Opinion
19-P-494
09-24-2020
WILMINGTON SAVINGS FUND SOCIETY, FSB v. ELENICE S. UMANA.
NOTICE: 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
On July 12, 2018, a judge of the Southeast Division of the Housing Court Department granted partial summary judgment in favor of Wilmington Savings Fund Society, FSB (Wilmington), for possession of the residence of Elenice S. Umana, following a public foreclosure auction. The same judge subsequently held a hearing on the sole remaining issue, use and occupancy, and a final judgment ultimately entered. Umana appeals from the final judgment on numerous grounds, claiming that the judgment was both void for lack of standing and erroneous as matter of law. We affirm.
Umana raised other overly conclusory claims in her brief, without any citation to legal authority. We have thoroughly reviewed each and every claim asserted by Umana and have determined that they all lack merit.
1. Standing. Umana claims that the judgment is void. Specifically, Umana claims that Wilmington lacked standing to bring the summary process action. We disagree. In this Commonwealth, "[t]he Housing Court may hear summary process actions brought by those who acquire ownership of property via foreclosure by sale." Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011). Pursuant to G. L. c. 239, § 1, a party entitled to land, following a foreclosure pursuant to the power of sale provided in the mortgage, is entitled to bring a summary process action to gain possession of the land.
Here, on October 21, 2016, the property was sold at a public foreclosure auction pursuant to the terms of the mortgage. At the foreclosure sale, the property was purchased by Wilmington, the mortgagee and the holder of the note. Wilmington subsequently recorded a foreclosure deed, as well as numerous other affidavits, in the Plymouth County registry of deeds as proof of ownership.
Specifically, Wilmington recorded the following documents as proof of ownership of Umana's residence: (1) a foreclosure deed, (2) an affidavit of evidence of sale under G. L. c. 244, § 15, (3) an affidavit of continuing noteholder status throughout the foreclosure process, and (4) an affidavit of compliance with the requirements in the mortgage regarding acceleration and the power of sale.
Given the aforementioned proof of a right of possession of Umana's residence on the part of Wilmington following the foreclosure sale, we are satisfied that the judgment is not void for lack of standing, nor is it void for lack of subject matter jurisdiction, given the Housing Court's ability to hear such summary process actions. See Bank of N.Y., 460 Mass. at 331.
2. Grant of partial summary judgment. 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 judgment as matter of law." Galenski v. Erving, 471 Mass. 305, 307 (2015). To prevail on a motion for summary judgment in a summary process action, the moving party has the burden of showing that there are no material facts in dispute with regard to its legal title to the property. See Bank of N.Y., 460 Mass. at 334. Generally, the plaintiff must show it obtained a deed to the property at issue and that both the deed and the affidavit of sale, which show compliance with the statutory foreclosure requirements, were recorded. See id. Umana claims that Wilmington failed to meet that burden. We disagree.
a. Failure to produce original note. First, Umana claims that summary judgment was improper because Wilmington failed to produce the original mortgage note. Under Massachusetts law, however, a foreclosing mortgagee need not produce the original note. See G. L. c. 244, § 14 (no explicit requirement for production of original note to foreclose pursuant to power of sale). Ultimately, at least with respect to unregistered land, a foreclosing mortgagee may establish that, at the time of the foreclosure sale, it held the note or acted on behalf of the noteholder, by filing an affidavit with the registry of deeds. See Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 589 n.28 (2012).
Here, Wilmington provided sufficient evidence that it held the note at the time of the foreclosure sale. First, Wilmington provided certification pursuant to 209 Code Mass. Regs. § 18.21A(2) (2013) that it was the owner of both the mortgage and the note at the time of the notice of foreclosure sale. Furthermore, Wilmington filed numerous affidavits with the Plymouth County registry of deeds, including an affidavit pursuant to G. L. c. 244, §§ 35B and 35C, as well as an affidavit of continuing noteholder status, both of which proclaimed that Wilmington held the note at the time of the foreclosure sale.
A copy of the note was attached to the certification.
Therefore, contrary to Umana's assertions, Wilmington was under no duty to provide her with the original note, and we conclude that there was no genuine issue of material fact regarding whether Wilmington held the note at the time of the foreclosure sale.
