THE BANK OF NEW YORK MELLON CORPORATION, AS TRUSTEE FOR TBW MORTGAGE-BACKED TRUST 2007-1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-1 vs. DAVID WAIN and DONOVAN KERR

Plaintiff filed its unverified Complaint on February 6, 2012, pursuant to G. L. c. 240 § 6, G. L. c. 231A and G.L. c. 237, seeking, as owner of property located at 42 Monohansett Road, Nantucket, MA ("Locus") pursuant to a foreclosure sale, to quiet title to Locus. [Note 1] A case management conference was held on April 4, 2012. At that time Defendants David Wain and Donovan Kerr ("Kerr") filed their Answer, Affirmative Defenses and Counterclaim (the "Counterclaim"), seeking, (1) pursuant to G. L. c. 240, § 1, to try title to Locus, and (2) pursuant to G. L. c. 244, § 14, claiming an invalid foreclosure. On April 17, 2012, Plaintiff filed its Answer to Counterclaim.

Plaintiff filed its Motion for Summary Judgment on May 2, 2012, together with supporting memorandum. Defendants filed their Motion for Judgment on the Pleadings, or in the alternative, Motion for Summary Judgment on May 4, 2012, together with supporting memorandum and Affidavits of Donovan Kerr and Jamie Ranney, Esq. On May 14, 2012, Plaintiff filed its Opposition to Defendants' Motion. Defendants filed their Opposition to Plaintiff's Motion on June 4, 2012. Plaintiff filed its Reply memorandum on June 13, 2012, together with a Motion to Dismiss count one of the Counterclaim (try title). Defendants filed their Opposition to Plaintiff's Motion to Dismiss on July 13, 2012. A hearing on all motions was held on July 16, 2012, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In reviewing a Motion to Dismiss, courts examine the complaint or counterclaim to determine if, viewing its allegations and inferences broadly and in the non-moving party's favor, it appears beyond doubt that the non-moving party can prove no set of facts in support of their claim entitling them to relief. Boston Water & Sewer Comm'n v. Commonwealth, 64 Mass. App. Ct. 611 , 614 (2005), citing Hobson v. McLean Hosp. Corp., 402 Mass. 413 , 415 (1988).

I find that the following material facts are not in dispute:

1. On November 15, 2006, Defendants granted a mortgage (the "Mortgage") on Locus to Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Union Capital Mortgage Business Trust ("UCMBT") and its assigns. The Mortgage was recorded with the Nantucket County Registry of Deeds (the "Registry") on November 16, 2006, in Book 1050, Page 141. Section 22 of the Mortgage states in part, "If [a] default is not cured ... Lender may invoke the STATUTORY POWER OF SALE and any other remedies permitted by Applicable Law."

2. On July 14, 2010, MERS assigned the Mortgage to Plaintiff (the "Assignment"). The Assignment was recorded with the Registry on August 9, 2010 in Book 1240, Page 20. The Assignment was executed before a notary by Theresa Esposito ("Esposito"), a vice president of MERS.

3. On July 30, 2010, Plaintiff filed a complaint (the "SCRA Complaint") pursuant to the Servicemembers Civil Relief Act (10 MISC 435551) (the "SCRA Case"). With the SCRA Complaint, Plaintiff filed, inter alia, a mortgagee's affidavit (the "Mortgagee Affidavit"). The signatory on the Mortgagee Affidavit was Joanne Gonzalez, Assistant Secretary of American Home Mortgage Servicing, Inc. ("AHMSI"), as attorney in fact for Plaintiff. In the Mortgagee Affidavit, Ms. Gonzalez attested that prior to filing the SCRA Complaint, Plaintiff (or its agent) mailed to Defendants a ninety (90) day notice (the "Notice to Cure") pursuant to Chapter 206 of the Acts of 2007 (subsequently codified at G.L. c. 244 § 35A) (hereafter, "244 § 35A"). The Notice to Cure advised Defendants that Plaintiff intended to initiate foreclosure proceedings and that Defendants had ninety days to cure any default of the Mortgage.

