Pinti v. Emigrant Mortg. Co.

• Decision Date: 17 July 2015
• Docket Number: SJC–11742.
• Parties: Linda PINTI & another v. EMIGRANT MORTGAGE COMPANY, INC., & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 226
33 N.E.3d 1213

Linda PINTI & another¹
v.
EMIGRANT MORTGAGE COMPANY, INC., & another.²

SJC–11742.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted Jan. 8, 2015.
Decided July 17, 2015.

33 N.E.3d 1214

Richard M.W. Bauer, Boston (Stefanie A. Balandis, Amanda B. Loring, & Geoffry Walsh, Boston, with him) for the plaintiffs.

Howard M. Brown, Boston (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, Boston, pro se.

Daniel D. Bahls & Courtney Clemente for Community Legal Aid.

Grace C. Ross, pro se.

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

Opinion

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

33 N.E.3d 1215

1982. In 2005, she transferred title to the property by quitclaim deed to herself and her spouse, Pinti, as tenants by the entirety. On March 13, 2008, Pinti and Phillips granted a mortgage on the property to Emigrant to secure a $160,000 loan.⁵ Paragraph 22 of the mortgage provides that, prior to acceleration of the loan following any breach of the mortgage by the plaintiffs, Emigrant is required to notify the plaintiffs of “(a) the default; (b) the action required to cure the default; (c) a date, not less than [thirty] days from the date the notice is given

to [the plaintiffs], by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by [the mortgage].” Paragraph 22 further provides that such notice must inform the plaintiffs “of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of [the plaintiffs] to acceleration and sale ” (emphasis added), and adds that upon failure to cure the default, Emigrant may invoke “the statutory power of sale.”⁶

In August and September of 2009, the plaintiffs failed to make the monthly mortgage payments that were due. On September 29, 2009, Emigrant sent a notice of default to the plaintiffs pursuant to paragraph 22. The notice stated that the plaintiffs had failed to make monthly mortgage payments, demanded payment of a sum sufficient to satisfy the outstanding amount by December 28, 2009, and noted that the mortgagee could invoke the statutory

power of sale if the plaintiffs failed to cure the default in the time allowed. Finally, the notice stated that “notice is hereby given that [the plaintiffs] have the right to assert in any lawsuit for foreclosure and sale the nonexistence of a default or any other defense [they] may have to

33 N.E.3d 1216

acceleration and foreclosure and sale ” (emphasis added).

In 2011, Pinti sent Emigrant a “qualified written request” (QWR) that asked Emigrant to identify the holder of the plaintiffs' mortgage and the owner of Pinti's loan.⁷ The letter also requested copies of any assignment of the plaintiffs' mortgage, and of Pinti's promissory note “in its current condition showing all endorsements and/or allonges.” Emigrant's response to the QWR, dated August 22, 2011, indicated that ESB–MH Holdings, LLC (ESB–MH), owned the loan, but that Emigrant held and serviced the loan. The response enclosed a copy of Emigrant's assignment of the plaintiffs' mortgage and note to ESB–MH; the assignment was signed by Filippo Ruggiero, “Vice President” of Emigrant. It appears on the face of the assignment that Ruggiero executed it on November 30, 2009, but Emigrant's response to the QWR asserts that “the assignment transferring ownership of the note and mortgage to [ESB–MH] has not been recorded and the original note and mortgage, as well as the assignment of the mortgage[,] are in the possession of [Emigrant,] which is prosecuting the foreclosure action as the holder and servicer of the loan.” Emigrant's response to the QWR also enclosed Pinti's note with an allonge indicating that the note had been paid to the order of ESB–MH without recourse by Emigrant, and then endorsed in blank without recourse by ESB–MH.

Emigrant published a notice of foreclosure sale regarding the plaintiffs' property in the Boston Herald on June 12, 19, and 26, 2012. Wilion purchased the property at the foreclosure sale held on August 9, 2012, and obtained a foreclosure deed from Emigrant dated September 10, 2012. Wilion then initiated a summary process action against the plaintiffs in the District Court.

On January 31, 2013, the plaintiffs filed the present action against the defendants in the Superior Court. The plaintiffs' complaint sought a judgment declaring that the foreclosure sale

was void, and asserted multiple theories supporting this claim, two of which are relevant to this appeal: (1) Emigrant's September 29, 2009, notice of default did not comply with paragraph 22 because it did not explicitly inform the plaintiffs of “the right to bring a court action to assert the non-existence of a default or any other defense of [the plaintiffs] to acceleration and sale,” as required by the paragraph; and (2) Emigrant did not hold the relevant mortgage and promissory note when it foreclosed on the property. In addition, the complaint sought a judgment declaring that Wilion failed to comply with the prerequisites for initiating a summary process action on the ground that Wilion, to whom Emigrant sold the property, did not have superior title to the property because Emigrant did not lawfully foreclose.⁸

Emigrant filed a motion to dismiss the plaintiffs' complaint under Mass. R. Civ. P. 12 (b ) (1) and (6), 365 Mass. 754 (1974).

33 N.E.3d 1217

Separately, Wilion filed a counterclaim seeking a judgment declaring that the foreclosure and foreclosure sale were valid and, consequently, that Wilion possessed superior title to the property by virtue of the foreclosure deed. Shortly thereafter, Wilion filed a motion for summary judgment with respect to the plaintiffs' complaint and his counterclaim, and the plaintiffs filed a cross motion for summary judgment in their favor on both their complaint and Wilion's counterclaim.

After a hearing, a judge in the Superior Court allowed Wilion's motion for summary judgment and denied the plaintiffs' cross-motion. The judge rejected the plaintiffs' argument that Emigrant's notice of default rendered the foreclosure void, reasoning that Emigrant was not required strictly to comply with a term of the mortgage, such as the notice of default and right-to-cure provisions of paragraph 22, that had no direct relationship to the power of sale. The judge also determined there was no genuine factual dispute that Emigrant validly held the mortgage and the note at the time of the foreclosure sale. In accordance with her decision, a judgment entered in favor of Wilion on his counterclaim that declared the foreclosure of the mortgage and the foreclosure sale were valid and, therefore, that Wilion held good title to the property. In a separate decision, the judge also allowed Emigrant's motion to dismiss for reasons substantially similar to those in her

summary judgment decision. The plaintiffs timely appealed, and we transferred the appeal to this court on our own motion.

Discussion. 1. Standard of review. “We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’ ” Juliano v. Simpson, 461 Mass. 527, 529–530, 962 N.E.2d 175 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). “Because our review is de novo, we accord no deference to the decision of the motion judge.” DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799, 985 N.E.2d 1187 (2013). De novo review also applies to the judge's dismissal...