Klevisha v. Provident Funding Associates L.P.

Filing 69

Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER: "For the reasons stated, it is ORDERED that Defendant's (sic) Motion For Summary Judgment (# 57 ) be, and the same hereby is, ALLOWED in part and DENIED in part. Counts I, II and III of the counterclaim shall be dismissed as moot. Judgment shall enter for Freddie Mac on Counts VI, V and VI of the counterclaim." (Moore, Kellyann)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ROSARIO KLEVISHA,
Plaintiff/Defendant-in-Counterclaim,
CIVIL ACTION NO. 15-10629-MPK1

v.

PROVIDENT FUNDING
ASSOCIATES L.P.,
Defendant/Plaintiff-in-Counterclaim,
and
FEDERAL HOME MORTGAGE
CORPORATION,
Plaintiff-in-Counterclaim.

MEMORANDUM AND ORDER ON
DEFENDANT’S (sic) MOTION FOR SUMMARY JUDGMENT (#57).

KELLEY, U.S.M.J.
I. Introduction.
On February 27, 2015, Plaintiff/Defendant-in-Counterclaim Rosario Klevisha commenced
this civil action in the Middlesex Superior Court in Massachusetts for predatory lending and
wrongful foreclosure on the property located at 52 Kings Field Road, Dracut, MA (“the Property”).
(#2-3.) Defendant/Plaintiff-in-Counterclaim Provident Funding Associates L.P. removed the case
to the federal court on March 3, 2015 (#2), and, seventeen days later, filed an answer to the
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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.)

complaint and a counterclaim. (#6.) The counterclaim incorporates six claims: Count I - Breach of
Contract; Count II - Unjust Enrichment; Count III - Foreclosure; Count IV - Deficiency; Count V Possession; Count VI - Writ of Assistance. (#6.) The docket does not reflect that Klevisha ever filed
an answer to the counterclaim.
On November 9, 2015, Provident Funding conducted a non-judicial foreclosure by entry and
sale of the Property. (#59 ¶ 53.) Federal Home Mortgage Corporation (“Freddie Mac”) purchased
the Property at the foreclosure sale for three hundred twenty-three thousand two hundred ninetythree dollars and thirty-six cents ($323,293.36). (#59 ¶ 54.) By Order entered on February 16, 2016,
Freddie Mac, now the owner of the Property, was added to this case as a Plaintiff-in-Counterclaim.
(#64.) Provident Funding and Freddie Mac are moving for the entry of judgment as a matter of law
on the counterclaim. (#57.) Plaintiffs-in-Counterclaim have fully briefed the issues (##58-60);
Klevisha has filed nothing.
II. The Facts.
The undisputed facts2 are as follows. On December 29, 2006, Klevisha executed a
promissory note (“Klevisha Note”) in favor of Quicken Loans Inc. in the amount of two hundred
eighty-three thousand two hundred dollars ($283,200.00). (Statement of Undisputed Facts #59 ¶ 1;
Affidavit of Provident Funding Associates, L.P. #13 ¶ 5 and Exh. A.) In order to secure the loan
obligation, Klevisha gave a mortgage (“Klevisha Mortgage”) to Mortgage Electronic Registration
Systems, Inc. (“MERS”) as nominee for Quicken Loans Inc. dated December 29, 2006 and recorded
in the Middlesex County (Northern District) Registry of Deeds in Book 2091, Page 108 on January
24, 2007. (#59 ¶ 2; #13 ¶ 6 and Exh. B.) On April 15, 2010, the Klevisha Mortgage was assigned
2

In large measure these facts are taken verbatim from the Statement of Undisputed Material Facts
(#59), albeit without quotation marks.

