HSBC BANK USA, N.A., trustee, [Note 1] vs. TOMMY L. MORRIS & another. [Note 2]

VUONO, J. The defendants, Tommy L. and Mary L. Morris (Morrises), appeal from a summary judgment entered in favor of

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the plaintiff, HSBC Bank USA, N.A., as trustee of the Fremont Home Loan Trust 2005-E, Mortgage Backed Certificates, Series 2005-E (HSBC), in a summary process eviction action brought by HSBC following a foreclosure sale. The Morrises raise a variety of arguments with respect to the predatory nature of the mortgage loan and with respect to the foreclosure proceedings. [Note 3] The primary issue we address concerns the Morrises' allegation that HSBC violated G. L. c. 183C, the Predatory Home Loan Practices Act (PHLPA or act), which the Morrises' answer designated as a defense. We conclude that, in the circumstances presented here, the alleged violation of the PHLPA should have been pleaded as a counterclaim, not a defense, but that, regardless, the Morrises could not assert a violation of the PHLPA in response to this postforeclosure summary process action. We further conclude that there were no errors in the foreclosure proceedings. Consequently, we affirm the judgment but do so on grounds different in some respects from those relied on by the motion judge.

Background. We summarize the undisputed facts in the summary judgment record. [Note 4] On October 27, 2005, the Morrises purchased a home with the proceeds from two loans obtained from Fremont Investment & Loan (Fremont). This matter concerns the primary loan, which was an interest-only loan for the first two years, at which point it turned into an adjustable rate loan. By September 2008, the Morrises' monthly payments on the loan had increased substantially, and they realized that they could no longer afford the loan. On the advice of counsel, the Morrises stopped making payments. The loan was secured by a mortgage that named Mortgage Electronic Registration Systems, Inc., as the lender, "acting solely as a nominee for Lender and Lender's successors and assigns." The mortgage was subsequently assigned to HSBC.

Meanwhile, in 2007, the Massachusetts Attorney General brought a lawsuit

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against Fremont claiming that Fremont engaged in unfair or deceptive acts or practices in originating and servicing certain home mortgage loans between 2004 and 2007. See Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 734-735 (2008). Some of the Attorney General's allegations pertained to adjustable rate loans -- the very type of loan held by the Morrises -- and the "payment shock" that resulted when borrowers' low introductory monthly payments began to increase. Id. at 740 n.14. In 2009, Fremont agreed to pay ten million dollars to settle the lawsuit. It appears that the Morrises received a check for approximately $2,000 from the Attorney General's office as part of the Fremont settlement.

In the years that followed, the Morrises remained in default on the loan, and HSBC ultimately began taking steps to foreclose the mortgage. On or about April 15, 2016, the Morrises' loan servicer sent the Morrises a right to cure letter, which was followed more than ninety days later by an acceleration notice. See G. L. c. 244, § 35A. The notice stated that the "[m]ortgage [l]oan," which was defined as both the note and the mortgage, had been accelerated. HSBC then filed a complaint to determine the military status of the Morrises pursuant to the Servicemembers Civil Relief Act. See 50 U.S.C. §§ 3901 et seq. On or about June 20, 2017, HSBC sent the Morrises a notice of the foreclosure sale. See G. L. c. 244, § 14. On July 21, 2017, a foreclosure sale was held, and HSBC purchased the property. On September 18, 2017, the Morrises were served with a notice to quit, but they continued to occupy the property. HSBC then filed this summary process eviction action followed by a motion for summary judgment, which was granted after a hearing by a judge of the Housing Court. The Morrises appealed from the judgment.

Discussion. 1. Predatory Home Loan Practices Act. The PHLPA was enacted in 2004 as a comprehensive measure to target trends associated with predatory lending. See A. Lambiaso, Comprehensive Bill Targeting Predatory Lending Gains Momentum, State House News Service, Mar. 15, 2004. See also St. 2004, c. 268, § 6. The PHLPA prohibits lenders from making "'high-cost home mortgage loan[s]' unless certain statutory criteria are met." Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 782-783 & n.13 (2013), quoting G. L. c. 183C, §§ 3, 4. A "[h]igh cost home mortgage loan" is defined as "a consumer credit transaction that is secured by the borrower's principal dwelling, other than a reverse mortgage transaction, a home mortgage loan" that has an annual percentage rate or points and fees that exceed

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specified limits. [Note 5] G. L. c. 183C, § 2.

