Brady, et al. v. Citizens Union Savings Bank, et al. (Lawyers Weekly No. 11-152-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1641 Appeals Court W. NANCY BRADY, executrix,[1] & another[2] vs. CITIZENS UNION SAVINGS BANK[3] & another.[4] No. 14-P-1641. Bristol. June 1, 2015. – September 30, 2015. Present: Sullivan, Maldonado, & Massing, JJ. Probate Court, Attorney’s fees, Trust. Trust, Attorney’s fees. Practice, Civil, Attorney’s fees. Executor and Administrator, Attorney’s fees. Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011. The case was heard by Virginia M. Ward, J. Philip J. Laffey for Dale Eggers. Edwin F. Landers, Jr., for W. Nancy Brady. Ben Nathan Dunlap for Edwin J. Haznar, Jr. MASSING, J. Defendant Dale Eggers, a beneficiary of the William O. Smith Trust (the trust), appeals from a decree issued by a judge of the Probate and Family Court awarding attorney’s fees, costs, and compensation for professional services to be paid to the plaintiffs from trust funds. The plaintiffs’ petition to the court claimed that their decedents (the trustees) had rendered legal and accounting services to the trust and had incurred expenses in their defense of a lawsuit that Eggers initiated against them in connection with their duties as trustees. The amount of the award was nearly sixty percent of the value of the trust at the time of the petition. While we do not reach the question of the reasonableness of the award, we remand the case for the judge to “undertake a more specific and searching analysis of the actual requests for fees and costs submitted than the record suggests took place.” Matter of the Estate of King, 455 Mass. 796, 809 (2010) (King). Background. Eggers’s father, Wilson O. Smith, established the trust in 1987. Among the beneficiaries were Smith’s wife, Betty Georgas (who was not Eggers’s mother), Eggers, and Eggers’s children. In December, 2006, Eggers and one of her daughters initiated a lawsuit in the Probate and Family Court against the trustees, Thomas T. Brady and Edwin J. Haznar, alleging breach of fiduciary duty in their 1994 conveyance of a Florida property out of the trust to Georgas (the prior action). After nearly four years of litigation, on November 8, 2010, summary judgment entered in favor of the trustees. Among the grounds for judgment was that the prior action was barred by the statute of limitations because Eggers […]
Ciampa v. Bank of America, et al. (Lawyers Weekly No. 11-109-15)
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-1179 Appeals Court JAMIE CIAMPA, individually and as administratrix,[1] vs. BANK OF AMERICA[2] & another.[3] No. 14-P-1179. Essex. June 3, 2015. – August 13, 2015. Present: Meade, Hanlon, & Blake, JJ. Individual Retirement Account. Mistake. Trust, Beneficiary, Mistake. Complaint for instructions filed in the Essex Division of the Probate and Family Court Department on May 5, 2010. The case was heard by Susan D. Ricci, J. W. Matthew Iler, Jr., for the plaintiff. Robert A. Delle for J. Edward Cotgageorge. MEADE, J. This case requires us to review the propriety of the allocation of a sixty-six percent share of an individual retirement account (IRA) of the decedent, Priscilla Cotgageorge (Priscilla). Following her death, that share was to be paid to a named contingent beneficiary whose identity cannot be ascertained. Both Priscilla’s daughter, the plaintiff Jamie Ciampa (Jamie), and her stepson, the defendant J. Edward Cotgageorge (Edward), claim to be that contingent beneficiary and, consequently, to be entitled to that share. After a trial, a judge of the Probate and Family Court awarded the sixty-six percent share, as well as the other thirty-four percent share, to Edward. Jamie appeals, and we vacate the decree. 1. Background. We summarize the facts found by the judge, supplementing with uncontroverted evidence in the record. Yankee Microwave, Inc. v. Petricca Communications Sys., Inc., 53 Mass. App. Ct. 497, 499 (2002). Priscilla died intestate in 2007; her husband, James Cotgageorge (James), had predeceased her. Priscilla and James had two children during their marriage: a daughter, Jamie, who enjoyed a close relationship with Priscilla, and a son, Michael.[4] Edward was Priscilla’s stepson, and except for a few short visits and a summer spent living with her and James in Marblehead, Edward lived across the country and was generally uninvolved in the family affairs. At the time of her death, Priscilla owned an IRA held by the defendant Bank of America, doing business as Merrill Lynch Wealth Management (Merrill).[5] Priscilla opened the account in November, 1997, by signing an IRA agreement form and funding the account. The parties stipulated that while Priscilla had signed the form, the handwriting on the rest of the form was not hers. The form named her husband, James, as the sole primary beneficiary,[6] and named two people as contingent beneficiaries: “James Cotgageorge, Jr.” […]
