This case presents a single issue, determined solely on the facts. Did a mortgage foreclosure auction of plaintiff John Vances condominium unit, 731A Somerville Avenue in Somerville, take place at the noticed date and time? Mr. Vance claims it did not. Defendants NationStar and Federal National Mortgage Association claim that it did. Obviously, only one side is correct.
A trial was held before me, jury-waived, to resolve this issue. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the weight and credibility of the evidence admitted, particularly the credibility of the witnesses who testified, and as set forth below, I find and rule that the auction took place and Mr. Vances uncorroborated testimony to the contrary is simply not believable.
Facts and Analysis
Certain facts were not contested in this case. Mr. Vance is the owner of the property located at 729-731A Somerville Avenue in Somerville, a former multi-family converted into four condominium units. Mr. Vance lives in one of those units (Unit 731) and rents the others to tenants. The building and unit numbers are clearly identified on the front of the structure which is right on the street.
On April 29, 2010, defendant NationStar Mortgage LLC was the holder by assignment of a mortgage granted by Mr. Vance on Unit 731A, a tenant-occupied space. Mr. Vance was in default of that mortgage and the underlying promissory note it secured, and a foreclosure sale was duly noticed for April 29, 2010 at 9:00 a.m.
Here, the parties narratives diverge. Mr. Vance claims that he was on-site that day, both before and after 9:00 a.m., with a clear view of the street in front of his building at all times. By his account he watched at first from his second-floor bedroom window, went outside at 9:00 a.m. where he stood on the front porch for few moment, walked up and down the sidewalk thereafter until 9:15 or so, and saw no one but his tenants getting into their cars to leave for work and a steady stream of pedestrians going to and from the nearby Porter Square commuter rail and subway station. Mr. Vance had previously filed affidavits from the tenants of Unit 731A, each identically phrased, in which they claimed to be present at 9:00 a.m. and did not witness any auction, but none of those witnesses have ever been cross-examined and none were called to testify at trial. [Note 1]
The defendants testimony was starkly different. The auctioneer (TerryAnne St. Pierre) and her colleague and G.L. c. 244, § 1 entrant [Note 2] (Timothy Dibble), at least initially, [Note 3] had no specific memory of this particular auction, [Note 4] but each testified that they would never have signed the foreclosure documents (Foreclosure Auction Agreement (Apr. 29, 2010) (Trial Ex. 1); Certificate of Entry (Apr. 29, 2010) (Trial Ex. 2)) unless the foreclosure auction had taken place, properly and as scheduled, beginning at 9:00 a.m. on April 29 and concluding, as the documents reflect, at 9:18. The key witnesses, however, were the two individuals who attended the auction (Greg Megerdicnian and Marques Williams), neither of whom had any affiliation or relation to the plaintiff or defendants, and each of whom had a clear and precise memory of what occurred on that day. Both testified that they were present from 9:00 a.m. onwards on April 29 and personally witnessed the auction activities. They have a distinct memory of this auction because of their familiarity with and interest in the building (it is on a main street in Somerville, very near Porter Square). Mr. Megerdicnians testimony was particularly certain after seeing and hearing Mr. Vance testify at trial (Mr. Vance has a distinctive, somewhat formal, appearance and style of speech).
Having heard all of the testimony, I find that the auction and foreclosure sale took place as noticed. I believe the testimony of Ms. St. Pierre, Mr. Dibble, Mr. Megerdicnian and Mr. Williams and do not believe Mr. Vance. My assessment of credibility is further buttressed by Mr. Vances failure to call any of his tenants to corroborate his version of events. Even if they refused to come voluntarily (and I am not persuaded they actually were asked), they were subject to subpoena, and I conclude from their absence that their testimony would not have been favorable to Mr. Vance.
For the foregoing reasons, the plaintiffs complaint, premised solely on the factually incorrect assertion that the foreclosure auction and sale did not take place as noticed, is DISMISSED IN ITS ENTIRETY, WITH PREJUDICE. Judgment shall enter accordingly.
Keith C. Long, Justice
Dated: 24 November 2010
[Note 1] Affidavit of Amit Ramakrishnan (Jul. 9, 2010); Affidavit of Shreyan Poudyal (Jul. 9, 2010); Affidavit of Albin Anthony (Jul. 9, 2010). None of those affidavits was offered into evidence at trial and, as hearsay, would have been stricken or denied had they been offered.
[Note 2] I place quotation marks around the word entrant because Mr. Dibble testified that he does not typically go inside any of the properties for which he signs a certificate of entry. In general, he stands outside the outer door or on an entryway and reads the entry document. Whether this constitutes an entry sufficient for G.L. c. 244, § 1 purposes is a question I need not and do not decide in this case.
[Note 3] After seeing Mr. Vance and listening to his testimony at trial, Mr. Dibble was recalled to the stand with his memory refreshed regarding the events of the day. He particularly remembers seeing Mr. Vances tenants get into their car, and Mr. Vance standing in his doorway staring at him during the auction.
[Note 4] Ms. St. Pierre testified that she conducts between 600 and 800 auctions a year. Mr. Dibble assists at one or more auctions each week.