In keeping with the purpose of the act, the PHLPA contains a number of provisions to protect borrowers, including a private right of action that allows a borrower to "bring a civil action for injunctive relief or damages in a court of competent jurisdiction for any violation of [the PHLPA]." G. L. c. 183C, § 18 (b). The PHLPA also allows a borrower, acting in an individual capacity, to "assert claims that the borrower could assert against a lender of the home loan against any subsequent holder or assignee of the home loan" in two circumstances. G. L. c. 183C, § 15 (b). First, under § 15 (b) (1), "[a] borrower may bring an original action for a violation of [the PHLPA] in connection with the loan within [five] years of the closing of a high-cost home mortgage loan." Second, under § 15 (b) (2), a borrower may assert violations of the PHLPA defensively, as follows: "[a] borrower may, at any time during the term of a high-cost home mortgage loan, employ any defense, claim, counterclaim, including a claim for a violation of [the PHLPA], after an action to collect on the home loan or foreclose on the collateral securing the home loan has been initiated or the debt arising from the home loan has been accelerated or the home loan has become [sixty] days in default, or in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan."

The question raised here is whether the Morrises' counterclaim that HSBC violated the PHLPA was timely. [Note 6] The answer to this

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question does not depend on the merits of the counterclaim. [Note 7] Rather, the answer depends on how we interpret the act's limitations.

As with any question of statutory interpretation, we look first to the language of the act. See City Elec. Supply Co. v. Arch Ins. Co., 481 Mass. 784, 788 (2019). HSBC maintains, as it did below, that it is entitled to judgment as a matter of law because more than five years had passed between the time the Morrises closed on the loan and the time they brought their counterclaim for violation of the PHLPA and, therefore, the five-year statute of limitations in § 15 (b) (1) bars their counterclaim. But the Morrises did not allege violation of the PHLPA under § 15 (b) (1); they alleged violation of the PHLPA defensively under § 15 (b) (2) in response to an action brought by HSBC. Section 15 (b) (2), unlike § 15 (b) (1), does not contain a five-year statute of limitations. Because we will not read words into a statute that are not there, we conclude that summary judgment could not have been allowed on the basis that the Morrises' claim was barred by a five-year statute of limitations. See Anderson St. Assocs. v. Boston, 442 Mass. 812, 817 (2004) (rejecting argument that would have required court to read words into statute that were not there).

However, while the five-year statute of limitations in § 15 (b) (1) does not apply to the Morrises' counterclaim brought under § 15 (b) (2), the latter section contains a different limitation that renders the Morrises' counterclaim untimely. Section 15 (b) (2) provides that a borrower may employ a defense, claim, or counterclaim "during the term of a high-cost home mortgage loan" (emphasis added). A foreclosure sale, however, following acceleration of the note and the mortgage, concludes the term of a mortgage loan. The property is sold and the mortgage is extinguished, as is

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the equity of redemption. See Bevilacqua v. Rodriguez, 460 Mass. 762, 775 (2011); Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct. 374, 382 (2016). See also Santiago v. Alba Mgt., Inc., 77 Mass. App. Ct. 46, 51 (2010). Once a foreclosure sale occurs, the proceeds from the sale are used to satisfy the debt, and any deficiency may be collected through a deficiency action, assuming preforeclosure notice was provided to the borrower. See G. L. c. 244, § 17B. The Morrises' counterclaim, which was brought after the foreclosure sale, was not brought during the term of the mortgage loan and was thus untimely. [Note 8]

Our conclusion that the words "during the term of a high-cost home mortgage loan" prevent the Morrises from asserting violation of the PHLPA in this postforeclosure summary process action is consistent with additional language in § 15 (b) (2) that sets forth the specific circumstances in which a borrower may employ a defense, claim, or counterclaim, as all of those circumstances occur prior to a foreclosure sale. See Awuah v. Coverall N. Am., Inc., 460 Mass. 484, 496 (2011) ("When a statute lists elements in a series, the rules of statutory construction guide us to construe general phrases as restricted to elements similar to specific elements listed"). Those circumstances are as follows: "after an

