Opinion
14-P-1302
06-19-2015
EDSON R. CRUZ v. THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION.
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 appeals from the dismissal of his amended complaint (complaint), which sought to quiet title and to obtain a declaratory judgment that the defendant's (BONY) foreclosure of the plaintiff's home is void. The complaint asserts two claims. The first is that the foreclosure is void because, although foreclosure proceedings commenced within five years of the notice to cure, they were not completed within five years in purported violation of G. L. c. 244, § 35A. The second is that, in violation of G. L. c. 244, § 14, "[u]pon information and belief," the defendant "was not the holder of Plaintiff's promissory note or did not have authorization to enforce the note at the time of foreclosure" and the mortgage assignment to the defendant was "invalid, ineffective, or void."
G. L. c. 244, § 35A. At the relevant time, § 35A provided:
The statute has been subsequently amended.
"(a) Any mortgagor of resident real property . . . shall have a 90 day right to cure a default of a required payment . . . by full payment of all amounts that are due without acceleration of the maturity of the unpaid balance of such mortgage. The right to cure a default of a required payment shall be granted once during any 5 year period, regardless of the mortgage holder."G. L. c. 244, § 35A, inserted by St. 2007, c. 206, § 11.
"(b) The mortgagee, or anyone holding thereunder, shall not accelerate maturity of the unpaid balance of such mortgage obligation or otherwise enforce the mortgage because of a default consisting of the mortgagor's failure to make any such payment in subsection (a) by any method authorized by this chapter or any other law until at least 90 days after the date a written notice is given by the mortgagee to the mortgagor."
Taking the allegations of the complaint as true, the plaintiff defaulted on his mortgage in 2008. He received a right-to-cure notice dated June 18, 2008, on two occasions: once in 2008 (at the time Sutton Funding LLC filed a Servicemembers Civil Relief Act [Relief Act] case as a prerequisite to foreclosure), and once in 2012 (in connection with a similar action filed by BONY). The complaint does not specify the precise date on which the plaintiff received the right-to-cure notice for the second time. However, the complaint states that the notice was "[i]ncluded" in the 2012 Relief Act case, which was commenced on September 6, 2012, and concluded on March 18, 2013, when judgment entered. Thus, the complaint can be read to state that the plaintiff received the second § 35A right-to-cure notice at some point between those two dates. Thereafter, BONY published notices of a foreclosure sale in the newspaper beginning in May, 2013, and conducted a nonjudicial foreclosure of the plaintiff's home on June 27, 2013. BONY filed an affidavit pursuant to G. L. c. 244, §§ 35B and 35C, thereafter. The foreclosure sale occurred well within five years of the plaintiff's second receipt of the right-to-cure notice, but five years and nine days after it was first sent.
The plaintiff acknowledges that he received a notice to cure, that he was given ninety days to cure, and that foreclosure proceedings commenced within five years of the notice. We decline to create an additional requirement (not present in the language of the statute) that foreclosure proceedings must also be completed within five years of the notice particularly where, as here, there is no allegation that the foreclosing entity was at fault for the delay. Section "35A is designed to give a mortgagor a fair opportunity to cure a default before the debt is accelerated and before the foreclosure process is commenced through invocation of the power of sale" (emphasis added). U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 431 (2014).
Moreover, even were we to create the additional requirement the plaintiff seeks, he would fare no better. Although the statute entitles borrowers an opportunity to cure once every five years, the complaint does not allege that the plaintiff sought or was willing to cure his default at any time, including during the nine days between the end of the five-year period and the foreclosure sale. In a postforeclosure action, such as here, "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." The Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 501 (2014). The mere allegation that the foreclosure sale occurred five years and nine days after the notice to cure, without an allegation that those nine days would have made a difference, does not meet this standard.
G. L. c. 244, § 14. Although, as noted above, the complaint alleges upon information and belief that BONY did not hold the mortgage and the note at the time of foreclosure, it also alleges that:
"Another assignment in the Middlesex South Registry of Deeds purports that Sutton assigned Plaintiff's 'mortgage and the note and clam [sic] secured thereby' to Defendant Bank of New York on December 7, 2011."The complaint also alleges that BONY "recorded in the Middlesex South Registry of Deeds an affidavit pursuant to G. L. c. 244, § 35B and G. L. c. 244, § 35C" which "states that [BONY] is the holder of Plaintiff's promissory note."
The affidavit states that assignment from Sutton Funding LLC to BONY occurred on December 7, 2011, and was recorded with the Middlesex registry of deeds on January 10, 2012, at book 58260, page 143.
The plaintiff argues that the sufficiency of his claim under G. L. c. 244, § 14, should have been measured solely against the conclusory allegation, made only upon information and belief, that BONY did not hold both the note and the mortgage at the time of foreclosure. However, on review, we are to "look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). Here, the factual allegations of the complaint as set out above do not support the conclusory assertion. Bare assertions, in such circumstances, are not enough to withstand a motion to dismiss. See id. at 636 (A plaintiff may not rely upon "a wholly conclusory statement of claim [to] survive a motion to dismiss"); Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6 (2009); Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 174 (2014).
Moreover, although as an ordinary matter, extrinsic materials are not to be considered in connection with a motion to dismiss, where, as here, "the plaintiff had notice of [the extrinsic] documents and relied on them in framing the complaint, the attachment of such documents to a motion to dismiss does not convert the motion to one for summary judgment." Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 224 (2011), quoting from Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004). In addition, "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). In this case, therefore, the judge was entitled to consider the registry of deeds documents specifically referenced in the complaint even though the plaintiff, whether by design or inadvertence, failed to attach them to the complaint.
Finally, the complaint alleges that a document sent to the plaintiff in response to a qualified written request does not show how BONY came to hold the note. This document is also not attached to the complaint. Regardless, this negative allegation is not enough, as a matter of law, to satisfy the plaintiff's burden -- even at the pleading stage -- to allege sufficiently that BONY did not hold both the mortgage and the note at the time of foreclosure. An allegation that a document does not show how a particular thing occurred is not the same as an allegation that it did not occur.
For these reasons, the judgment dismissing the amended complaint is affirmed.
So ordered.
By the Court (Vuono, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 19, 2015.