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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Moronta v. Nationstar Mortgage, LLC, et al. (Lawyers Weekly No. 10-190-16)
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-12042 ELNEDIS A. MORONTA vs. NATIONSTAR MORTGAGE, LLC, & another.[1] December 22, 2016. Consumer Protection Act, Demand letter. Elnedis A. Moronta commenced this action in the Superior Court, alleging that the defendants, Nationstar Mortgage, LLC (Nationstar), and Fremont Investment and Loan, among other things, violated his rights under G. L. c. 93A. Summary judgment was entered against Moronta on all his claims. On Moronta’s appeal, the Appeals Court concluded that there was a genuine issue of material fact as to Moronta’s c. 93A claim and reversed the grant of summary judgment. Moronta v. Nationstar Mortgage, LLC, 88 Mass. App. Ct. 621, 622 (2015). In doing so, the Appeals Court rejected the defendants’ argument that Moronta’s c. 93A claim was barred due to his failure to serve a demand letter, on the ground that no demand letter is required under G. L. c. 93A, § 9 (3), where “the prospective respondent does not maintain a place of business . . . within the commonwealth,” regardless of whether it “keep[s] assets” here. Moronta, supra at 626 n.11. We granted Nationstar’s application for further appellate review, and we subsequently limited the scope of review to issues concerning the demand letter.[2] The underlying facts of the case are set forth in the Appeals Court’s opinion and need not be repeated here. Moronta, 88 Mass. App. Ct. at 622-625. Before us is a purely legal question concerning the correct interpretation of G. L. c. 93A, § 9 (3). The question is whether, as Moronta argues, a plaintiff is excused from serving a demand letter if the defendant lacks either a place of business or assets in the Commonwealth, or whether, as Nationstar argues, a plaintiff must serve a demand letter unless the defendant has neither a place of business nor assets in the Commonwealth. Put another way, the question is this: if the defendant keeps assets in the Commonwealth, but does not maintain a place of business here, must the plaintiff serve a demand letter? We conclude, as did the Appeals Court, that the plaintiff need not do so. We begin with the “general and familiar rule . . . that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of […]
JB Mortgage Co., LLC v. Ring, et al. (Lawyers Weekly No. 11-109-16)
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-1258 Appeals Court JB MORTGAGE CO., LLC vs. JORDAN L. RING, THIRD, & another.[1] No. 15-P-1258. Middlesex. May 18, 2016. – August 26, 2016. Present: Katzmann, Carhart, & Sullivan, JJ. Guaranty. Limitations, Statute of. Civil action commenced in the Superior Court Department on March 4, 2014. The case was heard by Peter B. Krupp, J. Michael P. Utke (Steven F. Smoot with him) for the plaintiff. Luke Rosseel for Jordan L. Ring, III. KATZMANN, J. The plaintiff, JB Mortgage Co., LLC, appeals from a judgment of the Superior Court dismissing its action to enforce defendant Jordan L. Ring, III’s guaranty of a promissory note secured by a mortgage on real property. The trial judge found that the plaintiff’s suit was barred by the applicable statute of limitations because it was filed more than twenty years after a default existed on the underlying note. The central issue before us is when the cause of action on the guaranty of the note accrued. We affirm. Background. On July 21, 1988, Edward C. Simonian, as trustee of the DX Trust (trust), executed a promissory note in favor of Bank Five for Savings (bank) in the face amount of $ 400,000. Under the note, the trust was required to make monthly payments of principal and interest, with all remaining unpaid balances due two years from the date of execution. In addition to other penalties for failure to make timely payments, the note provided that, “If default be made in the payment of any installment under this note, or if there is a failure to carry out the terms and conditions of the mortgage or any other instrument given as security for this note, . . . the entire principal sum and accrued interest shall at once become due and payable without notice at the option of the holder of this note.”[2] The note was secured by a first mortgage on commercial property in Hull. The note was also backed by a guaranty executed by Simonian and Ring under seal the same day, July 21, 1988. In pertinent part, the guaranty stated: “[T]he undersigned hereby guarantees to the [b]ank the prompt payment and the faithful performance and observance of every liability, obligation, covenant and condition . . . to be paid, performed […]
Federal National Mortgage Association v. Rego, et al. (Lawyers Weekly No. 10-069-16)
