Grand Manor Condominium Association, et al. v. City of Lowell (Lawyers Weekly No. 10-015-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12294 GRAND MANOR CONDOMINIUM ASSOCIATION & others[1] vs. CITY OF LOWELL. Middlesex. October 5, 2017. – January 19, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Hazardous Materials. Massachusetts Oil and Hazardous Material Release Prevention Act. Real Property, Environmental damage. Limitations, Statute of. Practice, Civil, Statute of limitations. Damages, Hazardous waste contamination. Civil action commenced in the Superior Court Department on October 10, 2012. The case was tried before Kathe M. Tuttman, J. The Supreme Judicial Court granted an application for direct appellate review. Alan B. Rubenstein (Stacie A. Kosinski also present) for the plaintiff. C. Michael Carlson, Assistant City Solicitor (Rachel M. Brown, Assistant City Solicitor, also present) for city of Lowell. KAFKER, J. The owners of condominium units at Grand Manor and the Grand Manor Condominium Association (collectively, plaintiffs) filed suit against the city of Lowell (city) on October 10, 2012, for the release of hazardous materials at the Grand Manor condominium site. The plaintiffs brought claims for response costs under G. L. c. 21E, § 4A, and for damage to the plaintiffs’ property under G. L. c. 21E, § 5 (a) (iii).[2] A jury found that the plaintiffs’ claim under § 5 (a) (iii) was barred by the applicable statute of limitations, G. L. c. 21E, § 11A (4). The plaintiffs appealed, and we granted their application for direct appellate review. On appeal, the plaintiffs argue that (1) the statute of limitations did not begin to run until the plaintiffs knew that the property damage was permanent; and (2) the trial judge erred in instructing the jury that the plaintiffs had the burden of persuasion to show that they filed suit within the statute of limitations. The city contends that the plaintiffs needed to know only that there was environmental damage and that the defendant was the source of the damage, not that the damage was permanent, for the limitations period to begin to run. The city also contends that the jury were properly instructed. We conclude that a plaintiff must be on notice that he or she has a claim under § 5 (a) (iii) before that claim may be time barred, and that such notice is separate from a plaintiff’s notice that environmental contamination has occurred. A plaintiff has notice of a claim under § 5 (a) (iii) once the plaintiff learns whether or not […]
Categories: News Tags: 1001518, Association, City, Condominium, Grand, Lawyers, Lowell, Manor, Weekly
U.S. Bank, National Association, v. Milan, et al. (Lawyers Weekly No. 11-149-17)
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 16-P-1011 Appeals Court U.S. BANK, NATIONAL ASSOCIATION, trustee,[1] vs. STEVEN L. MILAN & another.[2] No. 16-P-1011. Essex. March 1, 2017. – December 4, 2017. Present: Green, Wolohojian, & Sullivan, JJ. Mortgage, Foreclosure, Real estate. Summary Process. Real Property, Mortgage, Sale. Notice, Foreclosure of mortgage. Sale, Real estate. Practice, Civil, Summary process, Retroactivity of judicial holding. Retroactivity of Judicial Holding. Summary process. Complaint filed in the Northeast Division of the Housing Court Department on July 23, 2012. The case was heard by David D. Kerman, J., on motions for summary judgment. Michael R. Murphy (Michael R. Stanley also present) for the plaintiff. Carl D. Goodman for the defendants. GREEN, J. The plaintiff (U.S. Bank) appeals from a judgment of a Housing Court judge, dismissing its complaint for summary process. The Housing Court judge based his order of dismissal on the failure of U.S. Bank’s notice of default to comply strictly with the requirements of paragraph 22 of the mortgage it foreclosed against the defendants, Steven and Karen Milan (Milans), incident to U.S. Bank’s acquisition of title to the property. In so doing, the judge applied the holding of Pinti v. Emigrant Mort. Co., 472 Mass. 226, 241-242 (2015) (Pinti), to invalidate U.S. Bank’s claim of title. We conclude that was error, and reverse. Background. The Milans are the former owners and current occupants of residential property located at 56 Jasper Road in Saugus. On May 16, 2005, incident to a loan refinance, the Milans granted to Mortgage Electronic Registration Systems, Inc. (MERS), a mortgage on the property to secure a note made to Saugus Federal Credit Union.