HMC Assets, LLC solely in its capacity as Separate Trustee of CAM Mortgage Trust 2013-1 v. Conley

Filing 84

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Motion to Strike the Affidavit of Reneau Longoria (Docket Entry # 80 ); Motion to Strike the Affidavit of Gary McCarthy (Docket Entry # 70 ); Plaintiff HMC Assets, LLC Solely in Its Capacity as Separate Trustee of CAM Mortgage Trust 2013-1's Motion for Summary Judgment (Docket Entry # 59 ). The motions to strike (Docket Entry ## 70 , 80 ) are DENIED. The summary judgment motion (Docket Entry # 59 ) is ALL OWED as to counts I, II and IV in the amended complaint and counts two, three, four, five and seven of the counterclaim; and otherwise DENIED. Absent a stipulation by the parties with respect to the remaining counts in the amended complaint (counts V and VI) and the counterclaim (counts one and six), this court will conduct a status conference on September 22, 2016 at 2:45 p.m. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

HMC ASSETS, LLC SOLELY IN ITS
CAPACITY AS SEPARATE TRUSTEE OF
CAM MORTGAGE TRUST 2013-1,
Plaintiff,

CIVIL ACTION NO.
14-10321-MBB

v.
MARION R. CONLEY,
Defendant.

MEMORANDUM AND ORDER RE:
MOTION TO STRIKE THE AFFIDAVIT OF RENEAU LONGORIA (DOCKET ENTRY
# 80); MOTION TO STRIKE THE AFFIDAVIT OF GARY MCCARTHY
(DOCKET ENTRY # 70);
PLAINTIFF HMC ASSETS, LLC SOLELY IN ITS CAPACITY AS SEPARATE
TRUSTEE OF CAM MORTGAGE TRUST 2013-1’S MOTION
FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 59)
August 22, 2016
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
filed by plaintiff HMC Assets, LLC Solely in its Capacity as
Separate Trustee of CAM Mortgage Trust 2013-1 (“plaintiff,”
“Home Assets” or “HMC as CAM Mortgage”) against defendant Marion
R. Conley (“defendant”). (Docket Entry # 59).

Defendant opposes

the motion and separately moves to strike affidavits submitted
in support of the motion for summary judgment.
70 & 80).

(Docket Entry ##

After conducting a hearing, this court took the

motions (Docket Entry ## 59, 70, 80) under advisement.
PROCEDURAL BACKGROUND

On April 18, 2014, plaintiff filed an amended complaint
that sets out the following counts:

(1) breach of contract due

to defendant’s default on a loan and mortgage payments (Count
I); (2) declaratory judgment that a March 7, 2014 foreclosure on
the 23 Golf View Drive, Nantucket, Massachusetts property (“the
property”) was valid (Count II); (3) deficiency judgment for the
total amount of defendant’s debt owed to plaintiff (Count III);1
(4) judgment of possession of the property (Count IV); (5) use
and occupancy payments for the period of time after the
foreclosure (Count V); and (6) writ of assistance from the court
to enforce the judgment (Count VI).

(Docket Entry # 11).

On October 2, 2015, plaintiff filed the summary judgment
motion pursuant to Fed.R.Civ.P. 56 (“Rule 56”) on all claims in
the amended complaint and on defendant’s counterclaim.
Entry # 59).

(Docket

Plaintiff argues that it acquired title to the

property pursuant to a lawful foreclosure sale and that the
foreclosure was conducted in strict compliance with
Massachusetts law thus giving plaintiff standing to foreclose.
(Docket Entry # 60).

The counterclaim set out seven counts.

Counts two through seven respectively assert claims for breach
of contract, breach of the implied covenant of good faith and
fair dealing, negligence, unlawful foreclosure, an accounting

1

Plaintiff voluntarily dismissed Count III on June 24, 2015.
(Docket Entry # 44).
2

and violation of Massachusetts General Laws chapter 93A
(“chapter 93A”).

Count One seeks relief under Massachusetts

General Laws chapter 185, section 114.
motion.

Defendant opposes the

(Docket Entry # 68).

Subsequently, after filing the opposition to the summary
judgment motion (Docket Entry # 68), defendant filed two motions
to strike affidavits submitted by plaintiff (Docket Entry ## 70,
80).

Defendant argues that the affidavits submitted by

plaintiff (Docket Entry ## 62, 63, 63-11 & 73) are inadmissible
because they are not based on personal knowledge and therefore
constitute inadmissible hearsay.

(Docket Entry ## 70, 80).

Additionally, defendant asserts that exhibits submitted
with the affidavits do not meet the business record exception
under Fed.R.Evid. 803(6)(A) and that the affidavits made by
plaintiff’s counsel (Docket Entry ## 62, 73) do not satisfy the
qualified witness requirement under Fed.R.Evid. 803(6).
Entry ## 70, 80).

(Docket

Defendant requests that this court strike the

challenged affidavits and all of their associated exhibits from
the summary judgment record and award plaintiff attorney’s fees
and costs in bringing the motions.

(Docket Entry ## 70, 80).

Plaintiff opposes the motions to strike.
81).
I.

Motions to Strike

3

(Docket Entry ## 71,

“A motion to strike is the appropriate means of objecting
to the use of affidavit evidence on a motion for summary
judgment.”
2014).

See Facey v. Dickhaut, 91 F.Supp.3d 12, 19 (D.Mass.

Furthermore, Rule 56(c)(4) states that “[a]n affidavit

or declaration used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.”

Fed.R.Civ.P. 56(c)(4).

“If

evidence cannot be presented in a form that would be admissible
at trial, the court may not rely on it.”

Facey v. Dickhaut, 91

F.Supp.3d at 19.
To establish an acceptable affidavit, the affiant should
testify that he was somehow personally involved in the events
for which he is testifying and not base his testimony upon outof-court statements made for the truth of the matter asserted.
See Fed.R.Evid. 802; Perez v. Lorraine Enterprises, Inc., 769
F.3d 23, 31 (1st Cir. 2014); Garside v. Osco Drug, Inc., 895 F.2d
46, 49-50 (1st Cir. 1990).

Personal knowledge is satisfied when

the statements made by the affiant are based in fact “as opposed
to conclusions assumptions, or surmise.”

Perez v. Volvo Car

Corp., 247 F.3d 303, 316 (1st Cir. 2001) (internal citation
omitted).
Furthermore, Rule 56 “requires a scalpel not a butcher
knife.

The nisi prius court ordinarily must apply it to each

4

segment of an affidavit, not to the affidavit as a whole.”
Perez v. Volvo Car Corp., 247 F.3d at 315.

The First Circuit in

Perez instructs that a selective approach should be taken when
determining the admissibility of an affidavit, “intending to
disregard those parts of it that are inadmissible and to credit
the remaining portions.”

Id.

Because the motions to strike bear on the evidence that
this court will consider in deciding plaintiff’s motion for
summary judgment, they shall be considered first.
Dickhaut, 91 F.Supp.3d at 19.

See Facey v.

First, defendant has moved to

strike the affidavit of Gary McCarthy (“McCarthy affidavit”) as
well as the exhibits attached to the affidavit.
70).

(Docket Entry #

Defendant argues that the affidavit was not based on the

personal knowledge of the affiant, Gary McCarthy (“McCarthy”),
and therefore constitutes inadmissible hearsay.
70).

(Docket Entry #

Defendant further contends that the McCarthy affidavit

lacks statements of fact and instead contains baseless and
conclusory assumptions that lack a proper foundation and do not
support the possible knowledge of the affiant.

(Docket Entry #

70).
As pointed out by plaintiff, McCarthy states that he made
the affidavit on the basis of his personal knowledge.
Entry # 63).

(Docket

Additionally, McCarthy, a member of Home Assets,

attests in the affidavit that he personally reviewed the

5

servicing records for the Nantucket property, which were
prepared in the ordinary course of business of BSI Financial
Services (“BSI”).

(Docket Entry # 63).

Plaintiff submits that

the McCarthy affidavit and its attachments satisfy the
foundational requirements for the business records exception to
the hearsay rule and that the foreclosure affidavit of Manuel
Villegas (“Villegas”) satisfies the requirements of
Massachusetts General Laws chapter 244 (“chapter 244”), section
15.

(Docket Entry # 71).
McCarthy states in the affidavit that he has personal

knowledge as a member of plaintiff’s business.
63).

(Docket Entry #

Having worked for plaintiff and reviewed the actual

records of defendant’s mortgage loan, he avered that they were
kept in the ordinary course of business of BSI, the servicer for
Home Assets, and maintained by BSI or Home Assets employees.
(Docket Entry # 63).
Defendant argues that McCarthy does not attest to what
personal knowledge he has or how he was able to obtain such
personal knowledge.

According to defendant, McCarthy, a manager

for Home Assets, did not have a foundation showing how BSI
“created, kept or maintained” the records.

(Docket Entry # 70).

“Evidence to prove personal knowledge may consist of the
witness’s own testimony.”

Fed.R.Evid. 602.

McCarthy’s own

testimony, however, reflects that he was able to obtain personal

6

knowledge over defendant’s mortgage loan by explaining that he
has been working for plaintiff for close to five years.
Entry # 63).

(Docket

It is true that McCarthy, as an employee of Home

Assets, is not qualified to testify about the ordinary course of
BSI in maintaining the records of BSI.

Villegas, however, is an

employee of BSI and he submitted an affidavit that satisfies
Rule 803(6) with respect to the records maintained by BSI
including the note history and other business records of BSI
regarding the “servicing and loan payment histories.”
Entry # 62-6).

(Docket

The court in Perdomo v. Federal Nat’l Mortg.

Ass’n, 2013 WL 1123629, at *2 (N.D. Tex. Mar. 18, 2013),
rejected a similar challenge to an affidavit of an employee of a
servicer in light of her review of the loan records at issue.
Further, notwithstanding defendant’s argument to the contrary,
the fact that McCarthy was an employee of Home Assets as opposed
to BSI does not prevent him from being a qualified witness.

See

Phillips v. Mortg. Elec. Registration Systems, Inc., 2013 WL
1498956, *3 (N.D.Ala. April 5, 2013) (Rule 803(6) “does not
require testimony by some witness associated with the
predecessor entity when the records become part of the records
of a successor entity”).
The hearsay exception for business records allows admission
into evidence of a record if it was made at or near the time by
someone with knowledge, kept in the ordinary course of business,

7

made within a regular business activity, and all of these
requirements are shown by a qualified witness of the records,
with no indication of trustworthiness made by the opponent.
Fed.R.Evid. 803(6).

In regards to the “qualified witness”

requirement of the business record exception, “it is well
established that the witness need not be the person who actually
prepared the record.

A qualified witness is simply one who can

explain and be cross-examined concerning the manner in which the
records are made and kept.2

Wallace Motor Sales, Inc. v.

American Motors Sales Corp., 780 F.2d 1049, 1061 (1st Cir. 1985)
(citations omitted); see also United States v. Kayne, 90 F.3d 7,
12-13 (1st Cir. 1996) (citing to Wallace that qualifying witness
need not have actually prepared the business record, just that
he can be cross-examined on the matter of how record was made
and kept).
Defendant argues that McCarthy, despite being an employee
of plaintiff, fails to meet the “qualified witness” requirement

2

Other than quoting a case in a footnote that a qualified
witness is “‘one who can explain and be cross-examined
concerning the manner in which the records are made and kept’”
(Docket Entry # 70, n.3), defendant makes no argument that a
lack of cross examination precludes the admissibility of the
documents under Rule 803(6). See Bellone v. Southwick-Tolland
Regional School Dist., 748 F.3d 418, 421 (1st Cir. 2014)
(discussing waiver); Coons v. Industrial Knife Co., Inc., 620
F.3d 38, 44 (1st Cir. 2010); see generally United States v.
Burgos-Montes, 786 F.3d 92, 119-20 (1st Cir.) (discussing Rule
803(6)), cert. denied, 136 S.Ct. 599 (2015).
8

under the business records exception.

(Docket Entry # 70).

In

the affidavit, however, McCarthy demonstrated a knowledge and a
familiarity with how the loan documents were made with defendant
and how those records were serviced and maintained.

(Docket

Entry # 63).
Defendant further submits that McCarthy’s attestations are
conclusory.

To the contrary, the McCarthy affidavit lays out

factual statements regarding the loan history between plaintiff
and defendant based on McCarthy’s own personal knowledge as well
as his review of the business records.

(Docket Entry # 63).

Defendant’s reliance on Sheinkopf v. Stone, 927 F.2d 1259, 1271
(1st Cir. 1991), is misplaced because in Sheinkopf the affidavit
was deficient due to the conclusory statements and mere
allegations made solely based on the belief of the affiant.
Defendant further asserts that there is no specific
evidence about how the records were created, kept or maintained.
(Docket Entry # 70).

Yet, an affiant is only required to have

some familiarity and ability to explain the maintenance of the
business records in question, especially when elements of
trustworthiness are present.

See Wallace Motor Sales, Inc. v.

American Motors Sales Corp., 780 F.2d at 1061 (citing NLRB v.
First Termite Control Co., Inc., 646 F.2d 424, 427 (9th Cir.
1981)); see also United States v. Kayne 90 F.3d at 12-13.
McCarthy refers to a number of facts regarding the mortgage loan

9

and he discusses the analysis plaintiff utilizes when assessing
the possibilities for a loan modification as well as the
procedures plaintiff took to engage in a foreclosure sale of the
property.

(Docket Entry # 63).

Therefore, the McCarthy

affidavit meets all of the necessary requirements under the
business records exception as well as the personal knowledge
requirement for affidavits in support of motions for summary
judgment.

Fed.R.Evid. 803(6); Fed.R.Civ.P. 56(c)(4).

Defendant also raises two state statutory arguments as a
means to strike documents attached to the McCarthy affidavit.
(Docket Entry # 70).

First, defendant states that there is

“[n]o evidence of any contractual relationship” between
plaintiff and BSI “to service[] Conley’s loan” thereby
“implicating the Statute of Frauds” in Massachusetts General
Laws chapter 259 (“chapter 259”), section one, a writing for the
sale of real estate interests.”

(Docket Entry # 70).

The

statute of frauds instructs that:
No action shall be brought . . . [u]pon a contract for the
sale of lands . . . or of any interest in or concerning
them . . . [u]nless the promise, contract or agreement upon
which such action is brought, or some memorandum or note
thereof, is in writing and signed by the party to be
charged therewith or by some person thereunto by him
lawfully authorized.
Mass. Gen. L. ch. 259, § 1 (“chapter 259”).

Accordingly, “as a

general matter, ‘a contract for the sale of land must comply
with the Statute of Frauds,’ and ‘an oral modification will not

10

be enforced if it results in a “rewriting” of the contract or
significantly changes the parties’ obligations.’”

Akar v.

Federal Nat’l Mortg. Ass’n, 845 F.Supp.2d 381, 397 (D.Mass.
2012) (brackets omitted); see Seidel v. Wells Fargo Bank, N.A.,
2012 WL 2571200, at *4 (D.Mass. July 3, 2012) (“‘right to
possession of land is an interest in it, and a contract to
surrender possession or to forbear for a time to exercise a
right to take and retain possession is within the statute of
frauds’”); RFF Family Partnership, LP v. Link Development, LLC,
907 F.Supp.2d 155, 163 (D.Mass. 2012) (although “Statute of
Frauds prohibits oral contracts for the sale of land, or
interests in the sale of land, oral agreements that alter the
method by which a mortgage is paid off but do not affect the
‘right, title and interest’ in the security are enforceable”).
BSI’s authority to act on behalf of HMC as CAM Mortgage as
a servicer does not implicate a “contract for the sale of lands”
within the meaning of chapter 259, section one.

