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U.S. Bank Nat'l Ass'n v. Boyer

Appeals Court of Massachusetts.
Jun 21, 2012
82 Mass. App. Ct. 1102 (Mass. App. Ct. 2012)

Opinion

No. 10–P–1978.

2012-06-21

U.S. BANK NATIONAL ASSOCIATION, trustee v. Nancy BOYER & another.

G.L.c. 244, § 14, as amended through St.1992, c. 285. The defendants argue that they never received notice of the sale and that notice was not properly sent. Included in the plaintiff's motion for summary judgment is an affidavit stating that notice was sent to the defendants via certified mail and first class mail. The certified letters were returned to the plaintiff's law firm marked “undeliverable as addressed, unable to forward.” However, that same address had been used to send other notices to the defendants, including other certified letters that had been signed for by the defendants. 3 After an initial hearing, the plaintiff was able to provide an affidavit stating that, in addition to these certified letters, first class letters were mailed to that address and were not returned to the plaintiff's law firm.


By the Court (KANTROWITZ, COHEN & MEADE, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Nancy and Joseph Boyer, the defendants, appeal from a summary judgment granted to the U.S. Bank National Association, the plaintiff, in this summary process action. On appeal, the defendants claim there is a material dispute over whether proper notice of the foreclosure sale was given. We affirm.

The defendants claim that there is a dispute of material fact as to whether the plaintiff complied with the notice requirement of G.L .c. 244, § 14. We disagree. Under G.L.c. 244, § 14, prior to a foreclosure sale, a mortgagee must provide notice by registered mail to the

“owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed at least fourteen days prior to the date of sale to said owner or owners ... to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage....”
G.L.c. 244, § 14, as amended through St.1992, c. 285. The defendants argue that they never received notice of the sale and that notice was not properly sent. Included in the plaintiff's motion for summary judgment is an affidavit stating that notice was sent to the defendants via certified mail and first class mail. The certified letters were returned to the plaintiff's law firm marked “undeliverable as addressed, unable to forward.” However, that same address had been used to send other notices to the defendants, including other certified letters that had been signed for by the defendants.

After an initial hearing, the plaintiff was able to provide an affidavit stating that, in addition to these certified letters, first class letters were mailed to that address and were not returned to the plaintiff's law firm.

One such notice was the notice of acceleration on the defendants' mortgage. In addition, the plaintiff provided affidavits indicating that it was the holder by assignment of the mortgage, and that it had not received any notice of any change of mailing address for the defendants at any time during the foreclosure process.

“In Hull v. Attleboro Sav. Bank, 25 Mass.App.Ct. 960, 963, cert. denied, 488 U.S. 856 (1988), we wrote that if the bank showed it had complied with the notice statute, the debtor's averment that he had not received notice was ‘irrelevant to the issue whether the bank had satisfied its obligation in accordance with the statute.’ “ Carmel Credit Union v. Bondeson, 55 Mass.App.Ct. 557, 561 (2002). “[W]hen a mortgagee has adhered to the statutory prescriptions for notice, it ought not to be fettered by assertions of nonreceipt.” Ibid.

The plaintiff complied with the requirements of G.L.c. 244, § 14, by sending the notice of foreclosure sale via certified mail, first class mail, and by three separate newspaper publications within the county where the home is located.

Judgment affirmed.


Summaries of

U.S. Bank Nat'l Ass'n v. Boyer

Appeals Court of Massachusetts.
Jun 21, 2012
82 Mass. App. Ct. 1102 (Mass. App. Ct. 2012)
Case details for

U.S. Bank Nat'l Ass'n v. Boyer

Case Details

Full title:U.S. BANK NATIONAL ASSOCIATION, trustee v. Nancy BOYER & another.

Court:Appeals Court of Massachusetts.

Date published: Jun 21, 2012

Citations

82 Mass. App. Ct. 1102 (Mass. App. Ct. 2012)
969 N.E.2d 748

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