U.S. Bank National Ass'n v. Schumacher
467 Mass. 421
| Mass. | 2014Background
- Mass. Gen. Laws ch. 244, § 35A grants a ninety-day cure period before foreclosure for residential mortgagors.
- Schumacher owned 1204 Main Street; bank foreclosed after default and purchased at foreclosure sale in Oct. 2009.
- Mortgage chain: Union Federal → MERS → bank; default occurred Aug. 2008; notice mailed Nov. 16, 2008.
- Foreclosure notices published Aug. 21/28 and Sept. 4, 2009; sale postponed to Oct. 23, 2009, then occurred.
- Schumacher contested in Housing Court; Superior Court actions followed; parties later framed the §35A issue in pretrial memorandum.
- Court held §35A is not part of the power of sale; deficiencies in notices do not render the foreclosure void in this summary process action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is §35A part of the foreclosure process? | Schumacher argues §35A forms part of the power of sale. | Bank contends §35A is a pre-foreclosure notice, not part of the power of sale. | §35A is not part of the power of sale. |
| Does §35A notice deficiency void the foreclosure? | Defective notice defeats foreclosure in summary process. | Compliance with §35A is not a basis to void the foreclosure in this action. | Defect in §35A notice does not void the foreclosure in this action. |
| What is proper remedy to challenge §35A compliance? | Challenges belong in equity or in Rosa-style counterclaims. | Equity action or counterclaims were not pursued by Schumacher in this case. | Proper remedy is independent equity action or Rosa-style counterclaims. |
| Did bank strictly comply with foreclosure procedures under power of sale? | Schumacher alleged noncompliance with §14 and related notices. | Bank demonstrated compliance with statutory notice and publication requirements. | Bank's compliance with power-of-sale procedures is sufficient. |
Key Cases Cited
- U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011) (strict compliance with power of sale required; sale void if not followed)
- Bank of Am., N.A. v. Rosa, 466 Mass. 613 (2013) (challenge §35A in equity or postforeclosure counterclaims; Rosa framework)
- Bank of N.Y. v. Bailey, 460 Mass. 327 (2011) (possession defense and title challenges in summary process)
- Wayne Inv. Corp. v. Abbott, 350 Mass. 775 (1966) (title established by deed and strictly following power of sale requirements)
- Moore v. Dick, 187 Mass. 207 (1905) (sale under power of sale must be executed strictly; otherwise void)