CITIBANK, N.A., AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2006-3, MORTGAGE-BACKED PASS-THROUGH CERTIFICATES SERIES 2006-3, v. DAVID GLOWACKI AND ELLEN GLOWACKI.

This case arises out of a foreclosure sale, at which the plaintiff mortgagee purchased the subject property. The mortgagee seeks to quiet title and also seeks a writ of seisin giving it possession of the subject property. The defendant mortgagors seek a determination that the foreclosure is void because the mortgagee did not strictly comply with paragraph 22 of the mortgage. This case is before the court on remand from the Appeals Court in light of the Supreme Judicial Court's decision in Federal Nat'l Mortg. Ass'n v. Marroquin, 477 Mass. 82 (2017), issued while the present action was on appeal, ruling that the requirement announced in Pinti v. Emigrant Mortg. Co., Inc., 472 Mass. 226 (2015), that mortgagees strictly comply with paragraph 22 of the mortgage or its equivalent shall apply to all cases pending in the trial court or on appeal at the time of the Pinti decision.

PROCEDURAL HISTORY

This case commenced on August 16, 2012, with the complaint of Citibank, N.A., as Trustee for American Home Mortgage Assets Trust 2006-3, Mortgage-Backed Securities Pass­Through Certificates Series 2006-3 ("Citibank") seeking declaratory relief, in the form of a judgment pursuant to G. L. c. 240, § 6, quieting its title to the property at 35 Pine Crest Drive, Nantucket (the "Property"), and also seeking a writ of seisin and damages for rents and profits pursuant to G. L. c. 237, all following a March 7, 2012 foreclosure sale.

Prior to the filing of the present action, the defendants, David Glowacki and Ellen Glowacki (the "Glowackis") filed an "S-Petition" case regarding the Property, which is registered land. [Note 1] The Glowackis moved, pursuant to Mass. R. Civ. P. 12(b)(l), 12(b)(6), and 12(b)(9) to dismiss the present case on the grounds that the S-Petition case was a prior pending action relating to the same parties and issues. Citibank moved to consolidate the two cases. The court (Grossman, J.) denied the motion to dismiss and denied the motion to consolidate (on the basis of a lack of identity of the issues and the parties), but did consolidate the two cases "for administrative purposes only."

Subsequently, Citibank filed a motion for summary judgment. In an Order dated June 2, 2014, the court (Grossman, J.), denied the motion for summary judgment, but did resolve several of the issues in the case. In ruling that Citibank properly possessed the mortgage at the time of the foreclosure and therefore had standing to foreclose, the court disposed of arguments by the Glowackis that Citibank had failed to show that Mortgage Electronic Recording Systems, Inc. ("MERS") had authority to assign the mortgage to Citibank and that Citibank had failed to show that it had possession of the underlying promissory note so as to give it standing to foreclose.

The court noted that recent cases, including Eaton v. Federal Nat'l Mortg. Ass'n, 462 Mass. 569 (2012), Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160 (2014), and Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202 (2014), had disposed of these arguments. The court also ruled that the Glowackis were without standing to challenge compliance of the assignment of the mortgage from MERS to Citibank with the New York laws governing the securitization trust into which the mortgage had been transferred.

The court's decision denying Citibank's motion for summary judgment left open and unresolved only two issues: (I) whether the Glowackis' defense that the right to cure notice sent to the Glowackis violated G. L. c. 255, § 35A, and if so, whether such defects rendered the foreclosure void or voidable, was barred by the holding in US. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421 (2014); and (2) whether the manner in which the foreclosure sale was postponed violated the requirements in G. L. c. 244, § 14, relating to notice of the foreclosure sale.

On May 11, 2015, Citbank filed a renewed motion for summary judgment. After the Glowackis submitted their opposition to the renewed motion for summary judgment, the SJC issued its decision in Pinti v. Emigrant Mortg. Co., Inc., holding that strict compliance with the notice of default provisions of paragraph 22 in a mortgage is required as a condition of a valid foreclosure sale. 472 Mass. at 227. The SJC, however, stated that its decision was to be applied prospectively only to cases in which the notice of default was sent after the date of the Pinti decision. Id. at 243. Despite the Glowacki notice of default having been sent years prior to the Pinti decision, both parties argued the Pinti issue at the hearing on Citibank's motion.

