U.S. Bank Tr., N.A. v. Washington

By the Court (Hanlon, Lemire & Shin, JJ.), Clerk

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

In this postforeclosure eviction case, Georgia C. Washington appeals from a judgment for possession in favor of U.S. Bank Trust, N.A. (U.S. Bank), with respect to the two-family residential dwelling located at 26-28 Greenwood Avenue in the Hyde Park section of Boston (property). On appeal, Washington claims there is a material dispute over whether proper notice of the foreclosure sale was given. We affirm.

Background. We recite the undisputed facts as set forth in the summary judgment record. On May 4, 2004, Washington obtained a mortgage loan from Fleet National Bank (Fleet) in the amount of $338,800, which was secured by a mortgage on the property. Washington eventually fell behind on her mortgage payments and did not make any payments after August, 2009. In May, 2015, Bank of America, Fleet's successor, assigned the mortgage to U.S. Bank. In December, 2015, Caliber Home Loans, which serviced the loan on U.S. Bank's behalf, notified Washington that her loan was in default. On October 21, 2016, U.S. Bank, through its counsel, Orlans PC, prepared written notices, pursuant to G. L. c. 244, § 14, addressed to Washington, stating that U.S. Bank intended to conduct a foreclosure sale of the property on November 21, 2016. Two separate groups of notices were sent using five possible address permutations for the property. One group was sent via certified mail and the other via first class mail. Washington claims that she never received any of the notices. At the sale, U.S. Bank purchased the property. After the foreclosure sale, Washington remained in possession of the property or at least one of its units, and U.S. Bank ultimately commenced this summary process action in March, 2017, to recover possession. Washington claimed, among other things, that the foreclosure sale was invalid because she had not received notice of it.

After concluding that the key remaining issue in the case was whether U.S. Bank had met its burden under G. L. c. 244, § 14, of mailing the foreclosure notice to Washington, the judge requested additional information evidencing that the notice had actually been mailed. The primary evidence until that point consisted of copies of the notice and an affidavit from an Orlans PC attorney stating that the notices had been sent. In response to the judge's request, U.S. Bank provided printouts of the tracking information from the United States Postal Service website for each time the notice was mailed, a copy of Orlans PC's certified mail log book, signed and stamped by a United States Postal Service employee, and an affidavit from the Orlans PC mail room manager. Satisfied with the evidence, the judge ordered summary judgment against Washington. This timely appeal followed.

Discussion. Washington argues that there was a genuine dispute of material fact as to whether U.S. Bank sent the foreclosure sale notice, as required by G. L. c. 244, § 14. We disagree. We review the grant of summary judgment de novo and 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 a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

The relevant statute, G. L. c. 244, § 14, provides in pertinent part that

"no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice of the sale . . . has been sent by registered mail to the owner . . . of record of the equity of redemption as of [thirty] days prior to the date of sale, said notice to be mailed by registered mail at least [fourteen] days prior to the date of sale."

See G. L. c. 4, § 7, Forty-fourth (in context of sending notice, "[r]egistered mail" includes certified mail). Washington concedes that the statute does not require that she have received the notice as a precondition to the validity of the sale of the property. See Hull v. Attleboro Sav. Bank, 33 Mass. App. Ct. 18, 25 (1992). The sole issue before us, therefore, is whether U.S. Bank has established that it sent a compliant notice of sale to Washington by registered or certified mail at least fourteen days before the scheduled foreclosure sale.

It is undisputed that U.S. Bank satisfied the other § 14 requirement of publishing the sale in a local newspaper for three consecutive weeks.

The evidence U.S. Bank produced sufficiently demonstrated that it did, in fact, mail the notices to Washington. Specifically, the Orlans PC log book indicates that the notices that were sent through certified mail were delivered to a post office and accepted by a United States Postal Service employee. Additionally, the "accepted" status of one letter and the "in-transit" status of four others, as indicated by the United States Postal Service's online tracking system, confirms that they were accepted and connotes that at least four reached a distribution center in Pontiac, Michigan. This evidence is further bolstered by the affidavit from the Orlans PC mail room manager in which she testified that the law firm followed a specific regular business practice and procedure for the preparation and delivery of the notices to the United States Postal Service. While Washington concentrated on U.S. Bank's failure to produce a return receipt or a returned, unclaimed envelope, see Louis vs. Bank of America, N.A., U.S. Dist. Ct., No. 16-10859, slip op. at 2 (D. Mass. June 16, 2017), we are satisfied that the evidence U.S. Bank put forth established a competent, factual basis for the contention that U.S. Bank sent the notices on October 21, 2016, and that there was no genuine issue of material fact about the mailings. Washington's assertions to the contrary were insufficient to withstand a motion for summary judgment. See Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974).

As explained on the United States Postal Service website, "in-transit" is the third of four mailing stages and "implies that the shipment is now on the way or the item is currently in transit to the destination."

A return receipt form, or "green card," is a form sent back to a sender that is signed by the recipient indicating that the recipient received the mail.

Because U.S. Bank sent the notices one month prior to the date of the planned foreclosure sale (November 21, 2016), it also complied with the timing requirements of § 14.

Washington's argument that the judge applied the wrong standard to his inquiry whether U.S. Bank mailed the notices is likewise without merit. It is clear from the summary judgment decision that the judge applied the proper standards from § 14, including the requirements that the notice of sale be mailed by registered or certified mail and that it be sent to an address reasonably calculated to reach the intended recipient. Furthermore, contrary to Washington's claim, nothing in the record indicates that U.S. Bank acted without the good faith or reasonable diligence required in completing a foreclosure sale. See Atlas Mtge. Co. v. Tebaldi, 304 Mass. 554, 557 (1939).

In conclusion, after our thorough review of the record, we conclude that Washington has offered nothing to show the existence of a genuine issue of material fact in response to U.S. Bank's case, and summary judgment was correctly entered against her. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).

We decline Washington's invitation to create new law that extends the requirements of G. L. c. 244, § 14, beyond the clear statutory language. Additionally, we deny her request for appellate attorney's fees. To the extent that we do not address Washington's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Judgment affirmed.

By the Court (Hanlon, Lemire & Shin, JJ.),

The panelists are listed in order of seniority. --------

/s/

Clerk Entered: January 2, 2020.