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from MERS to Provident Funding, and eleven days later the Assignment of Mortgage (“Provident
Funding Assignment”) was recorded in the Middlesex County (Northern District) Registry of Deeds
in Book 23900, Page 211. (#59 ¶ 3; #13 ¶ 7 and Exh. C.) The Klevisha Note was endorsed without
recourse by Quicken Loans Inc. to Provident Funding; Provident Funding endorsed the note in
blank. (#13, Exh. A.) Freddie Mac acquired the Klevisha Note on January 31, 2007 and is the true
and lawful holder/owner of the Klevisha Note. (#67 ¶¶ 6-7.)
Provident Funding entered into a Loan Modification agreement with Klevisha in January
2011. (#59 ¶ 4; #13 ¶ 8 and Exh. D.) Klevisha defaulted under the terms of the Klevisha Note and
the Klevisha Mortgage, and the September 1, 2013 payment and all subsequent payments were due.
(#59 ¶ 5; #13 ¶ 9 and Exh. E.) Consequent to her default, on December 31, 2013 Provident Funding
sent Klevisha a 150-day Notice of Right to Cure pursuant to Mass. Gen. L. c. 24, § 35A and a Notice
of Right to Pursue a Modification pursuant to Mass. Gen. L. c. 244, § 35B. (#59 ¶ 6; #13 ¶ 10 and
Exh. E.)
In March of 2014 Klevisha submitted a Borrower Response Package requesting to modify
her mortgage loan. (#59 ¶ 7; #13 ¶ 11.) The Borrower Response Package was reviewed by
Provident Funding, and by letter dated March 4, 2014, Klevisha was advised that her request for a
modification was denied due to insufficient income. (#59 ¶ 8; #13 ¶ 12 and Exh. F.) Klevisha filed
a second loan modification package in March 2014. (#59 ¶ 9; #13 ¶ 13.) By letter dated April 22,
2014, Provident Funding informed Klevisha that her request for forbearance was denied due to an
incomplete package. (#59 ¶ 10; #13 ¶ 14 and Exh. G.) When Klevisha failed to cure her default by
June 2, 2014, the expiration date of the Notice of Right to Cure, Provident Funding referred the loan
to counsel for foreclosure. (#59 ¶ 11; #13 ¶ 15.)

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On July 15, 2014, Provident Funding filed a complaint in the Massachusetts Land Court
pursuant to the Servicemembers Civil Relief Act. (#59 ¶ 12; Affidavit of Brian C. Linehan, Esq. #14
¶ 2 and Exh. 1.) On July 31, 2014, the Order of Notice was published in the Lowell Sun newspaper
pursuant to the Servicemembers Civil Relief Act. (#59 ¶ 13; #14 ¶ 4 and Exh. 2.) That same day,
the Order of Notice was served on Klevisha at the Property pursuant to the Servicemembers Civil
Relief Act. (#59 ¶ 14; #14 ¶ 5 and Exh. 2.) On August 6, 2014, the Order of Notice was recorded
in the Middlesex County (Northern District) Registry of Deeds in Book 28375, Page 181, pursuant
to the Servicemembers Civil Relief Act. (#59 ¶ 15; #14 ¶ 6 and Exh. 2.) On August 26, 2014, an
Affidavit Regarding Note Secured By A Mortgage To Be Foreclosed (Pre-Foreclosure Sale) was
recorded in the Middlesex County (Northern District) Registry of Deeds in Book 28425, Page 136.
(#59 ¶ 16; #13 ¶ 16 and Exh. H.) On September 3, 2014, the Land Court entered a judgment
confirming that none of the named defendants were entitled to the benefits of the Servicemembers
Civil Relief Act as of that date. (#59 ¶ 17; #14 ¶ 7 and Exh. 3.)
On August 29, 2014, Klevisha submitted a new, second Borrower Response Package seeking
to modify her mortgage loan. (#59 ¶ 18; #13 ¶ 17 and Exh. I.) By letter dated September 2, 2014,
Provident Funding acknowledged receipt of the Borrower Response Package, but advised Klevisha
that the package was incomplete and that she had to provide certain specific missing documents in
order to complete the package. (#59 ¶ 19; #13 ¶ 17 and Exh. I.) On September 23, 2014, September
30, 2014 and October 7, 2014, Provident Funding caused to be published in the Lowell Sun
newspaper a Notice Of Mortgagee’s Sale of Real Estate (“First Notice of Sale”) advertising the
public auction of the Property scheduled for October 23, 2014. (#59 ¶ 20; #14 ¶ 8 and Exh. 4.)
Pursuant to Mass. Gen. L. c. 244, §§ 14 and 17B, on September 24, 2014, a Notice of Intent to

