Yanovsky et al v. JPMorgan Chase Bank, N.A. et al

Filing 27

Judge Richard G. Stearns: MEMORANDUM & ORDER entered granting 16 Motion for Summary Judgment (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-11426-RGS
VLADISLAV YANOVSKY and BELLA YANOVSKY
In Re: THE PROPERTY:
14 MARIE AVENUE
SHARON, MA 02067-2543
Quasi In-Rem
v.
JPMORGAN CHASE and JON S. DAVIS, ESQ.
and THE LAW FIRM OF STANTON AND DAVIS
MEMORANDUM AND ORDER
ON DEFENDANT JPMORGAN CHASE’S
MOTION FOR SUMMARY JUDGMENT
July 2, 2014
STEARNS, D.J.
JPMorgan Chase Bank, N.A., moves for summary judgment against
pro se plaintiffs Vladislav Yanovsky and Bella Yanovsky. Plaintiffs1 filed
this Complaint in the Norfolk Superior Court seeking an order retroactively
voiding the foreclosure sale of property located at 14 Marie Avenue, Sharon,
Massachusetts (The Property), that plaintiffs allege was “done without any

The court will refer to the plaintiffs as “plaintiffs,” or “Bella and
Vladislav,” rather than as “the Yanovskys,” to avoid confusion with nonparties Yelena Yanovsky and Samuil Yanovsky, who were co-owners of the
property with Bella Yanovsky and Vladislav Yanovsky.
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notice to the Plaintiffs as required by [Mass. Gen. Laws] Chapter 244 § 13.”
Compl. ¶ 2. Chase removed the case to this court on diversity grounds, and
now contends that the multiple notices mailed to the plaintiffs, at the
address listed on the deed conveying to them an interest in The Property,
full complied with the notice requirements of Massachusetts law.
BACKGROUND
The Property Interests
The Property was conveyed to non-parties Samuil Yanovsky and
Yelena Yanovsky on July 24, 2001. The same day, Yelena and Samuil
granted a mortgage on The Property to North American Mortgage
Company as collateral for a loan in the amount of $337,500.

Chase

subsequently acquired the mortgage on September 25, 2008.
On August 14, 2007, Yelena and Samuil executed a quitclaim deed,
conveying The Property to themselves as tenants by the entirety and, as
joint tenants, to plaintiffs, Bella and Vladislav as tenants by the entirety.
The quitclaim deed conveying The Property to Bella and Vladislav lists
their address as 14 Marie Avenue, Sharon, Norfolk County, Massachusetts.
Dkt. #1-1 at 13. Bella and Vladislav currently live at 904 Center Street in
Newton, Massachusetts.

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The Foreclosure Proceedings and Correspondence
Chase filed the affidavits of Jamie L. Kessler and of Michael E. Brust,
Esq., in support of its motion for summary judgment. See Dkt. #18 & #19.
Attached to the Brust affidavit are return receipts for four letters dated
April 10, 2012, addressed individually to Vladislav Yanovsky, Bella
Yanovsky, Samuil Yanovsky, and Yelena Yanovsky. Dkt. #19-1.

The

certified return receipts indicate that these letters were mailed to 14 Marie
Avenue in Sharon, Massachusetts. See id. at 1, 3, 5, & 7. The April 10
correspondence states that the law firm of Stanton & Davis had been
retained by Chase “to commence a foreclosure of the mortgage held by it on
the above-mentioned property on account of your failure to make the
required payments.” Id.
On April 11, 2012, Stanton & Davis filed a complaint on behalf of
Chase under the Servicemembers Civil Relief Act (SCRA). See Dkt. #19-2.
On May 22, 2012, the Land Court issued an “Order of Notice for service, for
recording and for publication in the Sharon Advocate.” Id. The Order of
Notice was directed to “Samuil Yanovsky and Yelena Yanovsky and
Vladislav Yanovsky and Bella Yanovsky.” Dkt. #19-3.

Deputy Sheriff

Timothy J. Wyse certified that on June 7, 2012, at 6:47 PM, he served a
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copy of the Order of Notice “by leaving at the last and usual place of abode
of Vladislav Yanovsky, 4 Marie Avenue Sharon MA 02067” and certified
that, at 6:48 PM the same day, he served a copy of the Order of Notice “by
leaving at the last and usual place of abode of Bella Yanovsky, 14 Marie
Avenue Sharon MA 02067.” Dkt. #19-4. As evidenced by certified return
receipts attached to the Brust affidavit, Stanton & Davis sent copies of the
Order of Notice issued by the Land Court to Bella, Vladislav, Yelena, and
Samuil Yanovsky, addressed separately to each individual, to the 14 Marie
Avenue, Sharon, Massachusetts address. Dkt. #19-5.
On March 29, April 5, and April 12, 2013, a “Legal Notice [of]
Mortgagee’s Sale of Real Estate” identifying The Property was published in
the Sharon Advocate. See Dkt. #19-6; see also Compl. ¶ 4. The notice
stated that The Property would be sold at public auction on Tuesday, April
30, 2013. Certified return receipts dated April 16, 2013, confirm that Chase
sent a copy of the notice that appeared in the Sharon Advocate to Bella
Yanovsky and to Vladislav Yanovsky at 14 Marie Avenue, in Sharon.2 Dkt.
#19-7. On April 30, 2013, the Property was sold at a public foreclosure

Brust states in his affidavit that the Notices of Foreclosure Sale that were
sent by certified mail, return receipt requested, were returned to Stanton &
Davis on May 1, 2013, marked “unable to forward.” Brust asserts that
“’[u]nable to forward’ means the parties did not leave forwarding
addresses.” Brust Aff. ¶ 11.

