WELLS FARGO BANK, NA., AS SUCCESSOR BY MERGER TO WACHOVIA MORTGAGE CORPORATION v. LORI PAGE

This is a post foreclosure summary process action brought to recover possession of the subject premises located at 2 Paradise Farm Lane, Unit 2A, Forestdale, MA 02644 ("premises"). The Defendant/Tenant did not appear or file an answer in this matter. On April 17, 2019 the Court entered a judgment of default in favor of the Plaintiff but declined to issue the execution due to concerns about the proper service and timing of the requisite 30 day notice required under M.G.L. c. 186A s. 3.

After hearing oral argument, reviewing the evidence contained within the file and drawing reasonable inferences therefrom, the Court finds the following;

1. That the Plaintiff acquired legal title to the property against the interest of the Defendant via a foreclosure deed recorded in the Barnstable County Registry of Deeds at Book 31350, Page 107 on June 20, 2018;

2. That no challenge as to the sufficiency of the foreclosure and/or the supporting documentation related to same has been presented to the Court;

3. That the Defendant is a holdover tenant of the former owners of the premises;

4. That the Defendant did not contest or otherwise oppose the eviction action and was thus defaulted on April 17, 2019.

5. The Court refused to issue the execution claiming that the Plaintiff had failed to include adequate proof of service of the notice required by G. L. 186A ("186A Notice") and that said c. 186A s. 3. Notice complied with the provisions of M.G.L. c. 186A, s. 3.

6. The Plaintiff filed a Motion for Issuance of the Execution and in support thereof filed the affidavit of Ann Quinlin stating that she delivered notices by posting and mailing the 186A Notice on October 17, 2018;

7. That after filing such motion and affidavit, this Court refused to issue the execution stating that "Denied as 186A(3) notice was served more than 30 days from the date of foreclosure deed."

8. The Plaintiff filed a motion for reconsideration of this ruling on November 4, 2019 and said motion was heard by Michaud, J. as the original Judge on the matter was unavailable due to retirement.

Discussion

In order to succeed on a motion for reconsideration of an earlier motion, the moving party must to set forth new or different evidence or information which was not available at the time of the original motion, or alternatively, demonstrate a substantial reason why the information was not presented to the court at the time of the earlier motion. If there is no material change in circumstances, a judge is not obliged to reconsider a case, issue or question of law after it has been decided. See Chase Precast Corp. v John J. Paonessa Co., 409 Mass. 371 , 379 (1991); Clamp-All Corp. v Foresta, 53 Mass. App. Ct. 795 , 806-807 (2002). Littles v Commissioner of Correction, 444 Mass. 871 , 878 (2005).

In the present case, the Plaintiff has presented alleged new and different evidence in the form of section 4 of c. 186A and prior caselaw regarding the above. In support of its motion, Plaintiff states that while this statutory evidence and caselaw was available at the time of the original hearing, the Court in a prior ruling had not requested further evidence and information regarding the violation of c. 186A s. 3. Additionally Plaintiff was not provided an opportunity to orally present the information contained within this motion as no prior hearing was conducted. It is by this discrepancy concerning the change in basis for issuance of the execution coupled with the lack of opportunity to be heard that forms a reasonable basis to reconsider the prior order of this Court.

M.G.L. c. 186A is intended to ensure that tenants in a foreclosed residential property be informed of the name, address, and telephone number of the foreclosing owner and building manager, and the address to which rent should be sent, no later than thirty days after the foreclosure. See G.L. c. 186A s. 3. In essence, the law requires the tenants of foreclosed owners be afforded the opportunity to pay rent and attempt to salvage their tenancy.

In the case at bar, the Plaintiff foreclosed upon the premises and recorded its deed on June 20, 2018. It then served the 186A Notice on October 17, 2018 and commenced this eviction action on December 7, 2018. Clearly the service of the 186A notice is well beyond the thirty day period prescribed under c. 186A s. 3. Plaintiff has not met the statutory timing requirements of s. 3 and based upon that failure the underlying eviction action is fudamentally flawed.

In Plaintiff's motion for reconsideration, it asserts that s. 4 of c. 186A indicates that there is a degree of discrepancy in terms of the date required for service of the 186A Notice and that of G.L. c 186A s. 3 and 4 which should be read in conjunction together. Under s. 4, "A foreclosing owner shall not evict a tenant for just cause until the notice required by G.L. c. 186A, s. 3 is posted and delivered, or until thirty days after the posting and delivery of the notice..." Plaintiff argues that caselaw followed by this Court also addresses this point:

"For an eviction to satisfy the requirements of s. 4, the act merely requires the foreclosing owner to have posted and delivered the notice prescribed in G.L. c. 186A, s. 3, before serving a notice to quit; the requirement that the posting and delivery take place within thirty days of the foreclosure, where applicable, is separate and distinct from the requirements of a lawful foreclosure under the act." Federal National Mortgage Association v. Nunez, 460 Mass. 511 , 520 n. 12 (2011).

This case was also cited by this Court (Chaplin, F.J.) in Federal Home Loan Mortgage Corporation v. Powers, 14H83 SP0468BR (2015) in which the Court citing Nunez held, "The defendants appear to contend that, since the plaintiff did not comply with the requirements of G.L. c. 186A s. 3 within thirty (30) days after the foreclosure, the plaintff can never prevail in an eviction against them. Nothing in the language of the act requires so illogical result...For an eviction to satisfy the requirements of s. 4, the act merely requires the foreclosing owner to have posted and delivered the notice prescribed in G.L. 186A s. 3 at least 30 days before serving the notice to quit..." In the present case the delay of the Plaintiffs in immediately providing the s. 3 notice has actually worked to the Defendants advantage in delaying the eviction action by several months. All harm suffered thus far due to Plaintiffs failure to comply has been bourne by the Plaintiff.

As such, M.G.L. 186A s. 3 clearly establishes a minimum requirement that a foreclosing entity must provide the informational notice to the occupant within thirty days of foreclosure and may not commence an eviction until that has occurred. Failure to comply with that aspect can have a significant impact on the underlying eviction action as it has had in this case. The Court notes that the language of s. 4, when taken in concert with the underlying intent of the statute, seems to relax that requirement by shifting the requirement to providing notice at least 30 days prior to commencing an eviction action. Under that interpretation, I find that the Plaintiff has met the notice requirement required by M.G.L. c. 186A, s. 4 and has thus relieved itself, to its own detriment, of the necessity of compliance with the "30 days from foreclosure" date required under s. 3.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented in light of the governing law, it is ORDERED that:

1. The Default Judgment entered by this Court in favor of Plaintiff is AFFIRMED in full;

2. Execution for possession to issue in due course.

SO ORDERED.