During discovery, Wilmington provided Umana with a copy of the original note. Furthermore, the record shows that Umana, while then represented by counsel, was given an opportunity to view the original note in court, and even declined a subsequent opportunity to further inspect the note at the office of opposing counsel.
b. FDIC acquisition of Umana's mortgage. Umana further argues that summary judgment was improper because there is no record of assignment from Washington Mutual Bank, FA (WAMU), to JPMorgan Chase Bank, N.A. (Chase), in Wilmington's chain of title. However, under Federal law, no such record of assignment was required. See 12 U.S.C. § 1821(d)(2)(G)(i)(II). Under Federal law, the Federal Deposit Insurance Corporation (FDIC), as conservator or receiver, may transfer any asset or liability of an institution in default without any approval, assignment, or consent with respect to such transfer. See id.
Here, upon WAMU's default, the FDIC acquired WAMU's assets by operation of law. The FDIC, as receiver of WAMU, then entered into a purchase and assumption agreement with Chase whereby Chase acquired all loans and loan commitments of WAMU. Because the FDIC entered into the transaction as receiver of WAMU, no assignment by WAMU to Chase was required under Federal law to permit Chase to acquire the loans and the loan commitments of WAMU. See 12 U.S.C. § 1821(d)(2)(G)(i)(II). Therefore, we are satisfied that no defect exists in Wilmington's chain of title to warrant the reversal of the grant of partial summary judgment.
c. Wilmington's power to foreclose. Umana claims that summary judgment was improper where Wilmington's power of attorney, which appointed Harmon Law Offices, P.C. (Harmon Law Offices), as Wilmington's attorney-in-fact for the foreclosure sale, was not formally executed until approximately a month after the certificate of entry. Umana asserts that because the power of attorney had not yet been authorized, the foreclosure was void. See United States Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 646 (2011) ("Any effort to foreclose by a party lacking 'jurisdiction and authority' to carry out a foreclosure under these statutes is void" [citation omitted]).
However, the fact that the power of attorney was formally executed approximately a month after the foreclosure sale does not render the foreclosure sale void, given that Wilmington ratified Harmon Law Office's previous actions. See Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 528-529 (2008). It is well settled that a principal may be bound by an agent's unauthorized act if the principal expressly or impliedly ratifies the agent's acts. See id.
Here, contained within the language of the power of attorney, Wilmington expressly ratified "any and all previous actions taken by John McCarthy or any said attorney employed by Harmon Law Offices, PC," relating to the foreclosure of Umana's property. Therefore, while Harmon Law Offices arguably may not have had express authorization to act on Wilmington's behalf at the time of the foreclosure sale, the lack of such express authorization at that time is immaterial. Wilmington's subsequent actions undoubtedly ratified the conduct of Harmon Law Offices, and as a result, the foreclosure of Umana's property was not carried out by a party lacking the authority to do so.
d. Affirmative defense of unconscionability. Finally, Umana asserts that the partial grant of summary judgment was improper because her mortgage was an unconscionable predatory loan. However, without reaching the merits of Umana's defense of unconscionability, we conclude that such a defense has been waived.
Even if we were to examine the merits of Umana's affirmative defense, we would hold that her arguments do not warrant reversal. Umana offers very little factual and legal reasoning as to why her mortgage constitutes an unconscionable predatory loan, and such vague, conclusory arguments are insufficient to warrant reversal. See First Nat'l Bank of Boston v. Slade, 379 Mass. 243, 246 (1979) (neither vague allegations, nor conclusory statements are sufficient to show genuine issue of material fact warranting denial of summary judgment).
Affirmative defenses are waived if not raised in a party's first responsive pleading. See Mass. R. Civ. P. 8 (c), 365 Mass. 749 (1974). See also Aronovitz v. Fafard, 78 Mass. App. Ct. 1, 8 (2010). Here, Umana failed to raise the affirmative defense of unconscionability at any point prior to her numerous postjudgment motions for relief from judgment. Therefore, the defense has been waived.
Judgment affirmed.
By the Court (Meade, Kinder & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: September 24, 2020.