Klevisha v. Provident Funding Associates L.P.

Filing 45

Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER on 38 MOTION Dissolve Preliminary Injunction by Provident Funding Associates L.P.(Moore, Kellyann)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ROSARIO KLEVISHA,
Plaintiff,
CIVIL ACTION NO. 15-10629-MPK1

v.

PROVIDENT FUNDING
ASSOCIATES L.P.,
Defendant.

MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISSOLVE
PRELIMINARY INJUNCTION (#38).

KELLEY, U.S.M.J.
I. Introduction
On June 25, 2015, the Court issued a Memorandum and Order (#37) granting
Plaintiff, Rosario Klevisha’s, motion for a preliminary injunction to halt a thenpending foreclosure sale. The Memorandum and Order (#37) is incorporated herein
by reference. The finding that Plaintiff had at least an equal likelihood of success as

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On June 16, 2015, with the parties’ consent, this case was reassigned to the undersigned for
all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c). (##23, 24.)

Defendant, Provident Funding Associates L.P., on the issue of improper notice2
hinged on the uncertainty as to whether Mass. Gen. L. c. 183 § 21 required strict
compliance with the contractual terms of the mortgage.
On July 17, 2015, the Massachusetts Supreme Judicial Court issued a decision,
Pinti v. Emigrant Mortgage Company, Inc., 472 Mass. 226, 33 N.E.3d 1213 (2015),
resolving the legal uncertainty. The Court concluded that, in fact, “strict compliance
with the notice of default provisions in paragraph 22 of the mortgage was required as
a condition of a valid foreclosure sale.” Id., 33 N.E.3d at 1214. That having been said,
the decision is to be given “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., 33 N.E.3d at 1227.
The decision in Pinti impacts all of the factors considered in granting the
preliminary injunction. The Notice of Right to Cure/Notice of Acceleration in this
case was sent on December 31, 2013 (#37 at 3) prior to the Pinti decision. As a
consequence, strict compliance with the notice provision of the mortgage was not
required. With Massachusetts law now clear, Plaintiff cannot demonstrate that she has
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In ruling on the preliminary injunction motion, the Court determined that Plaintiff failed to
show that she had a likelihood of success, or a substantial possibility of success, on the merits in
proving either that the mortgage assignment to Defendant was in some manner improper or that the
note was not properly endorsed by Defendant.
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a likelihood or a substantial possibility of success on the merits in proving that, at the
time the notice of default required by paragraph 22 of her mortgage was sent, strict
compliance with the notice provision of the mortgage was required.
Similarly, the potential for irreparable harm has also shifted. Because Plaintiff
can not longer prove likelihood of success on her improper notice claim, the concern
that she could have lost her house under questionable circumstances, the basis for the
prior irreparable harm finding, no longer exists. The same is true with respect to the
considerations of balance of the hardships and effect on public interest.
In short, post-Pinti, the relevant factors to be examined when considering a
motion for preliminary injunction now weigh in Defendant’s favor. Therefore, it is
ORDERED that Defendant’s Motion To Dissolve Preliminary Injunction (#38) be,
and the same hereby is, ALLOWED.

September 11, 2015

/s/ M. Page Kelley
M. Page Kelley
United States Magistrate Judge

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