Galvin, et al v. U.S. Bank, NA, et al

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; William J. Kayatta , Jr., Appellate Judge and Paul J. Barbadoro,* U.S. District Judge. Published. * Of the District of New Hampshire, sitting by designation. [15-2436, 16-1077]

Case: 15-2436

Document: 00117135785

Page: 1

Date Filed: 03/29/2017

Entry ID: 6080074

United States Court of Appeals
For the First Circuit
Nos. 15-2436, 16-1077
MARK B. GALVIN; JENNY G. GALVIN,
Plaintiffs, Appellants,
v.
U.S. BANK, N.A., as Trustee Relating to Chevy Chase Funding, LLC
Mortgage Back Certificates Series 2007-1; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; CAPITAL ONE, N.A., a/k/a CAPITAL ONE
BANK, f/k/a CHEVY CHASE BANK, FSB,
Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]

Before
Thompson and Kayatta, Circuit Judges,
and Barbadoro,* District Judge.

James T. Ranney for appellants.
Kevin P. Polansky, with whom Christine M. Kingston and Nelson
Mullins Riley Scarborough LLP were on brief, for appellees.

March 29, 2017

*

Of the District of New Hampshire, sitting by designation.

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Document: 00117135785

Page: 2

KAYATTA, Circuit Judge.

Date Filed: 03/29/2017

Entry ID: 6080074

This appeal arises out of a

suit by defaulting borrowers who seek to assign fault to the manner
in which a creditor foreclosed on its collateral, in this instance
a multi-million dollar home located on Martha's Vineyard.
following

reasons,

we

reject

the

borrowers'

For the

fusillade

of

challenges to the creditor's conduct, except that we find that the
creditor waived its rights to a deficiency judgment by failing to
comply

with

a

Massachusetts

statute

that

regulates

the

availability of actions for such judgments.
I.

Background

We summarize the uncontested facts, reserving further
discussion of the facts alleged in the complaint for the section
on the motion to dismiss and further discussion of the evidentiary
facts in the summary judgment record for the section on the motion
for summary judgment.
On November 15, 2006, the plaintiffs, Mark and Jenny
Galvin,

took

Massachusetts,

out
and

a

loan

executed

to
a

buy

a

mortgage

property

in

Tisbury,

naming

the

Mortgage

Electronic Registration Systems, Inc. ("MERS") as the mortgagee
"acting solely as a nominee for [Chevy Chase Bank, FSB] and [its]
successors and assigns."

On the same day, Mark Galvin executed a

promissory note in the amount of $2,385,000 to Chevy Chase Bank,
FSB (now known as Capital One, N.A.--for our purposes, "Capital
One").

In late 2009, the Galvins fell behind on their mortgage

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payments.

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Entry ID: 6080074

On March 2, 2011, their loan servicer, Specialized Loan

Servicing ("SLS"), sent them a "Notice of Default and Notice of
Intent to Foreclose."
At some point prior to August 3, 2012, U.S. Bank as
Trustee

Relating

Certificates

to

Series

Chevy
2007-1

Chase

Funding,

LLC

Bank")

came

("U.S.

Mortgage
into

Back

physical

possession of the note, which was indorsed from "Chevy Chase Bank,
F.S.B." to "U.S. Bank, N.A. as Trustee."1
assigned the mortgage to U.S. Bank.

In July 2012, MERS

On October 2, 2012, this

assignment was recorded in the town land records.
From December 2011 to November 2014, employees of a
company hired by SLS2 entered onto the Galvins' property roughly
once per month to perform inspections.

In February 2012 and

November 2012, these individuals entered the house to inspect and
winterize it.

During the November 2012 interior inspection, they

also changed the lock on the rear door.

On September 7, 2012, the

Galvins sent SLS a letter demanding that no one trespass on their

1

The Galvins' complaint alleges that "U.S. Bank does not,
and never has had, have [sic] physical possession of the original
note," and that "[t]he location of the original note is unknown
and it is denied that any party lawfully acting on behalf of U.S.
Bank currently holds the note on U.S. Bank's behalf in compliance
with applicable law." The Galvins abandoned this contention at
oral argument.
2

U.S. Bank does not dispute on appeal that SLS acted as its
agent, or that the entries of the company hired by SLS to perform
inspections can be attributed both to SLS and to U.S. Bank.

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property.

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On April 17, 2013, the Galvins sent a thirty-day demand

letter to U.S. Bank regarding these "unreasonable" inspections and
any related fees, pursuant to Chapter 93A of the Massachusetts
General Laws.
U.S. Bank conducted a foreclosure sale of the property
on November 18, 2014, four days after the Galvins filed their
complaint in this action.

U.S. Bank itself was the purchaser.

The Galvins' complaint contained six counts relevant to
this appeal:

a claim against all defendants3 for a declaratory

judgment that the foreclosure was invalid (count I); a claim
against U.S. Bank and MERS for breach of contract (count II); a
claim against U.S. Bank and MERS for breach of the implied covenant
of good faith and fair dealing (count III); a claim against U.S.
Bank for trespass (count IV); a claim against U.S. Bank for a
Chapter

93A

defendants

violation
for

(count

intentional

VI);
and/or

emotional distress (count VII).

and

a

claim

negligent

against

infliction

all
of

U.S. Bank filed an answer and

asserted counterclaims for deficiency, unjust enrichment, and
possession.
The district court disposed of the Galvins' complaint in
three separate rulings.

In the first ruling, the district court

3

U.S. Bank, N.A., as trustee relating to Chevy Chase Funding,
LLC Mortgage Back Certificates Series 2007-1, MERS, and Capital
One.

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granted the defendants' partial motion to dismiss several counts
under Federal Rule of Civil Procedure 12(b)(6).

In the second

ruling,

Bank

it

granted

summary

judgment

to

U.S.

on

its

counterclaim for possession. The district court entered a separate
judgment

(the

"first

judgment")

on

this

counterclaim

for

possession pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure. In the third ruling, the district court granted summary
judgment to the defendants on the Galvins' remaining claims and to
U.S.

Bank

on

judgment").4

its

counterclaim

for

deficiency

(the

"second

Between the ruling on the partial motion to dismiss

and the ruling on the counterclaim for possession, the district
court

granted

injunction

and

in

part

U.S.

"enjoin[ed]

Bank's
and

motion

for

prevent[ed]

a

the

preliminary
short

term

occupancies" of fourteen parties who had entered into leases with
the Galvins to occupy their home during the summer of 2015.
II.

Discussion

We review the motion to dismiss and motion for summary
judgment rulings de novo, see Gorski v. N.H. Dep't of Corrs., 290
F.3d 466, 471 (1st Cir. 2002), and the grant of the preliminary
injunction for abuse of discretion, see Waldron v. George Weston
Bakeries Inc., 570 F.3d 5, 8 (1st Cir. 2009).

4

The parties agree

The Galvins filed notices of appeal as to both the first
and second judgments.
Those appeals have been consolidated in
this court.

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that we apply Massachusetts substantive law.

Entry ID: 6080074

See Wilson v. HSBC

Mortg. Servs., Inc., 744 F.3d 1, 7 (1st Cir. 2014).
A.

Appellate Jurisdiction
Although neither party raised this issue, "we have an

independent obligation to confirm our jurisdiction to hear this
dispute."
2016).

