Opinion
16-P-605
05-23-2017
CITIBANK, N.A. v. DAVID GLOWACKI & 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 defendants, David and Ellen Glowacki, appeal from the final judgment entered after the allowance of summary judgment in favor of the plaintiff, Citibank, N.A. We vacate the judgment and remand the matter to the Land Court.
Background. The defendants filed an S-petition in the Land Court on February 24, 2012. The plaintiff filed a complaint to quiet title, and for other relief, on August 16, 2012. Thereafter, the defendants filed a motion to dismiss, and the plaintiff filed a motion to consolidate. The motions were denied. On May 14, 2013, the defendants filed an answer and affirmative defenses which included a claim that the plaintiff lacked standing to foreclose under the power of sale in the mortgage. The plaintiff's initial motion for summary judgment was denied; however, their renewed motion was allowed. This appeal followed.
Discussion. Among other claims raised in the Land Court, the defendants alleged that the notice of default was not in strict compliance with par. 22 of the mortgage as required by Pinti v. Emigrant Mort. Co., 472 Mass. 226 (2015). The defendants claimed that the notice of default failed to comply with par. 22 as it was not issued and/or sent by the lender under the mortgage and that it incorrectly set out the basis under which the defendants could have brought a court action. The judge, in reliance on the prospective application of Pinti, declined to reach the issue whether the notice of default was in strict compliance with par. 22. See id. at 243.
The judge did not have the benefit of the recent ruling of the Supreme Judicial Court wherein the Pinti rule was extended to any case where the issue of strict compliance with par. 22 was timely and fairly asserted in the trial court or on appeal before July 17, 2015. See Federal Natl. Mort. Assn. v. Marroquin, 477 Mass. 82 (2017). Because the defendants fall into the category of litigants contemplated by Marroquin, the case must be remanded for consideration of the Pinti issue.
Conclusion. The judgment dated January 7, 2016, is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Blake, Henry & Shin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 23, 2017.