[3] In 2007, the Milans defaulted on the mortgage loan, and on June 18, 2007, U.S. Bank’s servicing agent (which had succeeded MERS as mortgagee by assignment) sent to the Milans the first of several notices of default.[4] The Milans assert, and the Housing Court judge concluded, that the notices did not comply strictly with the requirements specified for such notices in paragraph 22 of the mortgage.[5] Thereafter, U.S. Bank conducted a foreclosure auction, pursuant to the statutory power of sale contained in the mortgage, and (as U.S. Bank was the successful bidder at the auction) a foreclosure deed in favor of U.S. Bank was recorded on June 21, 2012. The Milans […]
Mac’s Homeowners Association, et al. v. Gebo, et al. (Lawyers Weekly No. 11-141-17)
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 16-P-451 Appeals Court MAC’S HOMEOWNERS ASSOCIATION & another[1] vs. JAMES GEBO & others.[2] No. 16-P-451. Essex. February 2, 2017. – November 9, 2017. Present: Green, Meade, & Agnes, JJ. Practice, Civil, Motion to dismiss, Consumer protection case. Manufactured Housing Community. Cooperative Housing. Consumer Protection Act, Standing, Unfair or deceptive act. Civil actions commenced in the Northeast Division of the Housing Court Department on June 24 and July 1, 2014. After consolidation, a motion to dismiss was heard by Timothy F. Sullivan, J., and entry of separate and final judgment was ordered by him. Stephen A. Wasserman for the plaintiffs. Joseph E. Kelleher, III, for the defendants. AGNES, J. The plaintiffs, cooperative housing associations whose members (hereinafter homeowners) own mobile homes located in Mac’s Trailer Park (Mac’s Park) in Peabody, initiated this action claiming that the defendants (hereinafter developers) committed unfair or deceptive acts or practices in violation of G. L. c. 93A, § 2, when they appeared unannounced and declared that they were purchasing Mac’s Park and that the homeowners would have to move or vacate. The developers’ actions are alleged to have been premature, given that the owner of Mac’s Park failed to provide the homeowners with the statutorily mandated notice of sale and opportunity to exercise a right of first refusal, see G. L. c. 140, § 32R, and unlawful, in that, by law, the homeowners’ tenancies could only be terminated for certain specific reasons, none of which were applicable, see G. L. c. 140, § 32J. As a result, the plaintiffs allege that the homeowners put their lives “on hold,” were unable to sell or lease their mobile homes, and suffered extreme emotional distress. Acting on a motion to dismiss filed by the developers, however, a Housing Court judge held that the plaintiffs failed to state a claim upon which relief could be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). This appeal followed, and upon the required de novo review, we conclude that the factual allegations in the plaintiffs’ complaint are sufficient to plausibly suggest an entitlement to relief under G. L. c. 93A. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Background. The following facts are derived from the plaintiffs’ verified complaint. Mac’s Park is a “manufactured housing community,” see G. L. c. 140, § 32F, as appearing in St. 1991, c. […]
Categories: News Tags: 1114117, Association, Gebo, Homeowner’s, Lawyers, Mac’s, Weekly
American Catalog Mailers Association, et al. v. Heffernan (Lawyers Weekly No. 09-003-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1772 BLS1 AMERICAN CATALOG MAILERS ASSOCIATION and NETCHOICE vs. MICHAEL J. HEFFERNAN, in his capacity as Commissioner of the MASSACHUSETTS DEPARTMENT OF REVENUE MEMORANDUM OF DECISION AND ORDER ENTERING DECLARATORY JUDGMENT ON COUNT I OF PLAINTIFFS’ VERIFIED COMPLAINT In this case, the plaintiff trade associations1 challenge the validity of Directive 17-1 issued by the Commissioner of the Massachusetts Department of Revenue (the Commissioner and the DOR, respectively) on April 3, 2017 (the Directive). The Directive is entitled: “Requirement that Out-of-State Internet Vendors with Significant Massachusetts Sales Must Collect Sales or Use Tax.” In effect, it requires that, beginning on July 1, 2017, large internet vendors who do not have places of business in Massachusetts, but have made a minimum number of product sales for delivery into Massachusetts, collect and remit to the DOR Massachusetts sales or use taxes. This is a new policy, as these internet vendors were not previously required to collect sales or use taxes from their online customers who place orders for goods to be delivered in Massachusetts. The plaintiffs’ verified complaint (the complaint) is pled in four counts: Count One asserts that the Directive was issued in violation of the 1 Plaintiff American Catalog Mailers Association is a trade association representing companies engaged in catalog marketing. Plaintiff NetChoice is a trade association of internet companies engaged in online sales. 