Me. Med. Ctr. v. Burwell, 841 F.3d 10, 15 (1st Cir.

The district court had jurisdiction over this case under

28 U.S.C. § 1332 based on diversity of citizenship.

The only

arguable basis for our jurisdiction over these appeals is 28 U.S.C.
§ 1291, which grants this court "jurisdiction of appeals from all
final decisions of the district courts."

See also Guillemard-

Ginorio v. Contreras-Gómez, 490 F.3d 31, 37 n.4 (1st Cir. 2007)
(noting that "[i]n the ordinary course, our jurisdiction extends
only to appeals from 'final decisions of the district courts'
(quoting 28 U.S.C. § 1291)).

Thus, we must determine whether the

second

the

judgment

decision."5

entered

by

district

court

was

a

"final

When dealing with a "garden-variety" civil judgment

like this one, "a final decision is one 'that disposes of all
claims against all parties.'"

Me. Med. Ctr., 841 F.3d at 15

(quoting Bos. Prop. Exch. Transfer Co. v. Iantosca, 720 F.3d 1, 6

5

The first judgment (the separate judgment on U.S. Bank's
counterclaim for possession) was indisputably a final judgment, as
it was entered under Rule 54(b). See Spiegel v. Trs. of Tufts
Coll., 843 F.2d 38, 42 (1st Cir. 1988) ("[Rule] 54(b) permits the
entry of judgment, and thus an appeal, on fewer than all the claims
in a multi-claim action.").

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(1st Cir. 2013)). There are three defendants in this action: U.S.
Bank, MERS, and Capital One.

We pause to consider whether the

second judgment was a final decision as to Capital One.
The record is somewhat ambiguous on this point.

All

three defendants were named in the original complaint filed in
state court.

In the notice of removal, U.S. Bank and MERS noted

that Capital One had not provided consent to removal because, as
far as the state court docket showed, the plaintiffs had not served
it with process.

After the case was removed to federal court,

Capital One never filed an appearance.
this

fact

in

its

ruling

on

the

The district court noted

partial

motion

to

dismiss.

Following that ruling, the parties filed a "Joint Statement"
pursuant

to

Local

Rule

16.1(d),

in

which

they

stated

that

"according to the Court's docket, it does not appear that Defendant
Capital One, N.A., a/k/a Capital One Bank, f/k/a Chevy Chase Bank,
FSB ('Capital One') has yet been served with the complaint."

The

district court subsequently ordered that "Amended Pleadings &
Joinder of Parties" would be "due by 5/15/2015," but that date
passed without action or comment.
Two counts in the complaint named Capital One as a
defendant:

the declaratory judgment count (count I) and the

intentional infliction of emotional distress count (count VII).
The district court disposed of these counts at different times.
It dismissed the declaratory judgment count in its entirety when

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ruling

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on

the

partial

Page: 8

motion

Date Filed: 03/29/2017

to

dismiss.

It

Entry ID: 6080074

dismissed

the

intentional infliction of emotional distress count as to MERS only
in the same ruling.

The district court later allowed U.S. Bank's

motion for summary judgment as to the intentional infliction of
emotional distress count and instructed the clerk of court to
"close the case."
We conclude that the court disposed of both claims
against

Capital

One.

The

ruling

dismissing

the

declaratory

judgment count was not limited to the two defendants who had
appeared.

The ruling on U.S. Bank's motion for summary judgment

is a closer question.

However, in granting that motion and

ordering

close

the

effectively

clerk

granted

to

summary

the

case,

judgment

to

the

district

Capital

One

court
on

the

intentional infliction of emotional distress claim against it.
Between that ruling and the ruling on the partial motion to
dismiss, the district court held that the factual basis for the
intentional infliction of emotional distress claim against Capital
One was insufficient as a matter of law.6

Neither party contended

otherwise in the district court or on appeal. The district court's
order and its instruction to the clerk to close the case therefore
constituted

a

final

decision.

6

See

Mohawk

Indus.,

Inc.

v.

We express no opinion as to whether the district court had
personal jurisdiction over Capital One.
See Fed. R. Civ.
P. 4(c)(1), (e)(1)-(2); Mass. R. Civ. P. 4(d)-(e); EchevarriaGonzalez v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988).

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Carpenter, 558 U.S. 100, 106 (2009) ("A 'final decisio[n]' is
typically one 'by which a district court disassociates itself from
a case.'" (alteration in original) (quoting Swint v. Chambers Cty.
Comm'n, 514 U.S. 35, 42 (1995))).7

Having concluded that we have

jurisdiction over this appeal, we proceed to the merits.
B.

Motion to Dismiss
The Galvins challenge the district court's dismissal of

the counts for declaratory judgment, breach of contract, breach of
the covenant of good faith and fair dealing, negligent infliction
of emotional distress as to MERS, and intentional infliction of
emotional distress as to MERS.

We review these decisions under

the usual Rule 12(b)(6) standard.

"Setting aside any statements

that are merely conclusory, we construe all factual allegations in
the light most favorable to the non-moving party to determine if
there exists a plausible claim upon which relief may be granted."
Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 353 (1st Cir. 2013).

7

We do not consider the different question as to whether
there was also a judgment set out in a separate document entered
on the docket in compliance with Federal Rule of Civil
Procedure 58.
Parties can waive that requirement.
See P.R.
Aqueduct & Sewer Auth. v. Constructora Lluch, Inc., 169 F.3d 68,
76 (1st Cir. 1999).
Such a waiver occurred here, where the
plaintiffs filed the notice of appeal and neither party raised the
issue before this court. See de Jesús-Mangual v. Rodríguez, 383
F.3d 1, 5 (1st Cir. 2004) (finding waiver where district court
order "clearly indicated that it intended to dispose of the case
finally" and defendant did not object to appeal).

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1.

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Declaratory
Defendants)8

Page: 10

Judgment

of

Date Filed: 03/29/2017

Invalid

Entry ID: 6080074

Foreclosure

(All

On appeal, the Galvins advance two arguments as to why
the foreclosure on their property was invalid.

First, they argue

that U.S. Bank lacked standing to foreclose because it did not own
both the note and the mortgage at the time of foreclosure. Second,
they argue that U.S. Bank could not exercise the statutory power
of sale because it had failed to adhere strictly to the terms of
the mortgage, in particular paragraph 22.
Under Massachusetts law, the note and the mortgage are
separate legal instruments and, under the common law, they can
travel separately.

See Eaton v. Fed. Nat'l Mortg. Ass'n, 969

N.E.2d 1118, 1124 (Mass. 2012).

However, "where a note has been

assigned but there is no written assignment of the mortgage
underlying the note . . . the holder of the mortgage holds the
mortgage in trust for the purchaser of the note, who has an
equitable right to obtain an assignment of the mortgage."

U.S.

Bank Nat'l Ass'n v. Ibanez, 941 N.E.2d 40, 53-54 (Mass. 2011)
(citing Barnes v. Boardman, 21 N.E. 308, 309 (Mass. 1889)).

8

Because of the large number of counts, the variations in
the defendants for each count, and the fact that some of the counts
were disposed of in part in the ruling on the motion to dismiss
and in part in the ruling on the motion for summary judgment, we
identify the relevant defendants for each count in a parenthetical
included in the section headings.

