Opinion
13-P-453
06-16-2015
SBSUNSHINE REALTY, LLC v. CHARLES GILLIS.
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
This is a residential, postforeclosure action in which the plaintiff, SBSunshine Realty, LLC (plaintiff) filed a summary process action to recover possession of property occupied by the defendant Charles Gillis (defendant). After hearing, the court allowed the plaintiff's motion for summary judgment. The court also denied the defendant's motion to allow the filing of a third party complaint. For the reasons that follow, we affirm.
Background. The essential facts are not in dispute. The defendant is the former owner of the single-family dwelling at 537 East 4th Street in South Boston (property). In April, 2006, the defendant obtained a mortgage loan from GMAC Mortgage Company, Inc. (GMAC) secured by a first mortgage, Mortgage Electronic Registration System, Inc. (MERS) as nominee for GMAC. On November 9, 2009, MERS assigned the mortgage to GMAC. The mortgage, as well as the assignment, were recorded.
The defendant defaulted on his mortgage loan obligation, and GMAC subsequently initiated the foreclosure process. As set forth in the affidavit of sale dated March 19, 2012, GMAC scheduled the foreclosure sale for July 8, 2011. GMAC complied with the publication and notice requirements of G. L. c. 244, § 14. On July 8, 2011, GMAC foreclosed on the defendant's equity of redemption with respect to the property and conducted a foreclosure auction in accordance with the provisions of § 14.
SBY Realty was the high bidder at the foreclosure auction with a bid of $392,000, and assigned the bid to the plaintiff. On March 1, 2012, in consideration of $392,000 paid by the plaintiff, GMAC executed and delivered a foreclosure deed to the plaintiff conveying title to the property. On March 22, 2012, the plaintiff recorded the foreclosure deed and the affidavit of sale at the registry of deeds in accordance with G. L. c. 244, § 15.
The defendant continued to occupy the property after the foreclosure, but never entered into a tenancy with GMAC, SBY Realty, or the plaintiff, and never paid any funds for use and occupancy. On March 23, 2012, the plaintiff served the defendant with a legally sufficient notice to quit.
Discussion. 1. Summary judgment. As the judge below determined in his careful analysis, judgment for the plaintiff was warranted based on the documents it submitted that establish that the underlying foreclosure by GMAC was carried out in strict compliance with G. L. c. 244, § 14, and that GMAC held title by an assignment prior to the foreclosure. See Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 635, 642 (2012). There is no merit to the defendant's argument that the foreclosure sale was invalid because GMAC did not convey the property in compliance with the deadlines set forth in the foreclosure auction agreement. GMAC had every right to extend the time for performance under the foreclosure auction agreement, and in any event, the defendant did not have standing to challenge GMAC's actions taken under the terms of that agreement.
The plaintiff produced a certified copy of the foreclosure deed conveying the property to the plaintiff, including an affidavit of sale that substantially tracks the language in the Model Statutory Form 12 set forth in the Appendix to G. L. c. 183, to evidence strict statutory compliance with the requirements for foreclosure under power of sale. See id.; Deutsche Bank Natl. Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 570 (2012) (affidavit of sale conforming to model form contained in G. L. c. 183 was as, a matter of law "sufficient" under G. L. c. 183, § 8, and accordingly satisfied the requirements of G. L. c. 244, § 15). It was not disputed that both the foreclosure deed and affidavit of sale were recorded at the registry.
On appeal, the defendant relies heavily on Bank of America, N.A. v. Rosa, 466 Mass. 613 (2013), in support of his contention that the Housing Court should not have granted summary judgment for the plaintiff because he raised affirmative defenses of an equitable nature in his answer. It is unnecessary for us to decide whether Rosa, decided while this case was pending on appeal, is applicable to this case because even if it is it does not aid the defendant. Under Rosa, "[w]hen the jurisdiction of the Housing Court has been invoked in a summary process action and the validity of a mortgage foreclosure has been made an issue insofar as it affects the plaintiff's title, the Housing Court has equitable jurisdiction to enjoin or set aside a foreclosure sale that could have been ordered by the Superior Court in an independent action" (emphasis added). Id. at 623-624. The defendant's answer in opposition to the complaint for possession does not challenge the validity of the plaintiff's title. We agree with the judge's ruling that the plaintiff was a bona fide purchaser for value, and because there are no material facts in dispute to suggest otherwise, the defendant's equitable arguments would not affect the plaintiff's title. See id. at 624-625.
The defendant's argument that the notice to cure issued by GMAC was insufficient under G. L. c. 244, § 35A is unavailing because the defect alleged (notice sent before assignment to GMAC) does not affect GMAC's title and the validity of the foreclosure. See U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 430-431 (2014).
2. Motion to allow filing of third-party complaint and discovery. Generally, a defending party may, as a third-party plaintiff, "cause a summons and complaint to be served upon a person who is or may be liable to him for all or part of the plaintiff's claim against him." Mass.R.Civ.P. 14, as amended, 385 Mass. 1216 (1982). However, while third party claims are permitted in summary process actions in the Housing Court, see Loring Towers Assocs. v. Furtick, 85 Mass. App. Ct. 142, 145 (2014), the judge did not abuse his discretion in denying the defendant's motion because the third parties named therein were not potentially liable to the defendant for all or part of the plaintiff's claim against him. The issue before the Housing Court was whether the underlying foreclosure by GMAC was conducted in compliance with G. L. c. 244, §§ 14 & 15. As noted above, the judge was correct in determining that the plaintiff was a bona fide purchaser for value. Therefore, there was no point in adding the former mortgagee or its agents as third party defendants in order to resolve the issue of possession between the plaintiff and defendant.
Judgment affirmed.
Order denying motion for a new trial affirmed.
By the Court (Trainor, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 16, 2015.