ONEWEST BANK, FSB v. HEIRS, DEVISEES, LEGAL REPRESENTATIVES OF ESTELLE VIIRRE, A/K/A ESTELLE VIRRE; CHARLES M. SABATT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ESTELLE VIIRRE; WAYNE VIRRE; RONALD CORNWELL; BARRY CORNWELL, and JUNE (CORNWELL) NISKALA.

Plaintiff OneWest Bank, FSB (“OneWest”), the holder of a reverse mortgage that is in default, seeks a declaration that language concerning the power of sale in the reverse mortgage is the equivalent of the statutory power of sale language in G. L. c. 183, §21, so as to allow foreclosure to proceed. Plaintiff filed a motion for summary judgment, and no defendant filed any opposition or appeared at the hearing on the motion for summary judgment, which was held on April 30, 2015. For the reasons stated below, the motion for summary judgment is ALLOWED.

FACTS

The following material facts are found in the Rule 56 record and are undisputed for the purposes of the motion for summary judgment:

1. Estelle Viirre, the owner of property at 201 Bristol Avenue, Hyannis in the town of Barnstable, granted a “Home Equity Conversion Mortgage”, commonly known as a “reverse mortgage”, to Financial Freedom Senior Funding Corporation to secure a debt of $469,342.50 (the “reverse mortgage”). The reverse mortgage was recorded with the Barnstable Registry District of the Land Court (“Registry”) on October 26, 2005 as Document No. 1016956 and was noted on Certificate of Title No. 132339.

2. Paragraph 9 of the reverse mortgage provides in relevant part that one of the grounds for immediate acceleration of the debt secured by the mortgage is the death of the borrower.

3. Paragraph 20 of the reverse mortgage provides as follows: “Foreclosure Procedure. If Lender requires immediate payment in full under Paragraph 9, Lender may invoke the power of sale and any other remedies permitted by applicable law…At this sale, Lender or another person may acquire the Property. This is known as “foreclosure and sale.”

4. Estelle Viirre died on July 17, 2012, entitling the mortgagee to accelerate the debt and declare the debt to be in default if it was not reinstated by Estelle Viirre’s heirs within thirty days.

5. Financial Freedom Senior Funding Corporation assigned the reverse mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”) by an assignment dated September 28, 2009 and recorded with the Registry as Document No. 1126200 and noted on Certificate of Title No. 132339.

6. MERS assigned the reverse mortgage to OneWest Bank, F.S.B. by an assignment dated February 12, 2013 and recorded with the Registry as Document No. 1214963 and noted on Certificate of Title No. 132339.

7. Following Ms. Viirre’s death, Financial Freedom Senior Servicing Corp., on behalf of OneWest Bank, F.S.B., accelerated the debt and declared the loan secured by the reverse mortgage to be in default. Ms. Viirre’s estate has not reinstated the loan and the reverse mortgage in accordance with the terms of the reverse mortgage, and the loan remains in default.

DISCUSSION

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c).

The plaintiff filed this action seeking a declaratory judgment that the power of sale contained in the reverse mortgage, although not in strict conformity with the Statutory Power of Sale in G. L. c. 183, §21, is sufficiently similar to the Statutory Power of Sale so as to permit foreclosure in accordance with G. L. c. 183, §21 and G. L. c. 244, §14. Paragraph 20 of the reverse mortgage does not precisely track the language of the Statutory Power of Sale. However, it invokes the “power of sale”, and it incorporates other remedies “permitted by applicable law.” I find that the other applicable law invoked as applicable, includes G. L. c. 183, §21. Provided that the mortgagee complies with the requirements of G. L. c. 183, §21 as if the Statutory Power of Sale was referenced in the reverse mortgage, and with the requirements of G. L. c. 244, §14 and other applicable law relating to foreclosure of mortgages, there is no reason not to find that the power of sale contained in paragraph 20 of the reverse mortgage serves the same function as the Statutory Power of Sale. This is the same result reached by the Land Court in The Massachusetts Company v. Midura, Land Court Case No. Misc. 214697, 3 LCR 139 (1995), in which the court found that language in a mortgage providing for a foreclosure but failing to specifically invoke the Statutory Power of Sale, “serves the same function as the language of G. L. c. 183, §21 pertaining to the statutory power of sale.” Similarly, in Financial Freedom Acquisition, LLC v Afifi, Land Court Case No. 11 Misc. 447291, the Land Court considered a mortgage provision identical to the one at issue in the present case, and found it to be “tantamount to the ‘statutory power of sale’ as set forth in G. L. c. 183, §21.”

For the reasons stated above, I find and rule that the language of paragraph 20 is the functional equivalent of the Statutory Power of Sale as found in G. L. c. 183, §21, and accordingly, plaintiff’s motion for summary judgment is ALLOWED.

Judgment shall enter accordingly.