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-11927 FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. EDWARD M. REGO & another.[1] Essex. November 3, 2015. – May 24, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Summary Process, Appeal. Mortgage, Foreclosure. Real Property, Mortgage. Practice, Civil, Summary process, Counterclaim and cross-claim. Consumer Protection Act, Unfair act or practice. Housing Court, Jurisdiction. Jurisdiction, Housing Court. Summary Process. Complaint filed in the Northeast Division of the Housing Court Department on August 31, 2012. Motions for partial summary judgment were heard by Timothy F. Sullivan, J., and a motion to dismiss counterclaims was also heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael Weinhold for the defendants. Richard E. Briansky for the plaintiff. Thomas J. Santolucito & Danielle C. Gaudreau, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Daniel Bahls & Amanda Winalski, for Community Legal Aid, amicus curiae, submitted a brief. DUFFLY, J. The plaintiff, Federal National Mortgage Association (Fannie Mae), filed a complaint for summary process in the Housing Court to establish its right to possession of a house that had been owned by Edward M. Rego and Emanuela R. Rego (Regos) that Fannie Mae purchased at a foreclosure sale. In response, the Regos argued that the foreclosure sale conducted by the bank that held the mortgage on the property, GMAC Mortgage, LLC (GMAC), was void because GMAC’s attorneys had not been authorized by a prior writing to undertake the actions set forth in G. L. c. 244, § 14 (§ 14). The Regos also asserted an equitable defense and counterclaims pursuant to G. L. c. 93A. A Housing Court judge allowed Fannie Mae’s motion for summary judgment “as to possession only,” and scheduled a bench trial on the Regos’ counterclaims under G. L. c. 93A. Thereafter, Fannie Mae moved to dismiss the counterclaims for lack of subject matter jurisdiction; that motion was allowed. Final judgment for possession entered in favor of Fannie Mae, and the Regos appealed. We transferred the case to this court on our own motion. We are confronted with two issues in this appeal.[2] First, we consider the meaning of the language in § 14, authorizing “the attorney duly authorized by a writing under seal” to perform acts required by the statutory power of […]
Moronta v. Nationstar Mortgage, LLC, et al. (Lawyers Weekly No. 11-175-15)
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-1805 Appeals Court ELNEDIS A. MORONTA vs. NATIONSTAR MORTGAGE, LLC & another.[1] No. 13-P-1805. Norfolk. December 10, 2014. – November 5, 2015. Present: Katzmann, Hanlon, & Maldonado, JJ. Mortgage, Foreclosure. Real Property, Mortgage. Consumer Protection Act, Mortgage of real estate, Unfair act or practice. Practice, Civil, Consumer protection case, Summary judgment. Civil action commenced in the Superior Court Department on July 23, 2010. A motion for summary judgment was heard by John P. Connor, Jr., J., and a motion for reconsideration was heard by him; a motion for summary judgment was heard by Thomas A. Connors, J.; and judgment was entered by John P. Connor, Jr., J. Irene H. Bagdoian for the plaintiff. Dean J. Wagner for Signature Group Holdings, Inc. Jennifer J. Normand for Nationstar Mortgage, LLC. MALDONADO, J. Elnedis Moronta (the borrower) appeals from final judgments entered following the decisions of judges of the Superior Court granting motions for summary judgment for the defendants on the borrower’s claims that Fremont Investment & Loan (Fremont) and its assignee, Nationstar Mortgage, LLC (Nationstar), (i) violated an injunction imposed on Fremont and later extended to Fremont’s assignees foreclosing on his mortgage without the approval of the Attorney General, (ii) violated G. L. c. 93A by structuring a mortgage consisting of high-cost loans which Fremont had no reasonable expectation the borrower could repay, and misleading the borrower as to the viability of the transaction; (iii) violated c. 93A by using unfair and deceptive loan modification practices; and (iv) should be enjoined from evicting the borrower from his home. Because we conclude that the borrower has at least raised a question of fact on his c. 93A claim, we reverse. Background. On July 9, 2004, the borrower purchased the home located at 152 Independence Avenue in Quincy for $ 348,000 financed with a mortgage loan of $ 330,600 from Wells Fargo Bank, N.A. (Wells Fargo). The Wells Fargo loan was an adjustable rate loan with an initial rate of 5.25 percent and an initial monthly payment of $ 2,137.32, including taxes and insurance. The maximum interest rate was 11.25 percent. After the rate increased to approximately eight percent and his monthly payments increased to $ 2,884, the borrower had difficulty making his monthly mortgage payments along with his credit card debt of approximately $ 630 per month. […]
Pinti, et al. v. Emigrant Mortgage Company, Inc., et al. (Lawyers Weekly No. 10-122-15)
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-11742 LINDA PINTI & another[1] vs. EMIGRANT MORTGAGE COMPANY, INC., & another.[2] Middlesex. January 8, 2015. – July 17, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Foreclosure, Real estate. Real Property, Mortgage, Sale. Sale, Real estate. Notice, Foreclosure of mortgage. Declaratory Relief. Practice, Civil, Declaratory proceeding, Summary judgment. Civil action commenced in the Superior Court Department on January 31, 2013. The case was heard by Maureen B. Hogan, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard M.W. Bauer (Stefanie A. Balandis, Amanda B. Loring, & Geoffry Walsh with him) for the plaintiffs. Howard M. Brown (Sarah Ann Smegal, Tom Looney, & Lauren Solar with him) for Harold Wilion. Michael P. Robinson for Emigrant Mortgage Company, Inc. The following submitted briefs for amici curiae: James P. Long, pro se. Daniel D. Bahls & Courtney Clemente for Community Legal Aid. Grace C. Ross, pro se. BOTSFORD, J. In 2012, the defendant Emigrant Mortgage Company, Inc. (Emigrant), foreclosed on the mortgage of the plaintiffs Lesley Phillips and Linda Pinti by exercise of the power of sale contained in the mortgage. Thereafter, the plaintiffs filed this action in