The sole issue in this appeal is whether an uncontro-verted affidavit attesting to the statutory form “Affidavit of Sale under Power of Sale in Mortgage,” G. L. c. 183, § 8, and Appendix Form 12 (statutory form), is sufficient to show compliance with the power of sale for the purpose of establishing the
A judge in the Housing Court ruled in favor of the plaintiff, the Federal National Mortgage Association (Fannie Mae), on the parties’ cross motions for summary judgment, and the defendant, Oliver Hendricks, appealed. Hendricks asserts error in the grant of summary judgment to Fannie Mae, where the statutory form fails to set forth “fully and particularly” the acts taken to exercise the power of sale in Hendricks’s mortgage, as required by G. L. c. 244, § 15. We granted his application for direct appellate review and now affirm the judgment.
1. Background. Hendricks granted to Mortgage Electronic Registration Systems, Inc. (MERS), a mortgage on real property in the Roslindale section of Boston. The mortgage, dated April 12, 2008, contained the statutory power of sale. See G. L. c. 244, § 14. Hendricks defaulted on the loan, and MERS foreclosed on the mortgage. MERS proceeded to a foreclosure auction at which it tendered the highest bid. MERS assigned its bid to Fannie Mae, which then paid the bid price and acquired a foreclosure deed to the mortgaged premises. The foreclosure deed and the statutory form were recorded with the registered land division of the Suffolk County registry of deeds on July 14, 2010. Beyond the requirements of the statutory form, the affidavit of sale contained a statement of the affiant specifying the three dates of publication in a particular newspaper, and a statement of the affiant that “I also complied with [G. L. c. 244, § 14], as amended, by mailing the required notices certified mail, return receipt requested.”
Fannie Mae thereafter commenced an action of summary process against Hendricks. It filed a motion for summary judgment, and in support thereof it filed the affidavit of its asset recovery manager with “true and accurate copies” of the foreclosure deed and statutory form (supplemented as described above) attached. Hendricks filed a cross motion for summary judgment and opposition to Fannie Mae’s motion for summary judgment in which he raised multiple issues. Of significance to
2. Standard of review. Hendricks seeks the reversal of the order granting summary judgment and a remand to the Housing Court for trial. When reviewing a grant of summary judgment we consider the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Mass. R. Civ. P. 36,
3. Discussion. Hendricks argues that Fannie Mae failed to make a prima facie showing of its right to possession of the premises. He acknowledges that a plaintiff in a postforeclosure summary process case may make a prima facie showing of its right to possession by producing an attested copy of the recorded foreclosure deed and affidavit of sale under G. L. c. 244, § 15. See Lewis v. Jackson,
Hendricks argues that the affidavit of sale must comply with the requirement of G. L. c. 244, § 15, by “fully and particularly stating [the affiant’s] acts” taken to satisfy the notice requirements of G. L. c. 244, § 14.
Hendricks counters by arguing that the statutory form, inserted by St. 1912, c. 502, § 12, is outdated. When the statutory forms were established by the Legislature in 1912, the only form of notice required to execute the power of sale in a mortgage was publication in a newspaper. See R. L. (1902) c. 187, § 14, as amended by St. 1906, c. 219, § 1. The requirements of mail notice to the owners of the equity of redemption and junior interest holders were not added until 1975 and 1981, respectively. See St. 1975, c. 342; St. 1977, c. 629; St. 1981, c. 242. The statutory form affidavit of sale has never been amended. Citing Doe v. Attorney Gen. (No. 1),
There are two obvious problems with Hendricks’s argument. First, the statutory form calls for only one date of publication of the advertisement in the newspaper. It was enacted at a time when publication was required (and still is required) on three dates, namely, once each week for three consecutive weeks. The statutory form also was enacted when affidavits of sale were required (as now) to be recorded in a registry of deeds. See R. L. (1902) c. 187, §§ 14, 15; St. 1906, c. 219, §§ 1, 2; St.
Second, as noted, the purpose of the statutory forms in the Appendix to G. L. c. 183 was to shorten instruments for recording in a registry of deeds. See St. 1912, c. 502. If the Legislature intended affidavits of sale to be as detail laden as G. L. c. 244, § 15, and its predecessors require, then there would have been no reason whatsoever even to create the statutory form.
