Opinion
14-P-686
05-05-2015
WELLS FARGO BANK, NA v. MARY D. O'NEILL & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Wells Fargo Bank, NA, appeals from a Housing Court summary process judgment in favor of the defendants, Mary D. and Seamus O'Neill. In denying the plaintiff's motion for summary judgment and allowing the defendants' cross motion, the judge ruled that the plaintiff was required to strictly comply with the right to cure notice requirements of G. L. c. 244, § 35A, and that its failure to do so rendered the foreclosure invalid, entitling the defendants to possession of the premises. Judgment entered dismissing the plaintiff's summary process action on November 19, 2013, and the plaintiff filed a timely appeal. Since the judge's award of summary judgment, a decision of the Supreme Judicial Court in U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421 (2014) (Schumacher), was issued; it is controlling and necessitates a reversal of the allowance of summary judgment for the defendants. In consideration of the motion record, we order the entry of judgment for the plaintiff.
The defendants granted a promissory note secured by a mortgage on their home to World Savings Bank, FSB, in 2003. Over time, World Savings Bank, FSB, became Wachovia Mortgage, FSB, which became Wells Fargo Bank Southwest, N.A., which eventually merged with the plaintiff. The defendants defaulted on the note in 2008, and over the course of a year, first Wachovia Mortgage, FSB, then the plaintiff, sent to the defendants three right to cure notices, all of which, as the judge found, had technical inaccuracies in identifying the originator and/or the mortgage broker. After the third notice, the plaintiff foreclosed, purchasing the property for itself at the foreclosure auction. The plaintiff then commenced this summary process action seeking to evict the defendants from the property.
The judge also addressed the plaintiff's argument that Federal banking law preempted the notice requirements of G. L. c. 244, § 35A, and concluded that Massachusetts law was not preempted. Given the result we reach, there is no need to reach this issue of apparent first impression concerning Federal banking law preemption of certain aspects of State foreclosure law.
In Schumacher, a case quite similar to this case, Schumacher had argued, in the context of a summary process action, that the right to cure notice was defective as it failed to identify the current mortgagee and contended that "the bank's failure to comply with this statutory provision deprived the bank of authority to foreclose on the mortgage by the statutory power of sale, thereby rendering the foreclosure void. Because the foreclosure was void, Schumacher continues, the foreclosure deed did not convey good title to the bank and, therefore, the bank lacked a right of possession to the property that was superior to that of Schumacher." Id. at 428.
The Supreme Judicial Court disagreed, holding that, in contrast to deficiencies in the power of sale, which will void a foreclosure and may be raised in the context of a summary process action, see U.S. Natl. Bank Assn. v. Ibanez, 458 Mass. 637, 646-467 (2011), deficiencies in a notice to cure may not be raised in a postforeclosure summary process action. See Schumacher, supra at 429. The defendants' brief properly concedes that Schumacher overruled the basis for the Housing Court judge's decision and rendered any resolution of the preemption issue "no longer necessary."
To the extent that the defendants now argue that there are genuine issues of material fact precluding summary judgment, they elected not to raise them in their summary judgment motion, likely anticipating a favorable outcome on the issue of the defective notice to cure. Conceding that the plaintiff had made its prima facie case for possession of the property, the defendants argue now that they are entitled to an evidentiary proceeding on the title issues raised in their affirmative defenses and that there are evidentiary issues concerning whether they are entitled to equitable relief for the plaintiff's failure to inform them of a class action settlement which may have applied to their loan. We disagree.
These issues are waived for failure to raise them in their opposition to the plaintiff's summary judgment motion and their counter motion for summary judgment. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (issue not argued in summary judgment opposition below may not be argued for first time on appeal, where plaintiffs "never put the judge on notice that they opposed summary judgment on this theory"); Department of Rev. v. Estate of Shea, 71 Mass. App. Ct. 696, 701 (2008) (same).
Consequently, the judgment for the defendants is reversed, and the matter is remanded for entry of a judgment in favor of the plaintiff.
So ordered.
By the Court (Grainger, Meade & Fecteau, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: May 5, 2015.