Opinion
No. 15–P–477.
10-28-2016
FEDERAL NATIONAL MORTGAGE ASSOCIATION v. Carolina NUNEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Background. In this postforeclosure eviction case, the defendant Carolina Nunez appeals from the Housing Court's entry of summary judgment for possession in favor of Federal National Mortgage Association (FNMA) with respect to the home located at 287 Walnut Avenue in the Roxbury section of Boston (the property).
Nunez has challenged the validity of the foreclosure based on a discrepancy between the street address and the legal description incorporated into her mortgage, which prompted the foreclosing mortgagee's use of the designation “a/k/a” in its statutorily required publication of notice regarding the foreclosure auction. Nunez argues that the “a/k/a” designation in the published notice did not satisfy the statutory requirements, and that the mortgagee, Nationstar Mortgage LLC (Nationstar), was required to formally reform the mortgage before undertaking a foreclosure. We disagree.
More specifically, the subject property is known and numbered as 287 Walnut Avenue in Roxbury. In the body of the mortgage signed by Nunez, the address is incorrectly listed as 287 Walnut “Street,” in Roxbury, Massachusetts 02119–1323. The legal description attached as exhibit A to the mortgage is, however, accurate. Exhibit A lists the address as 287 Walnut Avenue and also refers to Walnut Avenue in the metes and bounds. With apparent knowledge of this discrepancy, the mortgagee published a notice of its scheduled foreclosure auction using the address “287 Walnut Street a/k/a 287 Walnut Avenue, Roxbury (Boston).” In addition to the street address, the published notice included the entire correct legal description, with its references to Walnut Avenue.
Nationstar is not a party to this case. The right to cure notice at issue in this case was sent by a Nationstar predecessor or its servicer.
Nunez also argues that the foreclosure is invalid because Nationstar owed her a second “right to cure” notice required by G.L. c. 244, § 35A, as amended by St.2010, c. 258, § 7, and that Nationstar's failure to send such a notice invalidates the foreclosure.
Discussion. 1. The address. There is no merit to Nunez's claim that the published foreclosure notice was defective by reason of an error in the address of the property. The specific legal description setting forth metes and bounds of property conveyed by deed controls the extent of the grant as compared to a more general designation of the location. See Morse v. Chase, 305 Mass. 504, 508, 26 N.E.2d 326 (1940) (“It is settled that a clear and unambiguous particular description of the land controls a general description that is inconsistent with such particular description”).
Additionally, the legal description appended to the mortgage as exhibit A incorporates a recorded plan of land. See Larsen v. Dillenschneider, 235 Mass. 56, 57, 126 N.E. 363 (1920) ; Tattan v. Kurlan, 32 Mass.App.Ct. 239, 245, 588 N.E.2d 699 (1992). Finally, the legal description also states, “[f]or my title, see deed recorded herewith.” Nunez's deed, recorded approximately at the same time as the mortgage, correctly references “287 Walnut Avenue.” See Abbott v. Frazier, 240 Mass. 586, 593, 134 N.E. 635 (1922) (references to prior deed “had the same effect as if the entire description in that deed had been copied into each conveyance”).
For these reasons, we agree with the judge that the mortgage correctly identified the collateral and was enforceable.
We also agree with the judge that the address specified in the published notice of foreclosure did not violate the statutory requirements found in G.L. c. 244, § 14. On this point, Colcord v. Bettinson, 131 Mass. 233 (1881), is instructive. In Colcord, the location of the property sold at foreclosure auction had once been within the boundaries of the town of Malden but was later incorporated into the adjacent town of Everett. Id. at 233. The subject mortgage, executed five years after the municipal boundaries changed, incorrectly referred to the property as being located in Malden. Ibid. The mortgage document also required that any foreclosure sale take place “at public auction in said Malden.” Ibid. The required notice was published in an Everett newspaper and stated that the sale would take place “on the premises described in the mortgage deed, to wit, a lot of land situated in the south part of Malden.” Id. at 234.
To the extent Nunez contends that the foreclosure sale was defective because it was held at a location other than what was specified in the notice of foreclosure, the claim fails for the same reasons that we conclude that the notice did not violate the statute. The parties do not dispute that the auction was held at the mortgaged property, in compliance with G.L. c. 183, § 21.
Despite the repeated error as to the name of the town in Colcord, the Supreme Judicial Court held that the auction notice was sufficient because it was “strictly in compliance with the terms of the mortgage,” and the mortgagee's good faith was not denied. Ibid. “Under such circumstances, the sale will not be set aside unless it appears that some further description of the premises or place of sale was required in order to properly protect the rights and interest of the plaintiff.” Ibid. Here, as in Colcord, “the exact locality of the estate ... could be easily ascertained.” Ibid. Accordingly, we affirm the judge's determination “that the Notice of Intention to Foreclose Mortgage was legally sufficient and complied with the requirements of G.L. c. 244, § 14.”
