Fed. Nat'l Mortg. Ass'n v. Hendricks

• Decision Date: 26 October 2012
• Docket Number: SJC–11234.
• Citation: 977 N.E.2d 552,463 Mass. 635
• Parties: FEDERAL NATIONAL MORTGAGE ASSOCIATION v. Oliver HENDRICKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 635
977 N.E.2d 552

FEDERAL NATIONAL MORTGAGE ASSOCIATION
v.
Oliver HENDRICKS.

SJC–11234.

Supreme Judicial Court of Massachusetts,
Suffolk.

Submitted Sept. 6, 2012.
Decided Oct. 26, 2012.

[977 N.E.2d 554]

Timothy Visser (Andrea Park & H. Esme Caramello with him), Grand Rapids, MI, for the defendant.

Matthew A. Kane (Donn A. Randall with him), Boston, for the plaintiff.

Lawrence F. Scofield, Woburn, & Jeana K. Reinbold, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

[463 Mass. 635]The sole issue in this appeal is whether an uncontroverted affidavit attesting to the statutory form “Affidavit of Sale under Power of Sale in Mortgage,” G.L. c. 183, § 8, and Appendix Form 12 (statutory form), is sufficient to show compliance with the power of sale for the purpose of establishing the [463 Mass. 636]right of possession by motion for summary judgment in a summary process action. We conclude that it is.¹

A judge in the Housing Court ruled in favor of the plaintiff, the Federal National Mortgage Association (Fannie Mae), on the parties' cross motions for summary judgment, and the defendant, Oliver Hendricks, appealed. Hendricks asserts error in the grant of summary judgment to Fannie Mae, where the statutory form fails to set forth “fully and particularly” the acts taken to exercise the power of sale in Hendricks's mortgage, as required by G.L. c. 244, § 15. We granted his application for direct appellate review and now affirm the judgment.

1. Background. Hendricks granted to Mortgage Electronic Registration Systems, Inc. (MERS), a mortgage on real property in the Roslindale section of Boston. The mortgage, dated April 12, 2008, contained the statutory power of sale. See G.L. c. 244, § 14. Hendricks defaulted on the loan, and MERS foreclosed on the mortgage. MERS proceeded to a foreclosure auction at which it tendered the highest bid. MERS assigned its bid to Fannie Mae, which then paid the bid price and acquired a foreclosure deed to the mortgaged

[977 N.E.2d 555]

premises. The foreclosure deed and the statutory form were recorded with the registered land division of the Suffolk County registry of deeds on July 14, 2010. Beyond the requirements of the statutory form, the affidavit of sale contained a statement of the affiant specifying the three dates of publication in a particular newspaper, and a statement of the affiant that “I also complied with [G.L. c. 244, § 14], as amended, by mailing the required notices certified mail, return receipt requested.”

Fannie Mae thereafter commenced an action of summary process against Hendricks. It filed a motion for summary judgment, and in support thereof it filed the affidavit of its asset recovery manager with “true and accurate copies” of the foreclosure deed and statutory form (supplemented as described above) attached. Hendricks filed a cross motion for summary judgment and opposition to Fannie Mae's motion for summary judgment in which he raised multiple issues. Of significance to [463 Mass. 637]the issue on appeal is the absence of any assertion by Hendricks, by affidavit or other acceptable alternative, to the effect that he did not receive proper notice of the foreclosure sale, or that MERS failed in any respect to comply with the notice requirements of G.L. c. 244, § 14. He merely argued that the statutory form as supplemented was legally deficient in various respects.

2. Standard of review. Hendricks seeks the reversal of the order granting summary judgment and a remand to the Housing Court for trial. When reviewing a grant of summary judgment we consider the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Mass. R. Civ. P. 36, 365 Mass. 795 (1974), together with the affidavits, and ask if there is any genuine issue as to any material fact. See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). We view the evidence in the light most favorable to the nonmoving party. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). If all material facts have been established and the moving party is entitled to judgment as a matter of law, then the “judgment sought shall be rendered forthwith.” Mass. R. Civ. P. 56(c). See Augat, Inc. v. Liberty Mut. Ins. Co., supra. We may consider any ground supporting the judgment. See id. Because our review is de novo, see Bank of N.Y. v. Bailey, 460 Mass. 327, 331, 951 N.E.2d 331 (2011), no deference is accorded the decision of the judge in the trial court. See Johnson v. Gordon, 409 F.3d 12, 16–17 (1st Cir.2005).

3. Discussion. Hendricks argues that Fannie Mae failed to make a prima facie showing of its right to possession of the premises. He acknowledges that a plaintiff in a postforeclosure summary process case may make a prima facie showing of its right to possession by producing an attested copy of the recorded foreclosure deed and affidavit of sale under G.L. c. 244, § 15. See Lewis v. Jackson, 165 Mass. 481, 486–487, 43 N.E. 206 (1896). He also acknowledges that a deficient affidavit of sale does not void a foreclosure sale or the right to possession. See Burns v. Thayer, 115 Mass. 89, 93 (1874). A deficient affidavit may be cured by extrinsic evidence that the power of sale was exercised properly and the foreclosure was valid. See O'Meara v. Gleason, 246 Mass. 136, 139, 140 N.E. 426 (1923). Hendricks contends that the [463 Mass. 638]statutory form,² as supplemented, is defective

[977 N.E.2d 556]

because it fails to comply with the requirements of G.L. c. 244, § 15,³ and that Fannie Mae failed to offer any extrinsic evidence that could cure the defects.

Hendricks argues that the affidavit of sale must comply with the requirement of G.L. c. 244, § 15, by “fully and particularly stating [the affiant's] acts” taken to satisfy the notice requirements of G.L. c. 244, § 14.⁴ Fannie Mae argues that it need [463 Mass. 639]only comply with the requirements of the statutory form to make a prima facie showing of its right of possession because G.L. c. 183, § 8,⁵ imbues the statutory form with legal sufficiency for purposes of G.L. c. 244, § 15. It further argues that it did not have to provide full and particular details of acts taken on its behalf pursuant to the requirements of G.L. c. 244, § 14, until Hendricks created a dispute concerning compliance by affidavit or a suitable alternative, which he failed to do.

Hendricks counters by arguing that the statutory form, inserted by St.1912, c. 502, § 12, is outdated. When the statutory forms were established by the Legislature in 1912, the only form of notice required to execute the power of sale in a mortgage was publication in a newspaper. See R.L. (1902) c. 187, § 14, as amended by St.1906, c. 219, § 1. The requirements of mail notice to the owners of the equity of redemption and junior interest holders were not

[977 N.E.2d 557]

added until 1975 and 1981, respectively. See St.1975, c. 342; St.1977, c. 629; St.1981, c. 242. The statutory form affidavit of sale has never been amended. Citing Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215, 680 N.E.2d 92 (1997), Hendricks further argues that the conflict between the more recent mail notice requirements of G.L. c. 244, § 14, and the static and stale requirements of the statutory form, unchanged since 1912, must be resolved in favor of the latest expression of legislative intent. Consequently, he continues, the affidavit of sale should have “fully and particularly” set forth all acts taken pursuant to the requirements of...