Opinion
13-P-1124
02-03-2016
BOSTON PROPERTY HOLDINGS, LLC v. SUSAN CALLENDER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this summary process action, the defendant borrower challenged the validity of a foreclosure sale of her property in the Dorchester section of Boston. A Housing Court judge rejected her arguments and ruled in favor of the plaintiff, which purchased the property at the sale. We reverse.
One of the grounds on which the borrower relied is the discrepancy between the specific notice that the mortgage required she be given in the event of a default, and the notice that the mortgage holder's servicing agent in fact provided her. Specifically, the mortgage required that she be informed of her "right to bring a court action to assert the non-existence of a default or any other defense . . . to acceleration and sale," while the notice actually given to her stated only that she had a right to assert such defenses "in the foreclosure proceeding." In Pinti v. Emigrant Mort. Co., 472 Mass. 226, 243 & n.25 (2015), the Supreme Judicial Court established a prospective rule that such a discrepancy voids the foreclosure. In Aurora Loan Servs., LLC v. Murphy, 88 Mass. App. Ct. 726, 731-732 (2015), we held that the rule established by Pinti applies to all cases that were pending on appeal when Pinti was issued and in which the issue was preserved. Because this is just such a case, the borrower is entitled to judgment in her favor.
The borrower submitted a copy of the actual foreclosure notice that the mortgage servicer had sent by retrieving that document from the Land Court (where it was on file, having been submitted in a Servicemembers Civil Relief Act case regarding the proposed foreclosure). At oral argument, the plaintiff suggested that the borrower was estopped from putting forth this document as the actual notice that had been sent, on the grounds that in her own affidavit she stated that she could not recall receiving such notice. We discern no merit in that suggestion. Nor do we find merit in the plaintiff's assertion that there was a dispute of material fact as to whether the document in fact was what the servicing agent had sent.
We need not reach the defendant's remaining arguments.
The judgment is reversed, and judgment shall enter for the defendant dismissing the complaint.
So ordered.
By the Court (Grainger, Meade & Milkey, JJ.)
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 3, 2016.