SUNTRUST MORTGAGE INC. v. ALFRED FORSBERG

Introduction

Plaintiff SunTrust Mortgage Inc., to which defendant Alfred Forsberg granted a note and mortgage on his condominium Unit 15-3 at 110 W. Main Street in Hyannis, conducted a foreclosure sale on that property after Mr. Forsberg defaulted on his obligations. [Note 1] It did so, however, in the name of SunTrust Mortgage LLC (an entity that has never existed), putting that name on its Servicemember’s Civil Relief Act complaint (resulting in judgment in that name), [Note 2] the mailed and posted notice of foreclosure sale, and the newspaper publication of that notice. It has now brought this case to remove the cloud on title caused by that misnomer, alleging it was a simply an inadvertent, immaterial “scrivener’s error.” Mr. Forsberg, representing himself pro se, disagrees, and contends that the foreclosure sale was invalid because of it.

SunTrust has now moved for summary judgment on its claims. A telephonic hearing was held to address Mr. Forsberg’s request for additional time to respond to that motion and be excused from traveling to Boston for oral argument. That request was allowed, with Mr. Forsberg directed to respond, paragraph by paragraph, to the plaintiff’s “Concise Statement of Material Facts” by either admitting the fact or denying it and, if a fact was denied, to reference specific evidence supporting his contention regarding the denial — “presumably a sworn affidavit based on personal knowledge or otherwise admissible” — and to attach all relevant documents. Notice of Docket Entry (Jun. 7, 2012). [Note 3] In addition, Mr. Forsberg was directed to make “all appropriate legal arguments in response to the plaintiff’s summary judgment motion,” after which the motion would be decided on the papers, without oral argument. Id. His response was to file a document and attachments captioned “Answer and Motion to Dismiss.” (Jul. 17, 2012).

Neither Mr. Forsberg’s “Answer and Motion to Dismiss,” nor any of the documents attached to it, contained a verification or other authentication, and no affidavits of any kind were submitted. Most, if not all, of the arguments it contained consisted of affirmative claims outside this court’s jurisdiction [Note 4] and either were, or could have been, the subject of an earlier case brought by Mr. Forsberg in federal court, now dismissed. Forsberg v. SunTrust LLC, et al., United States District Court for the District of Massachusetts, Civil Action No. 10-11701-RGS. Focusing solely on the issues properly before me and the admissible evidence submitted in connection with those claims, I rule as follows.

The Summary Judgment Standard

Summary judgment, governed by Mass. R. Civ. P. 56, is appropriately granted when there are no genuine issues of material fact on the claims at issue in the motion and judgment may be entered on those claims as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983), Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The burden of proving both the absence of a genuinely contested issue of material fact and entitlement to judgment as a matter of law is on the party seeking summary judgment. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). A party is also entitled to summary judgment if it is able to demonstrate that proof of an essential element of the other party’s claim, of which the other party would have the burden of proof at trial, is unlikely to be forthcoming. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991).

A fact is genuinely in dispute only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 248. See also Mulvihill v. The Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003); Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993).

Factual matters must be shown by admissible evidence. Otherwise, they may not be considered. That evidence can come from “pleadings, [Note 5] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with...affidavits, if any...” if, but only if, the evidence contained therein is in admissible form, Mass. R. Civ. P. 56(c), or subject to judicial notice, Correllas v. Viveiros, 410 Mass. 314 , 317-318 (1991). Affidavits must “be made on personal knowledge,..set forth such facts as would be admissible in evidence, and ... show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 56(e). Sworn or certified copies of all papers referenced in an affidavit must be attached to or served with that affidavit. Id. “Affidavits fail to comply with the Rule when they are not made on personal knowledge, contain impermissible speculation or conclusory language, do not show affirmatively that the witness is competent to testify to the matters stated, or otherwise fail to set forth facts which would be admissible in evidence.” Apex Constr. Co., Inc. v. United States, 719 F. Supp. 1144, 1151 (D. Mass. 1989). These same requirements apply to interrogatory responses, Sweda Int’l, Inc. v. Donut Maker, Inc., 13 Mass. App. Ct. 914 (1982), and deposition testimony, Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456 , 465 n.10 (1997) (deponent’s mere “feeling” that testator unaware of what he was signing inadequate to create genuine issue of material fact); Mitchell v. TAC Technical Servs., Inc., 50 Mass. App. Ct. 90 , 91 n.3 (2000) (hearsay statement, and merely deponent’s opinion, unacceptable); Glaz v. Ralston Purina Co., 24 Mass. App. Ct. 386 , 387 (1987) (judge properly disregarded deposition excerpts that were conclusory in nature and based on hearsay).