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action to collect on the home loan or foreclose on the collateral securing the home loan has been initiated or the debt arising from the home loan has been accelerated or the home loan has become [sixty] days in default, or in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan." G. L. c. 183C, § 15 (b) (2). While, at first blush, the final phrase regarding any action "to preserve or obtain possession of the home that secures the loan" may seem to include postforeclosure summary process eviction actions, the concluding words make clear that the home must still secure the loan when the defense, claim, or counterclaim is raised. Because a foreclosed home no longer secures the underlying loan, the final phrase must refer to any defense, claim, or counterclaim employed when a lender is attempting to or has taken preforeclosure possession. See, e.g., G. L. c. 244, § 1 (lender may take preforeclosure possession by "open and peaceable entry," which borrower may then oppose). Where § 15 (b) (2) sets forth the specific circumstances in which a borrower may employ a defense, claim, or counterclaim -- and all of those circumstances occur prior to a foreclosure sale -- we conclude that the Legislature did not intend for § 15 (b) (2) to extend to postforeclosure summary process eviction actions. [Note 9]

In reaching our conclusion, we have not ignored the broad remedial purposes of the PHLPA as our dissenting colleague suggests. [Note 10] As we have noted, § 15 (b) (1) sets forth a statute of limitations (five years) that is one year longer than the four-year statute

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of limitations for violations of G. L. c. 93A. Section 15 (b) (2) further expands the time in which a borrower may assert violations of the PHLPA defensively, allowing a borrower to assert such violations during the term of, for example, a thirty-year mortgage, so long as the mortgage has not yet been foreclosed and the home still "secures the loan." This is an especially strong consumer protection provision that has no corollary under G. L. c. 93A. [Note 11] Nothing in our analysis affects these protections or conflicts with "the expressed intent of the Legislature to provide comprehensive protection to homeowners subject to predatory lending schemes." [Note 12] See dissent post at 428.

2. Foreclosure proceedings. The Morrises also argue that HSBC did not establish (1) the right to foreclose or (2) a duly executed power of sale. See G. L. c. 239, § 1 (person entitled to land may recover possession thereof "if a mortgage of land has been foreclosed by a sale under a power therein contained"). The Morrises argue that, as a result of these purported deficiencies, HSBC lacked standing [Note 13] and the court lacked subject matter jurisdiction over the summary process eviction action.

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First, the Morrises contend that HSBC did not establish the right to foreclose where (1) HSBC never produced the original note and never established the chain of ownership of the note and (2) the assignment of the mortgage to HSBC purportedly failed to comply with a requirement in a pooling and servicing agreement that assignments occur by a certain date. Our case law, however, does not require a foreclosing lender to produce the original note or establish the chain of ownership of the note. See Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 210 (2014) ("all that is required [with respect to the note] is that [the foreclosing lender] be able to demonstrate either that it holds the underlying note or acts as an authorized agent for the note holder"). Regarding the assignment of the mortgage to HSBC, a borrower's standing to challenge an assignment is limited to defects rending the assignment void, as opposed to voidable. See Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 502 (2014). An assignment is void where the assignment does not comply with the requirements of G. L. c. 183, § 54B, but an assignment is merely voidable where there was a latent defect in the assignment process. See Giannasca v. Deutsche Bank Nat'l Trust Co., 95 Mass. App. Ct. 775, 778 (2019); Bank of N.Y. Mellon Corp., supra. Here, the Morrises do not argue that the assignment failed to comply with the requirements of G. L. c. 183, § 54B. Instead, they argue the sort of latent defect that would, at most, render the assignment voidable. See Bank of N.Y. Mellon Corp., supra. Any such defect is a matter between the assignor and the assignee; the Morrises do not have standing to challenge it. See id.