Nothing in the record of the present case suggests a lack of good faith on the part of the foreclosing mortgagee, and Nunez does not contend otherwise. Indeed, Nationstar's use of both “Street” and “Avenue” in the published notice and its use of duplicative notices sent directly to Nunez suggests a good faith effort to comply with both the letter and purpose of the statute, despite the incorrect street reference in the mortgage.
It is undisputed that (i) the street address listed in the mortgage identified the property as located in Roxbury with the correct postal zip code for the property; (ii) although there are four Walnut Streets in the city of Boston, none of them are located in Roxbury; and (iii) there is only one Walnut Avenue in Boston, which is the one in Roxbury where the subject property is situated.
2. G. L. c. 244, § 35A. Next, Nunez argues that the foreclosure is void because Nationstar failed to comply with G.L. c. 244, § 35A, which requires that the mortgagee provide the mortgagor with a right to cure notice prior to foreclosing. In U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 422, 429–431, 5 N.E.3d 882 (2014), the Supreme Judicial Court held that G.L. c. 244, § 35A, is not part of the statutorily mandated mortgage foreclosure process, which is limited to those requirements set forth in G.L. c. 183, § 21, and G.L. c. 244, §§ 11 –17C. Accordingly, a defective notice sent pursuant to G.L. c. 244, § 35A, does not necessarily render a foreclosure void, and failure to raise a claim of a deficiency in a § 35A notice before a foreclosure sale ordinarily may not be raised as a defense in a postforeclosure summary process action. Instead, “where a defendant in [a] summary process action claims a violation of the requirements in § 35A to provide timely and adequate written notice of the right to cure the default, the defendant ... must prove that the violation of § 35A rendered the foreclosure so fundamentally unfair that she is entitled to affirmative equitable relief, specifically the setting aside of the foreclosure sale [ ]‘for reasons other than failure to comply strictly with the power of sale provided in the mortgage.’ “ Schumacher, 467 Mass. at 432–433, 5 N.E.3d 882 (Gants, J., concurring), quoting from Bank of Am., N.A. v. Rosa, 466 Mass. 613, 624, 999 N.E.2d 1080 (2013). In Bank of N.Y. Mellon Corp. v. Wain, 85 Mass.App.Ct. 498, 501, 11 N.E.3d 633 (2014), we reiterated that where a postforeclosure counterclaim effectively raises a violation of G.L. c. 244, § 35A, as a defense to foreclosure, “it is not enough for the mortgagor merely to show some noncompliance with § 35A.”
Nunez was sent a notice dated May 9, 2008, providing her with an opportunity to cure the default in her mortgage payments within ninety days, in accordance with the then-applicable version of § 35A. See St.2007, c. 206, §§ 11, 21. Section 35A was amended effective August 7, 2010, to (i) lengthen the statutory cure period from ninety days to 150 days, and (ii) reduce the time between the default notices to which a mortgagor is entitled from five years to three years. St.2010, c. 258, § 7.
Nunez's foreclosure was not completed until January 18, 2012, and she claims that once the amendment to § 35A became effective (August 7, 2010), she was entitled to a second right to cure notice upon the expiration of three years from the date of the first notice (unless the foreclosure had been completed, which it was not). Generally, however, where a § 35A notice was sent prior to the 2010 amendment, the version of the statute enacted on November 16, 2007, and effective on May 1, 2008, is applicable. See U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 422 n. 3, 5 N.E.3d 882 (2014). See also Stokes v. Wells Fargo Bank, N.A., 37 F.Supp.3d 525, 531–534 (D .Mass.2014) (mortgagor who received right to cure notice between May 1, 2008, and August 7, 2010, is not entitled to another such notice for five years). As discussed below, under our view of the case we need not decide whether the 2010 amendment requires a second notice in circumstances such as those in the present case, in which a notice was sent under § 35A before the effective date of that amendment and the foreclosure thereafter occurred more than three, but fewer than five, years after the notice.
It is unclear, as a matter of pleading, whether Nunez actually sought “affirmative equitable relief, specifically the setting aside of the foreclosure sale” as required by Schumacher, 467 Mass. at 433, 5 N.E.3d 882 —as opposed to merely challenging FNMA's title as a defense to FNMA's claim for possession. See Schumacher, 467 Mass. at 422 n. 4, 5 N.E.3d 882 (stating that homeowner can challenge compliance with § 35A by bringing independent equity action in Superior Court or asserting counterclaim in postforeclosure summary process action). We assume without deciding that Nunez properly asserted her claim that the foreclosure was void as a counterclaim or an affirmative defense.
In the present case, Nunez has produced no evidence that the absence of a second § 35A notice prejudiced her in any way. See id. at 502, 11 N.E.3d 633. Accordingly, Nunez is not entitled to relief even were we to assume, favorably to her argument, that the 2010 amendment requires a second § 35A notice in circumstances where the first notice was sent before the amendment became effective and the foreclosure thereafter did not occur within three years, see note 6, supra, and that Nunez properly raised her claim, see note 7, supra. The judgment of the Housing Court is affirmed.
So ordered.