2

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auction to Richard Gordon of “Go-Go Realty” for the sum of $319,000.
Dkt. #19-8.
On May 13, 2013, plaintiffs filed this Complaint pursuant to the
Massachusetts Consumer Protection Statute, Mass. Gen. Laws ch. 93A.
Plaintiffs allege that no notices addressed to either Vladislav or Bella
Yanovsky were received at the address of The Property, and that no notices
were forwarded to them at their current address, and that the sale is
therefore invalid.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To succeed,
the moving party must show that there is an absence of evidence to support
the nonmoving party’s position.” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.
1990). If this is accomplished, the burden then “shifts to the nonmoving
party to establish the existence of an issue of fact that could affect the
outcome of the litigation and from which a reasonable jury could find for
the [nonmoving party].” Id. The nonmoving party “must adduce specific,
provable facts demonstrating that there is a triable issue,” id. (internal
quotation marks omitted), as a moving party is not required “to effectively
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‘prove a negative’ in order to avoid trial on a specious claim.” Carmona v.
Toledo, 215 F.3d 124, 133 (1st Cir. 2000).
DISCUSSION
Notice Requirements in Massachusetts
Mass. Gen. Laws ch. 244, § 14, governs notice of foreclosure
proceedings, and provides:
no sale . . . shall be effectual to foreclose a mortgage, unless,
previous to such sale, notice of the sale has been published once
in each of 3 successive weeks, the first publication of which shall
be not less than 21 days before the day of sale, in a newspaper
published in the city or town where the land lies or in a
newspaper with general circulation in the city or town where
the land lies and notice of the sale has been sent by registered
mail to the owner or owners of record of the equity of
redemption as of 30 days prior to the date of sale.
Id. § 14.
The notice must be sent to “the address set forth in section 61 of
chapter 185,” id., which refers to deeds “or other voluntary instruments
presented for registration.” Mass. Gen. Laws ch. 185, § 61.

Section 61

states that “[n]otices and processes issued in relation to registered land
may be served upon any person in interest by mailing them to the address
so given, and shall be binding, whether he resides within or without the
commonwealth.” Id.

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Section 14 further provides that if the land is unregistered, notice
must be sent to “the last address of the owner or owners of the equity of
redemption appearing on the records of the holder of the mortgage, if any,
or if none, to the address of the owner or owners as given on the deed . . .
by which the owner or owners acquired title.” Mass. Gen. Laws ch. 244, §
14 (emphasis added).3
It is undisputed that Chase sent notice of the foreclosure sale, by
registered mail, to Bella and Vladislav at their address “as given on the
deed.” That is all that section 14 requires. Plaintiffs’ conclusory claim that
they never received the letters raises no genuine issue of material fact, nor
could it, as the matter is one of law. See Hull v. Attleboro Sav. Bank, 25
Mass. App. Ct. 960, 963 (1988) (noting that an “averment of nonreceipt
would have been irrelevant to the issue [of] whether [a] bank had satisfied
its obligation in accordance with the statue” because the relevant question
of fact regarding section 4 is whether the bank sent the notices); see also
Carmel Credit Union v. Bondeson, 55 Mass. App. Ct. 557, 561 (2002)

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  Plaintiffs’ citation to Mass.

Gen. Laws ch. 244, § 13, adds nothing as that
section simply requires that all interested parties be summoned to appear.
Plaintiffs have no standing to assert the rights of any (unidentified) third
parties who were not sent notice of the sale.
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(“[W]hen a mortgagee has adhered to the statutory prescriptions for notice,
it ought not to be fettered by assertions of nonreceipt.”).4
ORDER
For the foregoing reasons, defendant Chase’s motion for summary
judgment is ALLOWED. The Clerk will enter judgment accordingly and
close the case.
SO ORDERED.

/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

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  In a final attempt to salvage

a hopeless cause, plaintiffs maintain, without
identifying any related facts, that “defendants have failed to establish that
there is no cognizable fact for the Trier of Fact to determine. . . . [and failed
to show] that in a light most favorable to the Plaintiffs that there is no cause
or controversy within the prevue (sic) of this court.” Dkt. #23 at 3. The
court, however, has no independent obligation to ferret out facts that might
defeat a motion for summary judgment. See Diaz-Fonseca v. Puerto Rico,
451 F.3d 13, 42 (1st Cir. 2006) (“[I]t is plaintiffs' responsibility to direct the
court's attention to [evidence in the record supporting their allegations].”);
Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995) (“It
is not our task, or that of the district court, to scour the record in search of a
genuine issue of triable fact. We rely on the nonmoving party to identify
with reasonable particularity the evidence that precludes summary
judgment.”).
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