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The note and mortgage may be transferred using different
legal mechanisms.
delivery.

The note may be transferred by indorsement and

Eaton, 969 N.E.2d at 1121 n.5.

The Massachusetts

Appeals Court has applied the provisions of the Uniform Commercial
Code ("UCC") to the transfer of a mortgage note.

See First Nat'l

Bank of Cape Cod v. N. Adams Hoosac Sav. Bank, 391 N.E.2d 689, 693
(Mass.

App.

Ct.

1979);

cf.

Eaton,

969

N.E.2d

at

1131

n.26

(reserving borrower's argument based on the UCC, but noting that
the court "perceive[d] nothing in the UCC inconsistent with [its]
view that in order to effect a valid foreclosure, a mortgagee must
either hold the note or act on behalf of the note holder").

By

contrast, the mortgage is an interest in land, which for our
purposes can only be transferred by written assignment.

See Mass.

Gen. Laws ch. 183, § 3; Ibanez, 941 N.E.2d at 51.

Although

assignments may be recorded, "[a] valid assignment of a mortgage
gives the holder of that mortgage the statutory power to sell after
a default regardless whether the assignment has been recorded."
Ibanez, 941 N.E.2d at 55.
In this case, as in many others, the mortgage names MERS
as the mortgagee "acting solely as a nominee for [the lender] and
[the lender's] successors and assigns."
MERS is mortgagee of record for mortgage loans
registered on [its] system, which tracks
servicing rights and beneficial ownership
interests in those loans . . . . [W]hen the
beneficial interest in a loan is sold, the

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note is transferred by indorsement and
delivery between the parties, and the new
ownership interest is reflected in the MERS
system. MERS remains the mortgagee of record
so long as the note is sold to another MERS
member; no aspect of such a transaction is
publicly recorded.
Eaton, 969 N.E.2d at 1121 n.5.

Although MERS holds mortgages as

a "nominee," MERS has the authority to assign the mortgage without
authorization from the holder of the note.

Sullivan v. Kondaur

Capital Corp., 7 N.E.3d 1113, 1118 (Mass. App. Ct.), rev. denied,
15 N.E.3d 761 (Mass. 2014).
Massachusetts is a nonjudicial foreclosure state, so
banks generally foreclose by exercising the statutory power of
sale.

See Mass. Gen. Laws ch. 183, § 21; Mass. Gen. Laws ch. 244,

§§ 11-17C; Pinti v. Emigrant Mortg. Co., 33 N.E.3d 1213, 1221
(Mass. 2015).

In order to exercise this statutory power of sale,

the bank must satisfy a number of requirements.
requirements are relevant here.

Two of these

First, the foreclosing bank must

hold both the note and the mortgage in order to have standing to
sell the property at a foreclosure sale.

See Eaton, 969 N.E.2d at

1125, 1129-30; Ibanez, 941 N.E.2d at 50 (citing Mass. Gen. Laws
ch. 183, § 21; Mass. Gen. Laws ch. 244, § 14).
the

foreclosure

is

void.

See

Galiastro

If it does not,
v.

Mortg.

Elec.

Registration Sys., Inc., 4 N.E.3d 270, 276 (Mass. 2014); Eaton,

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969 N.E.2d at 1131; Ibanez, 941 N.E.2d at 50.9

Entry ID: 6080074

Second, the

foreclosing bank must strictly comply with the default notice
provisions in paragraph 22 of the mortgage.

Pinti, 33 N.E.3d at

1221

do

n.16,

1222-24.

foreclosure void.
When

Again,

failure

to

so

renders

the

Id. at 1225-26.10

borrowers

challenge

an

entity's

standing

to

foreclose, they often assert defects in the chain of mortgage
assignments that ends with that entity.

Under Massachusetts law,

the borrowers themselves have standing to press such challenges to
the validity of a mortgage assignment when a defect renders the
assignment void, but not when it renders the assignment merely
voidable by one of the parties to the assignment.

See Bank of

9

The requirement that the mortgagee also hold the note or
act on behalf of the noteholder applies only to foreclosures for
which notices of sale were given after the Eaton opinion and to
the parties in that case. 969 N.E.2d at 1133. That ruling was
extended to any parties who had raised the issue addressed in Eaton
and whose cases were pending on appeal on the date of the decision.
Galiastro, 4 N.E.3d at 277. The notice of sale in this case was
sent on October 20, 2014, so Eaton applies.
10

By its terms, Pinti only applied to the parties before the
court and "mortgage foreclosure sales of properties . . . for which
the notice of default required by paragraph 22 [wa]s sent after
the date of th[e] opinion[, July 17, 2015]." Pinti, 33 N.E.3d at
1227. This rule was later extended to cases in which the issue
was preserved and appeal was pending at the time Pinti was decided.
Aurora Loan Servs., LLC v. Murphy, 41 N.E.3d 751, 756 (Mass. App.
Ct. 2015). Murphy contained dicta stating that the rule would not
extend "to cases pending in the trial court" at time of Pinti.
Id. Because we affirm the district court's conclusion that there
was no violation of paragraph 22 on the grounds asserted by the
Galvins, see infra Section II.B.1.b, we need not decide whether to
accept this dicta as a correct statement of Massachusetts law.

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N.Y. Mellon Corp. v. Wain, 11 N.E.3d 633, 638 (Mass. App. Ct.
2014); Sullivan, 7 N.E.3d at 1116 & n.7; see also Culhane v. Aurora
Loan Servs. of Neb., 708 F.3d 282, 291 (1st Cir. 2013).
a.

Whether U.S.
Mortgage

Bank

was

Holder

of

the

Note

and

The Galvins argue that they adequately pled that U.S.
Bank lacked standing to foreclose because it did not hold both the
note and the mortgage at the time of the foreclosure sale.

They

pled a number of different bases for this argument, but advance
just three on appeal:

(1) the initial mortgage and all subsequent

assignments of the mortgage were invalid because paragraph 20 of
the mortgage did not allow it to be held and assigned separately
from the note; (2) MERS could not hold the mortgage or assign the
interest in the mortgage because doing so violated its internal
"Rules of Membership," and therefore the assignment to U.S. Bank
was invalid; and (3) U.S. Bank does not hold the note because it
was indorsed to "U.S. Bank as Trustee" without specifying the
trust.

The district court ruled that these allegations could not

establish that U.S. Bank lacked standing to foreclose as a matter
of law.

We agree.
The Galvins' first argument points to paragraph 20 of

the mortgage, which states that "[t]he Note or a partial interest
in the Note (together with this Security Instrument) can be sold
one or more times without prior notice to Borrower."

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The Galvins

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contend

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that

this

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language

Date Filed: 03/29/2017

restricted

transfer the note without the mortgage.

the

bank's

Entry ID: 6080074

ability

to

On two prior occasions,

however, we have rejected this reading of materially identical
language in similar mortgages.

See Mills v. U.S. Bank, NA, 753

F.3d 47, 52 n.1 (1st Cir. 2014); Culhane, 708 F.3d at 292 n.6.
This court noted in Culhane that the role paragraph 20 appears to
serve is to allow the bank to sell the note without telling the
borrower, not to place restrictions on the bank's ability to
transfer the note.

708 F.3d at 292 n.6.

Even if we were not bound by this precedent, we would
reach the same conclusion.