On December 23, 2015, the court (Speicher, J.) granted Citibank's motion and declared that it complied with the requirements of the statutory power of sale in conducting the foreclosure. While taking notice of the Pinti issue, the court determined that because of Pinti's prospective effect, the Glowackis' argument on that point could not serve as a basis for rendering the foreclosure sale or subsequent foreclosure deed void. The Glowackis' appeal followed. While the appeal was pending, the SJC rendered its decision in Marroquin, holding that the Pinti decision applies to any case pending in the trial court or on appeal at the time of the Pinti decision. Federal Nat'l Mortg. Ass'n v. Marroquin, supra, 477 Mass. at 83. Consequently, the Appeals Court vacated this court's decision and remanded the case for proceedings consistent with the holding in Pinti.

Citibank now again renews its motion for summary judgment on the basis that it did strictly comply with paragraph 22 of the mortgage and, therefore, the foreclosure was valid.

FACTS

The material undisputed facts pertinent to this motion for summary judgment are as follows:

1. The Glowackis granted a mortgage (the "Mortgage") naming MERS as the "Mortgagee" and American Brokers Conduit as the "Lender." The Mortgage was executed on June 2, 2006, was recorded as Document No. 116529 with the Land Court District of the Nantucket County Registry of Deeds ("Registry") on June 7, 2006, and was noted on Certificate of Title No. 22259.

2. The Mortgage secured a promissory note (the "loan") to American Brokers Conduit, signed by the Glowackis, dated June 2, 2006, in the amount of $1,540,000.

3. Paragraph 22 of the Mortgage provides as follows:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the STATUTORY POWER OF SALE and any other remedies permitted by Applicable Law. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence. [Note 2]

4. Pursuant to a Pooling and Servicing Agreement ("PSA") effective July 1, 2006, Citibank became the owner of the loan, Wells Fargo became the master servicer of the loan, and American Home Mortgage Servicing, Inc. ("American Home") became a subservicer of the loan. [Note 3]

5. American Home serviced the loan until June 30, 2008. [Note 4] American Home went into bankruptcy and sold its servicing rights to another company, which subsequently changed its name to American Home Mortgage Servicing, Inc. ("AHMSI"). [Note 5] AHMSI began servicing the loan on July 1, 2008.

6. On February 10, 2009, AHMSI sent a "right to cure" notice of default (the "Notice") addressed to the Glowackis at the Property. The Notice identified American Brokers Conduit as the loan originator.

7. The Notice provided, in paragraph 4, as follows:

If you do not cure this default by the Cure Deadline, the entire unpaid balance of the loan may be accelerated and become due and payable immediately, and we may take steps to terminate your ownership in the property by foreclosure proceedings or other action to seize the home. If a foreclosure sale occurs, all occupants will be required to vacate the property.

In paragraph 8, the Notice provided:

If foreclosure proceedings are initiated, you have certain rights, including the right to reinstate after acceleration and the right to bring any defenses that may exist to the acceleration and sale, including a court action to assert the nonexistence of default.

8. MERS assigned the Mortgage to Citibank by a written assignment dated May 12, 2010, and recorded with the Registry as Document No. 130854 on July 12, 2010, and noted on Certificate of Title No. 22259.

9. Citibank filed a Complaint to Foreclose Mortgage under the Servicemembers Civil Relief Act ("Servicemembers Act") on July 7, 2010. Judgment entered in favor of Citibank on January 12, 2011. A copy of the complaint with a notation that judgment had entered was filed with the Registry on April 17, 2012, as Document No. 136769 and was noted on Certificate of Title No. 22259.

10. Citibank filed in the Servicemembers Act case an affidavit pursuant to G. L. c. 244, § 35A (e), dated May 26, 2010, certifying that it had sent a so-called "right to cure" notice as required by G. L. c. 244, § 35A, to the Glowackis. Citibank attached a copy of the Notice to the affidavit.

11. On November 15, 2011, Citibank executed a Limited Power of Attorney appointing AHMSI as "Servicer" of the Glowackis' Mortgage (among others) and to take actions with respect to the Mortgage including the foreclosure of the mortgage and the sale of the foreclosed property.

12. On March 7, 2012, AHMSI, acting under the Limited Power of Attorney, conducted a foreclosure sale at the Property, at which Citibank purchased the Property for $1,062,500.00.

13. A foreclosure deed dated March 15, 2012, conveying the Property to Citibank, was recorded at the Registry on April 17, 2015, as Document No. 136773, and was noted on Certificate of Title No. 24217.