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Foreclose Mortgage and Intent to Pursue Deficiency After Foreclosure of Mortgage was sent to
Klevisha. (#59 ¶ 21; #14 ¶ 9 and Exh. 5.) On October 2, 2014, Klevisha submitted the documents
necessary to complete her second Borrower Response Package. (#59 ¶ 22; #13 ¶ 19.) After
reviewing Klevisha’s completed second Borrower Response Package, by letter dated October 8,
2014, Provident Funding denied her request for a loan modification due to insufficient income. (#59
¶ 23; #13 ¶ 20 and Exh. J.)
Klevisha submitted a third Borrower Response Package requesting to modify her mortgage
loan on October 22, 2014. (#59 ¶ 24; #13 ¶ 21.) That same day Provident Funding sent Klevisha
a letter denying her request for a modification due to insufficient income. (#59 ¶ 25; #13 ¶ 22 and
Exh. K.) On October 23, 2014, Provident Funding conducted a foreclosure sale of the Property.
(#59 ¶ 26; #13 ¶ 23.) The October 23rd foreclosure sale was thereafter rescinded because a junior
lienholder of record on the Property had not been sent notice of the foreclosure sale date. (#59 ¶ 27;
#14 ¶ 10.)
On December 30, 2014, January 6, 2015 and January 13, 2015, a Notice of Mortgagee’s Sale
of Real Estate (“Second Notice of Sale”) was published in the Lowell Sun newspaper advertising
a foreclosure sale of the Property scheduled for January 28, 2015. (#59 ¶ 28; #14 ¶ 11 and Exh. 6.)
Pursuant to Mass. Gen. L. c. 244, §§ 14 and 17B, on January 2, 2015 Provident Funding mailed
Klevisha a Notice of Intent to Foreclose Mortgage and Intent to Pursue Deficiency After Foreclosure
of Mortgage on or after January 28, 2015. (#59 ¶ 29; #14 ¶ 12 and Exh. 7.) On January 21, 2015,
Klevisha’s attorney sent Provident Funding a demand letter pursuant to Mass. Gen. L. c. 93A. (#59
¶ 30; #13 ¶ 24 and Exh. L.) In order to allow time to respond to the chapter 93A letter, the
foreclosure sale scheduled for January 28, 2015 was postponed by public proclamation to March 2,

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2015. (#59 ¶ 31; #14 ¶ 13.) On February 20, 2015, Provident Funding responded to Klevisha’s
demand letter. (#59 ¶ 32; #14 ¶ 14 and Exh. 8.)
On February 27, 2015, Klevisha instituted the instant litigation. (#2-3.) Because this case
was filed, the March 2, 2015 foreclosure sale was postponed by public proclamation to April 2,
2015. (#59 ¶ 34; #14 ¶ 15.) On April 1, 2015, Klevisha filed a motion for preliminary injunction
to stop the April 2, 2015 foreclosure sale.3 (#59 ¶ 36; #7.) Due to the filing of the preliminary
injunction motion, the April 2, 2015 foreclosure sale was postponed by public proclamation to May
6, 2015. (#59 ¶ 37; #14 ¶ 16.) The May 6, 2015 foreclosure sale was ultimately cancelled due to this
pending litigation.
The motion for a preliminary injunction was allowed on June 24, 2016 (#36) primarily on
the ground that the state of the law in Massachusetts was unclear as to whether Mass. Gen. L. c. 183,
§ 21 required strict compliance with the contractual terms of the mortgage. (#37.) Approximately
a month and a half later, Provident Funding moved to dissolve the preliminary injunction (#38) in
light of the intervening Massachusetts Supreme Judicial Court’s decision in Pinti v. Emigrant
Mortgage Company, Inc., 472 Mass. 226 (2015), which resolved the legal uncertainty. In Pinti,
although the SJC concluded that “strict compliance with the notice of default provisions in
paragraph 22 of the mortgage was required as a condition of a valid foreclosure sale,” that decision
was to be given “prospective effect only.” Id. at 227, 243. With Massachusetts law now clear,
Klevisha could not demonstrate a likelihood 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