See First

Pennsylvania Mortg. Trust v. Dorchester Savings Bank, 481 N.E.2d
1132, 1138 (Mass. 1985); Aragao v. Mortg. Elec. Registration
Systems, Inc., 22 F.Supp.3d 133, 139 n.6 (D.Mass. 2014); Akar v.
Federal Nat’l Mortg. Ass’n, 845 F.Supp.2d at 397; see also
Greenfield v. Pearlstein, 1995 WL 106051, at *2 (Mass.App.Div.
Feb. 28, 1995) (statute of frauds “inapplicable to contracts
which do not entail or contemplate a transfer of land or the

11

creation of any estate or interest therein and which instead
concern the profits or losses arising from the use or sale of
realty”).

As a servicer, BSI did not own the mortgage and its

relationship as a servicer for HMC as CAM Mortgage, the
mortgagee and lender, did not involve the transfer of land.

In

the alternative, a limited power of attorney (Docket Entry # 152) evidences that BSI had the authority to act as servicing
agent for HMC as CAM Mortgage and satisfy the statute’s writing
requirement.

See also Financial Resources Network, Inc. v.

Brown & Brown, Inc., 930 F.Supp.2d 287, 308 (D.Mass. 2013).
Defendant’s other statutory argument relies on
Massachusetts General Laws chapter 233, section 79A (“section
79A”), which provides for the admissibility of certified copies
of public records.

Similar to section 79A, certified and signed

copies of documents of public records are self-authenticating
under the applicable Federal Rule of Evidence, Fed.R.Evid. 902
(“Rule 902”).

See Downey v. Bob’s Discount Furniture Holdings,

Inc., 633 F.3d 1, 8 (1st Cir. 2011) (“[f]ederal evidentiary rules
govern in diversity cases”); Ricciardi v. Children’s Hosp. Med.
Ctr., 811 F.2d 18, 21 (1st Cir. 1987) (“Federal Rules apply to
all cases in the district courts, including diversity actions”);
Fed.R.Evid. 1101.

As discussed above, however, a proper

foundation has been established to admit documents attached to
the McCarthy affidavit and maintained by BSI under the business

12

records exception.

Thus, although Rule 902 as well as section

79A provide one means to admit documents of public record into
evidence, they are not the only means.

Accordingly, defendant’s

argument, which relies on a state evidentiary statute, is
misguided.
Defendant’s final argument regarding the motion to strike
challenges the admissibility of the chapter 244, section 15
affidavit of Villegas (“foreclosure affidavit”), which is
attached to the foreclosure deed (Docket Entry # 73-1).
Entry # 70).

(Docket

As an employee of BSI, Villegas has a sufficient

level of familiarity to satisfy the personal knowledge
requirement of Rule 56, as he is personally involved with the
handling of plaintiff’s records.

Fed.R.Civ.P. 56(c) (4); see

Perez v. Volvo Car Corp., 247 F.3d at 315.

Moreover, the

foreclosure affidavit contains purely factual statements about
the publishing of the notice of sale and the occurrence of the
public auction of the property.

(Docket Entry # 63-11).

Therefore, it satisfies the personal knowledge requirement of
Rule 56.

Fed.R.Civ.P. 56(c)(4); see Perez v. Volvo Car Corp.,

247 F.3d at 315.
Defendant’s only other challenge to the admissibility of
the foreclosure affidavit is that it contains a false statement
that BSI “caused a notice of sale to be published” and “mail[ed]
the required notices” (Docket Entry # 63-11) when plaintiff’s

13

counsel was the party actually completing these actions (Docket
Entry # 62-8, p. 4).

(Docket Entry # 70).

Under Massachusetts

law, “[a]n agency relationship is created when there is mutual
consent, express or implied, that the agent is authorized to act
on behalf and for the benefit of the principal, subject to the
principal’s control.”

RFF Family Partnership, LP v. Link

Development, LLC 907 F.Supp.2d at 161 (citing Theos & Sons, Inc.
v. Mack Trucks, Inc., 729 N.E.2d 1113, 1119 (2000)).

“It is the

conduct of the principal, not the agent, that creates apparent
authority.”

Id. (citing Sheinkopf, 927 F.2d at 1269).

While defendant attempts to cite an inconsistency in the
actions of BSI, the foreclosure affidavit expressly states that
“BSI Financial Services, Inc., Attorney-in-Fact for [plaintiff]
solely in its capacity as Separate Trustee of CAM Mortgage Trust
2013-1, caused a notice of sale to be published” and also
establishes BSI Financial Services’ compliance with chapter 244
section 14.

(Docket Entry # 63-11).

Thus, BSI, in the limited

capacity in which it acted as an agent for plaintiff,
appropriately caused a notice of sale to be published.
Entry # 63-11).

(Docket

Defendant has not presented this court with any

evidence to the contrary, nor has defendant presented any
evidence to suggest that plaintiff’s counsel, or BSI, acted
outside of its actual agency in relation to plaintiff.

14

In regards to defendant’s motion to strike the affidavits
of plaintiff’s counsel (“Longoria affidavits”), defendant argues
that they lack a basis for personal knowledge under Rule 56,
particularly in regards to the testimony that the original note
that plaintiff executed to purchase the property (“the Conley
note”) is an “original business record” under the hearsay
exception.

(Docket Entry # 80).

Additionally, defendant

suggests in the motion to strike that plaintiff’s counsel is
barred from making an affidavit because she is not a “qualified
witness.”3

(Docket Entry # 80).

The Longoria affidavits satisfy the personal knowledge
standard because the affidavits are based in fact, “as opposed
to conclusions, assumptions, or surmise.”
Corp., 247 F.3d at 316.

Perez v. Volvo Car

Plaintiff’s counsel stated that she had

personally appeared at the foreclosure sale of the property in
question.

(Docket Entry # 73, ¶ 8).

Moreover, the Longoria

affidavits provide purely factual descriptions of the events
that transpired at the foreclosure sale, rather than statements
of assumptions or conclusions.

Based on the personal

observations made by the affiant, the affidavits set out
statements of fact based on personal knowledge.

See Perez v.

Volvo Car Corp., 247 F.3d at 316.

3

The affiant of the “Longoria affidavits” is plaintiff’s
counsel.
15

As to the testimony made in reference to the business
records attached to the Longoria affidavits, the affiant was
able to base this testimony on her own firm’s handling of
plaintiff’s business records.

(Docket Entry # 81).

Defendant

attempts to argue that the affidavit makes no reference as to
who at the affiant’s law firm was involved with this process or
that this was a regularly conducted activity.
80).

(Docket Entry #

Defendant continues by stating that the affiant herself

had no personal involvement with anything related to the
purported transfer of the Conley note from plaintiff to the
affiant’s law firm.

(Docket Entry # 80).

As stated above, however, an affiant is only required to
have some familiarity and ability to explain how the business
records were handled to satisfy Rule 803(6), especially when
there is no indication for a lack of trustworthiness.

See

Wallace Motor Sales, Inc. v. American Motor Sales Corp., 780
F.2d at 1061.

As a member of the law firm representing

plaintiff in this case, the affiant’s statements meet this
standard.

See id.

Additionally, plaintiff’s counsel has

submitted evidence, such as a June 25, 2013 bailee letter (“the
bailee letter”), to adequately demonstrate the firm’s handling
of the relevant business records.

(Docket Entry # 73-1).

The

bailee letter attached to Longoria’s supplemental affidavit
states in pertinent part, “CAM shall retain full ownership

16

thereof and you [plaintiff’s counsel] shall hold possession of
the Note evidencing the mortgage loan as agent and Bailee for
and on behalf of CAM.”

(Docket Entry # 73-1).

Therefore, the

affiant has the requisite ability to speak on behalf of the
handling of the business records, even without performing the
actual task herself.

See id.

Furthermore, because the

documents attached to the Longoria affidavits meet the business
record exception, an argument suggesting that they make
statements for the truth of the matter asserted is precluded.
Reliance on the bailee letter submitted with the supplemental
Longoria affidavit, and any other business record meeting the
hearsay exception, is therefore appropriate.

Fed.R.Evid.

803(6); Wallace Motor Sales, Inc. v. American Motors Sales
Corp., 780 F.2d at 1061.
Finally, the mere fact that the affiant is counsel for
plaintiff is not a sufficient reason to discredit the testimony
provided in the affidavit in question, especially given that the
affiant has met the personal knowledge requirement and the
document at issue was kept in the ordinary course of counsel’s
law firm.

Fed.R.Evid. 602.

“Every person is competent to be a

witness” except as otherwise provided in the Federal Rules of
Evidence.

Fed.R.Evid. 601.

Defendant has not produced any

authority to support the contention that plaintiff’s counsel
would be otherwise unfit to submit an affidavit where, as here,

17

she is addressing under oath the maintenance of documents at her
law firm and how documents at her law firm are handled.
II.

Motion for Summary Judgment
Summary Judgment is designed “‘to pierce the boilerplate of

the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”

Dávila v. Corporación De

Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.
2007).

“Rule 56(c) mandates the entry of summary judgment,

after adequate time for discovery and upon the motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
It is appropriate when the summary judgment record shows
“there is no genuine dispute as to any material fact and the
[moving party] is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56.

“‘A dispute is genuine if the evidence about

the fact is such that a reasonable jury could resolve the point
in the favor of the non-moving party.’”

American Steel

Erectors, Inc. v. Local Union No. 7, Int’l Ass’n of Bridge,
Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68,
75 (1st Cir. 2008).

“‘A fact is material if it carries with it

the potential to affect the outcome of the suit under the
applicable law.’”

Id.

Facts are viewed in favor of the non-

18

movant, i.e., defendant.
20, 23 (1st Cir. 2009).

See Noonan v. Staples, Inc., 556 F.3d
The summary judgment record sets out the

following facts.
FACTUAL BACKGROUND
On August 15, 2006, defendant, as the borrower, executed
the Conley note to American Home Mortgage, the lender, for
$800,000 (Docket Entry # 11-1) and, to secure the loan, gave a
mortgage (“Conley mortgage”) on the property to Mortgage
Electronic Registration Systems, Inc. (“MERS”), as nominee for
American Home Mortgage.

(Docket Entry # 11-2).

The note

required defendant to pay principal and interest by making
monthly payments every month.

(Docket Entry # 63-1).

The

payments on the mortgage were to begin on October 1, 2006 and
continue to be made on the first day every month until the
principal and interest were paid off.
1).

(Docket Entry # 63-1, p.

If defendant failed to make the required payment each

month, then she would be in default under the terms of the
Conley note.

(Docket Entry # 63-1, p. 4).

Furthermore, if defendant should default, the note
stipulated that “the Note Holder may send [defendant] a written
notice telling me that if [defendant does] not pay the overdue
amount by a certain date, the Note Holder may require
[defendant] to pay immediately the full amount of Principal
which has not been paid and all the interest that [defendant]

19

owe on that amount.”4

(Docket Entry # 63-1, p. 4).

In regards

to notice, the Conley note required that the Note Holder provide
at least ten days after the date on which the notice is
delivered or mailed to defendant before the Note Holder could
require defendant to pay off the entire principal due to the
default.

(Docket Entry # 63-1, p. 4).

As the sole signor of

the note, defendant was “fully and personally obligated to keep
all of the promises made in the Note, including the promise to
pay the full amount owed.”

(Docket Entry # 63-1, p. 5).

As previously noted, the property that secured the loan
obligation was located at 23 Golf Drive in Nantucket.
Entry # 11-1).

(Docket

The Conley mortgage was filed at the Nantucket

County Land Court, Registry District (“Nantucket County Land
Court”) on August 15, 2006.

(Docket Entry # 11-2).

The Conley

mortgage was a refinance used to pay off defendant’s prior loan
to Option One Mortgage in the amount of $620,561.34 and resulted
in a cash-out to defendant in the amount of $152,222.89.
(Docket Entry # 11-3).

At the origination of the Conley

mortgage and note, the property was valued at $1,350,000.
(Docket Entry # 11-4).

4

The Conley note defines the “Note Holder” as American Home
Mortgage or anyone taking the “[n]ote by transfer and who is
entitled to receive payment.” (Docket Entry # 73-1).
20

Paragraph 22 of the mortgage included a power of sale
clause.

It states, in pertinent part, that the “Lender shall

give notice” of a default and:
If the default is not cured on or before the date
specified in the notice, Lender at its option may require
immediate payment in full of all sums secured by this
Security Instrument without further demand and may invoke
the STATUTORY POWER OF SALE and any other remedies
permitted by Applicable Law . . ..
If Lender invokes the STATUTORY POWER OF SALE, Lender
shall mail a copy of a notice of sale to Borrower, and to
other persons prescribed by Applicable Law, in the manner
provided by applicable law. Lender shall publish the
notice of sale, and the Property shall be sold in a manner
prescribed by applicable law.
(Docket Entry # 63-2).
Additionally, the Conley mortgage included a second home
rider stating that the “Borrower shall occupy, and shall only
use, the Property as [the] Borrower’s second home.”
Entry # 63-2, p. 21).

(Docket

The Conley mortgage stated that defendant

was expected to occupy and use the property as defendant’s
principal place of residence within 60 days after execution of
the mortgage, unless otherwise agreed to in writing.
Entry # 63-2).

(Docket

The second home rider replaced this “principal

place” requirement by explicitly stating that the property would
be used as a second home for defendant.
the second home rider.

Both parties agreed to

(Docket Entry # 63-2).

As set forth in the loan application, plaintiff owned real
property located on East 76th Street in New York City.

21

(Docket

Entry # 63-3).

Defendant indicated on the loan application that

her primary residence was this New York property.
# 63-3).

(Docket Entry

Additionally, at no time prior to the initiation of

the foreclosure process did defendant notify BSI or plaintiff
that she was maintaining the property on Nantucket as a primary
residence.
On February 8, 2012, as stated in the notarized assignment
filed in the Nantucket County Land Court, MERS assigned the
Conley mortgage to J.P. Morgan Mortgage Acquisition Corp. (“J.P.
Morgan”) for value received.

(Docket Entry # 63-6).

As set out

in a July 2012 notarized assignment filed in Nantucket County
Land Court, J.P. Morgan then assigned the Conley mortgage to HMC
Assets, LLC solely in its capacity as Separate Trustee of CAM V
Trust (“HMC as CAM V Trust”) on July 13, 2012. (Docket Entry #
63-7).

Finally, as stated in the notarized assignment filed in

Nantucket County Land Court, HMC as CAM V Trust assigned the
Conley mortgage to HMC Assets, LLC solely in its capacity as
Separate Trustee of CAM Mortgage Trust 2013-1, i.e., plaintiff,
on May 3, 2013.

(Docket Entry # 63-8).

On June 26, 2013, HMC as CAM Mortgage was the holder of the
original Conley note.

On that date, HMC as CAM Mortgage

tendered the Conley note to its attorney and agent, Doonan,
Graves & Longoria, LLC (“DG&L”), to retain possession of the
note on behalf of HMC as CAM Mortgage.

22

(Docket Entry # 73).

After June 26, 2016, HMC as CAM Mortgage retained full ownership
of the Conley note with the authority to request that DG&L
return the note to HMC as CAM Mortgage, the holder and owner of
the note.

(Docket Entry # 73-1) (Docket Entry # 73).

At all

times since June 26, 2013, DG&L, HMC as CAM Mortgage’s counsel
and agent, remained in possession of the Conley note.

