Opinion
14-P-702
04-03-2015
SETH COLLETTE v. WELLS FARGO BANK, N.A.
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
Seth Collette filed a supplemental petition in the Land Court Department of the Trial Court in response to a notice from Wells Fargo Bank, N.A. (Wells Fargo) of its intent to foreclose on Collette's mortgage by sale of the property. Wells Fargo then foreclosed on July 12, 2012. Subsequently, on cross motions for summary judgment, judgment was granted in favor of Wells Fargo. Collette appeals. We affirm.
Summary judgment. "From the same record viewed by the motion judge, we review a grant of summary judgment de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007). In an appeal resulting from cross motions, the court examines the record in the light most favorable to the losing party. See, e.g., DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 70 (2007); McLaughlin v. Berkshire Life Ins. Co. of America, 82 Mass. App. Ct. 351, 353-354 (2012)." Kewley v. Department of Elementary & Secondary Educ., 86 Mass. App. Ct. 154, 158 (2014).
The undisputed evidence demonstrates that, at all relevant times, Collette was the registered owner of the property at 29 South Cambridge Street in Nantucket. Collette executed and registered a mortgage and promissory note to Wells Fargo. No subsequent assignments of the mortgage were registered on the certificate of title for the property in dispute. After Collette defaulted on his mortgage payments, Wells Fargo notified Collette of its intent to foreclose on the property. Wells Fargo published notice of the foreclosure sale, advertising itself as the present holder of the mortgage, on three separate dates in a local Nantucket publication. Wells Fargo conducted the foreclosure sale on the property on July 12, 2012. Thereafter, Wells Fargo assigned its winning bid to Federal National Mortgage Association (FNMA).
Collette contends that Wells Fargo made an off-record assignment of the mortgage to FNMA and was not the true mortgage holder for purposes of the foreclosure sale, thus invalidating the sale. However, there is no evidence of any assignment in the record prior to foreclosure. See U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 653 (2011) ("In the absence of a valid written assignment of a mortgage . . . the mortgage holder remains unchanged"). As a registered mortgage holder, Wells Fargo had the authority to conduct the foreclosure sale pursuant to G. L. c. 185, § 21. See id. at 651. See also Culhane v. Aurora Loan Servs., 708 F.3d 282, 293 (1st Cir. 2013).
Collette further maintains that the judge erred in concluding that the right-to-cure notice issued pursuant to G. L. c. 244, § 35A, did not invalidate the foreclosure sale. General Laws c. 244, § 35A, "is not one of the statutes 'relating to the foreclosure of mortgages by the exercise of a power of sale.'" U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 431 (2014), quoting from G. L. c. 183, § 21. As a result, "in a postforeclosure action, it is not enough for the mortgagor merely to show some noncompliance with § 35A. Instead, the mortgagor 'must prove that the violation of § 35A rendered the foreclosure so fundamentally unfair that she is entitled to affirmative equitable relief.'" Bank of New York Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 501 (2014), quoting from Schumacher, supra at 433 (Gants, J., concurring). The omission of the mortgage originator on the notification does not render the foreclosure fundamentally unfair. See Payne v. U.S. Bank, N.A., Civil Action No. 11-10786-GAO, slip op. at 3-4 (D. Mass. Oct. 24, 2013).
Collette also contends that there are facts in dispute regarding whether notification of the postponements of the foreclosure sale was improper because the notice was not public. We do not reach this issue because, although competing affidavits were submitted to the judge, Colette made no argument on this basis in his cross motion for summary judgment. As there is no indication that this argument was made to the judge below, we need not consider it. See, e.g., Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
In light of the lack of argument on this point, the judge found that "it is not in genuine dispute" that the foreclosure sale originally scheduled for December 8, 2011, was publicly postponed at the place of the sale on that date and the continued dates, until the sale took place on July 12, 2012. "[W]hile details of the initial auction must be provided by written notice to the appropriate parties and published in a newspaper in accordance with G. L. c. 244, §§ 11-17B, a postponement of the sale may be announced by public proclamation to those present at the auction site." Fitzgerald v. First Natl. Bank of Boston, 46 Mass. App. Ct. 98, 100 (1999).
Finally, Collette contends that under Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012), the foreclosure sale was invalid because Wells Fargo was not the noteholder or authorized agent of the noteholder at the time of the foreclosure sale. Because there is no record evidence that the note was assigned, we need not reach the applicability of Eaton.
The notice of foreclosure sale was published by Wells Fargo on November 10, 17, and 24, 2011. The Supreme Judicial Court's ruling in "Eaton v. Federal Natl. Mort. Assn., supra at 589, applies 'only to mortgage foreclosure sales for which the mandatory notice of sale has been given after' June 22, 2012." Shea v. Federal Natl. Mort. Assn., 87 Mass. App. Ct. 901, 901 n.4 (2015). Eaton was extended to cases where the issue was preserved and an appeal was pending in the Appeals Court on June 22, 2012. Ibid. See Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 161 (2014). The mandatory notice of the sale in this case occurred before June 22, 2012.
Judgment affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: April 3, 2015.