2 Massachusetts Administrative Procedure Act (G.L. c. 30A, the APA); Count Two asserts that the Directive is preempted by the federal Internet Tax Freedom Act (47 U.S.C. § 151, the IFTA); Count Three asserts that the Directive violates the Commerce Clause of the United States Constitution; and Count Four asserts that the Directive violates the Due Process Clause of the United States Constitution. The case came before the court on June 27, 2017, three days before the Directive was to take effect, on the plaintiffs’ motion for a preliminary injunction enjoining the Commissioner from enforcing the Directive. In their moving papers, the plaintiffs relied on Counts One and Two in pressing their request for preliminary injunctive relief. At the hearing, both the plaintiffs and the Commissioner agreed that as to Count One, which alleges that the Directive was invalid because not promulgated as a regulation pursuant to the APA, there were no facts in dispute, the issue had been fully briefed, and that Count could be resolved as a matter of law on the materials submitted. In consideration of the parties’ memoranda and oral arguments, the court finds that the Directive established a new policy that substantially altered the rights and interests of the regulated parties and therefore had to be promulgated pursuant to sections 2 […]
American Catalog Mailers Association, et al. v. Heffernan (Lawyers Weekly No. 09-004-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1772 BLS1 AMERICAN CATALOG MAILERS ASSOCIATION and NETCHOICE vs. MICHAEL J. HEFFERNAN, in his capacity as Commissioner of the MASSACHUSETTS DEPARTMENT OF REVENUE ORDER ON DEFENDANT’S EMERGENCY MOTION TO VACATE MEMORANDUM OF DECISION AND ORDER ENTERING DECLARATORY JUDGMENT ON COUNT I AND REVISED ORDER FOR THE ENTRY OF FINAL JUDGMENT On June 28, 2017, this Court issued a Memorandum of Decision and Order Entering Declaratory Judgment on Count I of Plaintiff’s Verified Complaint (the Decision). The Decision concluded with the following Order: For the foregoing reasons, Final Judgment shall enter (a) as to Count One of the Complaint, declaring that the Directive is a regulation promulgated without compliance with Sections 2 or 3 of G.L. Chapter 30A and, therefore, invalid; and (b) as to Counts Two through Four dismissing these counts without prejudice. Apparently also on June 28, 2017, the defendant (DOR) revoked the Directive and filed with the court pleadings entitled: “Defendant’s Notice of Immediate Revocation of Department of Revenue Directive 17-1” and “Defendant’s Notice of Objection to Entry of Final Declaratory Judgment on Count I.” The Decision was, however, completed and signed by the Court well before it received these two pleadings. Thereafter, the DOR filed the pending motion in which it asks the court to vacate the Decision. 2 The court denies the motion to the extent that it requests that the Decision be vacated. Count I of the complaint presented a pure issue of law. The parties submitted what appeared to be comprehensive briefs addressing it. There was a lengthy oral argument on the issue on June 27, 2017. The Directive was to go into effect on July 1, 2017. During argument, the DOR rejected the court’s suggestion that it voluntarily delay the date by which internet retailers would have to be in compliance with the Directive. During argument, the court made quite clear its intention to enter a final judgment on Count One (and dismiss the other counts), if it concluded that the Directive was a regulation, as it was undisputed that it had not been promulgated following the procedures required by the Administrative Procedures Act. The DOR expressed no objection to this approach until the following day. By then, the Court had completed and signed the Decision while the matters raised by Count One were still actively in dispute between the parties to this litigation. However, before the separate Final Judgment required by Mass.R.Civ.P. 58 (a) could issue, the court learned that the Directive had been revoked “effective immediately.” It is the court’s understanding that, thereafter, the DOR began the process of promulgating the Directive as a regulation in accordance with the APA. […]
