March 2, 2020

Housing Court, Southeast Division



Plaintiff, US Bank, brought this action to recover possession of property located at 29 Andrews Road, Tisbury, Massachusetts ("Property") following a foreclosure sale on May 9, 2016. Defendant is the former owner of the property who has held over and remains in possession of the property. Plaintiff has moved for summary judgment claiming that they complied with all aspects of the foreclosure sale and resulting summary process action, that there remain no genuine issues as to any material fact and that they are entitled to judgment as a matter of law.

The Defendant has filed written opposition to the Plaintiff's motion claiming inter alia that several notices of default sent by Plaintiff to Defendant failed to comply with the requirements of paragraph 22 of the mortgage. This failure to meet the specific requirements of paragraph 22 result in the foreclosure being voided. Both parties presented oral argument to the Court along with memoranda of law, affidavits and documents in support of their respective position.

Undisputed Facts

The following facts necessary to resolve the legal issues raised in the motion for summary judgment are based on facts set forth in the record that the Court concludes are not in dispute.

1. Defendant is the former owner of the residential property located at 29 Andrews Road, Tisbury, Massachusetts ("Property"). The Defendant continues to occupy the property after the foreclosure by the Plaintiff. (Plaintiffs Exhibit A)

2. On November 7, 2008, the Defendant Russell Coburn and his then wife Carla Coburn obtained a mortgage loan secured by a promissory note and first mortgage on the property granted to Mortgage Electronic Registrations Systems, Inc. ("MERS") as nominee for First Eastern Mortgage Corporation. ("Mortgage") [Note 1] (Plaintiffs Exhibit B)

3. On February 1, 2013 the mortgage and note and all rights thereto was assigned by MERS to Plaintiff by assignment which was recorded in the Dukes County Registry of Deeds in Book 68 at Page 99 as document 76954. (Plaintiffs Exhibit D)

4. At some point thereafter, the Defendant ceased making the requisite payments on the underlying note and mortgage and as a result, the Plaintiff commenced a foreclosure proceeding.

5. The Attorney for Plaintiff sent the Defendant a 150 Day Right to Cure Mortgage Default on October 7, 2013; (Plaintiffs Exhibit collective M)

6. On February 2, 2016, Plaintiff sent to Defendants an offer to address their mortgage deficiency which noted that there was missing information; (Plaintiffs Exhibit collective N)

7. This was followed up with an incomplete application final notice on April 19, 2016; (Plaintiffs Exhibit collective N)

8. On May 9, 2016 the Plaintiff conducted a foreclosure sale of the Property; (Plaintiffs Exhibit G)

9. On May 23, 2016 Plaintiff completed and recorded in the Dukes County Registry of Deeds as Document 85223 a Post Foreclosure Affidavit Regarding Note (Eaton Affidavit) evidencing possession of the Note executed by Kaitlyn E. Swisher Assistant Vice President of Plaintiff ; (Plaintiffs Exhibit E)

10. On February 21, 2019 the Plaintiff caused to be served on the Defendant a 72 Hour Notice to Vacate; (Plaintiffs Exhibit H)

11. On March 13, 2019 the Plaintiff caused to be served on the Defendant a Summary Process Summons and Complaint; (Plaintiffs Exhibit I)

12. The Defendant filed an answer and counterclaims denying Plaintiff's claims and asserting that the Plaintiff lacked standing to pursue this matter and violated M.G.L. c. 93A; (Plaintiffs Exhibit K)

The parties have since engaged in various motions to dismiss, partial summary judgment and in various discovery requests that ultimately resulted in the Plaintiff filing the attendant motion for summary judgment. On February 5, 2020, the Court heard oral argument and took the matter under advisement.


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). All evidentiary inferences must be resolved in favor of the non-moving party. See Simplex Techs, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196 , 197 (1999). Once the moving party meets its initial burden of proof, the burden shifts to the non-moving party "to show with admissible evidence the existence of a dispute as to material facts." Godbout v. Cousens, 396 Mass. 254 , 261 (1985). The non-moving party cannot meet this burden solely with "vague and general allegations of expected proof." Community National Bank, 369 Mass. at 554; Ng Brothers Construction, Inc. v Cranney, 436 Mass. 638 , 648 (2002) ("[a]n adverse party may not manufacture disputes by conclusory factual assertions; such attempts to establish issues of fact are not sufficient to defeat summary judgment").

To prevail in a summary process action involving foreclosed property (where the validity of the foreclosure is challenged) the Plaintiff claiming to be the post-foreclosure owner of the property must prove that it has a superior right of possession to that property over the claimed ownership right asserted by the defendants who were the pre-foreclosure owner/occupants. To prove this element of its claim for possession, the post-foreclosure plaintiff must show "that the title was acquired strictly according to the power of sale provided in the mortgage." Wayne Inv. Corp. v. Abbott, 350 Mass. 775 , 775 (1966). See Pinti v. Emigrant Mortg. Co., Inc., 472 Mass. 226 (2012); Bank of New York v. Bailey, 460 Mass. 327 (2011).