Second, the Morrises argue that HSBC did not establish a duly executed power of sale. The Morrises contend that the affidavit of sale submitted by HSBC was deficient because it did not state the affiant's basis of knowledge regarding the auction sale. The affidavit of sale, however, largely tracked the model statutory form contained in G. L. c. 183, Appendix Form 12. As we previously have noted, "[t]he statutory form 'shall be sufficient,' even if it is altered to suit the particular circumstances." Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 568 (2012), quoting G. L. c. 183, § 8. Here, the alterations regarding the auction sale were not materially different from those used in Gabriel, supra at 569 n.15. Accordingly, the affidavit was sufficient.

Judgment affirmed.

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ENGLANDER, J. (concurring). I fully agree with and join the majority opinion, which persuasively sets forth why, under the plain language of § 15 (b) (2) of G. L. c. 183C, the Predatory Home Loan Practices Act (PHLPA or statute), the Morrises' claims may not be asserted postforeclosure. I write separately to make three additional points.

First, the dissent's emphasis on the purported "intent" of the PHLPA, including its "comprehensive protection[s]," post at 428, and "robust remedies," id. at 430, is not particularly helpful to deciding the question before us, which, as the majority points out, is merely a question of when a borrower may assert those PHLPA rights. The statute answers that question in plain language -- within five years of the loan closing for affirmative claims, and at any time "during the term of [the] . . . mortgage loan," when raised as a defense or counterclaim against the lender or any subsequent holder or assignee. G. L. c. 183C, § 15 (b) (1), (2). See Worcester v. College Hill Props., LLC, 465 Mass. 134, 138 (2013) ("Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent" [citation omitted]). The statute thus provides for a borrower to assert a PHLPA claim for many years after a loan is made -- for decades, potentially, as the facts of this case indicate. The dissent's suggestion that we have "drastically limit[ed]," post at 429, the PHLPA's available remedies by holding that the remedies are not also available postforeclosure is, I suggest, manifestly overstated. [Note Englander-1]

Second, the dissent is incorrect in relying on Bank of Am., N.A. v. Rosa, 466 Mass. 613 (2013) (Rosa), to suggest that a variety of defenses are generally available to a postforeclosure defendant. The only defenses that Rosa allows postforeclosure are those that "challenge the title" of a postforeclosure summary process plaintiff, id. at 626; Rosa quite clearly does not allow the assertion of any and all claims that the former borrower may have had against the lender. [Note Englander-2] The PHLPA defenses and counterclaims do not challenge the title of the foreclosing entity, and in fact claims

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under § 15 (b) of the statute are expressly limited to monetary relief -- "to amounts required to reduce or extinguish the borrower's liability under the high-cost home mortgage loan plus amounts required to recover costs, including reasonable attorneys' fees." G. L. c. 183C, § 15 (b). [Note Englander-3]

Third, there is very little to commend the dissent's position as a matter of policy. Foreclosure is a point in time where the outcome, for property rights purposes, should provide a measure of finality and certainty. The ownership of the property is established, and the equity of redemption extinguished. Actions to recover possession thereafter should be streamlined, with the exception noted of defenses that challenge the foreclosing entity's title, and allowing PHLPA claims to be asserted thereafter will unnecessarily muddy those waters and introduce additional delay. Where there is ample opportunity to assert PHLPA claims in advance of foreclosure, it is difficult to see what public policy would be furthered by allowing a borrower to wait to assert them until afterwards.

For these reasons as well, I join and concur with the majority opinion.

SULLIVAN, J. (dissenting). I agree with the majority's well-reasoned opinion, save its conclusion that predatory loan claims and defenses may not be raised in a postforeclosure summary process action. I therefore respectfully dissent.

The Predatory Home Loan Practices Act (PHLPA or act), G. L. c. 183C, provides that a borrower may, "at any time during the term of a high-cost home mortgage loan, employ any defense, claim, counterclaim, including a claim for a violation of this chapter, after an action to collect on the home loan or foreclose on the collateral securing the home loan has been initiated or the

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debt arising from the home loan has been accelerated or the home loan has become [sixty] days in default, or in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan" (emphasis added). G. L. c. 183C, § 15 (b) (2) (§ 15 [b] [2]). The majority reads the emphasized portions of the act to mean that a predatory loan defense may only be raised while the loan is in effect, because the loan is terminated once foreclosure has taken place. I disagree for three reasons.