4. A judgment was entered in the SCRA Case on February 4, 2011, and it was not appealed.

5. Plaintiff published a Notice of Mortgagee's Sale of Real Estate (the "Notice of Sale") in The Inquiring and Mirror on May 26, 2011, June 2, 2011 and June 9, 2011. The Inquiring and Mirror is a newspaper of general circulation on Nantucket. The Notice of Sale indicated a foreclosure auction date of 1 PM on June 16, 2011. The Notice of Sale was recorded with the Registry as Exhibit A to the Foreclosure Deed (as defined, infra) in Book 1306, Page 222.

6. On June 1, 2011, Plaintiff executed a power of attorney appointing AHMSI to act as its true and lawful attorney in fact to carry out various tasks on Plaintiff's behalf. Specifically, Plaintiff granted to AHMSI the power to complete a judicial or non-judicial foreclosure on its behalf.

7. Pursuant to an affidavit executed by Emmitt Wilson IV ("Wilson"), a vice president of AHMSI, on behalf of Plaintiff, dated July 28, 2011 (the "Affidavit of Sale"), a public proclamation was made at 1 PM on June 16, 2011, at Locus, postponing the foreclosure auction to 1 PM on July 19, 2011. The Affidavit of Sale also indicated that, pursuant to G.L. c. 244 § 14A, (1) the Notice of Sale was mailed to Defendants by certified mail at least fourteen (14) days prior to the original foreclosure auction date and (2) that the Notice of Sale was published in the Inquiring and Mirror (as described, supra). The Affidavit of Sale was recorded at the Registry with the Foreclosure Deed.

8. On July 19, 2011, the date of the foreclosure auction, Susan Witte ("Witte") made an unopposed, peaceful entry onto Locus for the purpose of foreclosing the Mortgage. William Fetz ("Fetz") and Chris Kearney ("Kearney") executed a certificate of entry (the "Certificate of Entry") attesting that they were present and saw Witte make entry onto Locus. [Note 2] Defendants dispute whether Fetz and Kearney were present at the time Witte made an entry onto Locus.

9. Plaintiff was the high bidder at the foreclosure auction. By deed dated July 26, 2011 (the "Foreclosure Deed"), Plaintiff, as holder of the Mortgage, conveyed Locus to Plaintiff for $552,500. The Foreclosure Deed was recorded with the Registry on December 21, 2011, in Book 1306, Page 222.

10. Kerr remains in possession of Locus.

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Plaintiff has filed a Motion for Summary Judgment seeking to quiet title to Locus and seeking a declaration that Plaintiff properly foreclosed on Locus. Defendants have filed a Motion for Judgment on the Pleadings or in the Alternative Summary Judgment, alleging that Plaintiff cannot seek relief in this court because it is not registered to do business in the Commonwealth of Massachusetts. Plaintiff has opposed Defendants' Motion for Judgment on the Pleadings or in the Alternative Summary Judgment. Defendants oppose Plaintiff's Motion for Summary Judgment. Plaintiff also filed a Motion to Dismiss the Counterclaim. I shall examine each issue in turn.

A. Conversion to Summary Judgment

i. Standard of Review

A motion for judgment on the pleadings pursuant to the Massachusetts Rules of Civil Procedure, Rule 12(c) functions as a motion to dismiss. Boston Water & Sewer Comm'n v. Commonwealth, 64 Mass. App. Ct. 611 , 614 (2005). Thus, the same standard of review that applies to a Rule 12(b)(6) motion to dismiss also applies to a Rule 12(c) motion. Id. "In evaluating a rule 12(b)(6) motion, we take into consideration the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account." Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). In the context of a Rule 12(c) motion, courts also consider the Answer. See Sampson v. Lynn, 405 Mass. 29 , 30 (1983).