(Docket

Entry # 73-1) (Docket Entry # 73, ¶¶ 5-7).
Moreover, as likewise established in the affidavit of
McCarthy, plaintiff is currently the holder of the Conley note
as well as the current assignee of record of the Conley
mortgage.5

(Docket Entry # 63, ¶¶ 15, 16).

In pertinent part,

McCarthy attests as follows:
An Assignment of Mortgage from HMC Assets, LLC solely in
its capacity as Separate Trustee of CAM V Trust to HMC
Assets, LLC solely in its capacity as Separate
Trustee of CAM Mortgage Trust 2013-1 dated May 3, 2013, was
registered with the Nantucket County Registry of District
of the Land Court . . ..
HMC Assets is the current holder of the Conley Note and
current assignee of record of the Conley Mortgage.
(Docket Entry # 63, ¶¶ 15, 16).
By October 1, 2009, defendant had defaulted on her loan
installment payments.
63-11, p. 3).

(Docket Entry # 63, ¶ 17) (Docket Entry #

As a result, BSI, as servicer of the mortgage for

plaintiff, sent a 150 day “Notice of Right to Cure” letter (“35A

5

Defendant argues that there is no admissible evidence that HMC
Assets LLC owns the mortgage. (Docket Entry ## 70, 80).
23

letter”) dated June 25, 2013 to defendant pursuant to section
35A of chapter 244 (“section 35A”).
is the servicer of plaintiff.
(Docket Entry # 62-8, p.5).6

(Docket Entry # 63-9).

BSI

(Docket Entry ## 62-6, 63-9)
According to the 35A letter,

defendant did not make the monthly loan payment due on October
1, 2009.

(Docket Entry # 63-9).

amount totaled $169,550.21.

The accumulated past due

(Docket Entry # 63-9).

In the 35A

letter, BSI required defendant to pay off the past due amount on
or before November 29, 2013, which was 150 days from the date
BSI sent defendant the 35A letter notifying her of the default.
(Docket Entry # 63-9).

In addition, the 35A letter explained

that if defendant did not pay the past due amount by the
deadline, defendant could be evicted from the property after a
foreclosure sale.

(Docket Entry # 63-9).

BSI accompanied the 35A letter with a “Right to Request a
Modified Mortgage Loan” notice (“loan modification notice”).

6

By affidavit, plaintiff established that BSI was “the servicer
for the mortgage loan” and, in particular, the “servicer of the
foreclosing entity,” HMC as CAM Mortgage. (Docket Entry # 62-8,
p. 5) (Docket Entry # 62-6). By letter dated August 29, 2012,
defendant was notified that BSI was the servicer of the Conley
mortgage. (Docket Entry # 27, p. 13, ¶ 27) (Docket Entry # 28,
p. 5, ¶ 27). Defendant did not counter this unrebutted evidence
with evidence that BSI was not the servicer of plaintiff at the
relevant time to support defendant’s argument that the notice of
default letter did not comply with paragraph 22 of the Conley
mortgage. Defendant’s assertion or argument that there was no
documentation or written agreement between plaintiff and BSI,
which plaintiff denies (Docket Entry # 28, ¶ 30, p. 5), is
therefore misguided.
24

(Docket Entry # 63-10).

The letter stated that under

Massachusetts law defendant was eligible to request a
modification of her mortgage.

(Docket Entry # 63-10).

The loan

modification notice explained that a modification could
potentially change the options given to defendant in the 35A
letter.

(Docket Entry # 63-10).

application to modify the loan.

Defendant submitted an
(Docket Entry # 69-3).

As

stated in the McCarthy affidavit, there are a series of steps
plaintiff applies when reviewing the eligibility of a loan
modification request.

(Docket Entry # 63, ¶¶ 22-26).

The

McCarthy affidavit states that:
As a good faith effort to avoid foreclosure, HMC
Assets reviewed Conley for a modification of her
mortgage in November of 2013.
[Plaintiff] utilizes FHA guidelines when considering
its borrowers for a loan modification.
Under [Fair Housing Act] guidelines, a borrower’s
mortgage payment must not be in excess of 31% of their
verifiable monthly average income.
[Plaintiff] used [Defendant’s] Federal Tax Returns for
2011 and 2012 [to establish defendant’s] income.
[Defendant’s] mortgage payment including principal,
interest, taxes and insurance is approximately 62.4%
of her verifiable monthly average income . . ..
Given the approximate 62.4% ratio of her mortgage
payment to verifiable monthly average income, Conley
is not eligible for a modification under FHA
guidelines.

25

(Docket Entry # 63, ¶¶ 21-26) (paragraph numbers omitted).7
Without a loan modification, defendant failed to cure the
default prior to expiration of the 150 days.

Plaintiff

subsequently filed with the Land Court Department of the
Massachusetts Trial Court (“the Land Court”) a “Complaint to
Determine Military Status” pursuant to the Servicemembers Civil
Relief Act, 50 U.S.C. §§ 501 et seq. (“Servicemembers Act”).
(Docket Entry # 11-9).

Pursuant to the Servicemembers Act, an

order of notice was published in the Nantucket Inquirer and
Mirror on January 2, 2014, served on defendant on January 14,
2014, and recorded with the Land Court on January 10, 2014.
(Docket Entry # 11, ¶ 18).

The Land Court determined that

defendant was not entitled to the benefits of the Servicemembers
Act.

(Docket Entry # 11-11).
As set forth by affidavit (“noteholder affidavit”) dated

December 17, 2013, HMC as CAM Mortgage was the foreclosing
entity.

As explained above, DG&L, plaintiff’s agent and

attorney, was in possession of the note on behalf of HMC as CAM
Mortgage, the owner of the note.8

The affiant, Villegas, a vice

7

Defendants argument that plaintiff provided no evidence that
BSI considered the loan modification application is therefore
inaccurate.
8
Although the noteholder affidavit also states that HMC as CAM
Mortgage was acting as “the authorized agent of the holder of”
the Conley note, any discrepancy as to whether DG&L, plaintiff’s
counsel, or plaintiff, i.e., HMC as CAM Mortgage, held the note
is not material because in either circumstance the foreclosing
26

president of BSI and an agent of HMC as CAM Mortgage, attests to
his familiarity and review of BSI records kept in the ordinary
course of BSI’s business.

In the noteholder affidavit, Villegas

certified that the requirements of section 35B of chapter 244
(“section 35B”) had “been compiled with” regarding the Conley
note.

(Docket Entry # 62-6).

The noteholder affidavit also

states that it is the regular practice of BSI to receive records
related to a mortgage loan from another entity.
62-6).

(Docket Entry #

The noteholder affidavit was registered with the Land

Court on January 29, 2014.

(Docket Entry # 62-6).

On December

17, 2013, Villegas separately sent defendant a certification
pursuant to 209 C.M.R. § 18.21A(2)(c) that HMC as CAM Mortgage
was the current owner of the Conley note and the assignee of the
Conley mortgage.

(Docket Entry # 62-8, p. 5) (Docket Entry #

62, ¶ 11).
On February 6, 13 and 20, 2014, notice of the foreclosure
sale (Docket Entry # 11-13) was published in the Nantucket
Inquirer and Mirror, a newspaper of general circulation, for
three consecutive weeks not less than 21 days prior to the
foreclosure sale.

(Docket Entry # 62-7).

Pursuant to chapter

244, sections 14 and 17B, a “Notice of Intent to Foreclose
Mortgage” and “Intent to Pursue Deficiency After Foreclosure of

entity, plaintiff, or its agent, DG&L, held the Conley note at
the time of the foreclosure.
27

Mortgage” letter was mailed to defendant on February 7, 2014.
(Docket Entry # 62-8).

The letter alerted defendant that the

mortgaged property would be sold at public auction on March 7,
2014, on the mortgaged premises.

(Docket Entry # 62-8).

Plaintiff also notified defendant that on or after the
foreclosure sale, defendant may be liable for any deficiency in
proceeds of the foreclosure sale although “[n]o deficiency after
the foreclosure sale may be pursued if [defendant had] obtained
or will obtain a Chapter 7 bankruptcy.”
p. 2).

(Docket Entry # 62-8,

(Docket Entry # 62-8).

Plaintiff purchased the property at a non-judicial
foreclosure sale on March 7, 2014, and registered the
foreclosure deed with the Land Court.9
11-16).

(Docket Entry ## 11-15,

On March 7, 2014, plaintiff, by itself or through its

attorney-in-fact and agent (BSI),10 conducted the foreclosure
sale.

(Docket Entry # 63-11, pp. 1, 3) (Docket Entry # 62, ¶¶

12-13).

The Monroe Auction Group, in turn, was the auctioneer

and BSI was its client.

(Docket Entry # 62-9).

Double B

Capital Group, Inc. (“Double B Capital”) was the successful

9

Plaintiff’s counsel stated by affidavit that she was present
at the foreclosure sale on March 7, 2014. (Docket Entry # 62, ¶
13).
10
As an attorney-in-fact of plaintiff, BSI was an agent of
plaintiff. See Farris v. Shinseki, 660 F.3d 557, 565 (1st Cir.
2011) (“‘[u]nder our system of representative litigation, each
party is deemed bound by the acts of his lawyer-agent”’); United
States v. Troy, 564 F.Supp.2d 42, 46 (D.Me. 2008).
28

bidder at the foreclosure sale, but failed to consummate the
sale of the property.

(Docket Entry # 62, ¶¶ 14, 16).

Therefore, as the second highest bidder, plaintiff successfully
purchased the property for $675,000.00.

(Docket Entry # 63-11).

After the public auction, counsel for plaintiff responded
to defendant’s second chapter 93A demand letter dated March 7,
2014.

(Docket Entry ## 62-10, 62-11).

In the response,

plaintiff’s counsel stated, “With respect to the allegations and
claims asserted in the Letter against BSI and HMC, it is BSI and
HMC’s position that said claims are time barred and/or without
merit.”

(Docket Entry # 62-11, p. 2).

Additionally, on or

about July 24, 2015, defendant was served with a subpoena duces
tecum requiring defendant to appear at the offices of
plaintiff’s counsel for a deposition.

(Docket Entry # 62-2).

Separately, defendant filed for chapter 7 bankruptcy in the
Southern District of New York in 2010.
4, ¶ 20) (Docket Entry # 62-13).

(Docket Entry # 62, p.

In November 2010, defendant

signed a chapter 7 statement of her intent to retain the
property and reaffirm the debt owed to Bank of America.
Entry # 62-17).

(Docket

She obtained a final decree releasing her “all

dischargeable debts” in March 2011.

(Docket Entry ## 62-15, 62-

16).
Furthermore, in regard to the issues surrounding the
location of her permanent residency, defendant stated that she

29

did not possess a Massachusetts driving license, nor was she
registered to vote in the Commonwealth.
62-20).

(Docket Entry ## 62-18,

Defendant also stated that she had been living in New

York since 1972 and had been registered to vote in New York
since before 1992.

(Docket Entry ## 62-19, 62-21).

From 2010 until 2014, defendant filed multiple
“Massachusetts Nonresident/Part-Year Resident Income Tax Return”
forms and listed her New York property as her home address.
(Docket Entry ## 62-23, 62-24, 62-25, 62-26, 62-27, 62-28, 6229).

Her deposition concluded on August 21, 2015 so that she

could gather the rest of her financial records stored in New
York.

(Docket Entry # 62-30).
Finally, the foreclosure deed sets out the chain of title

through the aforementioned assignments and plaintiff’s purchase
of the property at the public auction.

As set forth in the

deed, plaintiff granted the property to plaintiff for the sum of
$675,000.

(Docket Entry # 63-11).

The deed was registered with

the Nantucket County Land Court. (Docket Entry # 11-16).

The

total debt owed under the Conley note at the time of the March
7, 2014 foreclosure sale was $995,868.27.

(Docket Entry # 63, ¶

36).
DISCUSSION
A.

Plaintiff’s Acquisition of Title Pursuant to Lawful
Foreclosure

30

In seeking summary judgment, plaintiff initially raises a
series of arguments regarding the validity of the foreclosure
sale and its acquisition of title to the property as well as its
standing to foreclose and defendant’s lack of standing to
challenge various aspects of the foreclosure.11

Defendant argues

that the foreclosure was invalid and that defendant has met her
burden to defeat summary judgment by demonstrating defects in
the chain of assignments for the mortgage and plaintiff’s
failure to comply with sections 35A, 35B and 35C of chapter 244
as well as paragraph 22 of the mortgage.
Before addressing these arguments, it is worth recounting
the general parameters of Massachusetts foreclosure law and
statutes regarding the power of sale.

A valid statutory

foreclosure must strictly comply with the terms of the mortgage
and the relevant statutes relating to foreclosure by exercise of
a power of sale, including section 21 of Massachusetts General
Laws chapter 183 (“chapter 183”), which sets out the statutory
power of sale, and sections 11 to 17C of chapter 244.

See Eaton

v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d 1118, 1128 (Mass. 2012);
United States Bank Nat’l Ass’n v. Ibanez, 941 N.E.2d 40, 50
(Mass. 2011).

In addition, “Massachusetts does not require a

11

Plaintiff captions the arguments under a global heading that
it “acquired title to the Property pursuant to its lawful
foreclosure sale.”
(Docket Entry # 60, p. 4).  
31

mortgage holder to obtain judicial authorization to foreclose on
a mortgaged property.”

United States Bank Nat’l Ass’n v.

Ibanez, 941 N.E.2d at 49; see Mass. Gen. L. ch. 183, § 21.

If

the mortgagor is not a beneficiary of the Servicemembers Act, a
mortgage holder can foreclose on the property by exercise of the
statutory power of sale, if such power is granted by the
mortgage itself.
941 N.E.2d at 49.

See United States Bank Nat’l Ass’n v. Ibanez,
There is no genuine dispute that defendant is

not subject to the benefits of the Servicemembers Act and, as
stated above, the Land Court already determined that defendant
was not covered by the act.

(Docket Entry # 11).

“[A]fter a mortgagor defaults in the performance of the
underlying note, the mortgage holder may sell the property . . .
and convey the property to the purchaser.”

Id.

“Even where

there is a dispute as to whether the mortgagor was in default or
whether the party claiming to be the mortgage holder is the true
holder, the foreclosure goes forward unless the mortgagor files
an action and obtains a court order enjoining the foreclosure.”
Id.
Furthermore, “‘no sale under such power shall be effectual
to foreclose a mortgage, unless, previous to such sale,’ advance
notice of the foreclosure sale has been provided to the
mortgagor, to other interested parties, and by publication in a
newspaper published in the town where the mortgaged land lies or

32

of general circulation in that town.”
chapter 244, section 14).

Id. at 50 (quoting

The facts demonstrate that on three

different dates, February 6, 13 and 20, 2014, plaintiff
published a notice of the foreclosure sale in the Nantucket
Inquirer and Mirror.

(Docket Entry # 62-7).

Inasmuch the

foreclosure sale did not take place until March 7, 2014,
plaintiff showed strict compliance with the statutory
requirement that notice of sale be published “in a Newspaper of
general circulation for three consecutive weeks not less than 21
days prior to the foreclosure sale.”12

(Docket Entry # 62-7).

Moreover, in order for a foreclosure to be valid, “the
foreclosing entity must hold the mortgage at the time of the
notice and sale,”13 Ibanez, 941 N.E.2d at 53, and hold both the
mortgage and the note “at the time it commences foreclosure.”
Sullivan v. Kondaur Capital Corp., 7 N.E.3d 1113, 1119
(Mass.App.Ct.), review denied, (Mass. 2014); accord Culhane v.
Aurora Loan Servs. of Nebraska, 708 F.3d 282, 293 n.7 (1st Cir.
2013) (must hold note “at the time of foreclosure”) (citing
Eaton v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d at 1125-31, 1132
n.27).