Murphy v. Wachovia Bank of Delaware, N.A., et al. (Lawyers Weekly No. 11-108-15)
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 13-P-1943 Appeals Court HAROLD B. MURPHY, trustee,[1] vs. WACHOVIA BANK OF DELAWARE, N.A., & another.[2] No. 13-P-1943. Middlesex. November 12, 2014. – August 13, 2015. Present: Kafker, Cohen, & Milkey, JJ. Mortgage, Real estate, Foreclosure, Assignment, Junior lien. Real Property, Mortgage. Judicial Estoppel. Civil action commenced in the Superior Court Department on May 29, 2008. The case was heard by Dennis J. Curran, J. David M. Bizar for Wachovia Bank of Delaware, N.A. John C. Elstad for the plaintiff. COHEN, J. This case concerns the proper distribution of surplus funds after a foreclosure sale initiated and conducted by the holder of a second mortgage. After a jury-waived trial, a judge of the Superior Court ruled that defendant Wachovia Bank of Delaware, N.A. (Wachovia), erroneously distributed surplus funds to the holder of the first mortgage, Wells Fargo Bank, N.A. (Wells Fargo), instead of to the mortgagor, Nigel Thorpe. The judge therefore ordered Wachovia to pay $ 178,626.61, plus interest and costs, to the plaintiff, Harold B. Murphy, as trustee of the bankruptcy estate of Thorpe (trustee). On appeal, Wachovia argues that it was entitled to disburse the funds to Wells Fargo, but even if it was not, it had valid equitable defenses to the trustee’s claims.[3] For the reasons that follow, we affirm. Background. We summarize the judge’s findings, supplemented by additional undisputed facts.[4] Prior to the foreclosure sale, Thorpe was the owner of residential property in Wilmington. The property was encumbered by two mortgages: a first mortgage dated March 23, 1999, held by Wells Fargo, and a second mortgage, dated July 26, 2000, held by Wachovia. In March, 2006, Thorpe defaulted on the payment obligations secured by the second mortgage, and Wachovia exercised its statutory power of sale to foreclose on the property.[5] The notice of sale to Thorpe and to any potential buyers provided that “[b]y virtue and in execution of the Power of Sale contained in [the second mortgage], . . . [t]hese premises will be sold and conveyed subject to . . . all unpaid . . . liens or existing encumbrances of record which are in force and are applicable, having priority over said mortgage.” On July 25, 2006, Wachovia conducted a foreclosure auction. At that time, the outstanding debt secured by the Wachovia mortgage was $ 130,000, and the outstanding debt secured […]
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 […]
Deutsche Bank National Trust Company v. Fitchburg Capital, LLC, et al. (Lawyers Weekly No. 10-062-15)
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 SJC-11756 DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1] vs. FITCHBURG CAPITAL, LLC, & others.[2] Suffolk. January 5, 2015. – April 15, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Real estate, Discharge, Foreclosure, Dragnet clause. Real Property, Mortgage. Limitations, Statute of. Practice, Civil, Summary judgment, Statute of limitations. Statute, Retroactive application, Construction. Due Process of Law, Retroactive application of statute, Statute of limitations. Constitutional Law, Contract clause. Civil action commenced in the Land Court Department on July 2, 2012. A motion for partial summary judgment was heard by Robert B. Foster, J., and entry of separate and final judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jeffrey T. Angley (Robert K. Hopkins with him) for Fitchburg Capital, LLC. Jeffrey B. Loeb for the plaintiff. Thomas O. Moriarty, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Philip F. Coppinger, for Ry-Co International, Ltd., amicus curiae, submitted a brief. HINES, J. Under a 2006 amendment to the so-called “obsolete mortgage” statute, a mortgage becomes unenforceable after a certain number of years: a mortgage in which the term or maturity date is stated becomes unenforceable five years after the expiration of the term and a mortgage in which the term or maturity date is not stated becomes unenforceable thirty-five years after recording.[3] G. L. c. 260, § 33, as amended by St. 2006, c. 63, § 6. The defendant Fitchburg Capital, LLC (Fitchburg), foreclosed on two mortgages at a time when both mortgages would be unenforceable under the amended statute if the five-year statute of limitations was applicable. In this appeal, we interpret the amended statute to determine whether a mortgage stating only the term or maturity date of the underlying debt is a “mortgage in which the term or maturity date of the mortgage is stated” under G. L. c. 260, § 33, and whether the retroactive application of § 33 to mortgages recorded before the effective date of the amendment is constitutional. The plaintiff, Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset-backed Pass-through Certificates, Series 2004-R11 under the Pooling and Servicing Agreement dated as of December 1, 2004 (Deutsche Bank), filed a motion for partial summary judgment seeking a declaration that the mortgages are […]