A court may convert a motion to dismiss or a motion for judgment on the pleadings to a motion for summary judgment without notifying the parties if it is likely that neither party will be taken by surprise by the judge(s reliance on material outside the pleadings. See White v. Peabody Construc. Co., 386 Mass. 121 , 127-128 (1982) (motion to dismiss); Preferred Contrs. Inc. v. Conn. Gen. Life Ins. Co., 16 Mass. L. Rep. 219 (2003) (motion for judgment on pleadings). The submission by both parties of material beyond the pleadings can serve as constructive notice to the parties that the court would treat Defendants' motion as one for summary judgment pursuant to Mass. R. Civ. P. 56. See Martinez v. Harvey, 1992 Mass. App. Div. 79 , 80 (1992), citing White, 386 Mass. at 127-128. If the non-moving party is not prejudiced, then failure to notify the parties in advance is not reversible error. See White, 386 Mass. at 128.

The parties were on notice that their various motions would be treated as motions for summary judgment. First, Defendants' motion is captioned in the alternative as a Motion for Summary Judgment, and Plaintiffs' opposition motion was captioned as the same. See Preferred Contrs. Inc., supra. Second, Plaintiff's original motion was one for summary judgment. Finally, together with their respective motions and memoranda, both of the parties submitted evidence beyond the Complaint and Answer. As such, I shall treat all motions as Motions for Summary Judgment.

ii. Plaintiff is Not Registered to Do Business in the Commonwealth

Defendants raise as an affirmative defense the fact that Plaintiff should be, but is not, registered with the Secretary of State to do business in the Commonwealth, and therefore Plaintiff cannot sue in the courts of the Commonwealth. Plaintiff contends that it conducts business in interstate commerce and does not need to register with the Commonwealth.

G.L. c. 156D § 15.01, which requires registration with the Commonwealth in certain circumstances, reads: "[a] foreign corporation that transacts business or has a usual place of business in the commonwealth shall deliver the certificate required by section 15.03 to the secretary of state for filing." A corporation that is, among other things, either (1) conducting an isolated transaction that is not one in the course of repeated transactions of a like nature, or (2) transacting business in interstate commerce, is not required to register with the Secretary of State. See G.L. c. 156D § 15.01(c)(9-10). Ownership or leasing of real estate in the commonwealth constitutes transacting business. Id at § 15.01(b)(1)

Plaintiff does not contest the fact that it has not delivered a certificate to the Commonwealth pursuant to G.L. c. 156D. Plaintiff alleges that it is transacting business in interstate commerce, and therefore is not required to deliver a certificate to the Commonwealth.

Although there is no 'precise rule' for determining when a foreign corporation is engaged in interstate rather than Massachusetts commerce, it has been established that the constitutionally required minimal in-state contacts for purposes of subjecting a foreign corporation to the state's qualification requirements are greater than the contacts required for purposes of long arm jurisdiction. Monseco Leather, Inc., 1993 Mass. App. Div. at 161 citing Goodwin Bros. Leasing, Inc. v. Nousis, 373 Mass. 169 , 175 (1977).

Activity that is incidental to interstate commerce, such as a corporation's promotional activities, employment of several salespersons, and maintenance of an office and a bank account in the Commonwealth, is insufficient to trigger the requirement that a party deliver a certificate to the Commonwealth. Id.

Defendants argue that conducting a foreclosure sale constitutes "transacting business" in the Commonwealth. [Note 3] The parties have not produced any cases directly on point, in any state, that discuss whether a foreclosure is "per se" transacting business. Nonetheless, this court is not convinced that Plaintiff's business activities are merely incidental to interstate commerce. G.L. c. 156D § 15.01(b)(1) expressly states that ownership of real estate in the Commonwealth constitutes transacting business. This court has determined, infra, that after the foreclosure sale, Plaintiff took record and legal title to Locus and therefore owns real estate in the Commonwealth. Plaintiff is clearly engaged in the business of holding and/or investing in residential real estate mortgages. As a result of this business, and via the Foreclosure Deed, Plaintiff owns real estate in the Commonwealth. Ownership of real estate is not "merely incidental" to Plaintiff's engagements in interstate commerce.

Based on the foregoing, I find that Plaintiff is transacting business in the Commonwealth. Plaintiff's failure to deliver a certificate to the secretary of the Commonwealth, however, has no bearing on the validity of Plaintiff's business activities in the Commonwealth. See G.L. c. 156D § 15.02(e). Therefore, the business activities relating to the foreclosure sale are valid and cannot be set aside because of Plaintiff's failure to deliver a certificate.