The most the Galvins can show is that

this isolated section of paragraph 20 is ambiguous, but whatever
ambiguity may exist vanishes when one reads the contract as a
whole.

As in Mills and Culhane, from the very beginning of this

loan, the note and mortgage were held by different parties.
mortgage indicates as much.

The

Under Massachusetts law, contract

language is not ambiguous when one of the two possible readings
conflicts with other provisions of the contract.

See Starr v.

Fordham, 648 N.E.2d 1261, 1270 (Mass. 1995) ("[A]n interpretation
which gives a reasonable, lawful, and effective meaning to all the
terms is preferred to an interpretation which leaves a part
unreasonable, unlawful, or of no effect." (quoting Restatement
(Second) of Contracts § 203(a) (Am. Law Inst. 1981))).

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The Galvins' second argument--based on MERS's Rules of
Membership--fares little better.

The Galvins alleged that MERS

violated its internal Rules of Membership by holding and then
assigning their mortgage because Chevy Chase Bank, FSB, and the
Series 2007-1 Trust are not MERS members.

Therefore, they claim,

the assignment of the mortgage to U.S. Bank as Trustee was void.
The district court ruled that a failure by MERS to adhere to its
internal Rules of Membership might make the assignment voidable by
a MERS member but does not make it void.

Thus, under Wain, the

Galvins lack standing to challenge the assignment.

See Wain, 11

N.E.3d at 638 ("[A] mortgagor's standing [i]s limited to claims
that a defect in the assignment rendered it void, not merely
voidable.")
The district court was correct.

This court has already

noted that, under Massachusetts law, a similar type of infirmity
makes a contract voidable, not void.

See Wilson v. HSBC Mortg.

Servs., Inc., 744 F.3d 1, 10 (1st Cir. 2014) ("[W]hen a corporate
officer acts beyond the scope of his authority, 'his acts in excess
of his authority, although voidable by the corporation, legally
could

be

ratified

and

adopted

by

it.'"

(alteration

omitted)

(quoting Comm'r of Banks v. Tremont Tr. Co., 156 N.E. 7, 15 (Mass.
1927))).

Under Massachusetts law, as long as the assignor is the

record holder of the mortgage at the time of the assignment, as
MERS was here, an assignment that complies with the statute

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governing mortgage assignments, Mass. Gen. Laws ch. 183, § 54B,
"cannot be shown to be void."

Wain, 11 N.E.3d at 638; see also

Wilson, 744 F.3d at 13 ("An assignment binding on the assignor is
not, by definition, void.").
Galvins

initially

Although in the district court the

challenged

whether

section

54B

had

been

satisfied, they later abandoned that contention and have not argued
it on appeal.

Under Wain and Wilson, this proves fatal to their

argument that the assignment is void.11

Because the Galvins'

allegations establish, at most, that MERS's assignment of the
mortgage was voidable by a MERS member, the Galvins have failed to
demonstrate that they have standing to challenge the assignment.
See Wain, 11 N.E.3d at 638–39; Sullivan, 7 N.E.3d at 1116 & n.7;
see also Culhane, 708 F.3d at 291.
Finally, the Galvins' third argument fails in light of
the UCC.

They argue that if the original note in U.S. Bank's

possession is indorsed to "U.S. Bank as Trustee," then this

11

The Galvins' argument that Wells Fargo Bank, N.A. v.
Anderson, 49 N.E.3d 682 (Mass. App. Ct. 2016) implicitly reversed
Wain and undercut Wilson relies on a misreading of the opinion.
Anderson merely held that section 54B "binds only the entity making
and recording the assignment, if such action has been made in
compliance with its provisions.
The statute does not bind any
other party that has standing to contest the validity of the
assignment." Id. at 684. This holding is consistent with Wain
and Wilson, which held that compliance with section 54B means that
an assignment is not void.
Those opinions left open the
possibility that such an assignment may be voidable by a party
with standing. Indeed, later in Anderson, the court stated that
very rule and cited Wain approvingly. Id. at 685.

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indorsement

is

Page: 18

insufficient

to

Date Filed: 03/29/2017

grant

holder

status

Entry ID: 6080074

to

the

foreclosing entity, which is "U.S. Bank as Trustee Relating to
Chevy Chase Funding, LLC Mortgage Back Certificates Series 20071."

The UCC defines "special indorsement" in a way that includes

this indorsement to "U.S. Bank as Trustee" and states that the
principles

in

chapter

indorsements.

106,

section

3-110

apply

to

special

See Mass. Gen. Laws ch. 106, § 3-205(a).

Under

those principles,
[t]he person to whom an instrument is
initially payable is determined by the intent
of the person, whether or not authorized,
signing as, or in the name or behalf of, the
issuer of the instrument. The instrument is
payable to the person intended by the signer
even if that person is identified in the
instrument by a name or other identification
that is not that of the intended person.
Id. § 3-110(a).

The Galvins have not alleged that the signer of

the indorsement, an Assistant Vice President of Chevy Chase Bank,
FSB, did not intend to indorse the note to "U.S. Bank as Trustee
Relating to Chevy Chase Funding, LLC Mortgage Back Certificates
Series 2007-1."

They have thus failed to state a claim that this

indorsement was inadequate.
b.

Whether
the
Paragraph 22

Default

Notice

Complied

with

The Galvins also argue that the March 2, 2011, notice of
default failed to comply with paragraph 22 of the mortgage, and,
therefore, the foreclosure was void. See Pinti, 33 N.E.3d at 1226.

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see

id.

at

1227

Page: 19

(applying

Date Filed: 03/29/2017

the

newly

Entry ID: 6080074

announced

prospectively only); Murphy, 41 N.E.3d at 755–56.

rule

They alleged in

their complaint that the notice failed to comply with paragraph 22
in five ways:

(1) it failed to identify the "Lender" or owner of

the note; (2) it falsely stated SLS was the "creditor"; (3) it was
not from the "Lender"; (4) it stated the total amount due without
breaking it down; and (5) the servicer who sent the notice, SLS,
did not send the Galvins a breakdown of an alleged $30,000 in fees
or other information about the loan upon request.
We consider only the last of these arguments, as it is
the only one the Galvins briefed on appeal.

This court does not

permit parties to incorporate by reference arguments they made in
memoranda filed in the district court. See Sleeper Farms v. Agway,
Inc., 506 F.3d 98, 104 (1st Cir. 2007) ("[T]his court will only
consider arguments made before this court; everything else is
deemed forfeited.").

This rule that a party appealing a decision

must explain to us why the decision is wrong, rather than merely
pointing to what it said before the decision was even issued,
applies with particular force where one of the arguments the party
attempts

to

incorporate

by

reference

involves

an

unsettled

question of law.12

12

The argument that the failure of the note holder itself to
send the default notice violates paragraph 22 raises two questions
as to which the District of Massachusetts is currently split.
First, judges in the district court have reached different
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That leaves the Galvins' briefed argument that there was
a violation of paragraph 22 because SLS failed, on request, to
provide them with "a breakdown of more than $30,000.00 in fees and
costs assessed to their loan account as well as proof of who owned
their loan."

