THE BANK OF NEW YORK MELLON FKA, THE BANK OF NEW YORK AS TRUSTEE FOR CERTIFICATE HOLDERS OF CWALT INC., ALTERNATIVE LOAN TRUST 2006-J7 MORTGAGE PASS THROUGH CERTIFICATES v. DALVA DOS SANTOS

This matter was before the Court on December 11, 2019 with respect to a Motion for Summary Judgment (the "SJ Motion") filed by the plaintiff, The Bank of New York Mellon f/k/a The Bank of New York as Trustee for Certificate Holders of CWALT Inc., Alternative Loan Trust 2006-J7 Mortgage Pass Through Certificates 2006-J7 (the "Plaintiff"). In support of its SJ Motion, Plaintiff also filed a Memorandum of Law ("Plaintiff's Memorandum") incorporating certified copies of certain foreclosure documents filed with the Barnstable County Registry District of the Land Court (the "Land Court"), together with the Affidavit of Attorney Rachelle D. Willard (the "Willard Affidavit"). Defendant Dalva Dos Santos (the "Defendant") filed a written opposition (the "Opposition") to Plaintiff's SJ Motion. The parties appeared at the hearing, each through counsel, and argued the foregoing SJ Motion and Opposition.

As grounds for its SJ Motion, Plaintiff contends that there are no genuine issues of material fact in dispute and that it is entitled to summary judgment in its favor on its claim for possession and on Defendant's counterclaims as a matter of law. Defendant opposes the entry of summary judgment in Plaintiff's favor, arguing that Plaintiff's prima facie case requires that Plaintiff demonstrate a basis for the foreclosure, that portions of the Willard Affidavit contain inadmissible hearsay, and that without such inadmissible facts Plaintiff cannot establish its prima facie case as a matter of law. Defendant did not file any countervailing evidence or competing affidavit with her Opposition to Plaintiff's SJ Motion.

This is a post-foreclosure summary process (eviction) action in which the Plaintiff is seeking possession of the premises located at 7 Coach Light Road in Barnstable, Massachusetts (the "Property"), together with the fair rental value of the Property from the date of the foreclosure sale. Defendant is the former owner of the Property. She continues to reside in the Property after her receipt of a 72-hour notice to vacate. Defendant timely filed an answer, foreclosure-related defenses and counterclaims alleging interference with quiet enjoyment, unfair treatment in the loan modification process and violations of G.L. c. 93A, together with a demand for jury trial. The parties later executed a mutual written waiver of the jury trial.

STANDARD FOR SUMMARY JUDGMENT

The standard of review on summary judgment "is whether, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). See Mass.R.Civ.P. 56(c). The moving party must demonstrate with admissible documents, based upon the pleadings, depositions, answers to interrogatories, admissions, documents, and affidavits, that there are no genuine issues as to any material facts, and that the moving party is entitled to a judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553-56 (1976).

The party opposing summary judgment "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). To defeat summary judgment the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Korouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Madsen v. Erwin, 395 Mass. 715 , 721 (1985), quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney General v. Bailey, 386 Mass. 367 , 371 (1982); see Simplex Techs, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196 , 197 (1999). The court does not "pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts." Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from "pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with . . . affidavits, if any." Mass.R.Civ.P. 56(c). Affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Mass.R.Civ.P. 56(e). "The requirements of rule 56(e) are mandatory." Madsen v. Erwin, 395 Mass. 715 , 719 (1985).

LEGAL STANDARD APPLICABLE TO POST-FORECLOSURE SUMMARY PROCESS ACTION FOR POSSESSION

"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; and that alone is subject to challenge." Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct. 374 , 379 (2016), quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775 , 775 (1966). See Reem Property, LLC v. Bigelow, No. 18-P-389, 2019 WL 692713, 94 Mass.App.Ct. 1122 (Rule 1:28 unpublished decision February 20, 2019). To prevail in a summary process action involving foreclosed property where the validity of the foreclosure is challenged, "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). A foreclosure deed and affidavit that meets the requirements of G.L. c. 244, §15 is evidence that the power of sale was duly executed and constitutes prima facie evidence of the plaintiff's case in chief. Federal Nat'l Mortgage Ass'n v. Hendricks, 463 Mass. 635 , 641-642 (2012).

Where these documents meet the requirements of G.L. c. 244, §15, it is "incumbent on a defendant to counter with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact." Id. at 642. Once a plaintiff makes a prima facie case, the burden shifts to the opposing party to demonstrate, through the use of evidence that would be admissible at trial, specific facts showing that there exists a genuine issue for trial with regard to plaintiff's compliance with G.L. c. 244, §14. "If a defendant fails to show the existence of a genuine issue of material fact in response to a motion for summary judgment by contesting factually a prima facie case of compliance with G.L. c. 244, §14, such failure generally should result in judgment for the plaintiff." Id.