The issue then becomes whether Plaintiff has access to courts in this state to defend the Counterclaim. "[A] foreign corporation transacting business in the commonwealth without delivering to the secretary of state for filing the certificate required by section 15.03 shall not maintain a proceeding in any court in the commonwealth until the certificate is delivered and filed." G.L. c. 156 D § 15.02(a). [Note 4], [Note 5] There is no statutory language, however, prohibiting an entity from either transacting business or defending a lawsuit in the Commonwealth without first delivering the certificate to the Commonwealth. In fact, G.L. c. 156D § 15.02(e) states:

[T]he failure of a foreign corporation to deliver to the secretary of state for filing the certificate required by section 15.03 shall not impair the validity of its corporate acts or prevent it from defending any proceeding in the commonwealth, or affect the validity of any contract entered into by the foreign corporation.

In the case at bar, Defendants filed the Counterclaim against Plaintiff seeking to require Plaintiff to try the title to Locus, pursuant to G.L. c. 240 §§ 1-5, and seeking a declaration that the foreclosure was invalid as Plaintiff did not strictly comply with G.L. c. 240 § 14. In effect, Defendants are forcing Plaintiff to bring its action to establish title to Locus.

There are thus two steps to a try title action: the first, which requires the plaintiff to establish jurisdictional facts such that the adverse claimant might be 'summoned to show cause why [he] should not bring an action to try [his] claim,' and the second, which requires the adverse claimant either to disclaim the relevant interest in the property or to bring an action to assert the claim in question. Bevilacqua v. Rodriguez, 460 Mass. 762 , 766 (2011), citing Blanchard v. Lowell, 177 Mass. 501 , 504-505 (1901) (emphasis supplied)

Even if Plaintiff failed to file a certificate with the secretary of state, Plaintiff is not prohibited from defending its legal rights in this court. See G.L. c. 156D § 15.02(e). A finding on the validity of the foreclosure sale will determine whether Defendants have record and legal title to Locus, which is a threshold jurisdictional requirement to maintaining a try title action. In addition, assuming that Defendants can satisfy the jurisdictional facts to maintain a try title action, Plaintiff can defeat the Counterclaim by proving it has superior title to Defendants. The jurisdictional facts and the merits on the Counterclaim therefore require Plaintiff to establish its title through the principals articulated in U.S. Bank v. Ibanez, 458 Mass. 637 (2011), as discussed, infra.

The Counterclaim affords Plaintiff the opportunity to come into court and defend its actions relative to Locus, the Mortgage, and the foreclosure process. Based on the foregoing, I find that this court can rule on the substantive legal issues in this dispute because Plaintiff is defending its rights pursuant to the Counterclaim and its Answer thereto.

B. Plaintiff's Standing to Foreclose

i. Validity of Assignment of Mortgage

Part and parcel of Plaintiff's claim of superior title to Locus requires a finding that Plaintiff had standing to foreclose the Mortgage. Plaintiff contends that it can prove a valid chain of assignment of the Mortgage from MERS to Plaintiff. Defendants contend that the Assignment was invalid, and put forth a litany of concerns purporting to demonstrate that the Assignment was not only invalid, but was fraudulent. Plaintiff replies that Defendants have no standing to challenge the Assignment because they were not a party to the Assignment, and even if Defendants have standing to challenge the Assignment, that the Assignment was legal, valid, and effective.

One of the terms of the power of sale in a mortgage that must be strictly adhered to is the restriction on who is entitled to foreclose. The "statutory power of sale" can be exercised by "the mortgagee or his executors, administrators, successors or assigns." G.L. c. 183 § 21. Pursuant to G.L. c. 244 § 14, "[t]he mortgagee or person having his estate in the land mortgaged, or a person authorized by the power of sale, or the attorney duly authorized by a writing under seal, or the legal guardian or conservator of such mortgagee or person acting in the name of such mortgagee or person" is empowered to exercise the statutory power of sale. Any effort to foreclose by a party lacking "jurisdiction and authority" to carry out a foreclosure under these statutes is void. United States Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 , 647 (2011). A party seeking to establish title via a foreclosure sale must prove that the foreclosing entity was the mortgage holder at the time of the notice of sale and foreclosure, or was one of the parties authorized to foreclose under G. L. c. 183 § 21, and G. L. c. 244 § 14. Id. at 651 (emphasis supplied). The foregoing is also true in the context of a try title claim. See Bevilacqua, supra at 893-894.