New Bedford Educators Association v. Chairman of the Massachusetts Board of Elementary and Secondary Education, et al. (and two consolidated cases) (Lawyers Weekly No. 11-108-17)
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 16-P-654 Appeals Court NEW BEDFORD EDUCATORS ASSOCIATION vs. CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others[1] (and two consolidated cases[2]). No. 16-P-654. Middlesex. May 4, 2017. – August 23, 2017. Present: Trainor, Vuono, & Sullivan, JJ. Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Relief in the nature of certiorari. Administrative Law, Standing, Judicial review. Declaratory Relief. Mandamus. Board of Education. Commonwealth, Education. Education. School and School Committee. Labor, Public employment. Civil actions commenced in the Superior Court Department on July 18, July 23, and October 21, 2014. After consolidation, motions to dismiss were heard by Kimberly S. Budd, J. Laurie R. Houle for the plaintiffs. Iraida J. Alvarez, Assistant Attorney General (Pierce O. Cray, Assistant Attorney General, also present) for the defendants. VUONO, J. In these consolidated cases, we consider the propriety of actions taken by the Commissioner of the Massachusetts Department of Elementary and Secondary Education (commissioner) and by the Massachusetts Board of Elementary and Secondary Education (board) in creating and approving “turnaround plans” for chronically underperforming schools pursuant to the so-called Achievement Gap Act (Act), G. L. c. 69, § 1J. The plaintiffs, New Bedford Educators Association (NBEA), Holyoke Teachers Association (HTA), and Boston Teachers Union (BTU) (collectively, the unions), filed separate complaints, later amended, in the Superior Court against the commissioner, the board, and its chairman (collectively, the defendants), alleging that the defendants failed to satisfy the requirements of the Act with regard to four chronically underperforming schools located in New Bedford, Holyoke, and Boston.[3] The unions sought declaratory relief pursuant to G. L. c. 231A. NBEA and HTA also sought certiorari review under G. L. c. 249, § 4, and relief in the nature of mandamus pursuant to G. L. c. 249, § 5. The defendants moved to dismiss the unions’ complaints under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), for lack of subject matter jurisdiction. Following a hearing, a judge dismissed the complaints, concluding that the unions did not have standing to challenge the turnaround plans because the unions’ primary concerns were outside the area of interest protected by G. L. c. 69, § 1J, and because the defendants’ statutory duty was to students, not to local teachers’ unions. On appeal, the unions contend that the judge erred in dismissing their complaints solely on the basis of standing. For the reasons […]
Categories: News Tags: 1110817, Association, Bedford, Board, cases, Chairman, consolidated, Education, Educators, Elementary, Lawyers, massachusetts, Secondary, Weekly
Malden Police Patrolman’s Association v. City of Malden (Lawyers Weekly No. 11-103-17)
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 16-P-494 Appeals Court MALDEN POLICE PATROLMAN’S ASSOCIATION vs. CITY OF MALDEN. No. 16-P-494. Middlesex. February 7, 2017. – August 11, 2017. Present: Trainor, Blake, & Shin, JJ. Practice, Civil, Motion to dismiss, Summary judgment. Superior Court. Rules of the Superior Court. Administrative Law, Primary jurisdiction, Exhaustion of remedies. Unjust Enrichment. Contract, Collective bargaining contract, Unjust enrichment, Promissory estoppel. Public Employment, Collective bargaining. Police, Collective bargaining. Massachusetts Wage Act. Civil Service, Collective bargaining, Municipal finance. Municipal Corporations, Collective bargaining, Municipal finance. Civil action commenced in the Superior Court Department on January 21, 2015. The case was heard by Bruce R. Henry, J., on motions to dismiss and for summary judgment. Christopher G. Fallon for the plaintiff. Albert R. Mason for the defendant. BLAKE, J. The plaintiff, Malden Police Patrolman’s Association (union), is a labor organization comprised of approximately seventy-nine police officers employed by the defendant, the city of Malden (city). The union and the city were parties to a collective bargaining agreement (CBA) covering three fiscal years from July 1, 2010, through June 30, 2013. The CBA set forth the provisions governing, among other matters, paid detail work performed by the officers.