Fed. Home Loan Mortg. Corp. v. Bartleman

• Decision Date: 20 February 2019
• Docket Number: No. 17-P-1503,17-P-1503
• Citation: 119 N.E.3d 1200,94 Mass.App.Ct. 800
• Court: Appeals Court of Massachusetts
• Parties: FEDERAL HOME LOAN MORTGAGE CORPORATION v. William James BARTLEMAN & Another.

94 Mass.App.Ct. 800

119 N.E.3d 1200

FEDERAL HOME LOAN MORTGAGE CORPORATION

v.William James BARTLEMAN & Another.¹

No. 17-P-1503

Appeals Court of Massachusetts, Nantucket..

Argued November 14, 2018

Decided February 20, 2019

Marissa I. Delinks, Boston, for the plaintiff.

Thomas B. Vawter for the defendants.

Present: Wolohojian, Hanlon, & Ditkoff, JJ.

WOLOHOJIAN, J.

The two issues before us are (1) whether an affidavit of sale was erroneously excluded from evidence at trial in this summary process action, and (2) whether the defendants timely and fairly raised the issue of whether the plaintiff had complied with paragraph 22 of the mortgage. We conclude that the affidavit was erroneously excluded from evidence, and a limited retrial on the subject matter of the affidavit is required. We also conclude that, although the paragraph 22 issue was not timely and fairly raised in the trial court such as to entitle the defendants to the retroactive benefit of the rule announced in Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 240, 33 N.E.3d 1213 (2015), for reasons we explain further below, we remand the issue of the plaintiff's compliance with paragraph 22 for retrial as well.

The plaintiff, Federal Home Loan Mortgage Corporation (Freddie Mac), brought the underlying summary process action against the defendants, who continued to live in a property on Nantucket after they had defaulted on their loan obligations. Freddie Mac claimed superior right of possession to the property by virtue of a series of events we describe in the margin, which culminated in Freddie Mac claiming possession by virtue of a foreclosure deed.²

We need highlight only one additional fact here: Freddie Mac's predecessor in interest, Provident Funding Associates, L.P. (PFA), recorded the foreclosure deed on June 12, 2012, which included, among other things, an affidavit of sale certifying compliance with G. L. c. 244, § 14. See G. L. c. 244, § 15 (requiring recording of affidavit of sale).

On the first day of the bench trial, the defendants, relying on Mass. R. Civ. P. 12 (f), 365 Mass. 754 (1974), filed a motion to strike the affidavit of sale. Their reliance on that rule was misplaced because rule 12 (f) provides only a mechanism by which to strike certain materials³ from pleadings.⁴ It does not provide a mechanism by which to exclude potential evidence from trial, as the defendants sought to do here. Compare Rattigan v. Wile, 445 Mass. 850, 863, 841 N.E.2d 680 (2006) ("A pretrial memorandum is not a pleading"). Thus, although the motion was brought as a motion to strike, it should have been brought as a motion in limine to exclude evidence; nonetheless, to avoid confusion and because our standard of review is the same regardless of the nomenclature, we shall refer to the motion as it was styled by the defendants below. See N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363, 995 N.E.2d 57 (2013) (evidentiary decisions are reviewed for abuse of discretion).

After hearing extensive argument, the judge admitted de bene the affidavit of sale and the foreclosure deed to which it was attached, subject to further consideration of the motion to strike. See R.L. Polk & Co. v. Living Aluminum Corp., 1 Mass. App. Ct. 170, 172, 294 N.E.2d 574 (1973) (order of presentation is within sound discretion of trial judge, as is admission of evidence de bene). See also Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485, 803 N.E.2d 735 (2004) (same).

Freddie Mac thereafter sought to introduce the affidavit of sale and the foreclosure deed fully into evidence through Jim Karanfiloglu, an assistant vice president and legal department manager of PFA who was also custodian of the records. Karanfiloglu had personal knowledge of PFA's business records pertaining to the Nantucket property, including the foreclosure deed and the attached affidavit. He testified that the affidavit was prepared and retained by PFA as a business record "[t]o memorialize the event that occurred and also according to our business practices and investor guidelines." Karanfiloglu also testified that the affidavit was prepared and signed by Edith Cepeda, a foreclosure specialist at PFA, with whom he had worked for several years. Cepeda's job responsibilities included "certifying mortgages that are in default or eligible for referral to foreclosure. She would manage the foreclosure file from start to finish, execute any necessary documents. She is granted the title of assistant vice president to execute foreclosure documents in that capacity. She's also an appointed MERS [Mortgage Electronic Registration Systems, Inc.,] signing officer as well." Karanfiloglu, who was familiar with Cepeda's signature, identified Cepeda's signature on the affidavit. See Commonwealth v. Ryan, 355 Mass. 768, 770-771, 247 N.E.2d 564 (1969) ("A witness who is familiar with a person's handwriting may give an opinion as to whether the specimen in question was written by that person"). In addition, he testified that Cepeda told him she had signed the affidavit.

