Opinion
No. 14–P–1721.
06-24-2016
Maximo VALDEZ & others v. FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Maximo Valdez, appeals from the dismissal in the Superior Court of his actions that sought to overturn the foreclosure of his residential property in Dorchester.
Background. Valdez purchased a residential property and obtained a deed on August 7, 2006. He financed the purchase with two mortgage loans from Lehman Brothers Bank (Lehman). Each mortgage named Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Lehman. Valdez defaulted on his mortgage payments by 2010. On August 5, 2010, MERS assigned the first mortgage to Aurora Loan Services, LLC (ALS). After obtaining a judgment in the Land Court under the Servicemembers Civil Relief Act and after a foreclosure auction on September 16, 2011, ALS sold the property to itself. ALS then, by foreclosure deed, assigned its bid to the Federal National Mortgage Association (FNMA).
Valdez filed a complaint in the Superior Court on May 22, 2013, subsequently amended, challenging the foreclosure process. FNMA, MERS, and ALS jointly moved to dismiss Valdez's amended complaint; after a hearing, a judge allowed the motion on June 5, 2014. Valdez filed three postjudgment motions that the judge denied on July 29, 2014.
The original complaint, filed by counsel who later was replaced, included seven counts: (1) unfair debt collection practices under the Federal Fair Debt Collection Practices Act, 15 U .S.C. § 1692(a) ; (2) unfair debt collection practices under G.L. c. 93A, § 49; (3) trespass; (4) intentional infliction of emotional distress; (5) declaratory judgment; (6) action to quiet title; and (7) unfair practices under G.L. c. 93A, § 9.
ALS removed the case to the Federal District Court in July, 2013. After the complaint was amended to remove the count under the Federal Fair Debt Collection Practices Act, the case was remanded to the Superior Court in August, 2013. New counsel, who is present counsel, appeared in December, 2013.
Valdez's appeal entered in this court on November 7, 2014, and his brief (original brief) was filed on March 10, 2015. FNMA, MERS, and ALS filed their brief on April 1, and Valdez filed a reply brief on April 21. Our docket shows no further activity in the case until August, 2015, when Valdez filed a motion for supplemental briefing, asserting that the recent case of Pinti v. Emigrant Mort. Co., 472 Mass. 226 (2015), would be particularly relevant to his claim of error in the foreclosure, and FNMA, MERS, and ALS filed an opposition to that motion. Valdez was granted leave to file a supplemental memorandum, and the appellees were allowed to file a responsive memorandum. These memoranda (first supplemental briefs) were filed in September, 2015. On January 11, 2016, we ordered the parties to submit supplemental briefs (second supplemental briefs) addressing the effect on the present case of our recent decision in Aurora Loan Servs., LLC v. Murphy, 88 Mass.App.Ct. 726 (2015). Following submission of these briefs on February 5, 2016 (Valdez), and February 10 (FNMA, MERS, and ALS), the case proceeded to oral argument on April 20, 2016.
Discussion. 1. Valdez's original brief. The arguments in this brief are related to issues decided by the Superior Court judge in dismissing Valdez's amended complaint and denying his three postjudgment motions. We have not overlooked those issues—there is “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).
2. Valdez's supplemental briefs. As we have noted, these briefs address the applicability of Pinti and Aurora.
In summary, Pinti, supra at 240, requires that in order for a foreclosure to be valid, the mortgagee must strictly comply with the notice of default provisions in paragraph 22 of the mortgage. The court stated in Pinti that this requirement is to be applied prospectively; that is, in cases where the notice of default is sent after July 17, 2015, the date of the Pinti opinion. Id. at 243. However, the court noted that “[t]he parties have not argued, and we do not reach, the question whether our holding in this case should be applied to any other class of cases pending on appeal.” Id. at 243, n. 25.
Aurora, supra at 732, applied a limited exception to the prospective requirement of Pinti to a case that was pending on appeal on the date of the Pinti opinion. In Aurora, the mortgagor asserted and preserved in the trial court a challenge to the validity of the foreclosure because notice did not comply with paragraph 22 of the mortgage.
Valdez's first supplemental brief argues that, based on Pinti, in order for a foreclosure to be valid, there must be strict compliance with paragraph 22 of the mortgage, and that neither the original lender Lehman (or its successor or assigns), nor any holder of the mortgage, issued any notice of default, including one pursuant to paragraph 22.