[1] During the summer of 2014, the union notified the city that it was in arrears on the payment of compensation to officers for detail work, requested a written explanation for the nonpayment, and demanded the outstanding detail pay. The city took the position that, because the officers earned the detail pay for work performed for third parties, the city was exempt from the provisions of the Massachusetts wage and hour laws, requiring timely payment of earned wages. On January 21, 2015, the union filed a complaint in the Superior Court against the city,[2] alleging that the city owed the officers approximately $ 410,000 in compensation for the performance of past detail work.[3] The complaint requested relief under theories of breach of contract (count I), breach of an implied covenant of good faith and fair dealing (count II), promissory estoppel (count III), unjust enrichment (count IV), and violation of the Massachusetts Wage Act, G. L. c. 149, § 148 (Wage Act) (count V). The union then filed a motion for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The city moved to dismiss the union’s complaint or, in […]
Categories: News Tags: 1110317, Association, City, Lawyers, Malden, Patrolman’s, Police, Weekly
City of Boston v. Boston Police Patrolmen’s Association (Lawyers Weekly No. 10-118-17)
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-12077 CITY OF BOSTON vs. BOSTON POLICE PATROLMEN’S ASSOCIATION. Suffolk. December 5, 2016. – July 12, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Arbitration, Confirmation of award, Authority of arbitrator. Municipal Corporations, Police. Police, Discharge. Public Employment, Police, Termination. Public Policy. Civil action commenced in the Superior Court Department on July 22, 2013. The case was heard by Dennis J. Curran, J. The Supreme Judicial Court granted an application for direct appellate review. Kay H. Hodge (Geoffrey R. Bok also present) for the plaintiff. Alan H. Shapiro (John M. Becker also present) for the defendant. HINES, J. This is an appeal from a judgment of the Superior Court confirming an arbitrator’s award reinstating a Boston police officer terminated for using a choke hold in arresting an unarmed suspect for disorderly conduct and making false statements in the ensuing departmental investigation. The arbitrator found that the officer, David Williams, had applied a choke hold, but that the choke hold had not actually choked the citizen, that the force was reasonable in the circumstances, and that the officer’s subsequent characterization of events was thus truthful. Accordingly, the arbitrator ruled that the city of Boston (city) lacked just cause to terminate Williams, and ordered his reinstatement with back pay. In July, 2013, the city filed a complaint in the Superior Court to vacate the arbitrator’s award. The court dismissed the complaint in June, 2015, and the city appealed. We granted the city’s application for direct appellate review. Because the award neither exceeds the arbitrator’s authority nor violates public policy, and because we are not free to vacate it where no underlying misconduct was found, we affirm. Background. a. Facts. On January 18, 2012, the city discharged Williams based on specifications arising from a disorderly conduct arrest on March 16, 2009. The specifications were use of excessive force, in violation of Boston police department rule 304 on use of nonlethal force, and untruthfulness in the subsequent investigation, in violation of rule 102, § 23, on truthfulness. Chosen by mutual agreement of the city and the Boston Police Patrolmen’s Association (union) pursuant to a collective bargaining agreement (CBA), an arbitrator held three days of hearings, concluded that the city had proved neither charge, and ordered Williams’s reinstatement […]
Categories: News Tags: 1011817, Association, boston, City, Lawyers, Patrolmen’s, Police, Weekly
Federal National Mortgage Association v. Gordon, et al. (Lawyers Weekly No. 11-060-17)