3

On May 13, 2015, Klevisha’s attorney moved to withdraw from the case. (#16.) That motion was
allowed in due course. (#40.)

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notice provision of the mortgage was required. As such, the motion to dissolve the preliminary
injunction was allowed. (#44.)
On October 27, 2015, after Klevisha failed to appear at several hearings and failed to respond
to an Order to Show Cause, the complaint was dismissed. (#51.)
When the preliminary injunction was dissolved, a foreclosure sale of the Property was
scheduled for November 9, 2015. (#59 ¶ 46; #60 ¶ 6.) A Notice of Mortgagee’s Sale of Real Estate
was published in the Lowell Sun newspaper on October 12, 2015, October 19, 2015 and October 26,
2015. (#59 ¶ 50; #60 ¶ 7 and Exh. A.) Pursuant to Mass. Gen. L. c. 244, § 14, on October 14, 2015,
Klevisha was sent a Notice of Intent to Foreclose Mortgage as well as a copy of the Notice of
Mortgagee’s Sale of Real Estate. (#59 ¶ 51; #60 ¶ 8 and Exh. B.) On November 9, 2015, Provident
Funding conducted a non-judicial foreclosure sale by entry and sale of the Property. (#59 ¶ 53; #60
¶ 9 and Exh. C and D.)
Freddie Mac purchased the Property at the foreclosure sale for three hundred twenty-three
thousand two hundred ninety-three dollars and thirty-six cents ($323,293.36). (#59 ¶ 54; #60 ¶ 10
and Exh. C.) The foreclosure deed conveying title to the Property to Freddie Mac was recorded at
the Middlesex County (Northern District) Registry of Deeds in Book 29628, Page 238 on December
2, 2015. (#59 ¶ 55; #60 ¶ 11 and Exh. C.) A Post Sale Affidavit Regarding Note (“Eaton Affidavit”)
dated November 17, 2015, was also recorded in the Middlesex County (Northern District) Registry
of Deeds in Book 29628, Page 243 on December 2, 2015. (#59 ¶ 56; #60 ¶ 12 and Exh. E.)
The total debt owed under the terms of the Klevisha Note, owned by Freddie Mac, and
Klevisha Mortgage at the time of the foreclosure sale was three hundred twenty-nine thousand seven
hundred ninety dollars and ninety-two cents ($329,790.92), plus attorney fees and costs associated