This argument cannot succeed, since paragraph 22

does not require either the lender or the servicer to respond to
such a request.13

conclusions as to whether a default notice that is not from the
note holder violates paragraph 22. Compare Paiva v. Bank of N.Y.
Mellon, 120 F. Supp. 3d 7, 10 (D. Mass. 2015) (holding that the
holder of the note must send the default notice to comply with
paragraph 22), with Anderson v. Nationstar Mortg., LLC, 172 F.
Supp. 3d 371, 376 (D. Mass. 2016) (holding that the assignee of
the mortgage may send the default notice under paragraph 22), and
HMC Assets, LLC v. Conley, No. 14-10321-MBB, 2016 WL 4443152, at
*22 (D. Mass. Aug. 22, 2016) (applying Anderson to default notice
sent by servicer).
Second, judges in the district court have
reached different conclusions as to whether the Pinti rule may
apply retroactively in a situation, like this one, where the
borrower raised an argument in the district court about the bank's
compliance with paragraph 22 prior to the Supreme Judicial Court's
("SJC's") opinion in Pinti and the property had been sold to the
foreclosing entity itself at the foreclosure sale. Compare Paiva,
120 F. Supp. 3d at 10 (applying Pinti retroactively in this
situation), with Carver v. Bank of N.Y. Mellon, No. 13-10005-MLW,
2016 WL 1301053, at *13 & n.15 (D. Mass. Mar. 31, 2016) (applying
Pinti prospectively in same situation), and Klevisha v. Provident
Funding Assocs. L.P., 167 F. Supp. 3d 250, 254 (D. Mass. 2016)
(applying Pinti prospectively in similar situation).
13

That paragraph reads in relevant part:
Lender shall give notice to Borrower prior to
acceleration following Borrower's breach of
any covenant or agreement in this Security
Instrument (but not prior to acceleration
under Section 18 unless Applicable Law
provides otherwise).
The notice shall
specify:
(a) the default; (b) the action
required to cure the default; (c) a date, not
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Breach of Contract (U.S. Bank and MERS)
The Galvins alleged in their complaint that U.S. Bank

and MERS breached the mortgage contract by "failing to comply with
the terms [of the MERS mortgage] including but not limited to
complying with applicable law (as defined in the mortgage) and the
requirements of Paragraph[s] 20 and 22 before defaulting."

In the

section of their brief addressing the breach of contract claim,
they do not offer any additional argument as to how paragraphs 20
and 22 were breached, so this allegation does not succeed for the
reasons stated above.

The allegation that the defendants failed

to comply with "applicable law" does not specify the law with which
the defendants allegedly failed to comply or how they failed to
comply with it.

Such an allegation is too vague and conclusory to

state a claim for which relief can be granted.

See Freeman v.

Town of Hudson, 714 F.3d 29, 35 (1st Cir. 2013) ("In order to
survive a motion to dismiss, the complaint must include 'enough
detail to provide a defendant with fair notice of what the . . .

less than 30 days from the date the notice is
given to Borrower, by which the default must
be cured; and (d) that failure to cure the
default on or before the date specified in the
notice may result in acceleration of the sums
secured by this Security Instrument and sale
of the property.
The notice shall further
inform Borrower of the right to reinstate
after acceleration and the right to bring a
court action to assert the non-existence of a
default or any other defense of Borrower to
acceleration and sale.
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claim is and the grounds upon which it rests.'" (quoting Ocasio–
Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011))).
3.

Breach of the Covenant of Good Faith and Fair Dealing
(U.S. Bank and MERS)
The district court dismissed the count for violation of

the covenant of good faith and fair dealing.

On appeal, the

Galvins argue that the district court treated this claim as
premised only on U.S. Bank's failure to consider them for a loan
modification, when in fact their complaint listed a number of
additional

bases,

including

trespassing,

unlawful

lockouts,

violations of both the mortgage and "applicable law," assessments
of unreasonable fees, costs, and expenses, and violations of
Chapter 93A.
developed

Their brief does not, however, go on to make any

argument

about

how

these

other

acts

constituted

violations of the covenant of good faith and fair dealing.

It

cites no cases or legal authority and makes no attempt to explain
how these other acts would "have the effect of destroying or
injuring

the[ir]

contract."

right

.

.

.

to

receive

the

fruits

of

the

Weiler v. PortfolioScope, Inc., 12 N.E.3d 354, 361

(Mass. 2014) (citation omitted).

This conclusory assertion in the

guise of an argument is waived.

See Ryan v. Royal Ins. Co. of

Am., 916 F.2d 731, 734 (1st Cir. 1990) ("It is settled in this
circuit that issues adverted to on appeal in a perfunctory manner,

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unaccompanied by some developed argumentation, are deemed to have
been abandoned.").
4.

Negligent
Infliction
Defendants)

of

Emotional

Distress

(All

The Galvins challenge the dismissal of their negligent
infliction of emotional distress claim against all defendants.
However, they do not argue that the district court erred in
dismissing their negligence count or otherwise argue that they
pled negligence adequately.

Negligence is an element of negligent

infliction of emotional distress under Massachusetts law.

See

Rodriguez v. Cambridge Hous. Auth., 823 N.E.2d 1249, 1253 (Mass.
2005).

Thus, the Galvins have abandoned an argument that was

essential to maintaining this claim.
5.

Intentional Infliction of Emotional Distress (MERS)
The Galvins argue that their intentional infliction of

emotional

distress

claim

against

MERS

should

not

have

been

dismissed because MERS took "extreme and outrageous" actions by
not following its own Rules of Membership when dealing with their
mortgage.
To make out a claim of intentional infliction
of emotional distress, the plaintiffs were
required to show (1) that [the defendant]
intended, knew, or should have known that his
conduct would cause emotional distress;
(2) that the conduct was extreme and
outrageous; (3) that the conduct caused
emotional distress; and (4) that the emotional
distress was severe.

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Polay v. McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014). "The standard
for making a claim of intentional infliction of emotional distress
is very high."

Id. (quoting Doyle v. Hasbro, Inc., 103 F.3d 186,

195 (1st Cir. 1996)).

There is no liability even if the defendant

acted "with an intent which is tortious or even criminal," with
"malice," or with "a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort."
omitted).

Id. (citations

Not even an "inten[t] to inflict emotional distress" is

sufficient. Id. (citation omitted). "Conduct qualifies as extreme
and outrageous only if it 'go[es] beyond all possible bounds of
decency, and [is] regarded as atrocious, and utterly intolerable
in a civilized community.'

A judge may grant a motion to dismiss

where the conduct alleged in the complaint does not rise to this
level."

Id. at 1128–29 (alterations in original) (citations

omitted) (quoting Roman v. Trs. of Tufts Coll., 964 N.E.2d 331,
341 (Mass. 2012)).

On its face, MERS's alleged sloppiness in

dotting i's and crossing t's under its own Rules of Membership by
allegedly acting as nominee mortgagee for a non-member does not
meet this standard as a matter of law.
C.

Preliminary Injunction
The Galvins argue that the district court abused its

discretion in issuing the preliminary injunction.

Their argument,

however, is premised in part on a misunderstanding of the effect
of that injunction.

They argue at length that the district court

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should not have ordered them to transfer any rental payments they
had received for their property to U.S. Bank.

The docket reveals,

though, that the preliminary injunction did no such thing.
Their second argument, that the district court should
not have enjoined them from renting out the property in the future,
is now moot.