“A foreclosing entity may provide a complete chain of

12

Defendant does not challenge the foreclosure on the basis of
a failure to provide the statutory notice.
13
Here, the last assignment of the Conley mortgage was in May
2013 which is prior to the February 2014 notice. Plaintiff
and/or its counsel also held the Conley note prior to the
February 2014 notice.
33

assignments linking it to the record holder of the mortgage, or
a single assignment from the record holder of the mortgage.”
United States Bank Nat’l Ass’n v. Ibanez, 941 N.E.2d at 53.
When the note and mortgage are held separately, the “mortgagee
holds bare legal title to the mortgaged premises, defeasible
upon repayment of the loan (because the mortgagor owns the
equity of redemption)” and the holder of the note holds the
beneficial interest in the mortgaged property.

Culhane v.

Aurora Loan Servs. of Nebraska, 708 F.3d at 292 (internal
citation omitted).
In seeking summary judgment, plaintiff submits it had
standing to foreclose and conducted a lawful foreclosure in
compliance with Massachusetts law.

(Docket Entry # 60).

Defendant argues inter alia that certain defects in the Conley
mortgage chain of assignments, the lack of factual allegations
supporting the transfer of the Conley note and additional
defects in the foreclosure process make the foreclosure sale
invalid.

(Docket Entry # 68).

Plaintiff, therefore, lacked the

standing to foreclose on the property, according to defendant.
(Docket Entry # 68).
(1) Standing to Challenge Foreclosure
Plaintiff initially argues that it established lawful
standing to foreclose on the property due to its strict
compliance with Massachusetts statutory law.

34

(Docket Entry #

60).

Furthermore, plaintiff asserts that defendant’s standing

to challenge the mortgage assignments and the foreclosure is
limited.

(Docket Entry # 60).

Defendant responds by arguing

that defendant does have standing to challenge the foreclosure
to the extent that it is not valid.

(Docket Entry # 68).

Defendant asserts that chapter 183, section 54B does not prevent
defendant from challenging the validity of the mortgage
assignments.

(Docket Entry # 68). Furthermore, defendant

asserts that “‘[i]n the absence of a valid written assignment of
a mortgage or a court order of assignment, the mortgage holder
remains unchanged.’”

(Docket Entry # 68) (quoting United States

Bank Nat’l Ass’n v. Ibanez, 941 N.E.2d at 54). 
“[I]n Massachusetts, a mortgagor has a legally cognizable
right to challenge a foreclosing entity’s status qua mortgagee.
This may, in certain instances, require challenging the validity
of an assignment that purports to transfer the mortgage to a
successor mortgagee.”

Culhane v. Aurora Loan Servs. of

Nebraska, 708 F.3d at 291.

However, a mortgagor only has

standing to challenge a mortgage assignment as invalid,
ineffective, or void in order to refute an assignee’s status qua
mortgagee.

See id.

Furthermore, “a mortgagor does not have

standing to challenge shortcomings in an assignment that render
it merely voidable at the election of one party but otherwise
effective to pass legal title.”

Id.

35

“A deficiency in an

assignment” of a mortgage “that makes it merely voidable at the
election of one party or the other would not automatically
invalidate the title of a foreclosing mortgagee, and accordingly
would not render void a foreclosure sale conducted by the
assignee or its successors in interest.”

Sullivan v. Kondaur

Capital Corp., 7 N.E.3d at 1116 n.7.
Plaintiff concedes that defendant has standing to challenge
mortgage assignments that are void, such as when an assignor
“had nothing to assign” or had no authority to make an
assignment to a particular entity.

(Docket Entry # 60, p. 7)

(citing Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d at
291).

Under Massachusetts law, defendant may raise challenges

that make an assignment of the Conley mortgage void under
Massachusetts statutory and common law.

See Culhane v. Aurora

Loan Servs. of Nebraska, 708 F.3d at 291.

Defendant, however,

lacks standing to bring technical challenges that could merely
make the mortgage assignment voidable at the election of one
party or another.

See id.

Plaintiff’s characterization of

defendant’s standing to challenge the assignment of the mortgage
and note is therefore correctly described by the plaintiff as
“limited.”

(Docket Entry # 60).

(2) Validity of Assignment
In regard to the validity of assignment, plaintiff asserts
that the chain of assignments of the mortgage is proper thus

36

giving it a proper basis to foreclose on the property as a
matter of law.

(Docket Entry # 60).

Plaintiff submits that the

assignments of the Conley mortgage are presumptively valid and
binding under section 54B.

(Docket Entry # 60).

Defendant

contests the validity of the assignments on the basis that
plaintiff fails to show a proper chain of title for the Conley
mortgage.

(Docket Entry # 68).

Additionally, defendant

maintains that the assignments were not properly notarized and
the assignors did not have proper authority to assign the
mortgage.

(Docket Entry # 68, § IV(5)).

Defendant argues that

“critical parties” were never “MERS members,” and therefore
lacked authority to properly grant an assignment of the
mortgage.

(Docket Entry # 68, § IV(5)).

Section 54B provides in pertinent part:
[An] assignment of mortgage . . . if executed before a
notary public, . . . by a person purporting to hold the
position of president, vice president, treasurer, clerk,
secretary, cashier, loan representative, principal,
investment, mortgage or other officer, agent, asset
manager, or other similar office or position, including
assistant to any such office or position, . . . of the
entity holding such mortgage, or otherwise purporting to be
an authorized signatory for such entity . . . shall be
binding upon such entity and shall be entitled to be
recorded . . ..
Mass. Gen. L. ch. 183, § 54B.

By adhering to the requirements of

this statute, an assignor establishes a proper, binding assignment
of the mortgage from one entity to another.

See Culhane v. Aurora

Loan Servs. of Nebraska, 708 F.3d at 293-294.

37

As long as the

assignment comported “with the requirements of” section 54B, “it
was ‘otherwise effective to pass legal title’ and cannot be shown
to be void.”

Bank of New York Mellon Corp. v. Wain, 11 N.E.3d

633, 638 (Mass.App.Ct. 2014); accord ClearVue Opportunity XV, LLC
v. Sheehan, 2015 WL 5098658, at *6 (Mass.App.Div. Aug. 24, 2015)
(quoting Bank of New York Mellon Corp. v. Wain, 11 N.E.3d at 638).
As a homeowner and mortgagor in default seeking to defeat summary
judgment

on

the

basis

of

an

invalid

assignment

in

a

post-

foreclosure action, plaintiff cannot challenge the assignment
based on “latent defects in the assignment process.”

Bank of New

York Mellon Corp. v. Wain, 11 N.E.3d at 638.
Under the terms of the statute, a binding assignment requires
an executed mortgage assignment, before a notary public, by an
individual with authority to bind the respective assignor.

See

Mass. Gen. L. ch. 183, § 54B; see Culhane v. Aurora Loan Servs. of
Nebraska, 708 F.3d at 294 (“assignment of the mortgage from MERS
to Aurora adhered to” the requirements of section 54B because “it
was signed by Joann Rein (an individual duly certified as a vice
president of MERS) and thereafter notarized”).
Defendant challenges the notarization because it “fails to
identify that the signor executed the assignment as their [sic]
free act and deed and the document cannot therefore be lawfully
recorded as required under M.G.L. c. 183, § 4, 29 and 30.”
(Docket Entry # 68, p. 12).

Defendant explicitly challenges the

38

initial assignment of the mortgage from MERS to J.P. Morgan.
(Docket Entry # 68, p. 12) (citing only Docket Entry # 63-6).
The statute simply requires an “assignment of [the]
mortgage . . . executed before a notary public . . ., whether
executed within or without the commonwealth.”
183, § 54B.

Mass. Gen. L. ch.

In rejecting an argument that an individual

executed the assignment as a vice president of MERS when his
“primary occupation” was as an employer of the servicer and his
vice president designation “was put in place purely as a matter
of administrative convenience,” the First Circuit in Culhane
explained that section 54B does not place restrictions on who
can serve as an officer of the assignor corporation.
Aurora Loan Servs. of Nebraska, 708 F.3d at 294.

Culhane v.

Likewise,

section 54B does not place a restriction requiring a recitation
that the signor of the MERS assignment, a vice president of MERS
identified as Rose Dinglasan (“Dinglasan”), execute the
assignment as her free will and deed.

The notarization of the

initial assignment from MERS to J.P. Morgan recited that
Dinglasan, the signor executing the assignment as vice president
of MERS, personally appeared before the Notary Public and
acknowledged that she executed the assignment in her authorized
capacity.

(Docket Entry # 63-6).

The assignment was in fact

recorded and the failure to include the “free act and deed”
language does not contravene section 54B which, in turn, states

39

that an assignment “shall be entitled to be recorded.”14

Mass.

Gen. L. ch. 183, § 54B; see, e.g., Bank of New York Mellon Corp.
v. Wain, 11 N.E.3d at 638 (“the formal assignment here recited
that the person signing on behalf of MERS was a vice-president
of that company, and that the assignment included an attestation
that the signatory personally appeared and executed the document
before a notary public” and thus satisfied section 54B);
Campbell v. Federal National Mortgage Association, 2015 WL
5869510, at *9 n.25 (Mass. Land Ct. Oct. 6, 2015) (rejecting
argument that failure to include “free act and deed” language in
assignment’s notary acknowledgment violated section 54B and
rendered assignment invalid).
Plaintiff otherwise presents sufficient evidence to show
that the assignments of the mortgage from MERS to J.P. Morgan,
to Cam V Trust, and then to plaintiff solely in its capacity as
separate trustee of CAM V Trust complied with section 54B.
(Docket Entry # 63, Ex. F, G, & H).

As noted, the first

assignment of the Conley mortgage from MERS, as nominee of
American Home Mortgage, to J.P. Morgan was executed and signed
by a MERS vice president, witnessed and signed by the Notary
Public.

(Docket Entry # 63, Ex. F).

The assignments of the

Conley mortgage from J.P. Morgan to CAM V Trust, and from CAM V

14

The foreclosure deed does contain “the free act and deed”
language. (Docket Entry # 63-11, p. 1).
40

Trust to plaintiff, were executed in a similar fashion and
constitute valid assignments under section 54B.
63, Ex. G & H).

(Docket Entry #

The initial assignment identifies MERS as the

assignor and it is signed by an individual designated as the
vice president of MERS.

Section 54B, which relaxes the formal

requirements for transferring an interest in land by a
corporation executed by an individual officer, see Sullivan v.
Kondaur Capital Corp., 7 N.E.3d at 1120, simply requires
mortgage assignments to be executed by an individual “purporting
to hold the position of . . . vice president.”

Mass. Gen. L.

ch. 183, § 54B; accord Sullivan v. Kondaur Capital Corp., 7
N.E.3d at 1120.15

The initial assignment by MERS was notarized

and recorded at the Nantucket County Registry of Deeds.

On its

face, it complies with section 54B, the statute that governs
mortgage assignments in Massachusetts.

The terms of section 54B

do not require the assignment to recite the authority of MERS
from its principal.

Under the mortgage, MERS was the nominee of

the lender and the lender’s assigns as well as the mortgagee.
The terms of the mortgage therefore endowed MERS with the
authority to assign the mortgage to J.P. Morgan.

See Culhane v.

15

In contrast to the initial assignment by MERS in this case,
the signature in the challenged assignment in Sullivan did not
purport to be signed by an officer of the assignor identified in
the assignment. See Sullivan v. Kondaur Capital Corp., 7 N.E.3d
at 1119-1121.
41

Aurora Loan Servs. of Nebraska, 708 F.3d at 293 (terms of
mortgage denoting MERS as nominee for Preferred and its
“‘successors and assigns’” authorized MERS to transfer the
mortgage).

Defendant’s argument that the “MERS assignment” has

a “fatal” defect because of a lack of authority from MERS’
purported principal (unidentified in the MERS assignment)”
(Docket Entry # 68, pp. 10-11) is factually incorrect as to the
existence of MERS’ authority and section 54B does not require
the assignment to recite MERS’ authority from its principal.
Defendant additionally contends that because “the parties
involved” in the transfers of the Conley mortgage (presumably
J.P. Morgan, CAM V Trust and plaintiff as separate trustee for
CAM V Trust) were not MERS members and had “no rights to ‘use’
the MERS ‘system’” (Docket Entry # 68, pp. 10-12), the
assignments are void.

Except for outlining the rules for MERS

and the tracking of notes in the MERS electronic system,
defendant provides no legal authority that membership in MERS is
required for the assignees downstream of the first MERS
assignment where, as here, MERS was not an assignor or assignee
of the subsequent assignments.
Overall, it is true that defendant has the ability to
challenge an assignment as void because, for example, the
assignor “had no authority to make an assignment to a particular
assignee.”

Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d

42

at 291; see Sullivan v. Kondaur Capital Corp., 7 N.E.3d at 1116
(mortgagor may challenge mortgage assignment as void on the
basis that foreclosing entity lacked legal authority to conduct
the foreclosure).

“Absent a provision in the mortgage

instrument restricting transfer,” however, “a mortgagee may
assign its mortgage to another party.”
Servs. of Nebraska, 708 F.3d at 292.

Culhane v. Aurora Loan

Under the language of the

mortgage, plaintiff was the borrower and MERS was acting for the
lender, American Home Mortgage, and the lender’s “successors and
assigns.”

(Docket Entry # 63-2).

The mortgage allowed a

transfer of rights in the property and states that the borrower
mortgages and conveys to MERS and the assignees of MERS, such as
J.P. Morgan, the power of sale.

(Docket Entry # 63-2, p. 3).

The mortgage defines MERS as “mortgagee” as well as “a nominee”
of American Home Mortgage and its successors and assigns.
(Docket Entry # 63-2, p. 1).
title to the property.

As mortgagee, MERS held legal

See Culhane v. Aurora Loan Servs. of

Nebraska, 708 F.3d at 286 (interpreting similar language in
mortgage that “MERS, as mortgagee of record, held legal title to
the mortgaged premises”).

Where, as here, there was no

restriction in the mortgage prohibiting a transfer, MERS, on
behalf of American Home Mortgage, could transfer the mortgage to
another party, J.P. Morgan.

See id. at 292 (absent “provision

in the mortgage instrument restricting transfer . . . a

43

mortgagee may assign its mortgage to another party”).

MERS

therefore had the authority to transfer the legal title to the
mortgaged property to J.P. Morgan.

The MERS assignment dated

February 8, 2012, is made by Dinglasan, a vice president of
MERS, as opposed to any servicer.

The assignment complied with

section 54B and defendant’s argument that a number of servicers
were not MERS members16 does not render the MERS assignment void.
See, e.g., Armand v. Homecomings Fin. Network, 2012 WL 2244859,
at *5 (D.Mass. June 15, 2012) (complaint fails to state claim
for relief because it does not allege non-compliance with
section 54B “but only that Mr. Harmon lacked authority to sign
the assignment on behalf of MERS”).
The downstream assignments by J.P. Morgan to CAM V Trust
and then to plaintiff did not involve MERS.

In any event, the

lack of MERS’ membership does not render the assignments, both
of which comply with section 54B, void.