The chain of title in the case at bar is simple and clear. On November 15, 2006, Defendants granted a mortgage on Locus to MERS, as nominee for UCMBT. MERS was the mortgagee of record until July 14, 2010, when it executed the Assignment. The Assignment was recorded in the Registry on August 9, 2010. The first Notice of Sale was published in the Inquiring and Mirror on May 26, 2011, nearly one year after the Mortgage was assigned from MERS to Plaintiff. The simple and clear chain of title to the Mortgage indicates that Plaintiff was the holder of the Mortgage at the time Plaintiff first published the Notice of Sale in the Inquiring and Mirror.

Defendants concede that the foregoing is an accurate narrative with respect to the Mortgage(s record chain of title; however, Defendants contend that the record chain is contaminated by invalidity and fraud. [Note 6] Defendants' allegations are irrelevant as a matter of law because Defendants do not have standing to challenge the Assignment.

An assignment is a contract and the fact that the rights assigned are mortgage rights does not alter the legal characteristic of an assignment. See Oum v. Wells Fargo, N.A., 842 F.Supp.2d 407, 413 (2012), citing Brand v. Suburban Land Co., 299 Mass. 336 , 336-337 (1938). To challenge or to prosecute a contract, Defendants must either be a party to the contract or an intended third party beneficiary. Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 445 Mass. 458 464 (2009). As a longstanding commercial practice, a mortgagor is not an intended beneficiary of an assignment of a mortgage. Oum, 842 F.Supp.2d at 413.

There is no shortage of Massachusetts cases discussing the issue of whether a mortgagor has standing to challenge an assignment of his or her mortgage. The large majority of decisions interpreting Massachusetts law have ruled that mortgagors lack standing to challenge an assignment of their mortgage. See e.g. Oum, 842 F.Supp.2d. at 413 (mortgagor suffered no injury as result of assignment of mortgage); Wenzel v. Sand Canyon Corp., 841 F. Supp. 2d 463 (2012) (Boal, M.J.) (plaintiffs have no standing to seek a declaration that the assignment of their mortgage was invalid); Culhane v. Aurora Loan Servs. of Nebraska, 826 F. Supp. 2d 352 (2011) (Young, J.) ("homeowner-mortgagor, as non-parties to the assignments of their mortgages, are left with little recourse where they suspect impropriety."); Peterson v. GMAC Mortg., LLC, 2011 U.S. Dist. LEXIS 123216 (2011) (Zobel, J.) ("plaintiffs have no legally protected interest in the Mortgage assignment from MERS to GMAC and therefore lack standing to challenge it.") In each of the above cited cases, the respective courts have reasoned that, as to the borrower, the owner of the mortgage is irrelevant. Even if the mortgage changes hands, the borrower is nonetheless obligated to pay the underlying debt. [Note 7]

Defendants also contend that Ibanez gives them an independent right to challenge an assignment of mortgage. In Ibanez, the SJC held that "[a]ny effort to foreclose by a party lacking 'jurisdiction and authority' to carry out a foreclosure . . . is void." Ibanez, 458 Mass. at 647. In Ibanez, however, the issue was whether the foreclosing entity owned the mortgage at the time of publication of a notice of sale. In the case at bar, it is clear that Plaintiff owned the Mortgage at the time it published the Notice of Sale in the Inquiring and Mirror, as discussed infra. As such, the issues in Ibanez are inapposite to this dispute. See also Oum, supra, at 414-415 (Ibanez does not give mortgagor a right to challenge an assignment of mortgage).

