Opinion
13-P-1560
10-30-2014
CITIBANK, N.A., trustee, v. RICHARD S. GONICK & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal, the defendants Richard and Susan Gonick challenge the summary judgment in favor of plaintiff Citibank, N.A., as successor trustee (Citibank), and the denial of their motion to dismiss the complaint. The Gonicks claim that Citibank failed to strictly comply with the statutory provisions governing the foreclosure sale of their former home. Following the sale, the Gonicks refused to vacate the property, and Citibank brought a summary process action. We affirm.
Because the judge considered material outside the pleadings, the judge appears to have treated the Gonicks' motion to dismiss as a motion for summary judgment. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 824 (1974); O'Blenes v. Zoning Bd. of Appeals, 397 Mass. 555, 557 (1986). The Gonicks moved to dismiss, in part, on grounds that Citibank's incorrect name constituted a misnomer of a party under Mass.R.Civ.P. 12(b)(8), 365 Mass. 824 (1974). However, rule 12(b)(8) permits dismissal of a claim when a party is misnamed on a claim. Citibank's name appears correctly on its summary process complaint, therefore the Gonicks' contention under that rule was properly rejected.
The Gonicks base their appeal on what they call a misnomer in Citibank's name as trustee of a mortgage securities trust. Contained in the description of that trust is a certain pooling and services agreement dated July 1, 2007. Several pertinent documents, however, including the foreclosure deed and public notice, show this agreement as dated May 1, 2007, which is incorrect. Citibank concedes the May date is incorrect, but it claims that this amounts to a mere scrivener's error, which the foreclosing attorney appropriately cured by simultaneously recording an affidavit under G. L. c. 183, § 5B, as amended by St. 2002, c. 496, § 1.
In pertinent part, § 5B states:
"an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies."
Citibank obtained rights to the mortgage by assignment; that assignment reflects the correct July, 2007, date. However, the public notice and the foreclosure deed each showed the incorrect May, 2007. The Gonicks claim that Citibank with the May date and Citibank with the July date are two different legal entities. It follows, the Gonicks contend, that the Citibank which foreclosed (the "May" Citibank) lacked legal rights do so because it was not the entity (the "July" Citibank) which possessed the right to foreclose. We disagree.
The Gonicks also claim that the omission of the word "trustee" and a reference to the prior trustee, is of similar effect to the title of Citibank. We have not overlooked this claim, but we find nothing that requires discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
It is of course true that foreclosures in Massachusetts require "strict compliance" with the statutory power of sale under G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, and that when a foreclosing mortgagee fails to so comply, the resulting sale is "wholly void." U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 646-646 (2011). See Moore v. Dick, 187 Mass. 207, 211-212 (1905). But it takes more than a minor scrivener's error to invalidate an otherwise valid foreclosure sale. The party seeking to sell under a statutory power of sale has the obligation to "state what property he proposes to sell, and who proposes to make the sale, and who advertises it for sale." Bottomly v. Kabachnick, 13 Mass. App. Ct. 480, 484 (1982). See generally Roche v. Farnsworth, 106 Mass. 509, 513 (1871). Minor errors in the foreclosing mortgagee's name are typically not fatal. See ibid. (insufficient notice where identity of foreclosing mortgagee completely missing).
The deviation in Citibank's name was a minor scrivener's error which does not render the sale or conveyance of the property invalid. Compare SunTrust Mtg. Inc. v. Forsberg, 2013 WL 5783020, at *6 (Mass. Land Ct. 2013). One mistaken word in the lengthy title of Citibank as trustee cannot be compared to cases where the foreclosing bank's name was entirely omitted. See Roche, supra; Bottomly, supra. Consequently, the notice and foreclosure deed were valid. We need not resolve whether an affidavit filed under G. L. c. 183, § 5B, may cure a deed which is invalid, because the deed here is valid. The affidavit here merely clarified the chain of title as is the purpose of that statute. See Ford v. Lehman Capital, 2012 U.S. Dist. LEXIS 53551, at *15 (D. Mass. 2012) (section 5B affidavit from attorney with personal knowledge of assignment cured a gap in chain of title where assignment was not recorded).
Even where Citibank's name appeared with the wrong month, all other details of its name were sufficiently identified. Tellingly, the Gonicks do not allege that the error caused them any reasonable doubt as to the entity conducting foreclosure proceedings against them.
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While there are undoubtedly circumstances where a misnomer could cause a party to be unaware or uncertain as to the identity of the foreclosing party, this is not such a case. Rather, we think the appearance of Citibank's name, even with the "May" misdesignation, was well within the "degree of clearness" required to comply with the notice requirements of G. L. c. 183, § 14. Roche, supra. See Bottomly, supra. Despite the error, Citibank strictly complied with all requirements of legal notice, and the foreclosure deed (clarified by a simultaneously recorded c. 183, § 5B, affidavit) was valid. Citibank was thus entitled to summary judgment and possession of the subject property.
Judgment affirmed.
By the Court (Grasso, Kantrowitz & Meade, JJ.),
Clerk Entered: October 30, 2014.