UNDISPUTED MATERIAL FACTS

The following facts necessary to resolve the legal issues raised in the Plaintiff's SJ Motion and Defendant's Opposition are based on facts set forth in the summary judgment record that the Court concludes are not in dispute.

1. Defendant Dalva Dos Santos acquired the Property by quitclaim deed dated February 23, 2005 and registered with the Land Court on March 2, 2005 as Document No. 995,222 and noted on Certificate of Title No. 176020 (the "Deed"). (Certified copy of Deed, Exhibit A to Plaintiff's Memorandum; Willard Affidavit).

2. On August 31, 2006, Defendant obtained a mortgage loan from Countrywide Bank, N.A. ("Countrywide") in the principal amount of $400,000.00, the repayment of which was secured by a mortgage on the Property in favor of Countrywide (the "Loan").

3. As security for the Loan, Defendant granted a mortgage on the Property in favor of Countrywide. The mortgage is dated August 31, 2006 and was registered with the Land Court on September 6, 2006 as Document No. 1,043,477 and noted on Certificate of Title No. 176020 (the "Mortgage"). (Certified copy of Mortgage, Exhibit B to Plaintiff's Memorandum; Willard Affidavit).

4. By assignment dated September 10, 2011 registered with the Land Court on September 20, 2011 as Document No. 1,173,843 and noted on Certificate of Title No. 176020, the Mortgage was assigned to Plaintiff (the "Assignment"). (Certified copy of Assignment, Exhibit D to Plaintiff's Memorandum; Willard Affidavit).

5. On August 16, 2018, Plaintiff conducted a foreclosure auction of the Property pursuant to the power of sale in the Mortgage. Plaintiff was the highest bidder. (Certified copy of Foreclosure Deed and Affidavit of Sale, Exhibit H to Plaintiff's Memorandum; Willard Affidavit).

6. A foreclosure deed dated September 20, 2018 was registered with the Land Court on December 11, 2018 as Document No. 1,360,533 and noted on Certificate of Title No. 218118 (the "Foreclosure Deed"). (Certified copy of Foreclosure Deed, Exhibits H and I to Plaintiff's Memorandum; Willard Affidavit).

7. On October 3, 2018, Brian C. Linehan, Esq., as attorney for Plaintiff, executed an affidavit of sale which attests to Plaintiff's compliance with all statutory foreclosure requirements pursuant to G.L. c. 244, §14 (the "Affidavit of Sale"). The Affidavit of Sale was subsequently registered with the Foreclosure Deed in the Land Court on December 11, 2018 as Document No. 1,360,533 and noted on Certificate of Title No. 218118). (Certified copy of Affidavit of Sale, Exhibits H and I to Plaintiff's Memorandum; Willard Affidavit).

8. Plaintiff served a 72-hour notice to quit (the "NTQ") on Defendant by deputy sheriff on December 19, 2018, which NTQ together with the deputy sheriff's original return of service was filed with this Court. (Copy of NTQ, Exhibit J to Plaintiff's Memorandum; Willard Affidavit; Housing Court Docket Entry No. 2 dated January 17, 2019; copy of docket report, Exhibit K to Plaintiff's Memorandum).

9. After service of the summary process summons and complaint on Defendant by deputy sheriff on January 11, 2019 (the "Summons and Complaint"), the Summons and Complaint with the deputy sheriff's original return of service was filed with this Court on January 17, 2019 pursuant to G.L. c. 239, §1. (Housing Court Docket Entry No. 1 dated January 17, 2019; copy of docket report, Exhibit K to Plaintiff's Memorandum).

10. On January 28, 2019, Defendant filed her answer and counterclaims, demand for jury trial and requests for discovery. (Defendant's time-stamped Answer and Counterclaim; Housing Court Docket Entry No. 4 dated January 29, 2019; copy of docket report, Exhibit K to Plaintiff's Memorandum).

11. Defendant continues to occupy the Property.

DISCUSSION, FINDINGS AND RULING

I. Defendant's Request to Strike Portions of the Willard Affidavit

While Defendant did not file a motion to strike certain statements contained within the Willard Affidavit, Defendant's Opposition argues that Paragraphs 13, 14, 15 and Exhibit L attached to the Willard Affidavit should be stricken as inadmissible. Specifically, Defendant contends that the affiant, who is counsel to Plaintiff, lacks personal knowledge as to certain facts set forth in her affidavit concerning the Defendant's default, Plaintiff's sending of preforeclosure notices and Plaintiff's offer of a loan modification to Defendant. Defendant argues that the Willard Affidavit attempts to enter business records and procedures of Plaintiff from a source that would be inadmissible at trial.

