2015 Mass. App. Div. LEXIS 54
Mass. Dist. Ct., App. Div.2015Background
- Santander foreclosed nonjudicially on the O’Connors’ Nantucket property and brought a summary process action for possession.
- O’Connors answered and demanded a jury trial; trial occurred June 5, 2013, but they did not appear (attorney present).
- Trial court granted a directed verdict for the defendants based on three evidentiary gaps identified after Santander rested.
- The three defects were: lack of notice to quit, lack of full compliance with G.L. c. 244, §14, and lack of notice to cure after loan modifications.
- Court reversed, held the trial court erred in directing verdicts, and remanded for a new trial in the Nantucket District Court.
- Note: The appellate decision followed post-hoc decisions in larger housing-crisis context and clarifies that a prima facie case may be made by an attested copy of the foreclosure deed and affidavit of sale, with jury fact-finding for issues like notice and §35A compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice to quit was properly proven | Santander: notice to quit need not be proved as a separate element. | O’Connors: notice to quit or failure to prove service is required. | Trial court erred in directing verdict for lack of proof of service. |
| Whether there was full compliance with GL c. 244, §14 | Santander: affidavit of sale (G.L. c. 244, §15) confirms compliance. | O’Connors: potential §14 noncompliance defeats title validity. | Trial court erred in directing verdict; §14 compliance issues should be decided by jury. |
| Whether evidence of cure notice after loan modifications was required | Santander: §35A not part of prima facie case; modifications do not bar foreclosure absent unfairness. | O’Connors: failure to cure after modifications could render foreclosure fundamentally unfair. | Trial court erred in directing verdict; jury should consider equitable impact under post-modification facts. |
Key Cases Cited
- Federal Nat’l Mtge. Ass’n v. Hendricks, 463 Mass. 635 (Mass. 2012) (affidavit of sale as evidence of proper foreclosure compliance)
- Bank of N.Y. v. Bailey, 460 Mass. 327 (Mass. 2011) (strict compliance with power of sale required)
- Lash v. Ames, 171 Mass. 487 (Mass. 1898) (notice concepts in summary process)
- Hooton v. Holt, 139 Mass. 54 (Mass. 1885) (notice to quit and tenant-at-sufferance concepts)
- Rosa, 466 Mass. 613 (Mass. 2013) (equitable relief possible for foreclosure irregularities)
- Schumacher, 467 Mass. 421 (Mass. 2014) (§35A not part of prima facie foreclosure case; credibility issues join trial)