1. Statutory construction. First, as a matter of statutory construction, the language of the act as a whole reflects the expressed intent of the Legislature to provide comprehensive protection to homeowners subject to predatory lending schemes. The Legislature did so by providing strong and effective remedies as a deterrent measure, including providing the full array of claims and defenses to homeowners in postforeclosure summary process proceedings.

"[A] statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated" (quotations and citation omitted). Worcester v. College Hill Props., LLC, 465 Mass. 134, 139 (2013). The PHLPA defines high-cost loans, requires a lender to have a reasonable belief that the borrower has the ability to repay the loan, limits fees and prepayment penalties, and as is most pertinent here, increases the penalties and provides additional remedies for violations of the act. Among these are a private right of action for homeowners, G. L. c. 93A liability for violations of the act, and a panoply of equitable remedies, including reformation or rescission of the loan, an order barring the lender from collecting on the loan, and other injunctive relief, all designed to discourage and prevent predatory lending. See G. L. c. 183C, § 18. [Note Sullivan-1]

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The majority's construction of § 15 (b) (2), placing exclusive emphasis on the words "during the term," fails to give due regard to "all [the] words" of the act. Worcester, 465 Mass. at 139, quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006) ("Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense"). Interpreting the words "during the term" to apply only to preforeclosure litigation reads out of § 15 (b) (2) the language permitting the assertion of claims, counterclaims, and defenses "in any action to . . . obtain possession of the home that secures the loan." [Note Sullivan-2] See Tyler v. Michaels Stores, Inc., 464 Mass. 492, 495 (2013) ("the actual words chosen by the Legislature are critical to the task of statutory interpretation"). The home does not lose its character as the collateral that secures the loan after foreclosure has taken place. The words "any action" and "obtain possession" should be read to mean that predatory loan counterclaims and defenses are available in a postforeclosure summary process action, because the lender has no right to possession until the foreclosure sale is deemed lawful, and the lender's right to possession also has been established.

Moreover, there is no discernable basis in the act for so drastically limiting the defenses and counterclaims of those who have been the victims of predatory lending schemes, while all other homeowners are permitted to assert counterclaims and defenses

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challenging the lender's title and right to possession in a postforeclosure summary process action. See Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329, 340 (2016) (Rego); Bank of Am., N.A. v. Rosa, 466 Mass. 613 (2013) (Rosa). In fact, § 15 (c) expressly states that "[t]his section shall be effective notwithstanding any other provision of law" and that "nothing in this section shall be construed to limit the substantive rights, remedies or procedural rights available to a borrower against any lender, assignee or holder under any other law." [Note Sullivan-3] Thus, the act expressly eschews any construction that would treat counterclaims and defenses under the PHLPA differently from the many other defenses available to a homeowner facing postforeclosure summary process. See Worcester, 465 Mass. at 138 ("Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent" [citation omitted]).

The legislative history of the PHLPA lends further support. The deterrent effect of robust remedies was particularly important in the legislative calculus. This is evident not only from the structure and plain meaning of the act, but from the statements of its proponents. As the bill neared passage, then Senate President Robert Travaglini noted, "These measures will help working families from being victimized and give them new clout by increasing penalties." A. Lambiaso, Comprehensive Bill Targeting Predatory Lending Gains Momentum, State House News Service, March 15, 2004. See 81 Spooner Rd. LLC v. Brookline, 452 Mass. 109, 115 (2008) (looking to "the legislative history . . . and the history of the times" as interpretive aids).

Finally, the Legislature's intent also may be divined from the act's title, the "Predatory Home Loan Practices Act." G. L. c. 183C, § 1. See Tyler, 464 Mass. at 496. "Predatory" is derived

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from the Latin praedator, meaning plunderer, and in modern parlance is understood to mean "disposed or showing a disposition to injure or exploit others for one's own gain." Webster's Third New International Dictionary 1785 (1993). See Commonwealth v. Samuel S., 476 Mass. 497, 501 (2017) (looking to dictionary definition to interpret plain meaning of statute). The title evinces the act's central purpose to curtail the exploitation of those who were subject to predatory loans by imposing significant consequences on abusive lending practices.

