Nationstar Mortgage LLC v. Martinez et al

Filing 55

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Plaintiff's Motion for Summary Judgment as to Counts VI and VII of the Complaint (Docket Entry # 50 ). The motion for summary judgment (Docket Entry # 50 ) is ALL OWED as to Count VII for possession and DENIED as moot as to Count VI for a deficiency. The deficiency count is dismissed in light of plaintiff's representation at the June 22, 2017 hearing that it does not wish to pursue a deficiency against defendant. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NATIONSTAR MORTGAGE LLC,
Plaintiff,
v.

CIVIL ACTION NO.
15-13137-MBB

ALFREDO MARTINEZ,
Defendant,
and
OTACIA BEAUDOIN,
Party-in-Interest.

MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS
TO COUNTS VI AND VII OF THE COMPLAINT
(DOCKET ENTRY # 50)
June 29, 2017
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
on Count VI for a deficiency judgment and Count VII for
possession filed by plaintiff Nationstar Mortgage LLC
(“plaintiff”).

(Docket Entry # 50).

At a May 17, 2017 status

conference, this court afforded defendant Alfredo Martinez
(“defendant”), who was present in the courtroom, up to June 6,
2017 to file an opposition to the summary judgment motion and set
June 22, 2017 for a hearing on the motion.

Defendant failed to

appear at the hearing and did not file an opposition.

During the

hearing, plaintiff waived the deficiency claim in Count VI.

At

the close of the hearing, this court took the summary judgment

motion (Docket Entry # 50) under advisement.
BACKGROUND
On August 4, 2016, this court determined that defendant,
the mortgagor, had “defaulted under the terms of” a mortgage on
property located at 83-85 Wyman Street in Brockton,
Massachusetts.

(Docket Entry # 36).

Plaintiff is the mortgagee

and the authorized agent of the note holder with respect to the
mortgage and the promissory note (“the note”).
36).

Also on August 4, 2016, this court:

(Docket Entry #

(1) ordered that

plaintiff “is entitled to a Conditional Judgment pursuant to G.L.
c. 244, § 3”; (2) directed plaintiff to sell the property under
the power of sale in the mortgage; and (3) declared that
plaintiff had complied with the requirements of Massachusetts
General Laws chapter 244 (“chapter 244”), sections 35A and 35B,
and satisfied the notice provision in paragraph 22 of the
mortgage.
Where, as here, defendant did not oppose the material facts
in plaintiff’s LR. 56.1 statement, defendant admits such facts.
See LR. 56.1.

The undisputed facts and documents establish that

plaintiff timely mailed defendant a notice of sale, a note holder
certification, and a notice of intention to foreclose.
Entry # 50-2, ¶ 3) (Docket Entry # 50-3, Ex. B).

(Docket

Publication of

a foreclosure sale for three successive weeks occurred with the
first publication on November 24, 2016, a date not less than 21

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days prior to the December 21, 2016 foreclosure.
50-2, ¶ 4) (Docket Entry # 50-3, Ex. C).

(Docket Entry #

At the time of the

notice and the foreclosure, plaintiff was the holder of the
mortgage and the authorized agent acting on behalf of the note
holder.

(Docket Entry # 50-3, Ex. D, E) (Docket Entry # 36).

Plaintiff purchased the property for $236,491.62 at the
commercially reasonable, December 21, 2016 non-judicial
foreclosure sale.

A foreclosure deed conveying title to

plaintiff was recorded on February 3, 2017 at the Plymouth County
Registry of Deeds along with an affidavit of sale showing
compliance with the power of sale in the mortgage and chapter
244, section 14.

(Docket Entry # 50-2, ¶ 7) (Docket Entry # 50-

3, ¶ 11) (Docket Entry # 50-3, Ex. D).

A post-foreclosure

affidavit also reflects compliance with paragraph 22 of the
mortgage.

(Docket Entry # 50-3, Ex. E) (Docket Entry # 36).

Defendant continues to occupy the property.

(Docket Entry ## 50-

2, 50-3).
DISCUSSION
To succeed on a possession claim, the plaintiff “has ‘the
burden of showing that there are no material facts in dispute
regarding its legal title to the property.’”

Maldonado v. AMS

Servicing LLC, Civil Action No. 11-40044-TSH, 2012 WL 3779164, at
*2 (D. Mass. Aug. 30, 2012).

The foreclosure deed and affidavit

of sale deed, which defendant fails to challenge, “constitute

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prima facie evidence of the right of possession.”

Federal

National Mortgage Association v. Hendricks, 977 N.E.2d 552, 558
(Mass. 2012); see Bank of New York v. Bailey, 951 N.E.2d 331,
336-337 (Mass. 2011); see also Maldonado, 2012 WL 3779164, at *2.
In addition, the foregoing facts establish plaintiff’s compliance
with:

(1) the statutory foreclosure requirements; (2) the power

of sale in the mortgage in accordance with Massachusetts General
Laws chapter 183, section 21; and (3) the requirements of chapter
244, sections 14 and 17B.

In short, plaintiff complied with the

relevant statutory and contractual foreclosure requirements.
Plaintiff is therefore entitled to possession of the
property.

Summary judgment on Count VII for possession is

warranted.
CONCLUSION
The motion for summary judgment (Docket Entry # 50) is
ALLOWED as to Count VII for possession and DENIED as moot as to
Count VI for a deficiency.

The deficiency count is dismissed in

light of plaintiff’s representation at the June 22, 2017 hearing
that it does not wish to pursue a deficiency against defendant.

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

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