We do not accept Hendricks’s assertion of an implacable conflict between G. L. c. 244, § 15, and the statutory form. “[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or
An affidavit that meets the requirements of G. L. c. 244, § 15, does nothing more. Such an affidavit is not conclusive proof of compliance with G. L. c. 244, § 14. See Atkins v. Atkins, supra. It is merely “evidence that the power of sale was duly executed.” See note 3, supra. Given the long and continuous history of legislation (at least since St. 1857, c. 229, § 1) that has treated the affidavit of sale as “evidence that the power of sale was duly executed,” and given our long-standing jurisprudence that has treated affidavits of sale as nonconclusive proof of compliance with the statute authorizing foreclosure by power of sale in the mortgage, see Silva v. Turner,
It is not disputed that a defendant in a postforeclosure summary process action may challenge a plaintiff’s title, i.e., its right of possession. See Bank of N.Y. v. Bailey,
If a plaintiff makes a prima facie case, it is then incumbent on a defendant to counter with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact to avoid summary judgment against him. See id. at 566; Mass. R. Civ. P. 56 (c). See also Atkins v. Atkins, supra (defendant may challenge at trial plaintiff’s assertions of compliance with statute); Silva v. Turner, supra (same). If a defendant fails to show the existence of a genuine issue of material fact in response to a motion for summary judgment by contesting factually a prima facie case of compliance with G. L. c. 244, § 14, such failure generally should result in judgment for the plaintiff. Here, Hendricks offered nothing to show the existence of a genuine issue of material fact in response to Fannie Mae’s prima facie case, and summary judgment was correctly entered against him.
Judgment affirmed.
Notes
We acknowledge the amicus brief submitted by the Real Estate Bar Association for Massachusetts, Inc., and the Abstract Club in support of the plaintiff’s position.
General Laws c. 183, Appendix Form 12, sets forth the following statutory form “Affidavit of Sale under Power of Sale in Mortgage”:
“_named in the foregoing deed, make oath and say that the principal _interest_obligation_mentioned in the mortgage above referred to was not paid or tendered or performed when due or prior to the sale, and that I published on the_day of_, 19_, in the_, a newspaper published or by its title page purporting to be published in_aforesaid and having a circulation therein, a notice of which the following is a true copy. (INSERT ADVERTISEMENT)
“Pursuant to said notice at the time and place therein appointed, I sold the mortgaged premises at_public auction by_, an auctioneer, to_, above named, for_dollars, bid by him, being the highest bid made therefor at said auction.
“Sworn to by the said_f 19_, before me_.”
General Laws c. 244, § 15, states that the person foreclosing “shall, after the sale, cause a copy of the notice and his affidavit, fully and particularly stating his acts, . . . to be recorded in the registry of deeds for the county or district where the land lies . . . . If the affidavit shows that the requirements of the power of sale and of the statute have in all respects been complied with, the affidavit or a certified copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed.” (Emphases added.)
General Laws c. 244, § 14, provides that “no sale under [the power of sale in a mortgage] shall be effectual to foreclose a mortgage, unless, previous to such sale, [1] notice thereof has been published once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper, if any, published in the town where the land lies or in a newspaper with general circulation in the town where the land lies and [2] notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed at least fourteen days prior to the date of sale to said owner or owners . . . and unless [3] a copy of said notice of sale has been sent by registered mail to all persons of record as of thirty days prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed, said notice to be mailed at least fourteen days prior to the date of sale to each such person.”
General Laws c. 183, § 8, states: “The forms set forth in the appendix to this chapter may be used and shall be sufficient for their respective purposes. They shall be known as ‘Statutory Forms’ and may be referred to as such. They may be altered as circumstances require, and the authorization of such forms shall not prevent the use of other forms. ...” (Emphasis added.)
In a different context, to which some reference is useful in understanding the practical purpose of statutory forms generally, this court has held that the statutory forms for indictments set forth in G. L. c. 277, § 79, generally are sufficient, see Marshall v. Commonwealth, ante 529, 532 n.7 (2012), but that a bill of particulars is an appropriate means to obtain details as to the time, place, nature, and grounds of a felony charged in an indictment, if needed. See Commonwealth v. Baker,
Because of the decision we reach, there is no need to discuss whether the statutory form in this case, as supplemented, meets the requirement of details set forth in G. L. c. 244, § 15.