2. Massachusetts cases. Second, our jurisprudence militates against an interpretation of the PHLPA that would curb remedies under the act in summary process actions. "Challenging a plaintiff's entitlement to possession has long been considered a valid defense to a summary process action for eviction where the property was purchased at a foreclosure sale." Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011), citing New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192, 195 (1906). The Housing Court has jurisdiction to hear such claims and defenses, see Bank of N.Y., supra, including not just defenses to possession, but "defenses and counterclaims that challenge the title of a postforeclosure summary process plaintiff, which previously only could have been the subject of an independent equity action in the Superior Court," Rosa, 466 Mass. at 626. Accordingly, defenses and counterclaims challenging the foreclosing entity's right to title, right to possession, certain G. L. c. 93A claims, certain habitability claims under G. L. c. 185C, § 3, and claims of discrimination under G. L. c. 151B, are all cognizable as defenses to or counterclaims in a postforeclosure summary process case. See Rego, 474 Mass. at 338-339; Rosa, supra at 620, 623. The PHLPA likewise authorizes rescission of the loan or other injunctive relief, as well as monetary damages, and declares that a violation of the act is also a violation of G. L. c. 93A. See G. L. c. 183C, § 18. [Note Sullivan-4]

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The majority's narrower reading of the PHLPA creates the anomalous result that victims of predatory loan schemes (many of whom are pro se) who default more than five years after the closing of the loan, see G. L. c. 183C, § 15 (b) (1), may be evicted from their homes without any judicial process, while other homeowners, who have not been sold predatory loans, retain their right to challenge the legality of possession or title, to equitable relief, and to G. L. c. 93A remedies in a postforeclosure summary process action. This construction of the PHLPA requires us to conclude that the Legislature included these equitable and legal claims and defenses when it created the Housing Court, see Rosa, 466 Mass. at 620, 623, only to take them away from the most vulnerable at the very point in time these remedies would be most needed and are most likely to be used. "The construction of a statute which leads to a determination that a piece of legislation is ineffective will not be adopted if the statutory language 'is fairly susceptible to a construction that would lead to a logical and sensible result.'" Adamowicz v. Ipswich, 395 Mass. 757, 760 (1985), quoting Lexington v. Bedford, 378 Mass. 562, 570 (1979).

3. Other authority. Third, for its analysis of the meaning of the words "during the term of the loan," the majority draws on a similar analysis in Lutzky vs. Deutsche Bank Nat'l Trust Co., U.S. Dist. Ct., No. 09-03886 (D.N.J. January 27, 2009). See ante at note 8. [Note Sullivan-5] Lutzky is both inapt and inapplicable in a nonjudicial foreclosure jurisdiction such as Massachusetts. Lutzky interpreted

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a statute which, in the most critical respect, is different from our own. The New Jersey statute does not contain the phrase "or in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan," the key language present in the Massachusetts PHLPA, a material distinction sufficient on its own to distinguish the cases. [Note Sullivan-6] Notably, Lutzky involved a mortgage that was "terminated with the foreclosure judgment." Judicial foreclosure is the norm in New Jersey, a fact which may account for the omitted language in the New Jersey statute. [Note Sullivan-7] The homeowners in Lutzky had their day in court.

The same is not true of homeowners in Massachusetts for whom nonjudicial foreclosure is the norm. The phrase "or in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan" in § 15 (b) (2) of the PHLPA reflects the reality that, in a nonjudicial foreclosure State, defenses and counterclaims

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will most likely arise in the eviction action, not a judicial foreclosure proceeding, and that if the remedies are to be effective, they must be available at that juncture. No such concern was present in Lutzky.

Conclusion. "Where possible, a statute should not be interpreted to render it ineffective." Tyler, 464 Mass. at 506. The purpose of the PHLPA is to arrest and remediate predatory lending. The majority's construction of the PHLPA undermines these objectives by singling out homeowners who have been subject to predatory loan practices and rendering them powerless to challenge the validity of a nonjudicial foreclosure in a summary process action undertaken more than five years after the loan was made. For these reasons, I respectfully dissent.