The district court granted U.S. Bank's motion for

summary judgment as to possession, and the Galvins subsequently
agreed to vacate the property.

The Galvins do not challenge the

grant of summary judgment in favor of U.S. Bank on its possession
counterclaim and we have affirmed the dismissal of the declaratory
judgment count above.

The Galvins do not argue that they have a

right to rent out the property in the present circumstances, where
they are no longer in possession and the foreclosure sale has not
been ruled void.
appeal.
F.3d

These developments moot this aspect of the

See CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48

618,

621

(1st

Cir.

1995)

("It

has

been

common

ground

throughout the last century that an appeal, although live when
taken, may be rendered moot by subsequent developments.").
D.

Motion for Summary Judgment
The Galvins challenge the summary judgment rulings in

favor of the defendants on the Galvins' claims for trespass,
violation of Chapter 93A, and intentional infliction of emotional
distress (as to U.S. Bank and Capital One), and on U.S. Bank's
counterclaim for deficiency.

As usual, the court reviews these

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decisions de novo, drawing all inferences in favor of the Galvins
as the non-moving parties.

See Frangos v. Bank of Am., N.A., 826

F.3d 594, 596 (1st Cir. 2016).
1.

Trespass (U.S. Bank)
The Galvins' complaint alleged that U.S. Bank and its

agents trespassed on their property by going onto it multiple times
between December 2011 and November 2014, despite the Galvins'
request that they not do so, and by locking them out of the property
on two occasions when they entered the house and changed the locks.
On summary judgment, the district court ruled that the mortgage
permitted the bank and its agents to engage in these activities
and that therefore they had not committed a trespass.

After

considering the summary judgment record, we affirm.
The mortgage contains two provisions that bear on this
dispute.

The relevant portion of paragraph 7 reads:
Lender or its agent may make reasonable
entries upon and inspections of the Property.
If it has reasonable cause, Lender may inspect
the interior of the improvements on the
Property. Lender shall give Borrower notice
at the time of or prior to such an interior
inspection specifying such reasonable cause.

The relevant portion of paragraph 9 reads:
If . . . Borrower fails to perform the
covenants and agreements contained in this
Security Instrument . . . then Lender may do
and pay for whatever is reasonable or
appropriate to protect Lender's interest in
the Property and rights under this Security
Instrument,
including
protecting
and/or

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assessing the value of the Property, and
securing and/or repairing the Property. . . .
Securing the Property includes, but is not
limited to, entering the Property to make
repairs, change locks, replace or board up
doors and windows, drain water from pipes,
eliminate building or other code violations or
dangerous conditions, and have utilities
turned on or off. . . . Any amounts disbursed
by Lender under this Section 9 shall become
additional debt of Borrower secured by this
Security Instrument.
The Galvins agree that if these paragraphs permitted
U.S. Bank to take the actions it took, then their claim for
trespass cannot succeed.

They also do not contest that all of the

challenged actions occurred after the default on the mortgage, and
that therefore the "fail[ure] to perform" condition in paragraph
9 was satisfied.

They argue, however, that there is a disputed

issue of material fact as to whether U.S. Bank's post-default
entries were "reasonable or appropriate," and thus permitted by
the

mortgage,

and

that

the

district

court

should

not

have

determined that the entries were reasonable as a matter of law.
If the entries were not reasonable, they were not permitted by the
mortgage, and thus constituted trespass.

See New England Box Co.

v. C & R Constr. Co., 49 N.E.2d 121, 128 (Mass. 1943) ("To support
an action of trespass . . . it is necessary to prove the actual
possession

of

the

plaintiff,

and

an

illegal

entry

defendant." (alteration in original) (citation omitted)).

by

the

A jury

might find the inspections unreasonable, say the Galvins, because

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of their frequency, the occasional occupancy of the house, the
lack of written notice, and the changing of the locks.
We disagree.
once per month.

To begin, inspections occurred less than

The record shows that over the course of thirty-

six months between December 2011 and November 2014, twenty-six
inspections occurred.
were

drive-by

or

Of the twenty-six inspections, twenty-four

walk-around

entering the house.14

inspections,

conducted

without

From 2011 through 2013, the Galvins occupied

the property only in the late spring through early fall.

Ten of

the inspections occurred after November 1 and before March 31 in
2011 to 2013 and two occurred during that period of 2014, when the
Galvins were unlikely to be home. That leaves fourteen inspections
during the remaining twenty-one months in the three-year period.

14

The summary judgment record shows that entries onto the
property occurred on the following dates: 12/9/2011, 1/6/2012,
2/4/2012, 2/13/2012, 3/7/2012, 4/12/2012, 5/9/2012, 6/9/2012,
8/10/2012,
9/10/2012,
10/19/2012,
11/14/2012,
11/26/2012,
1/12/2013,
4/23/2013,
5/21/2013,
9/22/2013,
11/26/2013,
12/28/2013, 3/31/2014, 5/7/2014, 6/4/2014, 7/3/2014, 8/2/2014,
9/6/2014, and 11/10/2014. The Galvins do not point to any evidence
that any property inspection reports were missing from the summary
judgment record. These reports reflect twenty-six entries over
the course of three years.
Two inspections, on 2/13/2012 and
11/26/2012,
apparently
involved
interior
inspections,
winterization, and lock changing.
There is some doubt as to
whether the 2/13/2012 entry in fact occurred, since the report
states that the inspection was "NOT COMPLETED."
An SLS
representative testified at her deposition that the inspection did
occur, however. Reading the record in the light most favorable to
the Galvins, we assume it did.

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Inspections
matter of law.

of

Page: 29

this

frequency

were

Entry ID: 6080074

reasonable

as

a

The house was a substantial asset, having been

purchased for over $2.3 million.
year.

Date Filed: 03/29/2017

It was unoccupied much of the

During the time the inspections were conducted, the owners

had been in default for between two and five years.

The Galvins

did not present any evidence tending to show that the bank acted
unreasonably in performing less-than-monthly exterior inspections
in these circumstances.

For instance, they offered no evidence to

show that this periodic diligence was out of keeping with industry
norms or that it was performed in an unreasonable manner.
A reasonable jury also could not find that the Galvins'
part-time occupancy, the lack of written notice, or the changing
of

the

locks

circumstances.

rendered

the

inspections

unreasonable

in

these

The mortgage does not require the mortgagee to

rely on the defaulting owners' assertions that the house remains
in good condition.

Indeed, it explicitly grants the mortgagee

additional rights to enter onto the property after a default.

The

mortgage also imposes no duty on the bank to give written notice
of an upcoming inspection. As to the locks, the evidence indicates
that the inspectors entered the house and changed the locks on two
occasions:

on February 13, 2012, and on November 26, 2012, when

they entered the house to weatherize it.

During the November

inspection, the inspectors replaced the lock on the rear door.
The record does not indicate which lock the inspectors replaced

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during the February inspection, but SLS policy is to replace the
lock on the side or back door.

The Galvins offer no evidence that

this policy was not followed.15

Entering a seasonally occupied

house to weatherize it before or during the winter when the owners
are not home is unambiguously permitted by paragraph 9, which
allowed the bank to "enter[] the Property to make repairs" and
"change locks" as part of its broader power to do whatever was
"reasonable

or

appropriate"

to

protect

its

interest

in

the

property, including "securing and/or repairing the Property."
Making one such entry per winter, the February 2012 entry for the
winter of 2011–2012 and the November 2012 entry for the winter of
2012–2013, is reasonable as a matter of law.
The Galvins argue that the assessment of reasonableness
is nevertheless always a question for the jury, not a question of
law.

