Opinion
20-P-1384
02-09-2022
EMMA THOMAS v. CITIZENS BANK, N.A., [1] & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After the plaintiff defaulted on her mortgage, the defendant, mortgagee of the plaintiff's residential property, sold the property at a foreclosure sale. The plaintiff then sought to set aside the foreclosure and alleged, in her amended complaint, that the defendant failed to provide the notice required by G. L. c. 244, § 14, prior to conducting the sale. A Land Court judge concluded that the defendant had acted in "strict compliance" with the notice provisions of the foreclosure statute and dismissed the complaint. We affirm.
To survive a motion to dismiss, a complaint must contain factual allegations "plausibly suggesting ... an entitlement to relief" (quotation and citation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). The allegations in the plaintiff's complaint do not meet this standard. Rather, the record evidence shows that the defendant sent to the plaintiff's address, by certified and first class mail, notice of foreclosure sale more than thirty days before the sale. See, e.g., Eaton v. Federal Nat'1 Mtge. Ass'n, 462 Mass. 569, 581 n.17 (2012) ("General Laws c. 244, § 14, requires a mortgagee initiating foreclosure proceedings, inter alia, to . . . mail notice of the foreclosure sale to the owner of record within statutorily prescribed time periods"). The plaintiff, in her brief, acknowledges as much. Accordingly, the defendant complied with the notice requirements of G. L. c. 244, § 14, and the judge correctly dismissed the plaintiff's complaint.
The plaintiff does not contend that the defendant failed to publish notice of the foreclosure sale in a local newspaper of general circulation. See G. L. c. 244, § 14.
To the extent that the plaintiff argues that the defendant was required to ensure -- by, for example, in-hand service --that she received actual notice of the foreclosure, her argument is unavailing. "Notice by certified or registered mail is a common method of providing notice in business, governmental, and legal contexts and is considered 'reasonably calculated' to provide actual notice." Carmel Credit Union v. Bondeson, 55 Mass.App.Ct. 557, 560 (2002), quoting Andover v. State Fin. Servs., Inc., 432 Mass. 571, 574-575 (2000). Moreover, we have held that "if the bank showed that it had complied with the notice statute, the debtor's averment that [s]he had not received the notice was 'irrelevant to the issue whether the bank had satisfied its obligation in accordance with the statute.'" Carmel Credit Union, supra at 561, quoting Hull v. Attleboro Sav. Bank, 25 Mass.App.Ct. 960, 963, cert, denied, 488 U.S. 856 (1988). Whatever the merits of the plaintiff's argument as a general matter -- and we express no view on that question -- the express terms of the statute preclude it.' See Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662, 672 (2014) ("We will not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design").
The plaintiff's conclusory allegation that the price at which the property sold at auction, "one-half of the property's value," was in "direct violation of the standard of law" under Clark v. Simmons, 150 Mass. 357, 360 (1890), is similarly unavailing. See Seppala & Aho Constr. Co. v. Peterson, 373 Mass. 316, 328 (1977) ("It is a notorious fact that, when land is sold, by auction, under a power contained in a mortgage, it seldom, if ever, brings a price which reaches its real value" [citation omitted]).
The defendant's request for attorney's fees and costs is denied.
Judgment affirmed.
The panelists are listed in order of seniority.