See id.; see generally

Galvin v. United States Bank Nat’l Ass’n, 2015 WL 1014549, at *2
(D.Mass. Mar. 9, 2015) (“that the mortgage and the assignment

16

Specifically, for purposes of summary judgment, the facts
include that, “Between August 15, 2006 and August 15, 2012,” the
“Conley mortgage loan was serviced, first by American Home
Mortgage Servicing, Inc., (‘AHMSI’), then ‘Marix Servicing, LLC’
(‘Marix’) and later by Residential Credit Solutions, Inc.
(‘RCS’).” (Docket Entry # 27, ¶ 18, p. 11) (Docket Entry # 28,
¶ 18, p. 4). “Neither AHMSI, Marix, nor RCS were ever MERS
members.” (Docket Entry # 27, ¶ 19, p. 11) (Docket Entry # 28,
¶ 19, p. 4).
44

violated MERS rules, rests on an infirmity that, at best, might
render the transactions voidable by MERS members, but it does
not make them void”).

Defendant’s argument that these entities

were not MERS members or that a servicer was not a MERS member
does not render the assignments void or non-compliant with
section 54B.

Rather, the assignments were not only properly

recorded at the Nantucket County Land Court, but were signed by
the proper entity with the proper authority and effectively
notarized.

(Docket Entry # 63, Ex. F, G & H).

In short, the

assignments comply with section 54B and are both binding and
“entitled to be recorded.”

Mass. Gen. L. ch. 183, § 54B; see

Kiah v. Aurora Loan Services, LLC, 2011 WL 841282, at *7
(D.Mass. March 4, 2011) (“clear language of § 54B provides that
the assignment would be binding”).

Defendant’s argument that

plaintiff failed to show that it lawfully obtained the Conley
mortgage in compliance with the decision in Eaton is unavailing.
As a final matter, defendant’s one sentence argument,
without any legal citation, that plaintiff did not provide proof
that any consideration was paid for the Conley note such that it
can allege damages “even if Conley’s debt had not been
discharged in a Chapter 7 bankruptcy” (Docket Entry # 68, p. 13)
is not adequately developed and therefore waived.

See O’Connell

v. Marrero-Recio, 724 F.3d 117, 124 (1st Cir. 2013); Coons v.
Industrial Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010)

45

(“district court was ‘free to disregard’ the state law argument
that was not developed in Coons’s brief”); see also U.S. v.
Caparotta, 676 F.3d 213, 218 (1st Cir. 2012) (“argument
consist[ing] of just two sentences and two cursory citations in
his brief . . . is therefore waived”).
(3) Possession of Mortgage Note
Defendant also argues that plaintiff did not meet its
burden to demonstrate it was the holder of the Conley note.
(Docket Entry # 68).

Defendant further asserts that plaintiff

did not effectively trace the passing of the note and how
plaintiff was able to obtain it.

(Docket Entry # 68).

She

contends “there is nothing” to show how the “note got from
American Home Mortgage to Chase or from CAM V Trust to
Plaintiff.”

(Docket Entry # 68).

First, plaintiff refutes these argument by presenting a
copy of the Conley note itself, an affidavit describing when
plaintiff became an authorized agent of the actual noteholder,
an affidavit stating that plaintiff is currently in possession
of the note itself and a bailee letter indicating that plaintiff
had turned the note over to counsel.

Second, as previously

explained, Eaton only requires the foreclosing entity or its
agent to hold the note at the time it commences foreclosure.
See Sullivan v. Kondaur Capital Corp., 7 N.E.3d at 1119; accord
Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d at 293; see

46

also Eaton v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d at 1131
(“[t]here is no applicable statutory language suggesting that
the Legislature intended to proscribe application of general
agency principles in the context of mortgage foreclosure
sales”).

Massachusetts is a title theory state such that “a

mortgage and the underlying note can be split.”
Nat’l Mortg. Ass’n, 969 N.E.2d at 1124.

Eaton v. Fed.

As stated in Culhane,

“The SJC has made clear that it is only at the time of
foreclosure that a mortgagee must also hold or control the
beneficial interest in the loan.”

Culhane v. Aurora Loan Servs.

of Nebraska, 708 F.3d at 293 n.7.

Furthermore, the relevant

power of sale foreclosure statutes, namely, sections 11 to 17C
of chapter 244 and section 21 of chapter 183, “permit one who,
although not the note holder himself, acts as the authorized
agent of the note holder, to stand ‘in the shoes’ of the
‘mortgagee’ as the term is used in these [statutory]
provisions.”

Eaton v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d at

1131.
Here, the effect of the Eaton decision is that a
foreclosing mortgagee is now required to demonstrate ownership
of the debt secured by the mortgage.
Capital Corp., 7 N.E.3d at 1118.

See Sullivan v. Kondaur

Prior to Eaton, “a foreclosing

mortgagee was not required to demonstrate ownership of the debt
secured by the mortgage” because “the note typically” was “not

47

recorded.”

Id.

In this case, plaintiff must show that it was

“‘either holding the mortgage note or acting on behalf of the
note holder’ at the time the power of sale is exercised.”

Rice

v. Wells Fargo Bank, N.A., 2 F.Supp.3d 25, 33 (D.Mass. 2014).
One way for the foreclosing entity to “establish that it either
held the note or acted on behalf of the note holder at the time
of a foreclosure sale [is] by filing an affidavit in the
appropriate registry of deeds pursuant to G.L. c. 183, § 5B.”
Eaton v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d at 1133 n.28.
Plaintiff may therefore rely on an affidavit filed in the
appropriate registry of deeds under chapter 183, section 5B, to
establish that it either held the Conley note or an authorized
agent of plaintiff held the Conley note.

See Rice v. Wells

Fargo Bank, N.A., 2 F.Supp.3d at 33; see also Mass. Gen. L. ch.
183, § 5B (affidavit that is “relevant to the title to certain
land and will be of benefit and assistance in clarifying the
chain of title” can be used to evidence possession of mortgage
note).

As indicated above, this is but one of a number of ways

that a foreclosing party may utilize to evidence that it holds
the mortgage note.

See Rice v. Wells Fargo Bank, N.A., 2

F.Supp.3d at 33.
Plaintiff submitted the noteholder affidavit filed at the
appropriate registry, namely, at the Nantucket County Land
Court.

(Docket Entry # 62-6).

The affidavit certified that

48

“the requirements of chapter 244, section 35B have been complied
with” and that “the foreclosing entity is the authorized agent
of the holder of the promissory note, for purposes, inter alia,
of foreclosing said mortgage on behalf of said note holder.”
(Docket Entry # 62-6).
December 17, 2013.

The affidavit was signed and dated on

(Docket Entry # 62-6).

As also explained in

depth in the factual background, HMC as CAM Mortgage was the
holder of the original Conley note as of June 26, 2013, at which
time it tendered the note to its counsel and agent, DG&L, to
retain possession on its behalf.

At all times thereafter, DG&L

retained possession of the note and HMC as CAM Mortgage retained
ownership of the note and the authority to request its return.
The date of the noteholder affidavit (December 17, 2013)
precedes the mandatory notice of sale date (February of 2014)
and therefore complies with the SJC’s ruling in Eaton.

See

Eaton v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d at 1131.

Along

with Longoria’s supplemental affidavit and the bailee letter, it
establishes that plaintiff owned the note which was in the
possession of plaintiff’s agent, DG&L.
was thus the holder of the Conley note.

Plaintiff or its agent
(Docket Entry # 62-6).

As previously noted, although the foreclosing party must
generally possess the note to foreclose, principles of agency
allow the foreclosing party to foreclose “as the agent of the
note holder.”

Eaton v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d at

49

1129 n.20 & 1131; accord Galiastro v. Mortg. Elec. Registration
Sys., Inc., 4 N.E.3d 270, 276 & 277 n.15 (Mass. 2014)
(foreclosure effectuated through statutory power of sale
“requires the mortgagee to hold the note or to act on behalf of
the note holder”).

Finally, the McCarthy affidavit also states

that plaintiff “is the current holder of the Conley Note.”
(Docket Entry # 63, ¶ 16).

Thus, when the foreclosure took

place on March 7, 2014, plaintiff (or its authorized agent,
DG&L) was the holder of the Conley note.

Defendant’s arguments

regarding possession of the Conley note therefore do not avoid
summary judgment.
(4)

Notice of Right to Cure

Plaintiff asserts that the 35A letter, i.e., the notice of
the right to cure letter, fully complied with section 35A and is
therefore legally valid.

(Docket Entry # 60).

Plaintiff

submits that defendant’s challenge to the 35A letter fails
because at the time the 35A letter was sent to defendant,
plaintiff was already the mortgagee of record and the holder of
the Conley note.

(Docket Entry # 60).

Furthermore, plaintiff

contends that despite any possible defect in the 35A letter, it
does not make the notice void because section 35A is not one of
the statutes relating to the statutory power of sale under
Massachusetts law.

(Docket Entry # 60).

Defendant responds by

arguing that the notice of the right to cure does not meet the

50

statutory requirements of section 35A because it was not sent to
defendant by plaintiff, but rather by plaintiff’s loan servicer
and there is no showing that BSI had the “right to act on behalf
of Plaintiff.”

(Docket Entry # 68, p. 7).17

Under Massachusetts law, section 35A of chapter 244 “gives
a mortgagor of residential real property in the Commonwealth a
ninety-day right to cure a payment default before foreclosure
proceedings may be commenced.”

United States Bank Nat’l Ass’n

v. Schumacher, 5 N.E.3d 882, 884 (Mass. 2014).

“The underlying

purpose of § 35A strongly suggests that a homeowner’s right to
cure a default is not the first step in terminating the
mortgagor’s rights.”

Id. at 889-890.

“To the contrary, § 35A

is designed to give a mortgagor fair opportunity to cure a
default before the debt is accelerated and before the
foreclosure process is commenced through invocation of the power
of sale.”

Id. at 890.

“A homeowner’s right to cure a default

is a preforeclosure undertaking that, when satisfied, eliminates
the default and wholly precludes the initiation of foreclosure
proceedings in the first instance, thereby protecting and
preserving home ownership.”

Id.

17

Defendant’s primary argument is not based on section 35A but,
rather, on the terms of the mortgage which require the “Lender”
to send the notice. (Docket Entry # 68, § IV(1)(a)).
51

The Schumacher court therefore held that section 35A “is
not one of the statutes ‘relating to the foreclosure of
mortgages by the exercise of a power of sale’” within the
meaning of the statutory power of sale in section 21 of chapter
183.

Id.; accord Pinti v. Emigrant Mortg. Co., Inc., 33 N.E.3d

1213, 1223-24 (Mass. 2015) (discussing the holding in
Schumacher).

Accordingly, insofar as defendant submits that a

defect in the 35A letter renders the foreclosure void, the
argument lacks merit.

The record otherwise fails to show a

genuinely disputed material fact that the section 35A error, if
any, including the alleged discrepancy in payoff amounts,18
“rendered the foreclosure so fundamentally unfair that defendant
is entitled to” the equitable relief in the form of setting
aside the foreclosure sale.

United States Bank Nat’l Ass’n v.

Schumacher, 5 N.E.3d at 891; see, e.g., Federal Nat’l Mortg.
Ass’n v. Rogers, 2015 WL 2000845, at *3 (Mass.App.Div. April 7,
2015).
(5) Paragraph 22
Defendant submits that plaintiff failed to adhere to
paragraph 22 of the Conley mortgage because BSI, as opposed to
the “Lender” in the original mortgage (American Home Mortgage),

18

Defendant argues that the payoff amounts in the letter did
not match “the payoff amounts subsequently provided” thus
rendering the notice of default/section 35 letter (Docket Entry
# 63-9) “fundamentally unfair.” (Docket Entry # 68, p. 7).
52

sent the notice of the default to plaintiff.
68, pp. 3-7).

(Docket Entry #

Relying on Pinti v. Emigrant Mortgage Co., Inc.,

33 N.E.3d at 1224 (“Pinti”), and Paiva v. Bank of N.Y. Mellon,
120 F.Supp.3d 7 (D.Mass. 2015) (“Paiva”), defendant contends
that the Pinti decision, decided on July 17, 2015, applies to
this case.

Plaintiff maintains that any defect in the notice of

default letter to comply with paragraph 22 did not render the
foreclosure sale void.

In addition, plaintiff asserts that the

decision in Pinti applies prospectively.
The statutory power of sale in section 21 of chapter 183
requires compliance “with both ‘the terms of the mortgage’ and
with ‘the statutes relating to the foreclosure of mortgages by
the exercise of a power of sale.’”
Co., Inc., 33 N.E.3d at 1224.

Pinti v. Emigrant Mortg.

Each requirement is “separately

grounded” and has “an independent meaning.”

Id.

As discussed

previously, the phrase “statutes ‘relating to the foreclosure’”
does not encompass section 35A.

United States Bank Nat’l Ass’n

v. Schumacher, 5 N.E.3d at 884.

Here, at issue is “the terms of

the mortgage,” namely, paragraph 22.

See Eaton v. Fed. Nat’l

Mortg. Ass’n, 969 N.E.2d at 1127.
The Massachusetts Supreme Judicial Court (“SJC”) in Pinti
held that a failure to strictly comply with the notice of
default required in paragraph 22 of a mortgage renders the
foreclosure sale void.

Pinti v. Emigrant Mortg. Co., Inc., 33

53

N.E.3d at 1224 (“provisions of paragraph 22 constitute ‘terms of
the mortgage’ governing the power of sale, and that, in order to
conduct a valid foreclosure, Emigrant was obligated to comply
strictly with paragraph 22’s notice of default provisions”).
The SJC also:
conclude[d] that in this case, because of the possible
impact that our decision may have on the validity of
titles, it is appropriate to give our decision prospective
effect only: it will apply to mortgage foreclosure sales
of properties that are the subject of a mortgage containing
paragraph 22 or its equivalent and for which the notice of
default required by paragraph 22 is sent after the date of
this opinion.
Id. at 1227.

The notice of default in this case was sent prior

to Pinti on June 25, 2013.

(Docket Entry # 63-9).

The court in

Pinti, however, left open the “the question [of] whether our
holding in this case should be applied to any other class of
cases pending on appeal.”

Id. at 1227 n.25 (citing Galiastro v.

Mortg. Elec. Registration Sys., Inc., 4 N.E.3d at 276-279).
The Massachusetts Appeals Court decided this open question
in Aurora Loan Servs., LLC v. Murphy, 41 N.E.3d 751
(Mass.App.Ct. 2015).

Using the reasoning in Galiastro, the

Aurora court extended Pinti to cases pending on appeal at the
time the SJC issued the Pinti decision.19

See id. at 756-757.

19

The Aurora court also defined the category of cases that
constituted cases pending on appeal as follows:
As in Galiastro, cases that were pending on appeal when
Pinti was released included those cases in which the case
54

Quoting the reasoning used by the SJC in Galiastro, the Aurora
court explained the inequities that provided the basis to extend
Pinti to cases pending on appeal at the time of the Pinti
decision when the paragraph 22 issue was raised and preserved:
“‘Where multiple cases await appellate review on precisely
the same question, it is inequitable for the case chosen as
a vehicle to announce the court’s holding to be singled out
as the “chance beneficiary” of an otherwise prospective
rule.’ Ibid. Here, Murphy should not be ‘deprived of the
benefit of . . . challenging the old rule,’ nor deterred
from challenging existing precedent merely because the SJC
selected Pinti, and not Murphy, to announce and to clarify
the terms and statutes requiring strict compliance.”
Aurora Loan Servs., LLC v. Murphy, 41 N.E.3d at 756 (quoting
Galiastro, 4 N.E.3d at 277).