the Superior Court against Emigrant and the defendant Harold Wilion, the purchaser of the property at the foreclosure sale, seeking a declaratory judgment that the sale was void because Emigrant failed to comply with paragraph 22 of the mortgage, which concerns the mortgagee’s provision of notice to the mortgagor of default and the right to cure, and also the remedies available to the mortgagee upon the mortgagor’s failure to cure the default, including the power of sale (notice of default provisions). We agree with the plaintiffs that strict compliance with the notice of default provisions in paragraph 22 of the mortgage was required as a condition of a valid foreclosure sale, and that Emigrant failed to meet the strict compliance requirement. Accordingly, we reverse the allowance of the defendant Emigrant’s motion to dismiss and of the defendant Wilion’s motion for summary judgment.[3] Background.[4] Phillips purchased a condominium unit (property) in Cambridge in 1982. In 2005, she transferred title to the property by quitclaim deed to herself and her spouse, Pinti, as tenants by […]
Shea v. Federal National Mortgage Association, et al. (Lawyers Weekly No. 11-012-15)
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-1630 Appeals Court PAUL SHEA vs. FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.[1] No. 13-P-1630. February 18, 2015. Real Property, Mortgage. Assignment. Mortgage, Real estate, Assignment, Foreclosure. Practice, Civil, Motion to dismiss. At issue is whether a judge properly dismissed[2] the plaintiff’s claims[3] attacking the validity of a mortgage foreclosure to which Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012), does not apply.[4] The plaintiff contends that the foreclosure was void because the mortgage was not validly assigned to OneWest Bank FSB (OneWest), the foreclosing mortgagee. He argues that the assignment was invalid because (1) the assignor never held the underlying note, and (2) the assignment was not specifically authorized by the owner of the debt.[5] We affirm.[6] Background.[7] The plaintiff (and another person who is not a party to this case) purchased the property at issue in April 2005. In 2007, as part of a refinancing of the property, the plaintiff granted a mortgage to IndyMac Bank, FSB (IndyMac) to secure a loan in the amount of $ 281,600. In pertinent part, the 2007 mortgage contained the following provisions. The mortgage defines IndyMac, which is the owner of the debt, as the “Lender.” The mortgage defines Mortgage Electronic Registration System, Inc. (MERS), as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument” (emphasis in original). A section entitled “TRANSFER OF RIGHTS IN THE PROPERTY” provides that the mortgage secures both the repayment of the loan and the borrower’s performance of covenants and agreements to the Lender. That section continues as follows: “Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale . . . . . . . “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing […]
May v. SunTrust Mortgage, Inc. (Lawyers Weekly No. 10-070-14)
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‑11439 KENNETH D. MAY & another[1] vs. SUNTRUST MORTGAGE, INC. Suffolk. December 3, 2013. ‑ April 14, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Consumer Credit Cost Disclosure Act. Limitations, Statute of. Statute, Construction. Mortgage, Loan commitment. Contract, Rescission. Practice, Civil, Statute of limitations. Words, “Recoupment,” “Rescission.” Certification of a question of law to the Supreme Judicial Court by the United States Bankruptcy Court for the District of Massachusetts. Kenneth D. Quat for the plaintiffs. Nathalie K. Salomon for the defendant. Jeremiah Battle of New Jersey, & Stuart Rossman, for National Consumer Law Center, amicus curiae, submitted a brief. BOTSFORD, J. The Massachusetts Consumer Credit Cost Disclosure Act (MCCCDA), G. L. c. 140D, §§ 1- 35, governs the rights and duties of creditors and obligors (borrowers, or consumers) engaged in consumer credit transactions. One type of consumer credit transaction to which the MCCCDA applies is the refinancing of a consumer’s home where the consumer grants a mortgage to the creditor to secure the refinancing loan. Pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981), a judge in the United States Bankruptcy Court for the District of Massachusetts[2] has certified the following question: “May an obligor [borrower] who grants a mortgage in a consumer credit transaction rescind the transaction under the Massachusetts Consumer Credit Cost Disclosure Act, [G. L. c.] 140D, § 1 et seq. (the ‘MCCCDA’), defensively by way of common law recoupment after the expiration of the four year statute of limitations set forth in [§] 10 (f) of the MCCCDA?” For the reasons we discuss hereafter, we answer no to the question.[3] 1. Background. The essential background facts are undisputed by the parties. On October 7, 2005, Kenneth May and Valerie Corbin-May, the plaintiffs, refinanced their home in Brockton in a mortgage loan transaction with Summit Mortgage (Summit), for $ 300,000. The mortgage later was assigned to and is held currently by the defendant here, SunTrust Mortgage, Inc. (SunTrust).[4] On January 28, 2010, the plaintiffs, facing foreclosure, filed a petition under Chapter 13 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq., in the United States Bankruptcy Court for the District of Massachusetts. In response, SunTrust filed a proof of claim alleging that the plaintiffs owed $ […]