Haskins v. Deutsche Bank National Trust Company, et al. (Lawyers Weekly No. 11-146-14)
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 13-P-506 Appeals Court JOHN E. HASKINS vs. DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1] & others.[2] No. 13-P-506. Worcester. September 3, 2014. – November 10, 2014. Present: Green, Graham, & Katzmann, JJ. Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Assignment. Consumer Protection Act, Investigative demand. Fraud. Practice, Civil, Complaint. Contract, Implied covenant of good faith and fair dealing. Civil action commenced in the Superior Court Department on June 13, 2012. A motion to dismiss was heard by Janet Kenton-Walker, J. Adam T. Sherwin for the plaintiff. Christopher A. Cornetta for the defendants. GREEN, J. We are called upon to address a question raised but not resolved in U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421 (2014) (Schumacher): whether a notice of a mortgagor’s right to cure a mortgage loan default, sent pursuant to G. L. c. 244, § 35A, is deficient if it is sent by the mortgage servicing agent (rather than the record holder of the mortgage), or if it identifies the servicing agent as the mortgage holder. We conclude that the notice in the present case complied with the statute, and affirm the judgment of the Superior Court dismissing the plaintiff’s complaint.[3] Background. The plaintiff, John E. Haskins, purchased his residence at 98 Southville Road, Southborough, in 2002. In 2004, incident to a refinancing transaction, he granted a mortgage to defendant Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First Magnus Financial Corporation (First Magnus).[4] Haskins thereafter defaulted on his loan payment obligations and, by letter dated May 4, 2010, IndyMac Mortgage Services, the mortgage servicing division of defendant OneWest Bank, FSB (IndyMac), informed Haskins that he was in default, but that he had the right to cure the default within ninety days. The letter identified “IndyMac Mortgage Services, a Division of OneWest Bank” as the mortgage holder.[5] In fact, record title to the mortgage was held at the time by MERS, and the equitable or beneficial ownership of the loan secured by the mortgage was held by defendant Deutsche Bank National Trust Company (Deutsche Bank), as trustee of the Residential Asset Securitization Trust 2004-A2, Mortgage Pass-Through Certificates, Series 2004-B (securitization trust). By letter dated December 8, 2010, IndyMac again advised Haskins of the default, and of his right to cure the default (this time within 150 days); like the May […]
Bank of America, N.A., et al. v. Babcock, et al. (Lawyers Weekly No. 10-176-14)
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-11651 BANK OF AMERICA, N.A. & another,[1] trustees,[2] vs. VICTORIA BABCOCK & others.[3] October 28, 2014. Trust, Taxation. Taxation, Marital deduction. Practice, Civil, Declaratory proceeding. The trustees of the Indenture of Trust of Hollis W. Plimpton, Jr., dated June 24, 1964, as amended, also known as the Hollis W. Plimpton, Jr. Family Trust (trust), filed a complaint in the county court, pursuant to G. L. c. 231A, seeking a declaration that the trust as drafted correctly expresses the intent of Hollis W. Plimpton, Jr. (settlor) that his estate be eligible to obtain the optimal benefit of allowable Federal and State estate tax marital deductions.[4] Alternatively, the trustees seek an order rewording a portion of the trust to ensure that it accomplishes the settlor’s intent, pursuant to G. L. c. 215, § 6. A single justice of this court reserved and reported the case to the full court. Litigants have sought reformation of trusts, and judicial declarations of rights in will and trust cases, from this court in a variety of situations under the Bosch rubric. See Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456 (1967). The cases raise issues of State law, which the parties have asked us to resolve because of their Federal tax implications. See Walker v. Walker, 433 Mass. 581, 582 (2001); Kirchick v. Guerry, 429 Mass. 215, 217 (1999) (court decides State law issues in Bosch cases, not Federal law issues). “We have decided [such] cases . . . not only when the parties have been actively engaged in disputes with the Internal Revenue Service, but also, on occasion, when the parties have sought decisions that would enable them to plan their estates correctly and to prepare effectively for future tax consequences.” Walker v. Walker, supra at 582-583 (2001). See Shawmut Bank, N.A. v. Buckley, 422 Mass. 706, 709-710 (1996); Billings v. Fowler, 361 Mass. 230, 233-234 (1972). In the latter category, our cases have involved situations where there is a clear mistake in the drafting or some real uncertainty about the meaning of an instrument that would lead inevitably to adverse tax consequences in the future. See, e.g., Hillman v. Hillman, 433 Mass. 590 (2001). See also Linehan v. Linehan, 453 Mass. 1017, 1018 (2009), and cases cited. These features are noticeably absent from the case before us. There is […]