14. Recorded at the Registry with the foreclosure deed was an affidavit of sale pursuant to G. L. c. 244, § 15, certifying compliance with G. L. c. 244, § 14, and with the requirements of the power of sale as contained in the Mortgage.

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 , 643-644 (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. Constr., supra, 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. Constr., supra, 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 Notice of Default

The Glowackis argue that the foreclosure is void because the Notice AHMSI sent to them did not strictly comply with paragraph 22 of the Mortgage ("Paragraph 22"). First, they argue that Paragraph 22 requires that the lender, and not the servicer, send any notice of default and that AHMSI was not the lender. Second, they argue that paragraph 8 of the Notice ("Paragraph 8") failed to sufficiently inform them of the rights provided to them under Paragraph 22, constituting a failure to strictly comply with Paragraph 22. Each of these arguments is considered below.

1. Notice of Default Not Sent by Lender

Paragraph 22 provides, in relevant part, "[l]ender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument ...." At issue is whether a servicer, acting with the authorization of the lender, may send the notice referenced in paragraph 22 of a standard mortgage. [Note 6]

Massachusetts appellate courts have concluded, post-Pinti, that"[a] servicer may act as authorized by a lender." Valdez v. Federal Nat'l Mortg. Ass'n, 89 Mass. App. Ct. 1129 , n.7 (2016) (Rule 1:28 Opinion), citing Eaton v. Federal Nat'l Mortg. Ass'n, supra, 462 Mass. at 571 (construing "mortgagee" as used in foreclosure statutes to include "person or entity . . . acting on behalf of the note holder"). This rule has been applied to the "right to cure" notice mortgagees are required to send under G. L. c. 244, § 35A, and the foreclosure statutes found in G. L. c. 244, §§ 11-17C, and G. L. c. 183, § 21. See Eaton v. Federal Nat'l Mortg. Ass'n, supra, 462 Mass. at 586 (interpreting foreclosure statutes to allow authorized agent to "stand in shoes" of mortgagee); Sullivan v. Kondaur Capital Corp., supra, 85 Mass. App. Ct. at 210 (foreclosing mortgagee not in possession of note must demonstrate it acts as authorized agent for note holder). It follows that a servicer, acting with the authority of the note holder, may send the notice provided for in paragraph 22 of a mortgage. See Valdez v. Federal Nat'l Mortg. Ass'n, supra, 89 Mass. App. Ct. at 1129, n.7 (determining no merit to mortgagor's assertion notice not strictly in compliance with paragraph 22 of mortgage because servicer and not original lender sent notice). See also Anderson v. Nationstar Mortg., LLC, 172 F. Supp. 3d. 371, 376 (D. Mass. 2016); HMC Assets, LLC v. Conley, 2016 WL 4443152, at *22 (D. Mass. 2016); Galvin v. US. BankNat'l Ass'n, 2015 WL 1014549, at *4 (D. Mass 2015) ("Paragraph 22 does not require the lender to personally send the default notice"). Cf. Haskins v. Deutsche Bank Nat'l Trust Co., 86 Mass. App. Ct. 632 ,640 (2014) (in context of statutory notice provisions in G. L. c. 244, § 35A, purpose to provide necessary information to contact party holding relevant information about loan and party authorized to enter discussions to possibly modify loan "[i]n the circumstances of loans such as the one here, that party is the mortgage servicer"). Notably, the notice in Haskins, sent by the servicer instead of the lender, was held not to violate G. L. c. 244, § 35A, even though it misidentified the servicer as the mortgagee. The court's reasoning was that, for the purposes of the notice of default, and when viewed in the context of the need for the mortgagor to be able to communicate with one authorized to provide information about the loan, and to whom payments may be made, an authorized servicer is the mortgagee. In this context, "it is sensible to consider the servicer within the scope of parties encompassed by the term 'mortgagee'...."Id. at 641. This reasoning is no less compelling when considering whether the notice to be sent by the "lender" as required by Paragraph 22, has been complied with strictly, than it was in considering compliance of the same notice with G. L. c. 244, § 35A.