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with this litigation. (#59 ¶ 57; #60 ¶ 13.) The foreclosure sale of the Property resulted in a
deficiency under the terms of the Klevisha Note and Klevisha Mortgage in the amount of six
thousand four hundred ninety-seven dollars and fifty-six cents ($6,497.56). (#59 ¶ 58; #60 ¶ 14.)
III. Summary Judgment Standard.
The purpose of summary judgment is “to pierce the boilerplate of the pleadings and assay
the parties’ proof in order to determine whether trial is actually required.” Tobin v. Federal Express
Corp., 775 F.3d 448, 450 (1st Cir. 2014) (internal quotations marks and citation omitted). The
applicable rule mandates that “a court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Summary judgment would be inappropriate “if the record is sufficiently
open-ended to permit a rational fact finder to resolve a material factual dispute in favor of either
side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir. 2014).
The moving party bears the initial burden of asserting the absence of a genuine issue of
material fact and “support[ing] that assertion by affidavits, admissions, or other materials of
evidentiary quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003) (citations
omitted). A genuine issue of fact exists where a fact finder could find in favor of the non-moving
party, “while material facts are those whose existence or nonexistence has the potential to change
the outcome of the suit.” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014)
(internal quotations marks and citation omitted). “Once the moving party avers the absence of
genuine issues of material fact, the non-movant must show that a factual dispute does exist, but
summary judgment cannot be defeated by relying on improbable inferences, conclusory allegations,

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or rank speculation.” Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006)
(internal quotation marks and citation omitted).
In determining whether summary judgment is proper, evidence is considered “in the light
most favorable to the non-moving party” and “all reasonable inferences” are drawn in his favor.
Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). Rule 56 “mandates the entry of summary
judgment, after adequate time for discovery and upon 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). “‘Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.’” Scott v. Harris, 550 U.S. 372, 380 (2007)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (further
internal quotation marks omitted)).
IV. Discussion.
A. Count I - Breach of Contract / Count IV - Deficiency
Since jurisdiction in this case is based on diversity, Massachusetts law is applicable in the
breach of contract claim. See Umsted v. Umsted, 446 F.3d 17, 20 (1st Cir. 2006). As explained by
the First Circuit, “[i]n order to state a viable breach of contract claim under Massachusetts law,
plaintiffs must prove that a valid, binding contract existed, the defendant breached the terms of the
contract, and the plaintiffs sustained damages as a result of the breach.” Brooks v. AIG SunAmerica
Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (citation omitted); Alicea v. Machete Music, 744
F.3d 773, 783 (1st Cir. 2014). Here, it is undisputed that Klevisha entered into a contract, i.e., the
Klevisha Mortgage securing the Klevisha Note. Plaintiff breached the contract by defaulting in