The Court agrees with Defendant that the Willard Affidavit attempts to introduce certain facts and business records of Plaintiff that Willard is not competent to testify to pursuant to Mass.R.Civ.P. 56(e). Accordingly, the Court disregards Paragraphs 13, 14, 15 and Exhibit L of the Willard Affidavit in considering Plaintiff's SJ Motion.

Notwithstanding the Court's disregard of the foregoing material, the Willard Affidavit attaches certified copies of Land Court documents obtained by Attorney Willard, which documents are independently admissible pursuant to G.L. c. 233, §79A, Mass.R.Civ.P. 44(a)(1), and as an exception to the hearsay rule, Mass. Guide to Evid. §803(14); see also Deutsche Bank Nat. Trust Co. v. Gabriel, 81 Mass. App. Ct. 564 , 567 (2012). Accordingly, the Court is permitted to consider the Land Court documents attached to the Willard Affidavit because such documents were obtained by the affiant and are independently admissible.

II. Plaintiff's SJ Motion

As set forth above, a plaintiff's prima facie case is established by "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). A foreclosure deed and affidavit that meets the requirements of G.L. c. 244, §15 is evidence that the power of sale was duly executed and constitutes prima facie evidence of the plaintiff's case in chief. Federal Nat'l Mortgage Ass'n v. Hendricks, 463 Mass. 635 , 641-642 (2012).

Here, Defendant does not dispute that the Foreclosure Deed and Affidavit of Sale meet the requirements of G.L. c. 244, §15. [Note 1] Instead, Defendant argues that as part of Plaintiff's prima facie case, Plaintiff must also demonstrate "that there was a basis for foreclosure, such as non payment of the mortgage." (Defendant's Opposition, page 2). Defendant's contention is meritless and clearly not supported by established case law. There is no obligation that Plaintiff prove that Defendant defaulted on the Loan as part of its prima facie case, and even if that obligation existed, Defendant's default is evidenced by the Plaintiff's uncontroverted Affidavit of Sale, which states in relevant part that "the principal, interest, and tax obligations mentioned in the mortgage . . . were not paid or tendered or performed when due or prior to the sale."

Once Plaintiff made its prima facie case, the burden shifted to Defendant to demonstrate with admissible evidence specific facts showing that there exists a genuine issue for trial as to the Plaintiff's compliance with G.L. c. 244, §14. Here, the Defendant failed to meet her burden. Defendant failed to provide any countervailing evidence, by way of affidavit or otherwise, showing that there exists a genuine issue for trial regarding Plaintiff's compliance with G.L. c. 244, §14.

The Court finds and rules that Plaintiff has proven its prima facie case through the submission of undisputed, admissible documents demonstrating its superior right to possession. After reviewing the evidence set forth in the summary judgment record, the Court finds there are no genuine issues as to any material facts and concludes as a matter of law that the Plaintiff acquired legal title to the Premises after foreclosure and has a superior right to possession of the Property over the right to possession asserted by the Defendant. For these reasons, Plaintiff's SJ Motion is ALLOWED on Plaintiff's claim for possession of the Property.

III. Plaintiff's Claim for Use and Occupancy.

The Court finds Defendant became a tenant at sufferance following the mortgage foreclosure. See Carney v. Conveyancers Title Ins. & Mtg. Co., 309 Mass. 197 , 200 (1941). The Court finds Defendant has not paid use and occupancy to Plaintiff since the foreclosure sale. Under Massachusetts law, "[t]enants at sufferance in the possession of land or tenements shall be liable to pay rent therefor for such time as they occupy or detain the same." G.L. c. 186, §3. "A tenant at sufferance is liable for the reasonable worth of its use and occupancy and/or detention of the premises." Dale v. H.B. Smith Co., 136 F.3d 843, 850 (1st Cir. 1998). The measure of damages for a use and occupancy charge is the then current fair rental value of the premises. Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492 , 502 (1997). This is true even where there was never any tenancy relationship between the former owner and the party seeking possession of the premises following a foreclosure. See U.S. Bank Trust, N.A. v. Minnehan, 95 Mass. App. Ct. 1123 , *2 (Rule 1:28 unpublished decision August 9, 2019), further appellate review denied 2019 WL 5423316 (October 18, 2019). The statutory term "rent" is broadly defined to encompass "the sum which the trier of fact finds the use and occupation were reasonably worth." Lowell Hous. Auth'y v. Save-Mor Furniture Stores, Inc., 346 Mass. 426 , 431 (1963). The determination of use and occupancy under G.L. c. 186, §3 is a pure finding of fact. Dale v. H.B. Smith Co., 136 F.3d 843, 850 (1st Cir. 1998).