The Aurora court was careful not

to “extend the Pinti rule to cases pending in the trial court”
because the SJC in Pinti “already limited the new rule’s
application ‘to mortgage foreclosure sales of properties that
are the subject of a mortgage containing paragraph 22 or its
equivalent and for which the notice of default required by
paragraph 22 is sent after July 17, 2015, the date of the Pinti
opinion.’”

Aurora Loan Servs., LLC v. Murphy, 41 N.E.3d at 756-

was docketed in this court before July 17, 2015, and this
court had not yet issued a decision in the case. See
Galiastro, supra at 167 n. 14, 4 N.E.3d 270. Cases where
we had issued a decision, and the litigants have filed a
petition for further appellate review, will also be
considered pending on appeal for purposes of the
retroactive reach of Pinti.
Aurora Loan Services, LLC v. Murphy, 41 N.E.3d at 756 n.5.
55

57 (quoting Pinti v. Emigrant Mortg. Co., Inc., 33 N.E.3d at
1226) (emphasis added and brackets omitted).
The federal district court case heavily relied upon and
quoted by defendant, Paiva, overlooks this reasoning regarding
the inequities of not applying the Pinti rule to cases on appeal
that raise the same issue when the SJC selected Pinti, as
opposed to other appellants, to announce the rule.

Thus,

employing the reasoning that it would be inequitable to deny
Paiva (who raised the same argument) the benefits of the Pinti
rule, the Paiva court applied the rule to a case pending in the
trial court.

Although the court acknowledged the SJC’s decision

to give the Pinti rule “only prospective effect,” the court
nonetheless declared a foreclosure void at the trial court level
and, in addition, implicitly viewed the rule as an extension of
existing precedent rather than a new and unexpected rule given
prospective application.
F.Supp.3d at 10.

Paiva v. Bank of New York Mellon, 120

The relevant portion of Paiva quoted by

defendant reads as follows:
Given that BONYM purchased the Property in foreclosure, and
that the Property has not changed hands to any third
parties, the SJC’s concern over the “possible impact that
our decision may have on the validity of titles” is
attenuated here. Additionally, the cross-motions for
summary judgment were fully briefed before Pinti was issued
on July 17, 2015. As Paiva was already advancing the same
argument regarding strict compliance with the paragraph 22
requirements that the SJC adopted in Pinti, it would be
inequitable to deny him the benefit of that decision.
Further, the Court reads Pinti as a statutory

56

interpretation of the power of sale, G.L. c. 183, § 21, and
an extension of the SJC’s prior ruling in Ibanez, rather
than a reversal of course.
Id.
As a federal court sitting in diversity, this court
declines “to extend Massachusetts law beyond” its present reach.
RFF Family Partnership, LP v. Ross, 814 F.3d 520, 535 (1st Cir.
2016); accord Braga v. Genlyte Group, Inc., 420 F.3d 35, 42 (1st
Cir. 2005) (“‘we must exercise considerable caution when
considering the adoption of a new application’ of state law that
could ‘expand [its] present reach’”) (quoting Doyle v. Hasbro,
Inc., 103 F.3d 186, 192 (1st Cir. 1996)).

The additional

reasoning in Paiva that, because the mortgagee purchased the
property at the foreclosure sale and “the Property has not
changed hands to any third parties, the SJC’s concern over the
‘possible impact that our decision may have on the validity of
titles’ is attenuated here,” Paiva v. Bank of New York Mellon,
120 F.Supp.3d at 10, does not provide an adequate basis to apply
the Pinti rule to a case pending at the trial level where the
notice of default pre-dated the Pinti decision.

Accordingly,

with all due respect, this court declines to adhere to Paiva.20
See also Butler v. Deutsche Bank Trust Co. Americas, 748 F.3d

20

Defendant’s reliance on Lyons v. Mortg. Elec. Registration
Sys., Inc., 2013 WL 2420705 (Mass.App.Ct. June 5, 2013), does
not advance her cause because the posture of that case “was on
appeal at the time Eaton was decided.” Id. at * 1.
57

28, 38 (1st Cir. 2014) (“Eaton applies to two sets of litigants:
(1) those challenging foreclosures for which the notice of sale
was given after June 22, 2012, and (2) those with wrongful
foreclosure claims (predicated on the theory that the
foreclosing entity did not possess their note) that were on
appeal as of June 22, 2012” and, as to all litigants’ claims
“outside these closed sets, we apply the pre-Eaton rule”)
(emphasis added).

Simply stated, the notice of default pre-

dated the Pinti decision and this case was not on appeal at the
time Pinti was decided.
apply.

Accordingly, the Pinti rule does not

See, e.g., Buba v. Deutsche Bank Nat’l Trust Co.

Americas, 2016 WL 2626861, at *5 (D.Mass. May 6, 2016) (state
district court “correctly noted that strict compliance under
Pinti was not required” because notices of default “were sent
prior to the Pinti decision” and SJC gave decision “‘prospective
effect only’” and the case was not “on appeal at the time Pinti
was decided”).
Defendant also relies on Paiva to establish that the
provision in paragraph 22 requiring that the “Lender” in the
original mortgage (American Home Mortgage) or the “Lender” at
the time of the notice of default, rather than BSI, the
purported servicer, must send the notice of default.
Entry # 68, p. 5).

(Docket

Quoted by defendant, the relevant portion of

Paiva reads as follows:

58

The language of paragraph 22 is clear and unequivocal as to
who must give the required notice of default to the
borrower: “Lender” must do so. The Court agrees with
Paiva that Countrywide’s notice of default did not strictly
comply with paragraph 22 of the mortgage, as required under
the statutory power of sale and under the Massachusetts
Supreme Judicial Court’s (“SJC”) case law. See G.L. c.
183, § 21 (requiring a foreclosing bank to “comply with the
terms of the mortgage”); U.S. Bank Nat. Ass’n v. Ibanez,
458 Mass. 637, 647, 941 N.E.2d 40 (2011) (the terms of the
power of sale, G.L. c. 183, § 21, must be strictly adhered
to); see also Pinti v. Emigrant Mortgage Company, Inc., 472
Mass. 226, 33 N.E.3d 1213, 1226 (2015) (strict compliance
with the notice of default required by paragraph 22 is
necessary in order for a foreclosure sale to be valid).
Paiva v. Bank of New York Mellon, 120 F.Supp.3d at 10.21

Paiva

held that because a notice of default sent by the servicer as
opposed to the lender “did not strictly comply with the
requirements of paragraph 22 of the mortgage, the foreclosure
sale is void.”

Id.

It is true that paragraph 22 in the case at bar states
that, “Lender shall give notice to Borrower” and then specifies
the content of the notice and that the Conley mortgage defines
“Lender” as American Home Mortgage.

Because the Conley mortgage

extends the power of sale to MERS, as nominee for the “Lender
and Lender’s successors and assigns” (Docket Entry # 63-2), the
term “Lender” necessarily includes the successor or assignee of
the mortgage at the time of the notice of default, i.e., HMC as
CAM Mortgage.

See Armand v. Homecomings Fin. Network, 2012 WL

21

Countrywide was the servicer at the time of the notice of
default was sent. Id.
59

2244859, at *5 (citing similar language to reject argument that
“[m]ortgage permits only the Lender to invoke a statutory power
of sale on the theory that” paragraph 22 “authorizes the
‘Lender,’ but not successors or assigns, to invoke the statutory
sale remedy”).
The majority view in this district does not adhere to the
holding in Paiva.

See Anderson v. Nationstar Mortg., LLC, 2016

WL 1181661, at *3 (D.Mass. Mar. 25, 2016) (collecting cases).
The issue in Anderson was “whether the actual ‘lender’ must send
the notices of foreclosure and default to the borrower in order
to ‘strictly comply’ with paragraph 22 of the mortgage
instrument.”

Id.

The cogent explanation in Anderson applies

equally to the case at bar:
Construing an identical mortgage provision to the one at
issue here, the court in Galvin v. United States Bank
National Ass’n held: “Paragraph 22 does not require the
lender to personally send the default notice.” No. 1414723-RGS, 2015 WL 1014549, at *4 (D.Mass. Mar. 9, 2015).
It ruled that even though the sender of the default notice
was the loan servicer, “a plain reading of the mortgage”
authorized the servicer to act on behalf of the lender.
Id.; see also Armand v. Homecomings Fin. Network, No. 1210457-LTS, 2012 WL 2244859, at *5 (D.Mass. June 15, 2012)
(holding that language giving MERS the right to foreclose
and sell the property plainly authorized MERS and MERS’s
successors to execute the power of sale); Fed. Nat’l Mortg.
Ass’n v. Rogers, No. 13-ADM-10025, 2015 WL 2000845, at *4
(Mass.App.Div. Apr. 7, 2015) (ruling that when “the only
claimed defect was that the notice to cure letters were
given by the mortgage servicer,” such a claim does not
invalidate a foreclosure sale); Citibank, N.A. v. Glowack,
No. 12 MISC 469108 (HPS), 2015 WL 9467349, at *6 (Mass.Land
Ct. Dec. 23, 2015) (finding that “the giving of the notice
of default by AHMSI, the loan servicer . . . may not serve

60

as a basis for determining the foreclosure sale . . . to be
void”). But see Paiva v. Bank of N.Y. Mellon, 120
F.Supp.3d 7, 10 (D.Mass. 2015) (appeal pending)
(invalidating a foreclosure sale where the loan “servicer”
sent the default notice because “[t]he language of
paragraph 22 is clear and unequivocal as to who must give
the required notice of default to the borrower: Lender must
do so”).
Anderson v. Nationstar Mortg., LLC, 2016 WL 1181661, at *3.
Defendant further asserts that there is no evidence that
BSI maintained any rights to enforce the Conley mortgage.

To

the contrary, the record establishes that at the time of the
notice of default and thereafter BSI was the servicer of the
Conley mortgage and HMC as CAM Mortgage was the assignee of the
lender and the foreclosing entity.

Accordingly, in light of the

above, defendant’s argument that plaintiff did not strictly
comply with paragraph 22 because BSI, as opposed to the lender
(HMC as CAM Mortgage), did not send the notice of default does
not void the foreclosure sale.

See ClearVue Opportunity XV, LLC

v. Sheehan, 2015 WL 5098658, at *12 & n.28 (“Sheehan cites to no
authority indicating that the language of paragraph 22 must be
interpreted to require the lender itself to send the
acceleration notice” and “[w]e find none, and note that such a
requirement would be impractical, as it would prohibit even
counsel for the lender from sending such notices”) (further
noting that “holding in Pinti is explicitly prospective in its
application”).

61

(6) Section 35B
Defendant next maintains that she is entitled to the
protections of section 35B because the property is her
“principal residence” within the meaning of the statute.
Mass. Gen. L. ch. 244, § 35B.

See

Defendant submits that the

foreclosure sale is void because plaintiff failed to comply with
section 35B.

Defendant also maintains that the Nantucket

residence is her primary residence thereby entitling her to the
protections of section 35B.

Plaintiff contends that section 35B

does not apply because “the Conley Mortgage Loan is not ‘a
certain mortgage loan’” within the meaning of section 35B
because it does not secure “‘a mortgage on an owner-occupied
residential property.’”

(Docket Entry # 60).

Plaintiff also

argues that, even if section 35B applied, it compiled with the
statute by adequately reviewing defendant’s request for a
modification, including performing a net present value analysis
under FHA guidelines.
Section 35B states that a creditor “shall not cause
publication of notice of a foreclosure sale, as required by
section 14, upon certain mortgage loans unless it has first
taken reasonable steps and made a good faith effort to avoid
foreclosure.”

Mass. Gen. L. ch. 244, § 35B.

On June 25, 2013,

plaintiff sent a “Right to Request a Modified Mortgage Loan”
letter to defendant, informing her that she was in default and

62

that she was eligible to request a loan modification.
Entry # 63, Ex. J).

(Docket

The letter was sent concurrently with the

notice mandated by section 35A, as required by the statute.

See

Sullivan v. Bank of New York Mellon Corp., 2015 WL 1254889, at
*12; Mass. Gen. L. ch. 244, § 35B.
In addition, as stated in the McCarthy affidavit, as a good
faith effort to avoid foreclosure, plaintiff reviewed defendant
for a modification of her mortgage in November 2013.
Entry # 63).

(Docket

The affidavit also indicates that plaintiff

utilizes FHA guidelines when considering its borrowers for a
loan modification and that after employing these guidelines,
defendant was not qualified for a loan modification.

(Docket

Entry # 63).
The McCarthy affidavit reflects that FHA guidelines for a
loan modification require a borrower’s mortgage payment to not
be in excess of 31% of the borrower’s verifiable monthly
average.

(Docket Entry # 63).

By using defendant’s federal tax

returns from 2011 and 2012, plaintiff was able to establish
Conley’s income.

(Docket Entry # 63).

After determining that

defendant’s mortgage payment including principal, interest,
taxes, and insurance was 62.4% of her verifiable monthly income,
it was determined that she was disqualified from receiving a
loan modification under FHA guidelines.

(Docket Entry # 63).

Finally, an officer of BSI certified that, after all of the loan

63

records were reviewed, the requirements of section 35B “have
been complied with.”

(Docket Entry # 11-12).

This thorough

analysis to determine defendant’s eligibility for a loan
modification constitutes taking reasonable steps and making a
“good faith effort” under section 35B.
244, § 35B.

See Mass. Gen. L. ch.

Due to the absence of evidence to the contrary that

would create a genuine dispute of a material fact, this court
finds that plaintiff complied with section 35B in regards to
taking reasonable steps and making a good faith effort to avoid
a foreclosure.22
Having addressed the various arguments raised by plaintiff
regarding its acquisition of title to the property and
established the validity of the foreclosure sale, this court
turns to the particular counts in the amended complaint.

In

addition to addressing the foreclosure count (Count II),
plaintiff’s memorandum limits the discussion of the counts in
the amended complaint to the breach of contract and possession
claims in counts I and IV respectively.
Plaintiff thus fails to tailor its arguments to the causes
of action in counts V and VI.

As the summary judgment movant

22

In light of the above, it is not necessary to address
plaintiff’s argument that section 35B does not apply because the
mortgage loan was not secured by a mortgage on an “owneroccupied residential property” and, as such, is not a “certain
mortgage loan” as defined by section 35B.
64

with the underlying burden of proof, plaintiff did not
articulate the elements for each claim in counts V and VI and
how the evidence supports each such element.

Plaintiff’s global

assertion that it is entitled to summary judgment on all claims
in the amended complaint does not sufficiently specify the basis
for summary judgment as to the use and occupancy claim (Count V)
and the writ of assistance claim (Count VI).

Having neglected

to squarely spell out its argument by adequately addressing
these particular claims, summary judgment for these claims is
not appropriate.

See Int’l Longshoremen’s Ass’n, AFL–CIO v.

Davis, 476 U.S. 380, 398 n.14 (1986) (“it is not our task sua
sponte to search the record for evidence to support” a party’s
claims); Coons v. Indus. Knife Co., Inc., 620 F.3d at 44
(“district court was ‘free to disregard’ the state law argument
that was not developed in Coons’s brief”).23
With respect to Count II for foreclosure, the amended
complaint seeks a declaratory judgment that the “foreclosure
sale held on March 7, 2014, is valid” under the Declaratory
Judgment Act, 28 U.S.C. § 2201 (“DJA”).24

(Docket Entry # 11, ¶¶

23

Previously, this court declined to address the counts for
possession, use and occupancy and writ of assistance when
defendant moved to dismiss the amended complaint because, like
plaintiff, she did not tailor her arguments to address these
claims. (Docket Entry # 47, pp. 33-34).
24
The paragraphs specific to the foreclosure count (Docket
Entry # 27, ¶¶ 34-42) do not cite to either the Declaratory
Judgment Act, 28 U.S.C. § 2201 (“section 2201”), or
65

1, 34-42).