Massachusetts law in a closely analogous context is not so

absolute. When a contract does not specify a time for performance,
the law implies a contract term providing for performance in a
reasonable period of time.

What amount of time is reasonable is

often a jury question, but it becomes a question of law at the
extremes.

See Flagship Cruises, Ltd. v. New England Merchs. Nat'l

Bank

Bos.,

of

569

F.2d

699,

702

(1st

Cir.

1978)

("The

reasonableness of a period of time--except as to extremes--would

15

The Galvins inaccurately describe the deposition testimony
on the subject of this policy in their brief.

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seem to be a classic issue for the trier of fact."); Cataldo v.
Zuckerman, 482 N.E.2d 849, 857 n.20 (Mass. App. Ct. 1985) (quoting
Flagship Cruises); see also Marcus v. Boston Edison Co., 56 N.E.2d
910, 913 (Mass. 1944) ("On undisputed facts what is a reasonable
time is a question of law."); Lorenzo-Martinez v. Safety Ins. Co.,
790 N.E.2d 692, 696–97 (Mass. App. Ct. 2003) (same); Town of
Middleborough v. Middleborough Gas & Elec. Dep't, 715 N.E.2d 467,
470 (Mass. App. Ct. 1999) (same); Plymouth Port, Inc. v. Smith,
530 N.E.2d 194, 196 (Mass. App. Ct. 1988) (imputing a "reasonable
time" term into an exclusive brokerage contract and determining
that four years was not a reasonable time as a matter of law).
We think that Flagship Cruises states the correct rule
in this context as well and conclude that this case falls into the
"extremes."

Even reading the record in the light most favorable

to the Galvins, we conclude that no reasonable jury could deem the
inspection activity to exceed the express license granted by the
mortgage.

Thus, the Galvins' trespass claim fails as a matter of

law.
Finally, the Galvins have not cited any authority for
the proposition that after the foreclosure sale, when the bank
owned the property, its agents could still commit a trespass.
case and statute they do cite are inapposite.

The

See In re Prichard

Plaza Assocs. Ltd. P'ship, 84 B.R. 289, 295 (Bankr. D. Mass. 1988)
(addressing whether foreclosing bank had the right to collect rents

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while out of possession); Mass. Gen. Laws ch. 183, § 26 ("Until
default in the performance or observance of the condition of a
mortgage of real estate, the mortgagor . . . may hold and enjoy
the mortgaged premises . . . .").
is therefore waived.
2.

This under-developed argument

See Ryan, 916 F.2d at 734.

Chapter 93A Violation (U.S. Bank)
The

district

court

granted

summary

judgment

on

the

Galvins' Chapter 93A claim against U.S. Bank because it was
derivative of the trespass claim, the grant of summary judgment on
which we have affirmed.

The Galvins argue on appeal that their

Chapter 93A claim also rested independently on the allegation that
U.S. Bank assessed unreasonable fees for the inspections, and that
the district court failed to address that aspect of the claim.
The

Galvins

are

correct

that

the

portion

of

their

complaint pleading a violation of Chapter 93A incorporated their
April

17,

2013

demand

letter,

which

mentioned

"unreasonable inspections" and demanded damages.

fees

for

any

However, in

their opposition to U.S. Bank's motion for summary judgment, the
Galvins did not point to any evidence that such fees had been
assessed.

Likewise, on appeal, the Galvins have not pointed to

any evidence demonstrating that there is a disputed issue of
material fact as to whether they were charged unreasonable fees

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for any inspections.16

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The documents to which they do point list

charges assessed to the Galvins' account on November 20, 2014-two days after the foreclosure sale.

The amounts of these charges

do not match up with the evidence of the cost of the inspections.
The Galvins have provided no reason for a jury to believe that
these charges were assessed for unreasonable inspections rather
than legitimate expenses arising from the foreclosure sale.
By contrast, U.S. Bank has pointed to evidence that it
only charged the Galvins' account for a single inspection:

$366

for winterizing the house and changing the lock on the rear door
in

November

2012.

U.S.

Bank

has

16

argued

that

this

interior

In their brief, the Galvins argue, as they did below, that
they were denied discovery on this question and were entitled to
know what fees were assessed to their account for the inspections.
This contention is not supported by the record. The Galvins did
file
an
affidavit
pursuant
to
Federal
Rule
of
Civil
Procedure 56(d), in response to U.S. Bank's initial motion for
summary judgment.
Based on this affidavit, the district court
granted summary judgment only as to possession, deferred judgment
on the Galvins' remaining claims, and ordered additional
discovery. As part of that discovery, the Galvins deposed an SLS
representative, who testified that the Galvins were only charged
for one of the inspections.
The Galvins filed a supplemental
opposition to the motion for summary judgment incorporating this
discovery and did not file an additional affidavit under
Rule 56(d). Thus, they have waived any further challenge to the
adequacy of the discovery. See Kiman v. N.H. Dep't of Corrs., 451
F.3d 274, 282 n.7 (1st Cir. 2006) ("Since [plaintiff] proceeded to
oppose summary judgment without filing a Rule 56(f) motion with
the district court, he cannot now argue that the district court's
ruling was incorrect due to insufficient discovery."); Fed. R.
Civ. P. 56 Advisory Committee Notes to the 2010 Amendment
("Subdivision (d) carries forward without substantial change the
provisions of former subdivision (f).").

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inspection, and the associated fee, was reasonable, but that
nevertheless it is not seeking this $366 as part of the deficiency
judgment.
The fact that U.S. Bank is not seeking the $366 would
not prevent the plaintiffs from recovering under Chapter 93A.

See

Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066,
1077 (Mass. 2014) ("To the extent that a plaintiff already has
received

compensation

for

its

underlying

loss

prior

to

the

resolution of its [Chapter 93A] claim, such compensation has been
treated as an offset against any damages ultimately awarded, rather
than as a bar to recovery.").

Therefore, reaching the merits of

the claim, we conclude that the single $366 fee charged for
inspection

and

weatherization

of

the

property

was

not

an

unreasonable fee as a matter of law, as the inspection itself was
reasonable and the assessment of fees for such an inspection is
explicitly allowed by paragraph 9 of the mortgage.

We need not

decide whether it would have been reasonable for the bank to assess
more than one such fee in a three-year period.

Accordingly, we

affirm the grant of summary judgment on the Galvins' Chapter 93A
claim.
3.

Intentional Infliction of Emotional Distress (U.S. Bank
and Capital One)
Reading the record in the light most favorable to the

Galvins, as a matter of law none of U.S. Bank's activities meet

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Case: 15-2436

the

Document: 00117135785

high

standard

distress.

for

Page: 35

Date Filed: 03/29/2017

intentional

infliction

of

Entry ID: 6080074

emotional

Entering the house twice to winterize it while the

Galvins were not there does not go "beyond all possible bounds of
decency," and it is not "regarded as atrocious, and utterly
intolerable in a civilized community."
(citation omitted).

Roman, 964 N.E.2d at 341

Neither is performing an exterior visual

inspection of the premises less than once per month.

