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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]