Opinion
15-P-1295
07-29-2016
ANGELINA M. HALL & another v. SANTANDER 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
Plaintiffs Angelina M. Hall and Reginald H. Hall (collectively, the Halls) appeal from the summary judgment in favor of defendant Santander Bank, N.A. (Santander), on the Halls' one-count complaint alleging that Santander improperly exercised its statutory power of sale in foreclosing on the Halls' property located at 52 Ash Street in the city of New Bedford. We affirm.
The Halls' brief includes an argument that the judge erred in allowing summary judgment on count II of the complaint alleging slander of title. The one-count complaint in this matter does not include a slander of title claim. But see Hall v. Nationstar Mort. LLC, 89 Mass. App. Ct. 1105 (2016) (case involving same plaintiffs and including claim for slander of title).
"We review a grant of summary judgment de novo to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Juliano v. Simpson, 461 Mass. 527, 529-530 (2012), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 129 (1991). The summary judgment materials, which include affidavits and duly authenticated documents, establish that the Halls purchased the property in 2004 by executing a note in the principal amount of $352,000, secured by a mortgage. Sovereign Bank was the lender and mortgagee. The Federal National Mortgage Association (Fannie Mae) purchased the note on June 1, 2005, retaining Sovereign Bank as the servicer. Sovereign Bank changed its name to Sovereign Bank, N.A., on January 26, 2012, and to Santander, on October 17, 2013.
In notices dated August 13, 2013, Sovereign Bank, N.A., informed the Halls of their default on the loan and their right to cure pursuant to G. L. c. 244, § 35A. On July 10, 2014, Tewana Sheriff, banking officer for "Santander Bank, N.A., formerly known as Sovereign Bank N.A., formerly known as Sovereign Bank," executed affidavits of compliance with G. L. c. 244, § 35B, concerning good faith efforts to avoid foreclosure, and with G. L. c. 244, § 35C, concerning authorization to act on behalf of the note holder. On November 3, 10, and 17, 2014, Santander published notice of a foreclosure sale to be held on November 24, 2014. Santander, the highest bidder at the auction, assigned its bid to Fannie Mae and conveyed the property to Fannie Mae by foreclosure deed. Santander, the mortgagee and servicer, was authorized by Fannie Mae, the holder of the note, to act on Fannie Mae's behalf to initiate and to conduct the foreclosure proceedings.
Sheriff, as an authorized agent of Santander, the loan servicer, was a proper party to submit the affidavits of compliance with § 35B and § 35C, both of which include mortgage servicer, its agents, and its employees, in the definition of creditor.
We agree with the motion judge that the summary judgment affidavits and exhibits adequately establish Fannie Mae's ownership of the note, as well as Santander's authority to foreclose as mortgagee, acting on behalf of Fannie Mae. See Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 571 (2012). We discern no genuine issue of fact regarding Fannie Mae's purchase of the loan. The assertions to the contrary in the Halls' brief are insufficient to withstand a motion for summary judgment. See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974) (in opposing motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials in his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial"). Likewise, the affidavits of Santander's default operations analyst and Fannie Mae's director of servicing provide a competent, and undisputed, factual basis for Santander's authorization to act on Fannie Mae's behalf. Contrast Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct. 824, 828-829 (2016).
We discern no abuse of discretion in the judge's denial of the Halls' motion under Mass.R.Civ.P. 56(f) to defer consideration of the summary judgment motion and allow additional discovery. The Halls failed to make even a minimal showing of a factual basis to warrant further discovery. See Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 107-108 (2008).
To the extent that we do not specifically address any of the Halls' other contentions, "they 'have not been overlooked. We find nothing in them that requires discussion.'" Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Vuono, Massing & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: July 29, 2016.