Haskins v. Deutsche Bank National Trust Co.
86 Mass. App. Ct. 632
| Mass. App. Ct. | 2014Background
- Haskins refinanced his Southborough home in 2004; MERS held record title to the mortgage and Deutsche Bank (as trustee of a securitization trust) held the beneficial interest; IndyMac (OneWest) serviced the loan.
- Haskins defaulted; IndyMac sent § 35A right-to-cure notices (May 4, 2010 and Dec. 8, 2010) that identified IndyMac as the "mortgage holder."
- Haskins did not cure; Deutsche Bank obtained a Land Court judgment and proceeded toward an extrajudicial foreclosure sale.
- Haskins filed a preforeclosure equity action in Superior Court seeking to enjoin foreclosure and asserting multiple claims (including that the § 35A notices were defective, G.L. c. 93A, fraud, and signature/assignment defects).
- The Superior Court dismissed the amended complaint for failure to state a claim; Haskins appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a § 35A notice is defective if sent by/identifies the servicer as mortgagee when servicer is not record holder | Haskins: notice invalid because it misidentifies the mortgagee (requiring strict compliance) | Defendants: servicer identification satisfies § 35A; strict Ibanez rule inapplicable; only extreme unfairness would justify relief | Court: § 35A notice met statutory purpose; servicer may be treated as "mortgagee" for § 35A(h)(4); dismissal affirmed |
| Whether a § 35A defect requires strict compliance like power-of-sale rules (Ibanez) | Haskins: apply strict adherence rule; misidentification voids notice | Defendants: § 35A is pre-foreclosure consumer-protection notice, not part of foreclosure statutes; Ibanez inapplicable | Court: Ibanez strictness inapplicable; interpret § 35A by purpose (give mortgagor meaningful contact to cure) |
| Whether notice had to be sent by certified mail | Haskins: notice invalid for not being certified | Defendants: statute deems certified mail as "deemed delivered" but does not require it; Haskins received notice | Court: no merit; statutory method optional and plaintiff received notice |
| G.L. c. 93A, fraud, assignment/signature challenges | Haskins: statutory and common-law claims asserted | Defendants: procedural and pleading failures (no pre-suit G.L. c. 93A demand; fraud not pled with particularity; assignment challenges precluded by G.L. c. 183, § 54B) | Court: dismissed these counts for failure to satisfy statutory or pleading requirements |
Key Cases Cited
- U.S. Bank Natl. Ass'n v. Schumacher, 467 Mass. 421 (SJC 2014) (§ 35A is a preforeclosure cure-notice statute, not part of foreclosure power-of-sale process)
- U.S. Bank Natl. Ass'n v. Ibanez, 458 Mass. 637 (SJC 2011) (strict compliance with power-of-sale terms required for valid sale)
- Eaton v. Federal Natl. Mort. Ass'n, 462 Mass. 569 (SJC 2012) (interpreting "mortgagee" in foreclosure context as holder acting for note holder; adopted prospectively)
- Bank of America, N.A. v. Rosa, 466 Mass. 613 (SJC 2013) (equitable relief for foreclosure-related irregularities when fundamental unfairness shown)
- Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202 (Mass. App. Ct. 2014) (discussion of MERS holding bare legal title)
- Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 (Mass. App. Ct. 2014) (posture on § 35A challenges and foreclosure issues)