THOMAS R. WILLIAMS v. HUDSON CO-OPERATIVE BANK, EDWARD P. CALLAHAN, JR. and GAIL BELLIVEAU.

The plaintiff, Thomas R. Williams, and his former wife, Ione E. Williams, mortgaged their home on Crescent Street in Stow in the County of Middlesex to Hudson Co-operative Bank (the "Bank") by instrument dated February 26, 1968 and recorded with Middlesex South District Deeds, Book 11471, Page 707 (the "mortgage"). It is undisputed that it was a default in the mortgage note and the terms of the mortgage that caused the Bank to institute proceedings in this Court pursuant to the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, for a decree authorizing it to make entry for the purpose of foreclosing and an order authorizing the foreclosure of the mortgage under the power of sale contained therein. Judgment granting such relief was entered on April 11, 1978 and the entry and sale was approved on September 18, 1978.

In the intervening time the plaintiff filed a complaint against the Bank in the Superior Court Department to restrain the Bank from presenting the foreclosure papers for approval. A default judgment was entered against the Bank on January 4, 1979 which, thereafter, on January 19, 1979 was removed and the case transferred to this department. This Court thereupon granted the Bank's motion to answer late and ordered the complaint amended to add Edward P. Callahan, Jr. and Gail Belliveau, the buyers at the foreclosure sale, as parties. In his amended complaint the plaintiff alleges that the foreclosure proceedings were not conducted in good faith and in accordance with G.L. c. 244, §14.

A trial was held at this Court on April 27, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

G.L. c. 244, §14 provides that:

no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been published once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper, if any, published in the town where the land lies and notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed fourteen days prior to the date of sale to said owner or owners ••• to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage.

On all the evidence I find and rule that the purchase price of the premises at the foreclosure sale was $40,500, that the buyers also have paid the Town of Stow a sum in excess of $6,600 in delinquent real estate taxes, that the exterior of the house required painting and the roof needed to be repaired, that the water pump was malfunctioning, that there was no credible evidence to support the plaintiff's testimony that the fair market value was $75,000 and that the most shown was that the fair market value exceeded the purchase price as is usual under the circumstances. The plaintiff failed to show that the price paid was so grossly inadequate as to invalidate the sale. Chartrand v. Newton Trust Co., 296 Mass. 317 , 321 (1936).

Even if price alone is insufficient to invalidate the sale, the plaintiff claims that this fact together with the inadequate notice constitutes bad faith. On all the evidence I find and rule that the certified letter of June 20, 1978 notifying the plaintiff of the foreclosure sale was duly sent, that he received notice from the post office that a letter was being held but never procured it, that it was returned to the sender on July 6, 1978, that it was placed in the files of the attorney for the Bank who did not realize that it had not been received by the plaintiff. The plaintiff asserts that the mortgagee had a duty to renotify him before the sale. Such an obligation is not imposed by the strictures of G.L. c. 244, §14 which requires that notice of the impending foreclosure sale be "sent by registered mail to the owner or owners of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed fourteen days prior to the date of sale to said owner or owners ... to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage ...." This provision only requires that notice be mailed (not received) to the last address of record within fourteen days. The mortgagee complied.

The mortgagor cannot refuse to accept registered mail nor fail to obtain it from the post office and then claim notice to be defective. See Vincent Realty Corp. v. Boston, Mass. App. Ct. (1978). [Note 1]

Moreover, the plaintiff knew that he was in default on his mortgage for non-payment of principal and interest, real estate taxes and failure to insure. On March 2, 1978, he received a notice from the Land Court apprising him that foreclosure proceedings had been instituted. In June, he received notice from the post office that a certified letter was being held for him, yet he never claimed it. In fact, the plaintiff, upon reconsideration of his testimony on how often he had frequented the post office to obtain his mail, recalled that he had only made three or less trips between September, 1977 and July, 1978. Further, he had a history of inattention to postal notices. The notice of intention to foreclose dated September 22, 1977, sent to Williams by registered mail was returned unclaimed. Another notice sent by registered mail on January 13, 1978 was also returned unclaimed. If any party to this proceeding was dilatory or acted in bad faith it was the plaintiff. One cannot shut his eyes to a situation and then claim lack of knowledge.

Lastly, the plaintiff contends that the publication was deficient. He first attacks the description contained in the notice because it fails to describe the buildings, improvements, and omits the house number. The Supreme Judicial Court has held that a metes and bounds description of the premises to be sold is a sufficient description of it, Streeter v. Ilsley, 151 Mass. 291 , 292 (1890), and that a published notice of sale is adequate if it contains the same description as appears in the mortgage. Stickney v. Evans, 127 Mass. 202 , 203 (1879). Secondly, the plaintiff contends that the Hudson Daily Sun in which the statutory notices appeared has no circulation in Stow, but the evidence presented at the trial failed to establish this. It did appear that the auction was well attended, that there were at least four certified bidders and that bidding was active.

I therefore find and rule that the foreclosure was properly conducted in good faith in accordance with the provisions of G.L. c. 244, §14, see Andover Savings Bank v. Basha, 326 Mass. 725 (1951), and that the plaintiff is not entitled to the relief he seeks.

Judgment accordingly.