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making payments pursuant to the terms of the Klevisha Mortgage. Freddie Mac, as the holder and
owner of the Klevisha Note, was damaged in the amount representing the difference between what
Klevisha owed on the Klevisha Mortgage and Klevisha Note and the price paid for the Property at
foreclosure, to wit, six thousand four hundred ninety-seven dollars and fifty-six cents ($6,497.56).
The elements of a breach of contract claim have been established.
With that having been said, it is not clear that Freddie Mac can succeed merely because it
has satisfied the elements of a breach of contract claim in the circumstances at hand. The notice
mandated by Mass. Gen. L. c. 244, § 17B “has been described as ‘a condition precedent’ to a
deficiency action, having the practical effect . . . of treating a foreclosure sale as a complete
discharge of the mortgage debt, thwarting a postforeclosure deficiency judgment, absent statutory
notice of intent to pursue a deficiency.” Framingham Sav. Bank v. Turk, 40 Mass. App. Ct. 384,
386 (1996) (internal citation omitted); Sovereign Bank v. Sturgis, 863 F. Supp. 2d 75, 81 (D. Mass.
2012). In other words, Freddie Mac cannot prevail simply by establishing the elements of a breach
of contract; such a claim would have been discharged by the foreclosure sale. Here, however, since
the requirements of Mass. Gen. L. c. 244, §§ 14 and 17B have been met, so, too, have the elements
of a claim for a deficiency judgment.
Section 14 of chapter 244 provides, in pertinent part:
The mortgagee or person having estate in the land mortgaged, or a person authorized
by the power of sale, or the attorney duly authorized by a writing under seal . . . or
person acting in the name of such mortgagee or person, may, upon breach of
condition and without action, perform all acts authorized or required by the power
of sale; provided, however, that no sale under such power shall be effectual to
foreclose a mortgage, unless, previous to such sale, notice of the sale has been
published once in each of 3 successive weeks, the first publication of which shall be
not less than 21 days before the day of sale, in a newspaper published in the city or
town where the land lies or in a newspaper with general circulation in the city or
town where the land lies and notice of the sale has been sent by registered mail to the
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owner or owners of record of the equity of redemption as of 30 days prior to the date
of sale, said notice to be mailed by registered mail at least 14 days prior to the date
of sale . . . in the case of unregistered land, to the last address of the owner or
owners of the equity of redemption appearing on the records of the holder of the
mortgage . . . .
Mass. Gen. L. c. 244, § 14. A Notice of Mortgagee’s Sale of Real Estate was published in the
Lowell Sun newspaper on October 12, 2015, October 19, 2015 and October 26, 2015. (#59 ¶ 50; #60
¶ 7 and Exh. A.) On October 14, 2015, Klevisha was sent a Notice of Intent to Foreclose Mortgage
as well as a copy of the Notice of Mortgagee’s Sale of Real Estate. (#59 ¶ 51; #60 ¶ 8 and Exh. B.)
Further, an affidavit of counsel attesting to the mailing of the Notices of Intent to Foreclose
Mortgage and Pursue Deficiency After Foreclosure of Mortgage was executed in compliance with
the requirements of Mass. Gen. L. c. 244, § 17B.4 Having established that the appropriate steps
were taken and notices given, Freddie Mac is entitled to prevail on its claim for a deficiency
judgment. The foreclosure sale of the Property resulted in a deficiency under the terms of the
Klevisha Note and Klevisha Mortgage in the amount of six thousand four hundred ninety-seven
dollars and fifty-six cents ($6,497.56), and Freddie Mac is entitled to the entry of judgment in that
amount.
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In relevant part, the statute provides:
No action for a deficiency shall be brought . . . by the holder of a mortgage note or other
obligation secured by mortgage of real estate after a foreclosure sale by him . . . unless a
notice in writing of the mortgagee's intention to foreclose the mortgage has been mailed,
postage prepaid, by registered mail with return receipt requested, to the defendant sought to
be charged with the deficiency at his last address then known to the mortgagee, together with
a warning of liability for the deficiency . . . not less than twenty-one days before the date of
the sale under the power in the mortgage, and an affidavit has been signed and sworn to,
within thirty days after the foreclosure sale, of the mailing of such notice. A notice mailed
as aforesaid shall be a sufficient notice, and such an affidavit made within the time specified
shall be prima facie evidence in such action of the mailing of such notice.
Mass. Gen. L. c. 244, § 17B.

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B. Count II - Unjust Enrichment
A claim for unjust enrichment is quasi-contractual in nature. Massachusetts Eye & Ear
Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir.), decision clarified on denial of
reh'g, 559 F.3d 1 (1st Cir. 2009) (“In Massachusetts, a claim for unjust enrichment does not require
consideration, but there must be unjust enrichment of one party and unjust detriment to another . .
. . Massachusetts courts emphasize the primacy of equitable concerns in a finding of unjust
enrichment or quasi-contract: [C]onsiderations of equity and morality play a large part in
constructing a quasi contract.” (internal quotation marks and citations omitted)). The First Circuit
has held that:
A claim of unjust enrichment is appropriate ‘where an agreement is
too indefinite to be enforced ... [or] where no contract is made
because each of the parties had a materially different understanding
of the terms.’ 1-1 Corbin on Contracts, § 1.20(b) (2004). Unjust
enrichment provides an equitable stopgap for occasional inadequacies
in contractual remedies at law by mandating that ‘[a] person who has
been unjustly enriched at the expense of another is required to make
restitution to the other.’ Fox v. F & J Gattozzi Corp., 41 Mass. App.
Ct. 581, 672 N.E.2d 547, 552 (1996) (quoting Restatement of
Restitution § 1 (1937)).
Massachusetts Eye & Ear Infirmary, 412 F.3d at 233-34. Because Freddie Mac has an action at law
and, in fact, has been successful in proving its deficiency claim, the unjust enrichment claim need
not be addressed.
C. Count III - Foreclosure
The foreclosure on the Property took place on November 9, 2015. At this juncture, the claim
for foreclosure is moot.

