Opinion
No. 11–P–314.
2012-11-26
DEUTSCHE BANK NATIONAL TRUST COMPANY v. Richard GUESS & another.
By the Court (RAPOZA, C.J., GRASSO & KANTROWITZ, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Deutsche Bank National Trust Company (Deutsche Bank), appeals from the dismissal of its summary process eviction complaint by a Housing Court judge. We conclude that Deutsche Bank's appeal is controlled in all material respects by Federal Natl. Mort. Assn. v. Nunez, 460 Mass. 511 (2011) ( Nunez ).
Nunez was issued in the interim between briefing and oral argument in this appeal. The decision thus was not mentioned in Deutsche Bank's brief but was discussed at oral argument.
Discussion. In Nunez, the Supreme Judicial Court held that new requirements imposed by G.L. c. 186A, inserted by St.2010, c. 258, § 6, for the eviction of preexisting tenants of foreclosed residential properties apply to eviction processes begun prior to the statute's effective date of August 7, 2010, but not yet completed by that time.
Id. at 517–524. In pertinent part, G.L. c. 186A, § 2, states that “a foreclosing owner shall not evict a tenant except for just cause or unless a binding purchase and sale agreement has been executed for a bona fide third party to purchase the housing accommodation from a foreclosing owner.” Prior to the enactment of G.L. c. 186A, such tenants could be subject to “no fault” summary process eviction so long as they were given sufficient advance notice. See Daher & Chopp, Landlord & Tenant Law § 3:17, at 73–74 (3d ed. Supp.2012). Nunez concludes, however, that “[w]here a ‘no fault’ eviction process began but was not completed before [the effective date of the statute], a foreclosing owner cannot complete the eviction, because any further act intended to cause the tenant to vacate would violate c. 186A.” Nunez, supra at 520. Deutsche Bank foreclosed on the property in issue on November 12, 2009, and served the defendants with the notice to quit on March 30, 2010. It brought a “no fault” summary process complaint in the Housing Court on August 27, 2010, i.e., after the statute's effective date. Consequently, under Nunez, Deutsche Bank was required to comply with G.L. c. 186A, §§ 1– 2. As noted by the Housing Court judge, “[t]he notice to quit in this action does not purport to terminate the tenancy for just cause.” The judge was therefore correct to dismiss Deutsche Bank's claim for possession.
The plaintiff in Nunez both served a notice to quit and filed a “no fault” summary process complaint prior to the effective date of the statute. 460 Mass. at 512–513.
To the extent that in its appeal Deutsche Bank also raises constitutional claims premised on the assertion that G.L. c. 186A was applied retroactively in its case, they must similarly fail. Although these claims were not made below, we need not determine whether they were waived. We recognize that “[a] statute that is intended to apply retroactively may be subject to challenge on constitutional grounds,” Nunez, supra at 516 n. 7, but Nunez makes clear that the application of G.L. c. 186A in a case such as the one before us is a prospective use of the statute. Id. at 519, 523–524. Consequently, Nunez is dispositive of the appeal in all respects.
Judgment affirmed.