Plaintiff seeks to recover use and occupancy from Defendant from August 16, 2018, the date of the foreclosure sale. The summary judgment record is devoid of any evidence as to the fair rental value of the Property. On or before 4:00 PM on April 3, 2020, Plaintiff shall electronically file with the Court and serve on opposing counsel all affidavits with supporting information upon which Plaintiff intends to rely in establishing the fair rental value of the Property. If such documents are timely filed and served by Plaintiff, Defendant shall electronically file and serve her opposing affidavits with supporting documentation on or before 4:00 PM on April 10, 2020, after which time the Court will either rule on the papers or schedule a telephonic hearing on the fair rental value of the Property for purposes of establishing damages.

If Plaintiff shall fail to timely file and serve its affidavits with supporting documentation, Plaintiff's claim to use and occupancy damages shall be deemed waived and judgment for possession only shall enter. Final judgment shall be stayed pending a determination on the fair rental value of Defendant's use and occupancy of the Property, or Plaintiff's waiver of its claim to damages resulting from Defendant's use and occupancy of the Property following the foreclosure.

IV. Defendant's Counterclaims

Defendant's "check-the-box" counterclaims generally challenge the foreclosure and allege interference with Defendant's quiet enjoyment by wrongfully foreclosing and bringing the summary process action, unfair treatment in the loan modification process and violations of G.L. c. 93A. As a result of this Court's ruling that Plaintiff established a prima facie case for possession of the Property, Defendant cannot, as a matter of law, prevail on her counterclaims for interference with her quiet enjoyment and certain alleged violations of G.L. c. 93A. Accordingly, Plaintiff is entitled to summary judgment on such counterclaims.

The only remaining counterclaim of Defendant's that cannot be resolved on summary judgment is her claim that she was treated unfairly in the modification process, and that such claim entitles her to damages under G.L. c. 93A. (See Defendant's Answer, ¶42(f)). While Plaintiff attempted to introduce correspondence pertaining to Plaintiff's offer of a trial loan modification to Defendant, the Court cannot consider such inadmissible hearsay, as it was incorporated into the Willard Affidavit, and Willard does not have personal knowledge of Plaintiff's business records or loan modification practices.

On summary judgment, the moving part bears the burden of fully demonstrating the absence of a triable issue of fact and that the summary judgment record entitled the moving party to judgment as a matter of law. Peterson v. Time, 404 Mass. 14 , 16-17 (1989). The non-moving party "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). To defeat summary judgment the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Korouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991).

Here, Defendant's pleaded facts that Plaintiff "treated me unfairly in loan modification process" do not possess enough heft to plausibly show she is entitled to relief. Nothing in Defendant's counterclaim suggests that Plaintiff's conduct was so fundamentally unfair that Defendant is entitled to affirmative equitable relief setting aside the foreclosure sale. Moreover, even if Defendant were to prevail on her claim for unfair and deceptive acts in the modification process; such claim cannot invalidate the foreclosure. See U.S. Bank Nat. Ass'n v. Schumacher, 467 Mass. 421 , 431 (2014). Accordingly, Defendant's counterclaim for unfair treatment in the loan modification process cannot defeat Plaintiff's right to possession and shall be transferred to the civil docket. See Fed. Nat. Mortg. Ass'n v. Rego, 474 Mass. 329 , 339 (2016).

V. Rulings

For the foregoing reasons, Plaintiff's SJ Motion is ALLOWED for Plaintiff on its claim for possession and on each of Defendant's counterclaims with the exception of her claim for violation of G.L. c. 93A with respect to unfair treatment in the loan modification process. The latter counterclaim shall be transferred to the civil docket for a bench trial.

ORDER FOR JUDGMENT

Based upon all the credible evidence submitted as part of the summary judgment record in light of the governing law, the Court finds there are no genuine issues of material fact and Plaintiff is entitled to summary judgment as a matter of law. It is ORDERED that:

1. Plaintiff's SJ Motion on its complaint for possession is ALLOWED, plus costs, as well as with respect to all of Defendant's counterclaims except for the surviving counterclaim referenced in Paragraph 3 below.

2. Final judgment shall be stayed, however, pending determination of the fair rental value of Defendant's use and occupancy of the Property following the foreclosure.

3. Defendant's counterclaim for violation of G.L. c. 93A with respect to unfair treatment in the loan modification shall be transferred to the civil docket for a bench trial with a tracking order to issue.

SO ORDERED.