The count alleges that plaintiff is the mortgagee of

record, the holder of the Conley note, complied with section 35A
and other foreclosure statutes and conducted the foreclosure
sale in accordance with Massachusetts law.
The DJA gives a federal court the discretion to ‘‘declare
the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or
could be sought.’’

28 U.S.C. § 2201(a) (‘‘section 2201’’); see

Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d
530, 534 (1st Cir. 1995) (DJA ‘‘empowers a federal court to grant
declaratory relief in a case of actual controversy’’); accord
Igartúa v. United States, 626 F.3d 592, 634 (1st Cir. 2010) (DJA
provides redress for justiciable cases and actual controversies).
The operation of the statute “‘is procedural only.’”

Skelly Oil

Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)
(discussing section 2201).

By enacting section 2201, “Congress

enlarged the range of remedies available in the federal courts
but did not extend their jurisdiction.”

Id.

The DJA is

therefore “not a grant of jurisdiction” and it “‘merely defines
the scope of available declaratory relief.’”

Watchtower Bible

and Tract Soc’y of New York, Inc. v. Colombani, 712 F.3d 6, 11
(1st Cir. 2013); accord Buck v. American Airlines, Inc., 476 F.3d

Massachusetts General Laws chapter 231A. The count, however,
incorporates the prior paragraphs. Paragraph one in the
complaint relies on the DJA, 28 U.S.C. § 2201.
66

29, 33 n.3 (1st Cir. 2007) (explaining that DJA ‘‘creates a
remedy, not a cause of action’’).
As stated in the foregoing discussion, the foreclosure sale
is valid.

Exercising this court’s discretion, declaratory relief

in the form of a declaration that ‘‘the foreclosure sale held on
March 7, 2014 is valid’’ is appropriate.

Having addressed Count

II, this court turns to the claims in counts I, and IV.
A.

Breach of Contract Claim (Count I)

Plaintiff submits it established the essential elements of
its breach of contract claim.

Plaintiff identifies the Conley

note, executed and delivered to American Home Mortgage on August
15, 2006, as the valid contract in which defendant promised to
pay monthly installments over a term of 30 years with interest.
(Docket Entry # 60).

Plaintiff seeks to enforce its rights

under the note and mortgage by foreclosing and selling the
property to recover the debt owed to it.

(Docket Entry # 60).

Defendant argues that plaintiff is not entitled to recover on
the breach of contract claim because plaintiff or its
predecessor assignees breached paragraph 22 of the Conley
mortgage.

(Docket Entry # 68, p. 18).

To establish a breach of contract claim under Massachusetts
law, “‘the plaintiff must prove that a valid, binding contract
existed, the defendant breached the terms of the contract, and
the plaintiff sustained damages as a result of the breach.’”
Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 232 (1st Cir.

67

2013) (internal brackets omitted).
binding contract.

The Conley note is a valid,

Whereas the chapter 7 bankruptcy may indicate

an inability to recover damages, it does not show that plaintiff
did not sustain damages.

Defendant executed the note to

American Home Mortgage in the amount of $800,000 and ownership,
possession and control of the note was subsequently transferred
to plaintiff.

Defendant secured the loan obligation with a

mortgage on the property to MERS, as nominee for American Home
Mortgage, which was subsequently assigned to J.P. Morgan, then
to HMC as CAM V Trust, and finally to plaintiff.

Defendant

defaulted on her obligation to pay the amount due by, inter
alia, failing to pay the amount due for the October 1, 2009
payment.

She therefore breached the material terms of the

Conley note.

At the time of the foreclosure, the total amount

due and owing on the Conley note totaled $995,868.27.
Entry # 63, ¶ 36).

(Docket

The property was sold for $675,000.

Plaintiff sustained these damages as a result of defendant’s
breach of the note by failing to pay the amounts owed.25
With plaintiff having established the elements of its
breach of contract claim, defendant raises two arguments.
First, she submits there was no contract because plaintiff never
obtained ownership of the Conley mortgage and Conley note.

As

25

Plaintiff is not seeking a deficiency judgment in light of
the chapter 7 bankruptcy. (Docket Entry # 60, p. 16).
68

already discussed, plaintiff established a proper chain of title
to the mortgage and either plaintiff or its counsel possessed
the Conley note at the relevant time.

The argument therefore

fails to provide a means to avoid summary judgment.
Second, defendant asserts that plaintiff’s breach of
paragraph 22 bars its recovery.

It is well established that,

“‘A material breach by one party excuses the other party from
further performance under the contract.’”

Teragram Corp. v.

Marketwatch.com, Inc., 444 F.3d 1, 11 (1st Cir. 2006) (internal
brackets omitted).

“[A] material breach of an agreement occurs

when there is a breach of ‘an essential and inducing feature of
the contract.’”

Lease-It, Inc. v. Massachusetts Port Authority,

600 N.E.2d 599, 602 (Mass.App.Ct. 1992) (quoting Bucholz v.
Green Brothers Co., 172 N.E. 101, 102 (Mass. 1930)); accord
Teragram Corporation v. Marketwatch.com, Inc., 444 F.3d at 11
(also quoting Bucholz); Duff v. McKay, 52 N.E.3d 203, 211
(Mass.App.Ct. 2016).

Summary judgment is not appropriate on the

issue of materiality unless the evidence “‘admits of only one
reasonable answer.’”

See Teragram Corp. v. Marketwatch.com,

Inc., 444 F.3d at 11.
Here, defendant fails to provide facts that plaintiff
committed a material breach of paragraph 22.

BSI sending the

notice of default as opposed to the “Lender,” America Home
Mortgage or plaintiff, as an assignee, is not a material breach

69

of the Conley mortgage let alone the Conley note.26

See ClearVue

Opportunity XV, LLC v. Sheehan, 2015 WL 5098658, at *12.
Summary judgment on the breach of contract claim is therefore
appropriate.
B.

Claim for Possession (Count IV)
Plaintiff asserts that it is entitled to summary judgment

on its claim for possession in Count IV.

(Docket Entry # 60).

Defendant argues that plaintiff did not own “the interests in
Conley’s mortgage loan at the applicable time(s)” and failed “to
comply with the statutory notice requirements” or properly
consider Conley for a loan modification thereby “result[ing] in
a void foreclosure.”

(Docket Entry # 68).

Defendant also

submits that plaintiff failed to conduct a commercially
reasonable foreclosure sale.

(Docket Entry # 68).

As explained by the court in Bailey:
“Right to possession must be shown and legal title may be
put in issue . . .. Legal title is established in summary
process by proof that the title was acquired strictly
according to the power of sale provided in the mortgage;
and that alone is subject to challenge.”

26

Defendant also argues that the amounts in the June 2013
default notice, which total $169,550.21, “did not match up in
any discernable way with the payoff amounts subsequently
provided . . ..” (Docket Entry # 68) (citing defendant’s
additional statement). Paragraph 33 of the additional statement
of facts references a July 30, 2013 letter with a payoff
statement. Defendant does not provide the discrepancy amounts
and, in any event, any discrepancy between the June 2013 notice
and the July 2013 letter is not a material breach of paragraph
22.
70

Bank of New York v. Bailey, 951 N.E.2d 331, 335-336 (Mass. 2011)
(quoting Wayne Inv. Corp. v. Abbott, 215 N.E.2d 795 (Mass.
1966)).

Where, as here, plaintiff brings an “action for

possession after foreclosure by sale, the plaintiff is required
to make a prima facie showing that it obtained a deed to the
property at issue and that the deed and affidavit of sale,
showing compliance with the statutory foreclosure requirements,
were recorded.”

Id. at 336.

As previously discussed, plaintiff complied with section
54B, the foreclosure sale is not void and it otherwise validly
exercised the statutory power of sale.

Plaintiff was the holder

of the Conley note and the owner/assignee of the Conley
mortgage, as established by a proper chain of title, at the time
it published the foreclosure notice of sale and conducted the
foreclosure.

Plaintiff further established its right to

possession by demonstrating, through the assignment of the
mortgage, foreclosure deed and affidavit of sale, that it held
the mortgage at the time of the notice of sale and conducted a
lawful foreclosure pursuant to chapter 244.

See Maldonado v.

AMS Servicing LLC, 2012 WL 3779164, at *3 (D.Mass. Aug. 30,
2012).

Plaintiff also showed that it obtained the deed to the

property and that the deed and affidavit of sale were properly
recorded.

See Bank of New York v. Bailey, 951 N.E.2d at 335-36

(setting out these requirements).

71

The foreclosure deed

establishing plaintiff’s title and ownership of the property is
notarized and was received and registered at the Nantucket
County Land Court less than a week after the foreclosure sale.
(Docket Entry # 63, Ex. K).
For reasons explained previously, defendant’s arguments do
not avoid summary judgment on the claim for possession.

The

commercially unreasonable sale argument is also deficient for
reasons explained below with respect to the chapter 93A
counterclaim.
Given the facts in the summary judgment record, plaintiff
conducted a commercially reasonable foreclosure sale and no
reasonable jury could conclude otherwise.

The notices

sufficiently complied with paragraph 22, plaintiff properly
advertised the sale and otherwise adhered to the applicable
foreclosure statutes as previously discussed.

Neither the low

price nor the sale to the mortgagee by itself provides
sufficient evidence of a commercially unreasonable sale.
Defendant’s commercially unreasonable sale argument therefore
fails to provide a proper basis to avoid summary judgment on the
possession count.
In short, plaintiff has met its burden in showing there are
no material facts in dispute regarding its legal title to the
property and claim for possession.

See Maldonado v. AMS

Servicing LLC, 2012 WL 3779164, at *3; see also Federal Nat’l

72

Mortg. Ass’n v. Hendricks, 977 N.E.2d 552, 558-59 (Mass. 2012).
Plaintiff is therefore entitled to summary judgment on its claim
for possession in Count IV.
C.

Defendant’s Counterclaim
Plaintiff moves for summary judgment on defendant’s

counterclaim.

Plaintiff submits that it established title to

the property and conducted a proper foreclosure sale in
compliance with Massachusetts law.

As previously noted,

defendant asserts seven counts in the counterclaim.

Plaintiff

addresses the counts in the counterclaim for breach of contract,
breach of the implied covenant of good faith and fair dealing,
negligence, chapter 93A and unlawful foreclosure.
# 60).

(Docket Entry

Because plaintiff does not address counts one and six of

the counterclaim, these counts remain in this action.
With respect to the unlawful foreclosure claim in Count
Five, it alleges deficiencies in the foreclosure process that
are addressed and rejected above, namely, plaintiff’s lack of
standing, lack of title to the Conley mortgage, failure to
comply with certain foreclosure statutes, failure to conduct a
commercially reasonable foreclosure sale and “breaches of the
mortgage contract.”

(Docket Entry # 27, ¶¶ 91-98).

Construing

the record in defendant’s favor and for reasons already
discussed, the foreclosure was not unlawful and plaintiff is
entitled to summary judgment on the counterclaim in Count Five.
73

(1) Breach of Contract
In Count Two of the counterclaim, defendant asserts that
plaintiff breached the terms of the Conley “mortgage by failing
to comply with the terms thereof,” presumably paragraph 22, and
with “the requirements of G.L. c. 183, s. 21, c. 244, s. 3, 14,
15, 17, 17B, 35A-C all as may be applicable before unlawfully
attempting to foreclose on the property . . ..”
27, ¶ 79).

(Docket Entry #

In opposing summary judgment as to the counterclaim,

defendant simply states that, “Conley has sufficiently pled her
counterclaims, supported them and moved to strike inadmissible
hearsay documentation relied on by Plaintiff in its instant
motion” and, “[a]s a result, . . . averred enough disputes of
material fact to survive Plaintiff’s motion for summary judgment
. . ..”

(Docket Entry # 68).

In seeking summary judgment, plaintiff argues that the
foreclosure was conducted in strict compliance with
Massachusetts law and in accordance with the terms of the
mortgage.

(Docket Entry # 60).

For reasons previously

discussed and as correctly pointed out by plaintiff, it acquired
title to the property in compliance with Massachusetts law and
is the owner of the property as evidenced by the foreclosure
deed.

Reasonable steps were taken and a good faith effort made

to avoid foreclosure prior to sending the required notices.

74

Plaintiff is therefore entitled to summary judgment on the
breach of contract claim in Count Two.
(2) Implied Covenant of Good Faith and Fair Dealing
In Count Three of the counterclaim, defendant asserts a
violation of the covenant on the basis, inter alia, that
plaintiff unlawfully assigned the Conley mortgage, engaged in
violations of MERS rules and the terms of the Conley mortgage
and failed to properly consider defendant for a mortgage
modification.

In moving for summary judgment, plaintiff points

to the absence of any evidence of a lack of good faith.
Plaintiff also contends that defendant fails to provide
sufficient evidence that it deprived defendant of the benefits
of the Conley mortgage or the Conley note.
The parameters of the implied covenant of good faith and
fair dealing are well established.

The covenant of good faith

and fair dealing implied in the Conley mortgage and/or the
Conley note requires that the parties not “‘do anything which
will have the effect of destroying or injuring the right of the
other party to receive the fruits of the contract.’”

Nile v.

Nile, 734 N.E.2d 1153, 1160 (Mass. 2000); see Uno Restaurants,
Inc. v. Boston Kenmore Realty Corp., 805 N.E.2d 957, 964 (Mass.
2004) (covenant “preserved so long as neither party injures the
rights of another to reap the benefits prescribed by the terms
of the contract”).

The covenant governs the manner of

75

performance of the contract and requires that, when performing a
contract’s obligations, the parties must “‘remain faithful to
the intended and agreed expectations’ of the contract.”
v. Genzyme Corp., 867 N.E.2d 325, 329 (Mass. 2007).

Chokel

“In the

lender-borrower context, the implied covenant ‘would require
that the bank be honest in its dealings with plaintiffs and that
it not purposefully injure their right to obtain the benefit of
the contract.’”

FAMM Steel, Inc. v. Sovereign Bank, 571 F.3d

93, 100 (1st Cir. 2009) (internal brackets and citations
omitted).

The bank’s conduct that the district court rejected

as a violation of the covenant and allowed the bank’s summary
judgment motion in FAMM, which the First Circuit affirmed,
included “failing to respond to restructuring proposals or
offers to purchase.”

Id.

Here, the record is devoid of any dishonesty on the part of
plaintiff.

It also fails to show that plaintiff purposefully

did anything to deprive defendant of the benefits of the Conley
mortgage and/or the Conley note.

The Conley mortgage conveyed a

power of sale to the lender and its assigns, such as plaintiff,
and secured to the lender and its assigns defendant’s covenant
to “pay when due the principal” and interest under the Conley
note.

(Docket Entry # 63-2).

covenant.

Defendant defaulted on that

Notably, the fact that defendant is in default

“necessarily alters the contours of the covenant of good faith

76

and fair dealing.”

Id. at 101.

As elucidated by the First

Circuit’s decision in Famm, the implied covenant is not breached
by a bank engaging in “‘hard-nosed’ dealings with a borrower
where it was undisputed that the bank did not take any of the
adverse actions before the borrower defaulted.27

Id.