In his second supplemental brief, Valdez asserts that “neither the lender, Lehman, nor the loan servicer [ALS], nor MERS, ... ever issued a notice of default and right to cure notice in compliance ... with [paragraph] 22 of [the] mortgage,” and that the present case was on appeal at the time Pinti and Aurora were issued and the “failure to extend [them] to this case would unjustly deprive [Valdez] of the benefit that the similarly situated Pinti and [Aurora ] mortgagors received.”
The arguments presented in Valdez's supplemental briefs are a departure from those raised in both his complaint and his opposition to the motion to dismiss. In his complaint, Valdez asserts that Lehman, the holder of the mortgage note, did not send any written notice of default to Valdez and that although “[counsel for ALS] sent communications to Mr. Valdez and others claiming that [ALS] was going to file a foreclosure petition [and] ... caused notices to be published in the newspaper that [ALS] was going to file a foreclosure petition,” “[ALS] was not the holder of the ... note or ... mortgage.” Thus, the complaint asserts that the foreclosure was invalid because the proper party did not send notice. In his opposition to the motion to dismiss, Valdez reasserts the argument framed by his complaint; he argues the foreclosure was invalid because only the originating lender, Lehman, could send and comply with the notice provisions of the foreclosure statutes and paragraph 22 of the mortgage, and Lehman had not sent that notice.
In February, 2016, pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), Valdez forwarded a copy of a Housing Court decision, Federal National Mort. Assn. v. Valdez, Boston Hous. Ct., No. 11H84SP004849 (Nov. 24, 2015), suggesting it contains findings and rulings which bear directly on issues in the present case. In that summary process case, based on the same foreclosure at issue in the present case, the judge noted that “[ALS] published the foreclosure sale notice in the Boston Herald on May 12, 19, and 26, 2011 and sent Valdez a copy of the foreclosure notice on May 4, 2011 by certified letter and first class mail.” Paragraph 15 of the mortgage states that notices “shall be deemed to have been given to Borrower when mailed by first class mail.” The decision concludes that “FNMA is entitled to summary judgment ... on its claim for possession.” We may take judicial notice of facts and records of another court. Jarosz v. Palmer, 436 Mass. 526, 530 (2002).
There is no merit to this assertion. A servicer may act as authorized by a lender. See Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 571 (2012) ; Shea v. Federal Natl. Mort. Assn., 87 Mass.App.Ct. 901, 903 (2015). See also Anderson vs. Nationstar Mort., LLC, U.S. Dist. Ct., No. 15–14187 (D.Mass. March 25, 2016).
On appeal, Valdez claims he “repeatedly asserted and preserved [the] issue of strict compliance with [paragraph] 22 ... and the defendants' failure to do so.” Our review of the record reveals that paragraph 22 was not cited by Valdez in the amended complaint. In addition, although paragraph 22 was cited in Valdez's opposition to the motion to dismiss, those references pertain to the claim raised by the allegations in Valdez's complaint—the proper party did not provide notice. The references to paragraph 22 in Valdez's opposition were not used to support the issue Valdez now presses on appeal—a complete lack of notice in compliance with paragraph 22.
Although Valdez's opposition asserts his complaint “alleges that none of the defendants sent Mr. Valdez the statutorily required notices to effect a valid foreclos[ure] [emphasis supplied],” we agree with the motion judge that this assertion is not supported by a review of the complaint. In addition, although Valdez's opposition states, “the defendants will be unable to produce any evidence that anyone served Mr. Valdez with any of the statutorily required notices necessary to complete a valid foreclosure,” this lone statement, embedded within his argument that the proper party did not provide notice, is insufficient to raise a claim of lack of notice in compliance with paragraph 22.
In these circumstances, where the issue concerning paragraph 22 was not raised by Valdez in the trial court before judgment entered, it was not properly preserved for appeal. See R.W. Grainger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73–74 (2001) ; Boston Water & Sewer Commn. v. Commonwealth, 64 Mass.App.Ct. 611, 618 (2005). Thus, although this case was pending on appeal when Pinti was issued, it does not qualify for the exception applied in Aurora. See Aurora, 88 Mass.App.Ct. 731–733 (applying exception to prospective application of Pinti requirement where case was pending on appeal on date of Pinti opinion and mortgagor had raised and preserved paragraph 22 claim in trial court).
Conclusion. For the reasons stated previously, we conclude that we have no reason to disturb the judgment or the order denying the postjudgment motions.
The request of FNMA, MERS, and ALS for attorney's fees is denied.
Judgment affirmed.
Order denying postjudgment motions affirmed.