Once facts have been properly established, the inferences to be drawn from those facts must be viewed in the light most favorable to the party opposing summary judgment. Atty Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370 (citations omitted). However, the inferences drawn must be reasonable ones. “Even in cases where elusive concepts such as motive and intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

When a properly supported summary judgment motion has been made, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Mass. R. Civ. P. 56(e) (emphasis added). See also Land Court Rule 4; Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989); Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949 , 950 (1983), rev. den. 391 Mass. 1104 (1984) (“[s]ummary judgment is not a casual procedure. It is a proceeding that bids fair to be dispositive of the case and casual or supine reaction to a moving party’s affidavits is not a minor error.”).

Facts, Either Undisputed or Not in Genuine Dispute

The following facts are either undisputed or not in genuine dispute. [Note 6]

On September 18, 2006, Mr. Forsberg executed a promissory note (the “note”) in favor of SunTrust Mortgage Inc. in the amount of $284,000 in connection with condominium Unit 15, Building 3, at 110 W. Main Street in Hyannis (the “condominium”). The condominium was a second home for Mr. Forsberg, whose residence is in Yonkers, New York. Instead of using it himself, he rented it to tenants.

On the same date he signed the note (September 18, 2006), Mr. Forsberg granted a mortgage on the condominium to Mortgage Electronic Registration Systems Inc. (“MERS”) as nominee for SunTrust Mortgage Inc. in the amount of $284,000 (the “mortgage”). The mortgage was duly recorded in the Barnstable Registry of Deeds and encumbers the condominium.

Mr. Forsberg subsequently defaulted on the mortgage and, at some point, filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Southern District of New York. In re: Alfred Olof Forsberg, Case No. 09-23715-RDD. The Bankruptcy Court granted relief from the automatic stay, allowing SunTrust Mortgage Inc. and its successors and assigns to enforce its rights in, and remedies in and to, the condominium property, with all surplus monies received by any sale of the property to be turned over to the Chapter 7 trustee. Order Terminating Automatic Stay (Jan. 11, 2010).

On May 28, 2010, the mortgage was assigned from MERS to SunTrust Mortgage Inc. The written and executed Assignment of Mortgage was duly recorded at the Registry.

On June 9, 2010, a Servicemember’s Civil Relief Act complaint was filed in this court (Case No. 10 MISC. 431624) naming Mr. Forsberg as the defendant and SunTrust Mortgage LLC as the plaintiff. This use of “SunTrust Mortgage LLC” was an inadvertent scrivener’s error, unnoticed at the time. The complaint should have named SunTrust Mortgage Inc. as the plaintiff since SunTrust Mortgage Inc. was the holder of the note and mortgage, and there is no such entity as SunTrust Mortgage LLC. The complaint explicitly referenced the SunTrust Mortgage Inc. mortgage by giving its registry Book and Page.

On September 7, 2010, notice of the Servicemember’s action was hand-delivered to Mr. Forsberg’s home in New York by a duly authorized process server, who also mailed an additional copy to Mr. Forsberg at that address. Repeating the earlier error, each named SunTrust Mortgage LLC rather than SunTrust Mortgage Inc.

Default judgment in the Servicemember’s case entered on October 19, 2010 (Scheier, C.J.), finding that Mr. Forsberg was not entitled to the benefits of the Servicemember’s Civil Relief Act. This finding is correct. Mr. Forsberg has neither alleged nor shown, either then or in these proceedings, that he has any entitlement to those benefits. The judgment was recorded at the Registry on November 10, 2011.

On September 21, 2010, a Notice of Mortgage Foreclosure Sale was mailed to Mr. Forsberg at his address in New York, setting the auction for October 21, 2010. The Notice was also published in the Cape Cod Times on September 29, 2013, October 6, 2010 and October 13, 2010. [Note 7] Repeating the earlier error, each of them named SunTrust Mortgage LLC rather than SunTrust Mortgage Inc. as the party conducting the sale.