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 15-P-441 Appeals Court FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. HEATHER GORDON & another.[1] No. 15-P-441. Suffolk. March 8, 2016. – May 17, 2017. Present: Hanlon, Sullivan, & Massing, JJ. Trespass. Real Property, Trespass, Mortgage, Lease. Mortgage, Foreclosure. Landlord and Tenant, Control of premises. Housing Court, Jurisdiction. Jurisdiction, Housing Court. Summary Process. Practice, Civil, Summary judgment, Summary process. Civil action commenced in the City of Boston Division of the Housing Court Department on June 24, 2013. The case was heard by MaryLou Muirhead, J., on a motion for summary judgment. Thomas B. Vawter for the defendants. Danielle C. Gaudreau (Thomas J. Santolucito also present) for the plaintiff. HANLON, J. The defendants in this trespass action, Heather Gordon and her granddaughter, Kaire Holman, challenge the validity of a judgment for possession entered by the Housing Court in favor of the plaintiff, the Federal National Mortgage Association (Fannie Mae), on its motion for summary judgment. Fannie Mae claims ownership, through foreclosure, of the residential condominium at issue, known as Unit 2 at 7 Valentine Street, in the Roxbury section of Boston (the property). Gordon claims that she and Holman occupy the property pursuant to a lease from Carolyn Grant, who held record title to the condominium as a joint tenant with Gilbert R. Emery prior to the foreclosure. The lease on which Gordon and Holman rely, however, is dated after both (i) the date of the foreclosure, and (ii) the date on which Fannie Mae began a summary process action against Emery, Grant, and another occupant[2] to obtain possession of the property. When Fannie Mae learned that Gordon and others had moved into the property as ostensible lessees, Fannie Mae brought a new action (separate from the summary process case) for common law trespass, which is the case now before us.[3] After review, we reverse the final judgment, holding as follows: (i) the Housing Court has jurisdiction pursuant to G. L. c. 185C, § 3, to hear trespass claims; (ii) the teaching of Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 288 (1992) (Dime Savings), with respect to whether G. L. c. 184, § 18, bars trespass actions by postforeclosure owners against tenants with actual possession, applies with equal force in the circumstances of this case; and (iii) the summary judgment record does […]
Federal National Mortgage Association v. Marroquin, et al. (Lawyers Weekly No. 10-074-17)
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-12139 FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. ELVITRIA M. MARROQUIN & others.[1] Essex. January 9, 2017. – May 11, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Mortgage, Foreclosure, Real estate. Real Property, Mortgage, Sale. Notice, Foreclosure of mortgage. Summary process. Complaint filed in the Northeast Division of the Housing Court Department on June 18, 2012. The case was heard by David D. Kerman, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Cody J. Cocanig for the plaintiff. Dayne Lee (Eloise P. Lawrence also present) for Elvitria M. Marroquin. Joshua T. Gutierrez, Daniel D. Bahls, & Andrew S. Webman, for Lewis R. Fleischner & another, amici curiae, submitted a brief. GANTS, C.J. In Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 227, 232 (2015), we held that a foreclosure by statutory power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, is invalid unless the notice of default strictly complies with paragraph 22 of the standard mortgage, which informs the mortgagor of, among other things, the action required to cure the default, and the right of the mortgagor to bring a court action to challenge the existence of a default or to present any defense to acceleration and foreclosure. We applied this holding to the parties in Pinti but concluded that our decision “should be given prospective effect only.” Id. at 243. We therefore declared that the decision “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,” which was issued on July 17, 2015. Id. We did not reach the question whether our holding should be applied to any case pending in the trial court or on appeal. Id. at 243 n.25. We reach that question here, and conclude that the Pinti decision applies in any case where the issue was timely and fairly asserted in the trial court or on appeal before July 17, 2015. Because we conclude that the defendants timely and fairly raised this issue in the Housing Court before that date, and because the notice of default did not strictly […]