At multiple junctures during Karanfiloglu's testimony, Freddie Mac asked that the certified copy of the affidavit of sale (as well as the foreclosure deed of which it was a part), as recorded at the registry of deeds, be admitted. Relying on Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 977 N.E.2d 552 (2012), and Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 965 N.E.2d 875 (2012), Freddie Mac contended that the documents were admissible both as certified copies of public records and as business records. Ultimately, the trial judge struck the affidavit of sale, apparently accepting the defendants' arguments that Hendricks and Gabriel were limited to the admissibility of certified copies of affidavits of sale within the context of summary judgment motions, and that Karanfiloglu did not have personal knowledge of the contents of the affidavit. However, the judge admitted the certified copy of the foreclosure deed. This ruling occurred on the second day of trial, over Freddie Mac's properly preserved objection.

Thereafter, although Freddie Mac presented additional evidence through several witnesses, none bore on the subject matter of the affidavit of sale, namely, compliance with the notice and publication requirements of G. L. c. 244, § 14. Freddie Mac then rested. The defendants -- having succeeded in keeping the affidavit of sale out of evidence -- rested without presenting any evidence, including with respect to their affirmative defenses. They then filed a motion for involuntary dismissal pursuant to Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974).⁵ In addition, in their posttrial request for findings of fact and rulings of law,⁶ the defendants argued that there had been a failure to comply with paragraph 22 of the mortgage. See Pinti, 472 Mass. at 240, 33 N.E.3d 1213. This was the first time the Pinti issue had been raised.⁷

The trial judge denied the motion for involuntary dismissal, and entered judgment of possession in favor of Freddie Mac without making written findings or rulings of law. The judge did not award Freddie Mac use and occupancy damages.

The defendants appealed to the Appellate Division of the District Court, see G. L. c. 231, § 108 ; Rule 1(a) of the Dist./Mun. Cts. Rules for Appellate Division Appeal (1994); Crystal Constr. Corp. v. Hartigan, 56 Mass. App. Ct. 324, 330, 778 N.E.2d 915 (2002), arguing that the trial judge erred in denying their motion for involuntary dismissal, and that the trial judge was required (but failed) to make written findings and rulings. The Appellate Division reversed the judge's decision denying the motion for involuntary dismissal and ordered that judgment of possession be awarded in the defendants' favor. The Appellate Division reached that conclusion on two grounds. First, it concluded that, without the affidavit, Freddie Mac failed to prove that it had complied with the notice and publication provisions of G. L. c. 244, § 14. Second, the Appellate Division concluded that, in any event, Freddie Mac failed to prove that it had satisfied the notice requirements of paragraph 22 of the mortgage. Of note, the Appellate Division did not review the trial judge's decision to strike the affidavit, stating that it believed "the wisdom of the judge's decision [to exclude so much of the foreclosure deed that contained the affidavit of sale] is not before us" and that it was unnecessary to reach the issue in any event because of the alternate grounds of its holding.

This appeal followed, in which Freddie Mac argues (1) that the statutory affidavit was improperly struck, and if the affidavit had been admitted, the evidence was sufficient to prove a prima facie case of Freddie Mac's superior right to possession, and (2) that the defendants waived their paragraph 22 defense by not raising it timely.

1. Statutory affidavit of sale. Freddie Mac argues that the Appellate Division erred in passing over the question of the affidavit's admissibility and, in addition, that the trial judge erred in excluding it. Freddie Mac appears to concede for purposes of this appeal, at least implicitly, that if the affidavit was properly excluded, then the evidence was insufficient to prove its superior right of possession.

There is no doubt that Freddie Mac fully and repeatedly preserved the issue of the affidavit's admissibility at trial, and the defendants do not contend otherwise. Instead, they argue that Freddie Mac failed to preserve the issue before the Appellate Division. This contention rests on two subsidiary assertions: first, that Freddie Mac was required to cross-appeal the adverse ruling on the motion to strike; and second, that Freddie Mac failed to adequately raise the issue in its briefing to the Appellate Division. The first of these two contentions is incorrect; the trial court judgment was in favor of Freddie Mac and there was therefore no reason, or need, for Freddie Mac to appeal (or...