As we have

already discussed, the mortgage permitted these activities.
The

district

court

did

not

separately

address

the

intentional infliction of emotional distress claim against Capital
One when it granted summary judgment.

However, the Galvins do not

argue on appeal that the district court erred in granting summary
judgment to Capital One on this count.

Thus, they have waived any

argument that the district court should not have granted summary
judgment in favor of Capital One.
4.

U.S. Bank's Counterclaim for Deficiency
The district court ruled that the Galvins were obligated

to

pay

the

deficiency,

and

that

U.S.

Bank

had

followed

Massachusetts law governing notices of intention to foreclose and
seek a deficiency, Mass. Gen. Laws ch. 244, § 17B, by sending the
Galvins

a

notice

of

its

intent

to

deficiency judgment in October 2014.

foreclose

and

to

seek

a

The Galvins argue that U.S.

Bank has not shown that it complied with section 17B because that
statute also requires that a foreclosing entity sign and swear to

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an affidavit confirming the mailing of the notice within thirty
days of the foreclosure sale.

U.S. Bank argues that it was not

required to create this affidavit because the Galvins actually
received the notice--or, at least, have not claimed otherwise.

We

conclude that the plain language of section 17B requires reversal.
This
interpretation.

issue

turns

on

a

question

of

statutory

Section 17B contains both a notice requirement

and an affidavit requirement to be satisfied by a foreclosing
mortgagee who might wish to receive a deficiency.

The notice

requirement specifies that a notice of intent to foreclose and a
warning in a specified form must be mailed in a particular manner
no less than twenty-one days before the foreclosure sale to the
person against whom the deficiency will be sought.

The affidavit

requirement is as follows:
No
action
for
a
deficiency
shall
be
brought . . . by the holder of a mortgage note
or other obligation secured by mortgage of
real estate after a foreclosure sale by
him . . . unless a notice in writing of the
mortgagee's
intention
to
foreclose
the
mortgage has been mailed . . . and an affidavit
has been signed and sworn to, within thirty
days after the foreclosure sale, of the
mailing of such notice. . . .
[S]uch an
affidavit made within the time specified shall
be prima facie evidence in such action of the
mailing of such notice.
Id.

Although no Massachusetts appellate court has definitively

interpreted

the

affidavit

requirement

of

this

statute,

the

Massachusetts Appeals Court's opinions that have interpreted the

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statute's notice requirement have uniformly held that the statute
is to be interpreted strictly.

See, e.g., Carmel Credit Union v.

Bondeson, 772 N.E.2d 1089, 1091 (Mass. App. Ct. 2002) ("Courts
interpret a statute in accordance with its plain words.

They may

not add words to a statute that the Legislature did not put there."
(citation omitted)).

In rejecting an argument that actual notice

is sufficient to satisfy the notice provision of the statute, the
Appeals Court has observed that "[t]he statutory language of
[section 17B] is more than ordinarily prescriptive," and that
"[c]ompliance

with

the

statute

is

not

burdensome,"

since

"[s]ection 17B goes so far as to set out texts of a form of notice
and form of affidavit of notice that will satisfy the statute's
requirements."

Framingham Sav. Bank v. Turk, 664 N.E.2d 472, 474

(Mass. App. Ct. 1996); see also Bead Portfolio, LLC v. Follayttar,
714 N.E.2d 372, 374 (Mass. App. Ct. 1999) (holding that actual
notice

would

not

be

adequate

to

comply

with

§

17B's

notice

provision since the written notice was sent to the wrong address
and substantially deviated from the statutory form); Carmel Credit
Union, 772 N.E.2d at 1091–92 (approving Turk and Follayttar).

The

Appeals Court recently reaffirmed this strict construction of the
statute in an unpublished decision.

See Bank of New England v. B-

P Nantucket LLC, No. 11-P-1141, 966 N.E.2d 868 (Table), 2012 WL
1658354, at *1 (Mass. App. Ct. May 14, 2012) ("The defendants

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argue, understandably, that the requirements of [section] 17B are
meant to protect mortgagors and are to be strictly construed.").
We see no reason to anticipate that Massachusetts's
highest

court

would

interpret

the

mandatory

language

affidavit requirement any less straightforwardly.

of

the

U.S. Bank can

bring "[n]o action for a deficiency . . . unless . . . an affidavit
has

been

signed

foreclosure

sale,

and
of

sworn
the

to,

within

mailing

of

thirty
[the

days

required]

after

the

notice."

Because U.S. Bank admittedly signed and swore no such affidavit
within that time period, its claim for a deficiency must fail.
To avoid this conclusion, U.S. Bank points to a different
statute, Mass. Gen. Laws ch. 244, § 15, which governs another
affidavit requirement related to the statutory power of sale.

In

Federal National Mortgage Association v. Hendricks, 977 N.E.2d 552
(Mass. 2012), the SJC relied upon longstanding precedent, see,
e.g., O'Meara v. Gleason, 140 N.E. 426, 427 (Mass. 1923); Burns v.
Thayer, 115 Mass. 89, 93 (1874); Field v. Gooding, 106 Mass. 310,
312–13 (1871), to state that a deficient section 15 affidavit "does
not void a foreclosure sale or the right to possession" and "may
be cured by extrinsic evidence that the power of sale was exercised
properly and the foreclosure was valid."
555, 558.

Hendricks, 977 N.E.2d at

Instead, the failure to have a section 15 affidavit

merely deprives the foreclosing party of a tool that would be
sufficient to prove its prima facie case.

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Bank argues that we should therefore adopt an analogous conclusion
(i.e., that the section 17B affidavit is just a tool to make U.S.
Bank's proof easier). And there is indeed a district court opinion
seemingly accepting such an argument.

See Santander Bank, Nat'l

Ass'n v. Sturgis, No. 11-10601-DPW, 2013 WL 6046012, at *8-10 (D.
Mass. Nov. 13, 2013).
We do not agree that the interpretation of section 15
controls the interpretation of section 17B.

Section 15 is itself

entirely silent concerning the ramifications of not sending a
section 15 notice.

At the time of Hendricks, it read:

The person selling, or the attorney duly
authorized by a writing or the legal guardian
or conservator of such person, shall, after
the sale, cause a copy of the notice and his
affidavit, fully and particularly stating his
acts, or the acts of his principal or ward, to
be recorded in the registry of deeds for the
county or district where the land lies . . . .
Mass. Gen. Laws ch. 244, § 15 (2014).

The fact that the SJC

fashioned a remedy in the face of legislative silence offers no
reason to think that it would fashion an analogous remedy in the
face of an express legislative mandate that "[n]o action for a
deficiency shall be brought."

Mass. Gen. Laws ch. 244, § 17B.

We

conclude, instead, that "[n]o action for a deficiency shall be
brought."

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III.

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Conclusion

For the foregoing reasons, we reverse the entry of
judgment in favor of U.S. Bank on its deficiency claim in the
amount of $204,535.20.

We otherwise reject the appeal and affirm

the challenged rulings of the district court.17

Each party shall

bear its own costs.

17

U.S. Bank conceded at oral argument that no section 17B
affidavit was filed within thirty days after the foreclosure sale.
Therefore, on remand the Galvins will be entitled to summary
judgment on U.S. Bank's deficiency counterclaim.

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