On October 5, 2010, Mr. Forsberg challenged the scheduled foreclosure by filing an action, pro se, in the United States District Court for the District of Massachusetts. Forsberg v. Land Court, Civil Action No. 10-CV-11701-RGS. The named defendants were the Land Court, [Note 8] Sun Trust Bank, Sun Trust LLC, the Barnstable District Court, [Note 9] Richard Brooks, [Note 10] John Julius and Douglas Holt d/b/a Today Real Estate, [Note 11] Mortgage Electronic Registration Systems Inc., the Trustees of the Cape Cod Melody Village Condominium Trust, [Note 12] Harmon Law Offices [Note 13] and the Cape Cod Times. Mr. Forsberg’s complaint contained a request for “an immediate cease and desist order against SunTrust’s sale of my property in Hyannis,” which the court (Stearns, J.) denied. To cure the pleading deficiencies in the complaint as noted by the court, Mr. Forsberg subsequently filed an amended complaint and a second amended complaint, each again challenging the validity of the foreclosure sale and each seeking that the foreclosure be enjoined or the resulting sale vacated. After reviewing those amendments, the court dismissed, pre-service, all the named defendants except SunTrust Bank, SunTrust LLC and the Harmon Law Offices. Mr. Forsberg then proceeded to serve those defendants. SunTrust timely responded, using its correct corporate name of SunTrust Mortgage Inc. [Note 14]

The foreclosure auction took place on October 21, 2010 as set forth in the Notices. SunTrust Mortgage Inc. was the high and successful bidder. Mr. Forsberg moved to vacate that sale in the federal court action, and that motion was denied on December 20, 2010. The denial was “without prejudice” at that time, but the court noted that “any renewal must be made in a coherent pleading filed in accordance with the procedural rules.” Order (Dec. 20, 2010). The remaining defendants subsequently moved to dismiss the case in its entirety, and that motion was allowed on April 21, 2011. Mr. Forsberg’s motion to reopen the case “to argue new illegal activities” was denied on August 2, 2011.

This action was filed on June 15, 2011, when SunTrust realized the Servicemember proceedings and the foreclosure notices mis-named it SunTrust Mortgage LLC rather than SunTrust Mortgage Inc. The suit seeks a declaration that the mis-nomer does not create a “cloud on title” — in effect, a declaration that the mis-nomer did not invalidate the foreclosure sale. SunTrust subsequently conducted a foreclosure by entry on October 21, 2011, doing so in its correct name, with the corresponding Certificate of Entry recorded at the Registry on November 10, 2011 in the correct name of SunTrust Mortgage Inc. An assignment of bid and a foreclosure deed, both from SunTrust Mortgage Inc. to the Federal National Mortgage Association and both dated August 30, 2011, were also recorded on November 10, 2011.

Analysis

Mr. Forsberg’s Standing to Bring this Action

I begin by noting a point the parties did not argue. Does Mr. Forsberg have standing to bring this action? So far as the record shows, he filed for Chapter 7 bankruptcy, listing this condominium — rented to tenants, not his home — as an asset. The bankruptcy court then entered an order lifting the automatic stay to allow SunTrust Mortgage Inc. to proceed with its foreclosure sale. Any surplus funds were to be turned over to the bankruptcy Trustee. I take this as a ruling that the condominium was part of the assets available to Mr. Forsberg’s creditors, not an asset outside the bankruptcy or otherwise to be retained by Mr. Forsberg. If that is so, any claim related to the validity of the foreclosure would seem to be the bankruptcy Trustee’s to bring, not Mr. Forsberg’s. The point is one I need not and do not decide, however, because I enter judgment on other grounds.

The Previous Federal Court Case and Its Dismissal of Mr. Forsberg’s Request to Vacate the Foreclosure Sale Is Res Judicata of His Challenge to The Foreclosure Sale in This Action, Precluding Its Assertion

Mr. Forsberg’s federal court case challenged the validity of SunTrust’s foreclosure and sought to have it vacated. It did not explicitly raise the “misnomer” ground, but it did not need to do so to have preclusive, res judicata effect. “Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action. This is based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.” Kobrin v. Bd. of Registration in Medicine, 444 Mass. 837 , 843 (2005) (emphasis added) (internal citations and quotations omitted).

“The invocation of claim preclusion requires three elements: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” Id. Here, the parties are identical — Mr. Forsberg and SunTrust Mortgage Inc., identified by and represented in its proper name in the federal court case. There was a prior final judgment on the merits — the federal court’s dismissal of Mr. Forsberg’s lawsuit by the granting of SunTrust’s motion to dismiss. And the “cause of action” for res judicata purposes is identical. As the cases hold:

A claim is the same for res judicata purposes if it is derived from the same transaction or series of connected transactions. What factual groupings constitute a “series”, are to be determined pragmatically. Whether the facts are related in origin or motivation and whether they form a convenient trial unit are among the considerations. The underlying policy reason for the bar of former adjudication is that parties and the judiciary should be spared repetitive actions based on the same wrong. Claim preclusion, the category of former adjudication with which we are concerned, recognizes that the same policy applies when a specific rearticulation of the claim (through expression of a new theory of grounds for relief), arising out of the same life situation, could have been, but was not, raised in the prior litigation.