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D. Count V - Possession
Massachusetts General Laws chapter 239, § 1 provides, in relevant part, that “. . . if a
mortgage of land has been foreclosed by a sale under a power therein contained or otherwise, . . .
the person entitled to the land or tenements may recover possession thereof under this chapter.” As
explained by the Massachusetts Supreme Judicial Court, “[s]ummary process is a statutory cause
of action that enables a person to recover possession of land that is acquired through a mortgage
foreclosure sale.” U.S. Bank Nat. Ass'n v. Schumacher, 467 Mass. 421, 428 (2014) (citations
omitted). “The purpose of summary process is to enable the holder of the legal title to gain
possession of premises wrongfully withheld. Right to possession must be shown . . . 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.” Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966) (citations
omitted). “In a summary process 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 statutory foreclosure requirements, were
recorded.” Bank of New York v. Bailey, 460 Mass. 327, 334 (2011); Fed. Nat. Mortgage Ass’n v.
Hendricks, 463 Mass. 635, 637 (2012) (“[A] plaintiff in a postforeclosure summary process case
may make a prima facie showing of its right to possession by producing an attested copy of the
recorded foreclosure deed and affidavit of sale under G.L. c. 244, § 15.”).
The undisputed facts show that Provident Funding has demonstrated its strict adherence to
Massachusetts foreclosure statutes. The burden in establishing a prima facie case has been satisfied
by the production of certified copies of the foreclosure deed conveying title to the Property to
Freddie Mac recorded at the Middlesex County (Northern District) Registry of Deeds in Book
29628, Page 238 (#59 ¶ 55; #60 ¶ 11 and Exh. C) and a Post Sale Affidavit Regarding Note (“Eaton
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Affidavit”) dated November 17, 2015 recorded in the Middlesex County (Northern District) Registry
of Deeds in Book 29628, Page 243. (#59 ¶ 56; #60 ¶ 12 and Exh. E.) See, e.g., Koufos v. U.S. Bank,
N.A, No. 12-10743-DJC, 2015 WL 5257124, at *5 (D. Mass. Sept. 8, 2015); Maldonado v. AMS
Servicing LLC, No. 11-40044-TSH, 2012 WL 3779164, at *2 (D. Mass. Aug. 30, 2012). Freddie
Mac is entitled to possession of the Property.
E. Count VI - Writ of Assistance
Under Massachusetts law, “if the court finds that the plaintiff is entitled to possession, he
shall have judgment and execution for possession and costs . . .”. Mass. Gen. L. c. 239, § 3. Having
found that, as the owner of record, Freddie Mac is entitled to possession of the Property, it follows
that Freddie Mac has the right to an execution to enforce the judgment. The Court is empowered
to issue a Writ of Assistance, and Freddie Mac’s claim for the same is granted. See 28 U.S.C. §
1651(a) (“The Supreme Court and all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law.”); United States v. New York Tel. Co., 434 U.S. 159, 172 (1977) (“This Court has
repeatedly recognized the power of a federal court to issue such commands under the All Writs Act
as may be necessary or appropriate to effectuate and prevent the frustration of orders it has
previously issued in its exercise of jurisdiction otherwise obtained.”).
V. Conclusion and Order.
For the reasons stated, it is ORDERED that Defendant’s (sic) Motion For Summary
Judgment (#57) be, and the same hereby is, ALLOWED in part and DENIED in part. Counts I, II
and III of the counterclaim shall be dismissed as moot. Judgment shall enter for Freddie Mac on
Counts VI, V and VI of the counterclaim.

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March 9, 2016

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

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