Golrick v. U.S. Bank, N.A. (Lawyers Weekly No. 10-126-14)
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-11632 JEANNE A. GOLRICK vs. U.S. BANK, N.A. July 17, 2014. Supreme Judicial Court, Superintendence of inferior courts. The petitioner filed a petition in the county court pursuant to G. L. c. 211, § 3, challenging a Superior Court order denying her request that the respondent’s attorney be disqualified from representing the respondent in the underlying litigation between the parties. A single justice of this court denied the petition without a hearing, and the petitioner appealed. We affirm. The case is before us on a memorandum and appendix filed by the petitioner pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule requires the petitioner to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” She has failed to carry her burden. The alternative remedy in this case is clear: the petitioner can adequately obtain review of the order denying disqualification of the respondent’s counsel in an appeal from the adverse final judgment.[1] Masiello v. Perini Corp., 394 Mass. 842, 850 (1985) (citation omitted). Borman v. Borman, 378 Mass. 775, 779 (1979). General Laws c. 211, § 3, is not a substitute for the normal process of trial and appeal, and the petitioner has not demonstrated any extraordinary circumstances rendering the ordinary remedy inadequate. Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Jeanne A. Golrick, pro se. David W. Merritt for the respondent. [1] The Superior Court docket indicates that judgment now has entered for the respondent and that the petitioner has in fact filed a notice of appeal. Full-text Opinions
The Bank of New York Mellon Corp. v. Wain, et al. (Lawyers Weekly No. 11-072-14)
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 13‑P‑101 Appeals Court THE BANK OF NEW YORK MELLON CORP., trustee,[1] vs. DAVID WAIN & another.[2] No. 13‑P‑101. Suffolk. November 1, 2013. ‑ June 24, 2014. Present: Kafker, Milkey, & Hines, JJ. Mortgage, Assignment, Foreclosure. Notice, Foreclosure of mortgage. Real Property, Mortgage. Practice, Civil, Summary judgment, Standing. Assignment. Land Court, Jurisdiction. Jurisdiction, Land Court. Civil action commenced in the Land Court Department on February 6, 2012. The case was heard by Alexander H. Sands, III, J., on motions for summary judgment. Jamie Ranney for the defendants. David W. Merritt for the plaintiff. MILKEY, J. David Wain and Donovan Kerr (collectively, the homeowners) owned property in Nantucket that was subject to a mortgage. The Bank of New York Mellon Corp. (bank) acquired that mortgage through an assignment from the original mortgagee. After the homeowners defaulted, the bank foreclosed and purchased the property at the foreclosure sale. The bank then filed an action to quiet title, and the homeowners filed counterclaims seeking to challenge the validity of the foreclosure on various grounds. In a detailed and thoughtful decision, a Land Court judge ruled in the bank’s favor on summary judgment. We affirm, albeit on different grounds. Background. Except as otherwise noted, the facts are undisputed. At a closing for the property held on November 15, 2006, the homeowners executed a note and mortgage for $ 707,000. The mortgage was recorded at the local registry of deeds the following day. The original mortgagee was Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the Union Capital Mortgage Business Trust. After the homeowners apparently were unable to keep up with their payments, a mortgage servicing entity known as American Home Mortgage Servicing, Inc. (American Home), sent the homeowners a “notice to cure letter” dated April 5, 2010. See G. L. c. 244, § 35A. That letter informed the homeowners that they were in default, it explained how the default could be cured, and it stated that if they failed to cure by July 4, 2010, a foreclosure would follow. The letter stated that American Home was acting on behalf of “Tbw Mortgage-backed Trust 2007-1,” identified as “the Mortgagee of the Note and Deed of Trust associated with your real estate loan.” On or about July 14, 2010, a vice president of MERS executed a formal assignment […]
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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