DEUTSCHE BANK TRUST COMPANY AMERICAS [Note 1] v. EMMANUELLA DUMEUS and another [Note 2]

PINO, J. This appeal arises from a postforeclosure summary process jury trial in which the plaintiff sought eviction and possession of the subject premises pursuant to G.L. c. 239, § 1 et seq. The defendant asserted counterclaims for breach of good faith and fair dealing and a G.L. c. 93A bad faith claim. The jury returned a verdict in favor of the defendant, through which she was granted possession of the subject premises and also damages on her breach of good faith and fair dealing counterclaim. The court reserved the G.L. c. 93A claim and, subsequently, found in favor of the defendant.

Factual background. On November 18, 2004, defendant Emmanuella Dumeus ("defendant") executed and delivered a promissory note entering to the benefit of and to Primary Residential Mortgage Inc. in the amount of $254,400. The promissory note was endorsed by Primary Residential Mortgage Inc. and included an allonge to the promissory note specifically endorsing it to the plaintiff, Deutsche Bank Trust Company Americas ("plaintiff").

The defendant executed and delivered a mortgage to Mortgage Electronic Registration Systems, Inc. as nominee for Primary Residential Mortgage Inc. on November 18, 2004, conveying a lien on real property owned by the defendant located at 728 North Street, Randolph, Massachusetts (the "property"). The mortgage provided that its owner could foreclose through the Massachusetts statutory power of sale in the event that the defendant defaulted under the promissory note or mortgage. The mortgage was registered in the Norfolk County Registry District of the Land Court.

Mortgage Electronic Registration Systems, Inc. assigned the mortgage and its interests therein to the plaintiff on March 7, 2011. Subsequently, the plaintiff commenced foreclosure proceedings against the defendant as a result of longstanding defaults of her repayment obligations, through which the plaintiff issued a default notice, acceleration letter, and a notice of intention to foreclose to the defendant on August 7, 2014, via certified mail. The notice of sale was published in the Randolph Herald on August 15, 22, and 29, 2014.

A foreclosure auction was held on September 5, 2014, during which the plaintiff submitted the highest and best bid of $230,000. The plaintiff acquired title to the property via a foreclosure deed on May 21, 2015. The foreclosure deed was subsequently recorded in the Norfolk County Registry District of the Land Court along with a number of affidavits, most notably of which was its affidavit of sale.

Although the plaintiff possessed title to the property, the defendant continued to occupy the property. As a result, the plaintiff commenced a summary process action in Quincy District Court. The defendant timely answered the summary process complaint and asserted counterclaims therein.

The summary process jury trial occurred on June 20-21, 2018, at the conclusion of which the jury returned a verdict for the defendant on both the plaintiff's claim for possession and the defendant's good faith and fair dealing counterclaim. The court reserved the G.L. c. 93A claim to itself for determination. The court subsequently issued its findings of fact and rulings of law on the bad faith claim on August 15, 2018.

In its appeal, the plaintiff ascribes a number of errors of law that occurred during the course of the trial, most notably, the court's exclusion of the affidavit of sale. [Note 3]

Standard of review. A trial judge's evidentiary rulings will be reversed if they are an abuse of discretion, or constitute some other legal error. Zucco v. Kane, 439 Mass. 503, 507 (2003). An appellate court's review of a trial judge's decision for abuse of discretion must give great deference to the judge's exercise of discretion; it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). A judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made "a clear error of judgment in weighing" the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives. Id., quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). A trial court's exclusion of evidence is reversible where it injuriously affected the substantial rights of the parties. G.L.c. 231, § 119. "[A]n erroneous exclusion of relevant evidence is reversible error unless, on the record, the appellate court can say with substantial confidence that the error would not have made a material difference." Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 748, 752 (1996).

Analysis. Ordinarily, a tenant cannot challenge a landlord's title in a summary process action. Connors v. Wick, 317 Mass. 628, 630 (1945). An exception lies where, as here, the summary process action is for eviction where the property was purchased at a foreclosure sale. New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192, 195 (1906). 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 pursuant to G.L. c. 244, § 15. Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012). Nevertheless, a defendant in such an action may challenge legal title and require proof that the plaintiff's acquisition of the subject property strictly complied with the power of sale in the mortgage. Id. at 642; Bank of N.Y. v. Bailey, 460 Mass. 327, 332-334 (2011).

In order to make a prima facie case for possession of foreclosed-upon property by nonjudicial sale, there must be proof of compliance with the notice provisions of G.L. c. 244, § 14. Hendricks, supra at 637-638. Section 15 of G.L. c. 244 provides the mechanism for proof of compliance with § 14 by requiring an affidavit of the sale of the foreclosed property to be recorded in the local registry of deeds. That statute further requires that the affidavit must describe the particular acts of the affiant, and "[i]f the affidavit shows that the requirements of the power of sale and the law have been complied with in all respects, the affidavit or a certified copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed" (emphasis added). Hendricks, supra at 638 n.3.

As set forth above, the plaintiff sought to introduce a certified copy of the affidavit of sale, which had been recorded with the Norfolk County Registry District of the Land Court as required by G.L. c. 244, § 15. The form of the affidavit required by G.L. c. 244, § 15 is satisfied by the statutory form set out in the Appendix to G.L. c. 183 (Form 12). Hendricks, supra at 641. Here, the affidavit of sale was largely in the statutory form and duly recorded together with the foreclosure deed. It attested to the certified mailing of the sale notices, described its publication and that the sale and pre-sale processes were adhered to pursuant to the requirements of G.L. c. 244, § 14. As such, the affidavit of sale is valid, prima facie evidence of the proper exercise of the power of sale. Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 569-570 (2012). Therefore, the court should have admitted the certified copy of the affidavit of sale in evidence.

The court also erred in excluding the affidavit of sale on hearsay grounds despite its compliance with the required statutory form. Again, G.L. c. 244, § 15, provides that a recorded affidavit of sale, provided it sufficiently follows the statutory form, "shall be admitted as evidence that the power of sale was duly executed." The foregoing does not mean that the contents of the affidavit are conclusive proof of compliance with G.L. c. 244, § 14, but it does mean that they are admissible evidence of compliance. Hendricks, supra at 641. Moreover, registry copies of documents affecting interests in land fall within an exception to the hearsay rule under our common law. See Mass. G. Evid. § 803(14) & note (2018), relying on Commonwealth v. Emery, 2 Gray 80, 81-82 (1854), and Scanlan v. Wright, 13 Pick. 523, 527 (1833).

For these reasons, we conclude that the court erred in excluding the certified copy of the affidavit of sale. That conclusion, however, does not lead us to order the entry of a judgment of possession in favor of the plaintiff. Although it is true that the affidavit is prima facie evidence of the plaintiff's compliance with G.L. c. 244, § 14, it is not conclusive proof, immune from attack. Federal Home Loan Mtge. Corp. v. Bartleman, 94 Mass. App. Ct. 800, 808 (2019).

In light of our conclusion, we need not address the parties' alternative arguments. We therefore vacate the judgment and return this case for a new trial.

So ordered.