Opinion
14-P-1697
02-12-2016
CITY OF LAWRENCE v. PHH MORTGAGE CORPORATION & 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
PHH Mortgage Corporation (PHH) filed a foreclosure deed on property located in the city of Lawrence (city) on July 31, 2012. The foreclosure deed was signed by Mycal S. Farmer as assistant vice-president of PHH. The foreclosure deed gave an address for PHH of 2001 Leadenhall Road, Mount Laurel, New Jersey.
In February, 2013, the city, through its inspectional services department, filed a motion for appointment of receiver in order to enforce the sanitary code with respect to the property on the ground that it was a dwelling unfit for human habitation. The motion was allowed and a receiver was appointed. In April, 2013, the receiver filed a motion in the Housing Court to approve the budget for the work necessary to repair and to maintain the property. On April 25, 2013, the receiver's initial budget was approved, and only then did the receiver begin work on the property. PHH made no appearance in the case until June 20, 2013. PHH argues that it never properly was served with process, and that its rights to due process were violated.
There appears to be some confusion in this case because of the way the city sought to enforce the sanitary code. It began with the issuance of an inspection report by a code enforcement officer, who then filed a request for a criminal complaint for a sanitary code violation. The criminal summons named Farmer at the address indicated in the foreclosure deed. The summons was mailed to him at that address. Neither the summons nor the letter identified him as vice-president of PHH.
PHH avers that as a result of an internal document not available to the city, Farmer was not in fact the vice-president of PHH. We need not resolve the issue.
PHH argues that because the summons and complaint issued only to Farmer in his individual capacity, and because PHH, and not Farmer individually, was the record owner of the subject premises, both process and service of process were insufficient. We may assume without deciding that PHH is correct, and that the criminal complaint was improperly captioned and served on the wrong party, and that, therefore, it was fatally defective and might have been dismissed without prejudice under Mass.R.Civ.P. 12(b)(4) or 12(b)(5), 365 Mass. 754 (1974). This, however, is irrelevant.
The criminal proceeding subsequently was converted to a civil proceeding, and was dismissed after the receiver finished his work on the property and filed a motion to close the case.
The appointment of the receiver and the expenditure of funds for which PHH argues it is not responsible was not a result of the criminal complaint but of a petition to enforce the sanitary code. G. L. c. 111, § 127I. Indeed, the statutory provision under which the receiver was appointed allows appointment only "[u]pon the filing of a petition to enforce the provisions of the sanitary code, or any civil action concerning violations of the sanitary code by any affected occupants or a public agency." G. L. c. 111, § 127I, inserted by St. 1965, c. 898, § 3. The statute makes no provision for appointment of a receiver in a criminal action. The petitions to which it makes reference are provided for by G. L. c. 111, § 127C, and they are distinct from criminal complaints. See generally Commonwealth v. Haddad, 364 Mass. 795 (1974).
Although the document seeking appointment of a receiver in this case was captioned "motion to appoint receiver," rather than the proper "petition for appointment of receiver," that is a matter of form and not substance. The Housing Court judge clearly understood this as, in response to the motion, he issued an order for appointment of receiver under G. L. c. 111, § 127I.
The text of the order refers to an "application . . . for appointment of" the receiver, not to a petition or a motion.
The question before us then is only whether that petition was properly served. General Laws c. 111 provides a specific mechanism for service of a petition. It provides that "if the respondent is a corporation, service may . . . be made in the manner provided by law or by leaving an attested copy . . . at the last and usual place of abode of the president, treasurer or clerk of the corporation, or in such other manner as the court may direct." G. L. c. 111, § 127D, inserted by St. 1965, c. 898, § 3.
As PHH notes, it has a registered agent for service in Massachusetts, see G. L. c. 156D, § 15.03. However, service upon a resident agent is not "the only means, or necessarily the required means, of serving a foreign corporation." G. L. c. 156D, § 15.10(G), inserted by St. 2003, c. 127, § 17. Whether or not the petition in this case is denominated "process," we think that the language allowing service "in the manner provided by law," c. 111, § 127D, permits, inter alia, service upon nonresident corporations by United States mail, return receipt requested, as described in Mass.R.Civ.P. 4(e)(3), 365 Mass. 733 (1974). Unfortunately, because of the parties' focus on the criminal complaint, neither party has addressed service of the motion to appoint receiver upon PHH, nor has a copy of that motion been included in the record appendix. Nonetheless, it is clear that a copy of the order for appointment of receiver was sent to PHH at the Leadenhall Road address by certified mail, return receipt requested, on February 28, 2013. The order for appointment of receiver specified that a further hearing would take place on April 25, 2013. Even if service of the motion were insufficient -- something that PHH does not claim and has not demonstrated -- we think service of this order spelling out the nature of the proceeding and providing notice of the hearing at which, prior to undertaking any work, the receiver would seek to have his budget approved, sufficed to cure any problem with service of the motion, and met the requirements for service under the statute. Quite clearly it gave notice sufficient for purposes of due process.
It does remain to dispense of a single additional argument about service made by PHH, which is that the address on Leadenhall Road was not the proper corporate address (though, we note that the judge found that PHH had actual notice of the proceeding upon receipt of the appointment order). We think that the inspectional services department was entitled to utilize the corporate address concededly provided by PHH in its foreclosure deed in serving PHH.
Judgment affirmed.
By the Court (Kafker, C.J., Katzmann & Rubin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 12, 2016.