In the present case, the Court, after examining the record finds that the Plaintiff has clearly shown and the record indicates that it was the valid assignee of the underlying note and mortgage at issue. An examination of the chain of title clearly shows that the Plaintiff had standing to foreclose upon the mortgage and in fact complied with G.L. c. 183 s. 54B and other respective statutory requirements in doing so. The post foreclosure notice to include the notice to vacate and the summary process summons and complaint are also in compliance with the requisite standards. As such, I find the Plaintiff has the requisite standing to both foreclose and pursue this Summary Process action.

A review of the actual foreclosure documentation to include the entry, foreclosure deed, supporting Eaton and Pinti affidavits all indicate to the Court's satisfaction that the Foreclosure was validly conducted. Thus, I find that Plaintiff has established a prima facie case for its right to possession. Bank of New York v. Bailey, 460 Mass. 327 (2011).

The first issue raised by the Defendants in their opposition is that the Plaintiff failed to "substantially" comply with the notices sent to the Defendant prior to the foreclosure. An examination of the notices in question indicates that the Defendant was adequately notified of his right to reinstate and or cure the default by paying certain sums due. Defendant's reliance on the "strict" compliance aspect of Pinti v Emigrant Mortgage Co. 472 Mass. 226 (2015) is misplaced. In that decision the Court required lenders to strictly comply with the aspects of paragraph 22 of the standard FNMA/FHLMC mortgage form but applied that requirement prospectively after the date of the Pinti decision which was in 2015. In the present case, the notices were sent in 2011 almost four years prior to Pinti. As such I find that the Pinti standard does not apply to this case. More importantly, I find that the notice sent on June 6, 2011 (and other notices) was in substantial compliance with the requisite standards of informing the Defendant of the deficiency, the means to address it and the possibility of seeking legal redress of any underlying issues of concern.

While Massachusetts is indeed a non-judicial foreclosure jurisdiction there is no statute forbidding the Defendants to retain legal counsel to file the appropriate documentation via injunction or otherwise to stop a foreclosure sale from going forward. I do not find that a reasonable person being informed that they "have the right to bring a court action" could find that language misleading. The language informs the recipient that some form of proactive behavior, legal or otherwise, is required to address the pending foreclosure. The additional notices referred to by Defendant simply served to remind the Defendant of the default status and of his opportunities to cure said default. They did not materially change any of the terms or conditions outlined by the June 6, 2011 notice and a reasonable recipient should not have been confused or misled by their respective content.

Defendant next claims that he was unfairly or deceptively treated by the Plaintiff during the loan modification process. Again this argument is without merit. An examination of the documentation submitted by the Plaintiff strongly indicates that the Defendant failed to provide requisite information in support of his modification. The record indicates that Defendant never submitted a completed loan application. It is well established that a lender has no legal obligation to either offer or confirm a loan modification. The Appeals Court clarified this point in Santos v U.S. Bank Nat. Association, 89 Mass.App.Ct. Ct. 687 (2016) "no private right of action under HAMP. The obligations of the Plaintiff are defined by G.L. c. 244 s. 35B which requires a lender to "take reasonable steps and made a good faith effort to avoid foreclosure." In the present case, the Plaintiff had provided the Defendant with the necessary forms to complete and return. The Plaintiff also upon review of what was submitted granted the Defendant the opportunity to amend and complete his applications which he failed to do. I find that there is no question that Plaintiff considered and took reasonable steps to avoid foreclosing on the Defendants home and did not engage in unfair or deceptive behavior as alleged by Defendant.

Based upon the information provided by the Plaintiff by written motion which was supplemented by affidavits and documentation and finally oral argument, the Court finds that the Plaintiffs' have established a prima facie case and met the burden necessary to support its claim of a superior right to possession. Defendants have failed to raise any issues of material fact remaining in dispute and as such have failed to meet the standard necessary to defeat Plaintiffs motion for Summary Judgment.

At the end of the day this is a mortgage representing a secured interest in the Property that has not been paid in a long time. Based on the materials presented I find for the Plaintiff on its attempt to reclaim the value of the money loaned to the Defendant that has not been paid. To find otherwise would undermine the very integrity of the mortgage lending industry and result in ever higher costs related to borrowing money sufficient to purchase a home and pursue the American dream of responsible home ownership.


Based upon all the credible evidence submitted as part of the summary judgment record in light of the governing law, it is ORDERED that:

1. Judgment enters for the Plaintiff and against the Defendant on the Plaintiff's claim for possession, plus costs;

2. Having been presented with no evidence concerning Plaintiff's claim for use and occupancy damages, that claim is deemed waived without prejudice;

3. The remaining counterclaims (if any) of the Defendants not addressed by this order shall be transferred to the civil docket by motion of the Defendant no later than March 16, 2020.

4. Execution for possession shall issue ten (10) days from the date on which Judgment enters upon written request.



[Note 1] The mortgage was recorded at the Dukes County Registry of Deeds ("Registry") in Book 68 Page 99 as document 69131.