUD regulations at 24 C.F.R. § 203.604(b) (2008), as the Gillette Stadium event was untimely and did not provide for a face-to-face meeting with a representative of the lender authorized to negotiate modification of payment provisions.  We conclude that the HUD Handbook should have been considered, that the meeting was untimely, and most importantly, that there are material disputed facts regarding whether the meeting satisfied the substantive face-to-face meeting requirements of the HUD regulations.  Therefore, we vacate the judgment of the Boston Housing Court in favor of Wells Fargo.[2] 1.  Background.  The facts, construed in the light most favorable to the Cooks, are as follows.  See DiPietro v. Sipex Corp., 69 Mass. App. Ct. 29, 30 (2007).  In 1971, Nancy Cook purchased property at 38-40 Rosewood Street in Mattapan, and in 2006 became co-owner of the property with her daughter Abena Cook.  In March, 2008, the Cooks refinanced the property with a loan from Fairfield Financial Mortgage Group, Inc.  To secure the loan, the Cooks granted a mortgage, including […]

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Posted by Massachusetts Legal Resources - May 19, 2015 at 4:37 pm

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