After a comprehensive review of the relevant case law, this court chooses to adopt the majority rule that a mortgagor has no standing to challenge the validity of an assignment of its mortgage. Defendants have no economic interest in the Assignment, thus they cannot challenge the validity thereof. There is no serious question that Defendants are in default of the terms of the Mortgage and underlying note. The fact that MERS has assigned the Mortgage to Plaintiff has no bearing on Defendants' obligation to pay money due and owing on the underlying note. Even if MERS had not assigned the Mortgage, Defendants would still be in default on the Mortgage and the note, and someone would be entitled to foreclose. As such, the Assignment itself has not caused any direct economic injury to Defendants. Based on the foregoing, I find that Defendants do not have standing to challenge the validity of the Assignment. [Note 8]

ii. Unification of Note and Mortgage:

Defendants contend that in order to exercise the power of sale in a mortgage, Massachusetts law requires that the foreclosing entity must prove that it is a holder of both the mortgage and the underlying note. Defendants allege that Plaintiff does not hold the note and cannot procure an original copy of the same. G.L. c. 244 § 14 states in relevant part "[t]he mortgagee .. may, upon breach of condition and without action, do all the acts authorized or required by the power [of sale]..." Many courts have wrestled with the definition of mortgagee - specifically, whether a "mortgagee" must hold both the note and the mortgage.

Recently, the SJC has stated "we construe the term 'mortgagee' in G. L. c. 244 § 14, to mean a mortgagee who also holds the underlying mortgage note." Eaton v. Fannie Mae, 462 Mass. 569 , 584 "2012). The SJC ruled that this holding, that a "mortgagee" foreclosing under power of sale must also hold the note, shall be enforced prospectively only:

we exercise our discretion to hold that the interpretation of the term "mortgagee" in G. L. c. 244 § 14, and related statutory provisions that we adopt in this opinion, is to apply only to mortgage foreclosure sales for which the mandatory notice of sale has been given after [June 22, 2012.] Id. at 588-589. [Note 9]

As such, this court does not need to determine whether Plaintiff was the holder of the note. Based on the foregoing and the above discussion regarding the validity of the Assignment, I find that Plaintiff is a "mortgagee" under the Mortgage entitled to exercise the power of sale pursuant to G.L. c. 244 § 14.

C. Validity of Foreclosure Sale

i. Notice to Cure

Defendants claim that Plaintiff failed to mail to Defendants the Notice to Cure, and as a result, Plaintiff is not entitled to enforce its rights under the Mortgage. Generally speaking, 244 § 35A requires a mortgagee to provide notice to a mortgagor that it intends to foreclose the mortgagor's interest in the mortgaged property. The notice must also inform the mortgagor that he or she has ninety (90) days to cure any default. [Note 10] The notice and an affidavit attesting to compliance with 244 § 35A must be filed with the Land Court in any action to foreclose. The Notice to Cure must be mailed to a mortgagor before a mortgagee can take preliminary measures to enforce its rights in a mortgage, e.g. file a Complaint to foreclose. On the other hand, the Notice of Sale is published and must be sent registered mail to a mortgagor much later in the process, at least thirty days before the mortgagee intends to sell the mortgaged property at a foreclosure auction.

Defendants allege that Plaintiff did not send the Notice to Cure to Defendants, and they rely on an affidavit of Kerr. In his affidavit, Kerr attests that he has no "independent recollection" of ever receiving the Notice to Cure. Although Defendants allege in their motion that Plaintiff failed to send the Notice to Cure, Kerr does not attest to this allegation.

The evidence submitted by Plaintiff convinces this court that Plaintiff complied with 244 § 35A. First, Plaintiff, via its agent, AHMSI, attested in the Mortgagee Affidavit that it mailed the Notice to Cure pursuant to 244 § 35A. This attestation is sufficient to defeat Defendants' bald assertion that they never received the Notice to Cure. See Juarez v. U.S. Bank N.A., 2011 U.S. Dist. LEXIS 128087 (2011) (attestation that mortgagee sent notice of foreclosure sale pursuant to G.L. c. 244 § 14 defeats mortgagor's bare allegation that such notice was never received). Even if Kerr did not receive the Notice to Cure, 244 § 35A merely requires that Plaintiff mail the Notice to Cure to Kerr.

