Paiva v. Bank of New York Mellon
120 F. Supp. 3d 7
D. Mass.2015Background
- Paiva defaulted on his mortgage in 2008, stopped making payments, and continued occupying the Massachusetts property after a 2014 foreclosure sale that BONYM purchased.
- Paiva sued to void the foreclosure on two grounds: (1) the notice of default required by paragraph 22 of the mortgage was sent by the servicer (Countrywide) rather than the lender (BONYM); and (2) BONYM failed to notify the municipal tax collector within 30 days after conveying title as required by G.L. c. 244, § 15A (notification occurred over nine months later).
- BONYM filed a counterclaim seeking a deficiency judgment (~$192,000), possession, and a writ of assistance; the validity of the foreclosure was dispositive for those claims.
- Parties agreed to cross-motions for summary judgment before discovery; the court found no genuine disputes of material fact.
- The court concluded Countrywide’s sending of the paragraph 22 notice did not strictly comply with the mortgage and BONYM’s late § 15A notice also violated strict compliance rules, rendering the foreclosure void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether paragraph 22 required the lender (not the servicer) to send the notice of default | Paiva: paragraph 22 requires the lender itself to give notice; servicer’s notice fails strict compliance | BONYM: “Lender” should encompass the servicer; servicer’s notice satisfied paragraph 22 | Court: "Lender" means the lender; servicer’s notice did not strictly comply; sale void. |
| Whether G.L. c. 244, § 15A’s 30‑day tax‑collector notice must be strictly complied with and failure voids the sale | Paiva: § 15A is a foreclosure‑related statute requiring strict compliance; late notice voids sale | BONYM: § 15A is post‑foreclosure and not among statutes requiring strict compliance under § 21 | Court: § 15A requires strict compliance; late notice voids the foreclosure. |
| Remedy for statutory/mortgage noncompliance | Paiva: seek voiding of foreclosure (and other relief) | BONYM: foreclosure should stand; seeks deficiency/possession | Court: foreclosure sale is void; Paiva’s requests for damages, fees, interest denied. |
Key Cases Cited
- U.S. Bank Nat. Ass’n v. Ibanez, 458 Mass. 637 (strict adherence to mortgage power of sale required)
- Eaton v. Fed. Nat. Mortgage Ass’n, 462 Mass. 569 (strict compliance principles applied to foreclosure procedures)
- U.S. Bank Nat. Ass’n v. Schumacher, 467 Mass. 421 (related discussion endorsing strict compliance with mortgage/foreclosure statutes)
- Pinti v. Emigrant Mortgage Co., Inc., 472 Mass. 226 (SJC: strict compliance with paragraph 22 is necessary; failure renders sale void)