Federal National Mortgage Association v. Rego, 50 N.E.3d 419

Background

The Regos owned a Billerica home subject to a mortgage that was ultimately assigned to GMAC, which conducted a foreclosure sale in May 2011; GMAC was the high bidder and later assigned the bid to Fannie Mae.
Orlans Moran, GMAC's law firm, sent and published foreclosure notices and signed related documents as "By its Attorneys, Orlans Moran PLLC."
The Regos sought a negotiated payoff and loan modification shortly before the sale; GMAC initially paused review but denied the request and completed the sale.
Fannie Mae, the foreclosing purchaser, sued in Housing Court in a summary process action to obtain possession after recording the foreclosure deed and affidavit of sale.
The Regos defended, alleging (1) the foreclosure was void because GMAC’s attorneys lacked written authorization under G. L. c. 244, § 14, and (2) claims under G. L. c. 93A for unfair or deceptive mortgage and modification-related practices.
The Housing Court granted Fannie Mae summary judgment "as to possession only," scheduled trial on the 93A counterclaims, then dismissed those counterclaims for lack of jurisdiction; the SJC reversed and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 14 requires a mortgagee to give prior written authorization to its legal counsel before counsel may publish and mail notices or otherwise perform acts under the power of sale	Fannie Mae: counsel may act on mortgagee's behalf as a "person acting in the name of such mortgagee" without a separate prior power-of-attorney writing	Regos: § 14’s phrase "attorney duly authorized by a writing under seal" requires a power of attorney (writing) authorizing counsel to perform statutory acts; absent that, foreclosure is void	The phrase refers to an "attorney in fact" (agent under a power of attorney); it does not mean ordinary legal counsel. Counsel may act as "person acting in the name of such mortgagee," so no defect in foreclosure on this ground
Whether the affidavit of sale complied with § 15’s written-authorization requirement (assuming such a requirement exists)	Fannie Mae: even if § 15 required written authorization, GMAC provided written authorization to its counsel on Nov 28, 2011, before the affidavit was signed and recorded	Regos: the affidavit was signed/recorded without the required written authorization, making the prima facie case defective	Assuming § 15 requires written authorization, the record shows GMAC gave written authorization on Nov 28, 2011; affidavit of sale thus supports a prima facie case
Whether the Housing Court has jurisdiction to adjudicate G. L. c. 93A counterclaims in a postforeclosure summary process action	Fannie Mae: once possession is decided for the plaintiff, the Housing Court lacks jurisdiction to proceed on 93A claims seeking relief tied to possession	Regos: 93A claims and equitable defenses can challenge the foreclosure and, if successful, could vitiate title or possession; Housing Court should hear them	Housing Court has broad jurisdiction over housing-related claims including 93A; counterclaims that affect right to possession must be resolved in summary process; counterclaims that do not may be severed and adjudicated separately. The dismissal here was improper without clarifying whether counterclaims affected possession

Key Cases Cited

U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 (recognizing strict statutory requirements for statutory power-of-sale foreclosures)
Bank of N.Y. v. Bailey, 460 Mass. 327 (summary process defendant may challenge compliance with power-of-sale to vindicate possession)
Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635 (describing prima facie showing where affidavit of sale meets § 15 requirements)
Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569 (explaining statutory power of sale under G. L. c. 183, § 21)
Bank of Am., N.A. v. Rosa, 466 Mass. 613 (discussing Housing Court jurisdiction to resolve claims that could vitiate title or possession)
Cranston v. Crane, 97 Mass. 459 (establishing that a mortgagee may delegate power-of-sale acts without a sealed power of attorney)