Saint Louis v. Baystate Medical Center Inc., 30 Mass. App. Ct. 393 , 399 (1991) (internal citations and quotations omitted). See also TLT Construction Corp. v. A. Anthony Tappe & Associates Inc., 48 Mass. App. Ct. 1 , 8 (1999) (“The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, agreement, and seeks redress for the same wrong.”) (internal citations and quotations omitted). In both this case and the federal case, the “transaction” at issue is the foreclosure sale.

In Any Event, the Misnomer of SunTrust Mortgage Inc. as “SunTrust Mortgage LLC” in the Servicemember Case and In the Foreclosure Notices Was a Minor, Immaterial Error That Does Not Invalidate the Foreclosure Sale

I need not and do not decide whether misnaming SunTrust Mortgage Inc. as SunTrust Mortgage LLC affects the validity of the judgment in that case because the validity of the foreclosure is not dependent upon that judgment. As Beaton holds, “[i]f a foreclosure were otherwise properly made, failure to comply with the 1940 Relief Act would not render the foreclosure invalid as to anyone not entitled to the protection of that act.” 367 Mass. at 390. Here, the record clearly indicates that Mr. Forsberg was not entitled to those protections and I so find. He has neither contended nor shown otherwise. SunTrust has standing to obtain that judgment because it was the holder of both the note and mortgage at the time of the foreclosure sale, and it can obtain that judgment post-foreclosure in a quiet title action such as this. See HSBC Bank USA N.A., 464 Mass. at 197 & 203-204.

Whether the misnomer in the Notice of Mortgagee’s Sale of Real Estate invalidates that sale is a more interesting and closer question. G.L. c. 244, § 14 requires that notice of a foreclosure auction be (1) “sent by registered mail” to the mortgagor and “all persons of record” holding junior interests in the property and (2) published “in a newspaper, if any, published in the town where the land lies or in a newspaper with general circulation in the town where the land lies” at least “once in each of three successive weeks, the first publication to be not less than twenty-one days prior to the date of sale.” The purpose of such publication is to ensure, for the benefit of the mortgagor whose equity interest is about to diminish or disappear and who may face personal liability for the full amount of any deficiency, that a sufficient number of likely bidders learn of the sale so that competition, and thus the highest price, will result. [Note 15] See Roche v. Farnsworth, 106 Mass. 509 , 513 (1871). G.L. c. 244, § 14 is thus, broadly speaking, a consumer protection statute and, as the courts have repeatedly made clear, one that requires “strict compliance” with its notice provisions. Bottomly v. Kabachnick, 13 Mass. App. Ct. 480 , 484 (1982) and cases cited therein.

One of those requirements is that the notice identify “the holder of the mortgage”; failure to do so renders the “sale void as a matter of law.” Id. at 483-484. Here, the present holder was identified as “SunTrust Mortgage LLC” when, in fact, it was SunTrust Mortgage Inc. The issue, therefore, is whether this omission invalidates the sale or is simply a minor scrivener’s error of the type that the statute will excuse. I find and rule that it does not invalidate the sale. The notices referenced SunTrust (in a corporate capacity) [Note 16] as the holder of the mortgage at the time of the sale, and the mortgage referenced in those notices showed SunTrust Mortgage Inc. as the mortgagee. The name in which notice was published thus falls within the “degree of clearness” that G.L. c. 244, § 14 requires. [Note 17] See Roche v. Farnsworth, 106 Mass. 509 , 513 (1871).

Conclusion

For the foregoing reasons, I find and rule that defendant Alfred Forsberg was not entitled to the protection of the Servicemember’s Civil Relief Act, 50 U.S.C. §§ 510 et seq., as amended, at the time of foreclosure. I also find and rule that service and publication of the notice naming SunTrust Mortgage LLC rather than SunTrust Mortgage Inc. does not invalidate the foreclosure sale. In any event, Mr. Forsberg is precluded by res judicata from arguing otherwise.

Judgment shall enter accordingly.

SO ORDERED.