(summarizing and quoting Federal Deposit Insurance Corp. v.
LeBlanc, 85 F.3d 815, 822 (1st Cir. 1996), in parenthetical).
Thus, even assuming for purposes of argument that plaintiff or
its agent disclosed this litigation to the highest bidder
(Double B Capital), such a tactic does not sufficiently evidence
a lack of good faith or a purposeful intent to deprive defendant
of the benefit of the mortgage contract or note.

Likewise, the

challenged “‘hybrid’” foreclosure process does not violate the
implied covenant where, as here, the borrower, i.e., defendant,
defaulted and the lender’s downstream assignee exercised the
power of sale in strict compliance with the requisite statutes
and notice requirements.

Given the absence of evidence of a

lack of good faith, dishonesty or conduct purposefully done to
injure defendant’s right to the benefits of the Conley mortgage
and the Conley note, summary judgment on the claim for breach of
the implied covenant (Count Three) is appropriate.

27

Prior to the assignments of the Conley mortgage that
defendant attacks, all of which were valid, defendant was in
default as of October 1, 2009.
77

(3) Negligence
The negligence claim alleges that, due to the existence of
a mortgage contract, plaintiff owed defendant a duty of care to
“follow applicable law” to ensure a proper foreclosure on the
property, including giving defendant the required notices and
conducting a proper review upon receiving Conley’s request for a
loan modification.

(Docket Entry # 27).

The claim further

alleges that plaintiff was negligent in its supervision of BSI
and in its advertisement of the property when plaintiff lacked
standing as well as “in conducting a commercially reasonable
foreclosure sale.”

(Docket Entry # 27).

Plaintiff moves for summary judgment on the claim because
it complied with the statutory requirements in conducting the
foreclosure and it conducted a thorough review of the loan
modification request in compliance with section 54B.

Plaintiff

is correct.
In order to establish a negligence claim, a plaintiff must
show:
(1) A legal duty owed to the plaintiff by the defendant;
(2) a breach of that duty by the defendant; (3) causation;
and (4) actual loss by the plaintiff.
Delaney v. Reynolds, 825 N.E.2d 554, 556 (Mass.App.Ct. 2005).
Ordinarily, “‘the mere relationship between mortgage holder or
servicer and borrower does not give rise to a fiduciary duty to
the latter.’”

Almeida v. United States Bank Nat’l Ass’n, 2014

78

WL 907673, at *7 (D.Mass. March 10, 2014) (quoting Shaw v. BAC
Home Loans Servicing, LP, 2013 WL 789195, at *4 (D.Mass. March
1, 2013)); accord MacKenzie v. Flagstar Bank, FSB, 738 F.3d 486,
495 (1st Cir. 2013) (“relationship between a borrower and lender
does not give rise to a duty of care under Massachusetts law”);
see, e.g., Dumeus v. CitiMortgage, Inc., 2015 WL 404611, at *1
(D.Mass. Jan. 29, 2015) (rejecting plaintiff’s claim “that
CitiMortgage acted negligently by omitting key documents that
would be necessary to prove its right to foreclose on the
property” because no duty of care between borrower and lender).
Thus, “there is no duty to negotiate for loan modification once
a mortgagor defaults.”

MacKenzie v. Flagstar Bank, FSB, 738

F.3d at 493.
“[A]n exception” to the no-duty rule applies inasmuch as “a
mortgagee does owe a fiduciary duty to a mortgagor ‘to refrain
from committing fraud, bad faith or failing to use reasonable
diligence in the context of a foreclosure sale.’”

Andersen v.

Lasalle Bank Nat’l Ass’n, 2016 WL 3093375, at *5 (D.Mass. June
1, 2016) (quoting Pearson v. United States, 831 F.Supp.2d 514,
519-20 (D.Mass. 2011)) (ellipses omitted).

A mortgagee’s “‘duty

at common law [is] to protect the interests of the mortgagor in
exercising a power of sale in a mortgage.’”
Flagstar Bank, FSB, 738 F.3d at 493.

MacKenzie v.

“‘Typically, this entails

mak[ing] reasonable efforts to sell the property for the highest
79

value possible.’”

Id.; see Williams v. Resolution GGF OY 630

N.E.2d 581, 584 (Mass. 1994) (“mortgagee has a duty ‘to obtain
for the property as large a price as possible’”).

Where, as

here, the mortgagee is the purchaser, it is “‘held to the
strictest good faith and the utmost diligence.’”
(internal citations omitted).

Id. at 584

On the other hand, “A low price

for the collateral does not by itself indicate bad faith or lack
of diligence in disposition of mortgaged real estate.”

Pemstein

v. Stimpson, 630 N.E.2d 608, 611 (Mass.App.Ct. 1994).

“Nor does

such an indication flow from the circumstance that the mortgagee
turns out to be the sole bidder at the foreclosure sale.”

Id.

“On those occasions when the court held a sale invalid, the bad
faith or failure of diligence has been of an active and
conspicuous character.”

Id.; accord Santander Bank, N.A. v.

Baldwin Realty, LLC, 2015 WL 1781741, at *7 (D.Mass. April 17,
2015) (“Massachusetts courts typically have not found a
foreclosure sale to be invalid unless ‘the bad faith or failure
of diligence has been of an active and conspicuous character’”);
see, e.g., Sandler v. Silk, 198 N.E. 749, 751 (Mass. 1935); Bon
v. Graves, 103 N.E. 1023, 1026 (Mass. 1914) (failure of mortgage
holder to notify interested neighbors of foreclosure sale made
it apparent that mortgage holder had acquired mortgage with
intent “to secure property for himself at his own price”); Clark

80

v. Simmons, 23 N.E. 108, 108-109 (Mass. 1890) (no notice to
anyone of adjourned date of foreclosure sale).
Again, there is a dearth of evidence that plaintiff engaged
in any fraudulent conduct or acted in bad faith in conducting
the foreclosure.

It advertised the foreclosure sale property

for sale and complied with the foreclosure statutes, including
the power of sale statute in chapter 183, section 21.

Such

reasonable efforts belie the existence of any breach.

Summary

judgment on the negligence claim is warranted.
(4)

Chapter 93A

The chapter 93A claim alleges violations of various
statutes and corresponding Massachusetts regulations (the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2601, the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692, et. seq., and
“940 CMR 7.00 et seq.”).

The claim also identifies “unfair and

deceptive acts and practices involving, among other things, the
unlawful and defective default notices” and foreclosure process.
(Docket Entry # 27, ¶¶ 107, 108) (Docket Entry # 62-10).

The

claim further states that, “[F]ailing to provide proper notices
under applicable law or under the MERS mortgage, failing to
properly consider Conley for a loan modification as required by
applicable law and thereafter engaging in a commercially
unreasonable ‘hybrid’ foreclosure process” constitute unfair and
deceptive acts and practices.

(Docket Entry # 27, ¶ 109).
81

The

challenged “‘hybrid’ foreclosure process” consists of proceeding
with the “judicial foreclosure brought in this court” thereby
prejudicing legitimate bidding on the property at the subsequent
non-judicial March 7, 2014 foreclosure sale.

(Docket Entry #

27, ¶ 109) (Docket Entry # 62-10, ¶ 5).
Plaintiff moves for summary judgment on the chapter 93A
claim because it conducted a proper and valid foreclosure in
compliance with the foreclosure statutes and the sale was
commercially reasonable.

Plaintiff also points out that it

considered defendant’s request for a loan modification.

As

noted above, plaintiff did not qualify for a modification
because, employing defendant’s 2011 and 2012 tax returns, her
mortgage payment amounted to approximately 64% of her monthly
income.
In response to these arguments, defendant addresses the
chapter 93A claim as based on conducting a commercially
unreasonable sale, including the purported hybrid nature of the
foreclosure.28

Defendant argues that material facts exist as to

28

The sole references to chapter 93A in the opposition are as
follows, all made in the context of whether a commercially
reasonable sale took place:
As alleged by Conley in her counterclaims and pre-suit
Chapter 93A letter, Plaintiff did not conduct a
commercially reasonable sale and thus the purported March
7, 2014 foreclosure is void . . . BSI’s action(s) in
attempting to conduct a “hybrid” non-judicial/judicial
foreclosure sale that is not commercially reasonable due to
82

why Double B Capital backed out of the sale.29

For purposes of

summary judgment, defendant therefore waives the other grounds
alleged as a basis for chapter 93A liability in the counterclaim
(Docket Entry # 27).

See Coons v. Industrial Knife Co., Inc.,

620 F.3d at 44; Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252, 260 (1st Cir. 1999) (“district court is free to
disregard arguments that are not adequately developed”); see
also U.S. v. Caparotta, 676 F.3d 213, 218 (1st Cir. 2012)
(“argument consist[ing] of just two sentences and two cursory
citations in his brief . . . is therefore waived”); Vallejo v.
Santini-Padilla, 607 F.3d 1, 7 & n.4 (1st Cir. 2010) (plaintiffs
have “not cited a single authority in support of their assertion
that their failure to timely oppose the motion to dismiss did
not constitute waiver” and noting that “[p]laintiffs did not
properly raise their arguments below”); see generally Merrimon

the litigation commenced by BSI, Plaintiff and their
attorneys, is an unfair and deceptive act under Chapter 93A
for which Conley has suffered damages, both statutory and
actual, as identified in her pre-foreclosure Chapter 93A
demand letter (ECF 62-10) and in her counterclaims.
(Docket Entry # 68).
29

The summary judgment record merely reveals that Double B
Capital was the successful and highest bidder but did not
consummate the sale. Plaintiff, as the second highest bidder,
purchased the property. The notice of the foreclosure sale
advised the public that the mortgagee reserved the right to sell
the property to the second highest bidder in the event the
highest bidder “default[ed] in purchasing” the property.
(Docket Entry # 63-11, p. 4).
83

v. Unum Life Ins. Co. of America, 758 F.3d 46, 57 (1st Cir. 2014)
(“‘[e]ven an issue raised in the complaint but ignored at
summary judgment may be deemed waived’”).
Accordingly, this court turns to the argument that
plaintiff violated chapter 93A, section nine, by conducting a
commercially unreasonable foreclosure sale.

Chapter 93A

“proscribes ‘unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or
commerce.’”

Juarez v. Select Portfolio Servicing, Inc., 708

F.3d 269, 280 (1st Cir. 2013) (quoting chapter 93A, section 2).
“‘A practice is unfair if it is within the penumbra of some
common-law, statutory, or other established concept of
unfairness; is immoral, unethical, oppressive, or unscrupulous;
and causes substantial injury.’”

Young v. Wells Fargo Bank,

N.A., 717 F.3d at 240 (chapter 93A claim alleging HAMP
violations) (quoting Linkage Corp. v. Trustees of Boston
University, 679 N.E.2d 191, 209 (Mass. 1997)).

The “crucial

factors” in determining whether an act or practice is “unfair”
are “the nature of [the] challenged conduct” as well as the
“purpose and effect of that conduct.”

Massachusetts Employers

Ins. Exchange v. Propac-Mass, Inc., 648 N.E.2d 435, 438 (Mass.
1995).

A practice is deceptive “‘if it “could reasonably be

found to have caused a person to act differently from the way he
or she otherwise would have acted.”’”

84

Aspinall v. Philip Morris

Companies, Inc., 813 N.E.2d 476, 486 (Mass. 2004) (brackets
omitted).
In presenting the commercially unreasonable sale argument
as rendering the foreclosure sale void and/or a violation of
chapter 93A, defendant relies and cites to Pemstein v. Stimpsen,
630 N.E.2d 608, 612 (Mass.App.Ct. 1994).
pp. 16-19).

(Docket Entry # 68,

As stated in Pemstein, “If the statutory norms

found in G.L. c. 244, §§ 11-17B, governing foreclosure of real
estate mortgages, have been adhered to, Massachusetts cases have
generally regarded that as satisfying the fiduciary duty of a
mortgagee to deal fairly with the mortgaged property, unless the
mortgagee’s conduct manifested fraud, bad faith, or the absence
of reasonable diligence in the foreclosure sale process.”
Pemstein v. Stimpson, 630 N.E.2d at 612.

As explained in the

context of discussing the existence of a duty vis-à-vis the
negligence claim, “A low price for the collateral does not by
itself indicate bad faith or lack of diligence in disposition of
mortgaged real estate.”

Id.

“Nor does such an indication flow

from the circumstance that the mortgagee turns out to be the
sole bidder at the foreclosure sale.”

Id.

“On those occasions

when the court held a sale invalid, the bad faith or failure of
diligence has been of an active and conspicuous character.”

Id.

at 612-13; see, e.g., Sandler v. Silk, 198 N.E. at 751; Bon v.
Graves, 103 N.E. at 1026; Clark v. Simmons, 23 N.E. at 108-109.

85

As previously discussed, plaintiff did not violate its
fiduciary duty in marketing the property and in sending the
required notices.

In conducting the foreclosure sale, plaintiff

did not contravene the penumbra of a Massachusetts common law
concept of unfairness, which imposes a duty on the mortgagee
“‘to protect the interests of the mortgagor in exercising a
power of sale in a mortgage,’” MacKenzie v. Flagstar Bank, FSB,
738 F.3d at 493.

Under the circumstances of this case, the

foreclosure process and sale was not unfair.

Plaintiff

protected defendant’s interest in receiving a high or a marketbased price for the property in light of the efforts to
advertise the property.

BSI, plaintiff’s servicer, considered

defendant’s loan modification request in a good faith effort to
avoid foreclosure.

Defendant was in default thus entitling

plaintiff, as the mortgagee under an unbroken chain of
assignments and the holder of the Conley note, to exercise the
power of sale in the Conley mortgage.

It is true that a chapter

93A violation arises “where foreclosure of a mortgage, even on
an actual default, is conducted in bad faith to the detriment of
the mortgagor.”

Kattar v. Demoulas, 739 N.E.2d 246, 257 (Mass.

2000) (chapter 93A claim under section 11 based on mortgagee’s
motive in conducting “foreclosure as retribution” for Kattar’s
refusal to testify in unrelated matter).

Thus, the fact that

the foreclosure sale was legal or valid does not dispose of the

86

chapter 93A claim.

See id. (“[l]egality of underlying conduct

is not necessarily a defense to a claim under c. 93A”).

Here,

however, there is no evidence of bad faith or retribution of the
kind exhibited in Kattar that would allow a finder of fact to
find a violation of chapter 93A, section nine.

Cf. Morse v.

Mutual Federal Savings & Loan Association, 536 F.Supp. 1271,
1281-82 (D.Mass. 1982) (foreclosure for ulterior purpose to
collect mortgagor’s bad check).

Filing suit in this court in

light of defendant’s default and thereafter conducting the
foreclosure sale was neither unfair nor deceptive and, without
more, did not render the foreclosure sale commercially
unreasonable.30

The chapter 93A claim in Count Seven of the

counterclaim is therefore subject to summary judgment.
CONCLUSION
In accordance with the foregoing discussion, the motions to
strike (Docket Entry ## 70, 80) are DENIED.

The summary

judgment motion (Docket Entry # 59) is ALLOWED as to counts I,
II and IV in the amended complaint and counts two, three, four,
five and seven of the counterclaim; and otherwise DENIED.
Absent a stipulation by the parties with respect to the
remaining counts in the amended complaint (counts V and VI) and

30

As the summary judgment target with the underlying burden of
proof on the chapter 93A claim, it was incumbent upon defendant
to provide evidence inasmuch as plaintiff pointed out the
absence of evidence to support the chapter 93A claim.
87

the counterclaim (counts one and six), this court will conduct a
status conference on September 22, 2016 at 2:45 p.m.

/s/ Marianne B. Bowler______
MARIANNE B. BOWLER
United States Magistrate Judge 

88