Moreover, a copy of the Notice to Cure is further evidence that Plaintiff complied with 244 § 35A. The copy is addressed to Defendants at Locus and contains the various information points required by 244 § 35A, e.g. Defendants' right to cure its default. Even if Kerr does "not independently recall" receiving the Notice to Cure, that does not mean it was not mailed to him. Based on the foregoing, I find that Plaintiff complied with 244 § 35A and is entitled to enforce its rights under the Mortgage, i.e. foreclose on Locus. [Note 11]

ii. Methods of Foreclosure

To prove that it has a superior claim to the title to Locus, Plaintiff must demonstrate that it strictly complied with the statutory power of sale requirements of G.L. c. 183 § 21 and G.L. c. 244 §§ 14-15. As a result of this valid foreclosure by power of sale, Plaintiff contends that the Foreclosure Deed passed title of Locus to Plaintiff. As evidence that it strictly complied with the power of sale, Plaintiff claims that the Affidavit of Sale, a copy of which was appended to Plaintiff's Motion for Summary Judgment, complies in all aspects with G.L. c. 244 §§ 14-15. Plaintiff argues that the Affidavit of Sale is proof in and of itself that Plaintiff strictly complied with G.L. c. 244 § 14.

Defendants challenge whether the Affidavit of Sale is sufficient to prove that Plaintiff complied with G.L. c. 244 § 14. Defendants also challenge the validity of the entry for possession made by Plaintiff on the basis that the person making the entry had no authority to do so and that there were not two witnesses present at the entry, as required by G.L. c. 244 § 2.

In Massachusetts, there are two primary foreclosure methods: (1) foreclosure under power of sale, and (2) foreclosure by entry and possession. Sometimes, a mortgagee will conduct a foreclosure by power of sale, together with a peaceful entry pursuant to G.L. c. 244 §§ 1-2. Power of sale and entry and possession are distinct from one another, and a mortgagee may validly foreclose using either of these methods. See Wornat Dev. Corp. v. Vakalis, 403 Mass. 340 (1988).

iii. Foreclosure by Power of Sale

Plaintiff maintains that it strictly complied with the power of sale granted to it by the Mortgage and recognized by G.L. c. 183 § 21 [Note 12]. In their Answer and Counterclaim, Defendants allege that Plaintiff did not publicly proclaim that the foreclosure auction would be postponed from June 16, 2011 to July 17, 2011. [Note 13] Under G.L. c. 244 § 14 [Note 14] the mortgagee must publish a notice of foreclosure sale in a newspaper published in the town where Locus lies, in this case, Nantucket, for three consecutive weeks. The mortgagee must also send notice of foreclosure sale to the mortgagor via registered mail. Pursuant to G.L. c. 244 § 15 [Note 15], an affidavit attesting to publication and notice to mortgagor must be recorded at the Registry.

Together with its motion for summary judgment, Plaintiff submitted to this court a copy of the Affidavit of Sale pursuant to G.L. c. 244 §§ 14-15. The affiant, Wilson, Vice President of AHMSI, attests that the sale was "postponed by public proclamation" from June 16, 2011, to July 17, 2011. Wilson also attests that the Notice of Sale was published in the Inquiring and Mirror, a newspaper of general circulation on Nantucket, and that the required statutory notices were sent by certified mail [Note 16] to Defendants. Exhibit A attached to the Affidavit of Sale is a copy of the Notice of Sale published in the Inquiring and Mirror. The Affidavit of Sale is evidence that Plaintiff strictly complied with G.L. c. 244 § 14, and as such it shall be admitted as evidence that the statute was complied with. See G.L. c. 244 § 15; G.L. c. 183 § 8; Fannie Mae v. Hendricks, 2012 Mass. LEXIS 987 (Mass. Oct. 26, 2012) (affidavit of sale is "evidence that the power of sale was duly executed").

