Opinion
11-P-1141
05-14-2012
BANK OF NEW ENGLAND v. B-P NANTUCKET LLC & others.
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.
John C. Pyles, III, and Edward J. Burham.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant guarantors appeal from a summary judgment dismissing their counterclaims and awarding the plaintiff bank damages in the amount of the deficiency after a foreclosure sale. The appeal presents a single issue concerning whether the timing of the preparation of an affidavit of notice by the bank complied with the provisions of G. L. c. 244, § 17B.
The language of the statute requires that 'an affidavit has been signed and sworn to, within thirty days after the foreclosure sale, of the mailing of such notice.' G. L. c. 244, § 17B. For an unexplained reason, the bank prepared the affidavit of notice prior to the foreclosure sale, and the defendants argue that this constituted noncompliance with the statute. The defendants argue, understandably, that the requirements of § 17B are meant to protect mortgagors and are to be strictly construed. See Framingham Sav. Bank v. Turk, 40 Mass. App. Ct. 384, 386-387 (1996); Bead Portfolio, LLC v. Follayttar, 47 Mass. App. Ct. 533, 536 (1999). The bank does not dispute this contention, insisting, however, that it strictly complied with the statute because it prepared the affidavit within the period permitted by the statute.
We are persuaded that the affidavit of notice complied with the statute. We discern no prejudice to the defendants because the affidavit was prepared prior to the sale, rather than after the sale.
Judgment affirmed.
By the Court (Grasso, Mills & Trainor, JJ.),