Although Defendants challenge the Affidavit of Sale, stating non-compliance with G.L. c. 244 § 14, they have not introduced one iota of evidence to prove that the attestations therein are false. Defendants' pleadings are barren of any bases of proof supporting their factual contention that Plaintiff has not satisfied the procedural requirements of G.L. c. 244 § 14. Defendants do not allege that the Notice of Sale was neither published nor mailed to them via certified mail; they only challenge that the date of the foreclosure auction was wrong. The Notice of Sale, published in the Inquiring and Mirror, states that the foreclosure sale was scheduled to be June 16, 2011; however, the foreclosure sale actually took place on July 19, 2011. The Affidavit of Sale states that the sale was "postponed by public proclamation" at the original foreclosure auction date. Defendants' Answer and Counterclaim alleges there was no such proclamation. There is no affidavit in this regard and Defendants' briefs do not expound on this factual contention.

After weighing the evidence, I find that with respect to the public proclamation of a delay in the foreclosure sale, the facts contained in the Affidavit of Sale, attested to by Wilson, are more credible than the unsupported contention in Defendants' Answer. Moreover, Plaintiff was not required to advertise the postponement of sale. If there is no evidence that a postponed foreclosure sale "was for an inadequate price, or that there was not a good number of bidders present" then the sale should not be voided. See Fitzgerald v. First National Bank of Boston, 4 LCR 131 , 133 (1996), citing Way v. Dyer, 176 Mass. 448 , 450 (1900). In the case at bar, there is no evidence that Defendants did not have notice of the amended foreclosure sale date [Note 17] and there is no evidence that the foreclosure sale was for an inadequate price.

Based on the foregoing, I find that the foreclosure sale strictly complied with the statutory power of sale pursuant to G.L. c. 244 § 14, and therefore the Foreclosure Deed, as recorded, passed legal and record title to Locus to Plaintiff.

iv. Right of Entry and Possession

Plaintiff contends that its agent, Witte, made a peaceful, unopposed entry onto Locus. [Note 18] In support of this contention, Plaintiff has submitted to the court the Certificate of Entry, which is notarized and executed by Fetz and Kearney, alleged witnesses to the entry. Defendants maintain that Witte had no authority to act on behalf of Plaintiff and that the Certificate of Entry is wrought with fraud. Because I have found that Plaintiff took title to Locus via a legitimate foreclosure sale and corresponding Foreclosure Deed, it is irrelevant to examine whether Plaintiff may have made a peaceful, unopposed entry in furtherance of a foreclosure by entry and possession. [Note 19]

D. Counterclaim

In the two-count Counterclaim, Defendants engage in an all out assault on the validity of the foreclosure of Locus. In count one, Defendants seek to require Plaintiff to try the title to Locus and force Plaintiff to prove that its title to Locus is superior to that of Defendants. As a preliminary matter of standing with respect to the try title aspect of the Counterclaim, this court must determine whether (1) Defendants are in possession of Locus and (2) whether Defendants have record and legal title to Locus. Bevilacqua v. Rodriguez, 460 Mass. 762 , 766 (2011). In count two, Defendants allege an invalid foreclosure pursuant to G.L. c. 244, § 14.

Both counts in the Counterclaim have been addressed, supra, i.e. Plaintiff's standing to foreclose pursuant to the Assignment, and the validity of the foreclosure sale. There is no dispute that Kerr continues to live at Locus. On the other hand, the Foreclosure Deed recorded with the Registry passed record title to Locus to Plaintiff. As the SJC articulated in Bevilacqua, however, a single recorded deed is insufficient to establish record title in the face of an alleged invalid foreclosure. See id at 771. Accordingly, the inquiry into record title requires this court to examine the validity of the foreclosure of Locus. Pursuant to the foregoing analysis herein, Plaintiff had standing to foreclose, and Plaintiff carried out the statutory power of sale in compliance with all applicable laws. Plaintiff was the high bidder at the foreclosure auction, and Plaintiff took record title to Locus via the Foreclosure Deed.

The issues in Plaintiff's Motion for Summary Judgment are exactly the same issues that are raised in the Counterclaim. In the context of the Counterclaim, this court has determined that Plaintiff validly foreclosed and took record and legal title to Locus. This is the exact determination and relief that Plaintiff requested in its Motion for Summary Judgment. Accordingly, I ALLOW Plaintiff's Motion for Summary Judgment and DENY Defendants' Motion for Summary Judgment.

Judgment to enter accordingly.