Although the Glowackis argue that the "Definitions" section of the mortgage defines "Lender" as American Brokers Conduit, the mortgage document must be taken as a whole. The plain language in the mortgage, found at paragraph 20, states that the loan can be sold without prior notice to the mortgagor, that such a sale might result in a change in the loan servicer, and that even without a sale of the loan the loan servicer may change. Citibank produced evidence, through Crystal Kearse's undisputed deposition testimony, that ownership of the loan passed to Citibank pursuant to a PSA effective July 1, 2006. Ms. Kearse testified at deposition that under the PSA, Wells Fargo became the master servicer of the loan and that Wells Fargo's authority derived from the PSA; AHMSI, as the subservicer, derived its authority pursuant to a written agreement with Wells Fargo. [Note 7] Therefore, AHMSI acted with Citibank's authority when it sent the Notice to the Glowackis. It would be illogical to rule that only the entity holding the note-­here, Citibank--and not its authorized agent, can send the notice of default, when an authorized agent not in possession of the note can execute the power of sale and foreclose a property on behalf of the note holder. See Eaton v. Federal Nat'l Mortg. Ass'n, supra, 462 Mass. at 586 (foreclosing mortgagee need not possess note to effect valid foreclosure if acting as authorized agent of note holder). The mischief Pinti and Marroquin sought to remedy in requiring strict compliance with paragraph 22 of the mortgages in those cases relates to the information the mortgage contract promises a mortgagor will receive in the notice of default, discussed infra. Cf. Haskins v. Deutsche Bank Nat'l Trust Co., supra, 86 Mass. App. Ct. at 640 (explaining "evident purpose of the notice required by [G. L. c. 244] § 35A is to 'give a mortgagor a fair opportunity to cure a default before the debt is accelerated and before the foreclosure process is commenced through invocation of the power of sale'" (citation omitted)).

To the extent the Glowackis argue that the Notice is defective because it does not identify the lender, the case they rely on for this proposition relates to the failure to identify the holder of the mortgage in a notice of sale, not in a notice of default. See US. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 , 648 (2011) (foreclosing entity must hold mortgage at time of publication of notice of sale). Accordingly, the fact that AHMSI sent the Notice cannot serve as a basis for showing that the Notice did not strictly comply with Paragraph 22.

2. Contents of the Notice of Default

The Glowackis next contend that the Notice failed to strictly comply with Paragraph 22 because it did not sufficiently inform them of their right to bring a court action to challenge the existence of a default.

The statutory power of sale provided in G. L. c. 183, § 21, allows a mortgagee to conduct a foreclosure without obtaining judicial authorization. See US. Bank Nat'l Ass'n v. Ibanez, supra, 458 Mass. at 645-646. "Section 21 expressly requires, however, that to effectuate a valid foreclosure sale pursuant to a power of sale, the mortgagee must 'first comply[] with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale."' Pinti v. Emigrant Mortg. Co., Inc., supra, 472 Mass. at 232, quoting G. L. c. 183, § 21. In Pinti, the SJC determined that strict compliance with the terms of a mortgage extends to "the provisions requiring and prescribing the preforeclosure notice of default." Pinti v. Emigrant Mortg. Co., Inc., supra, 472 Mass. at 236. The Court held that if the notice of default does not strictly comply with paragraph 22 of the standard mortgage, the subsequent foreclosure by statutory power of sale is void. See id. at 227, 232. Although the Pinti holding was prospective, in Federal Nat'l Mortg. Ass'n v. Marroquin, the SJC ruled that the Pinti decision applies to any case, like the present action, in which the issue was raised in the trial court or on appeal before July 15, 2015. Federal Nat'l Mortg. Ass'n v. Marroquin, supra, 477 Mass. at 83.

Paragraph 22 of the Glowackis' mortgage details the requisite notice to be given in the event of a mortgagor's breach and provides in relevant part:

"The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default may be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non­existence of a default or any other defense of Borrower to acceleration and sale" (emphasis added).

Thus, Paragraph 22 of the mortgage unequivocally requires that the notice must inform the mortgagor that he or she has the right to bring a court action to show that the mortgage is not in default. The Notice that AHMSI sent to the Glowackis contains the following language in Paragraph 8: "If foreclosure proceedings are initiated, you have certain rights, including the right to reinstate after acceleration and the right to bring any defenses that may exist to the acceleration and sale, including a court action to assert the nonexistence of a default." (emphasis added). Like the notices found deficient by the SJC in Pinti and Marroquin, the Notice sent by AHMSI introduces contingencies to the mortgagors' rights that do not square with the unequivocal rights of which Paragraph 22 requires the mortgagee to inform the borrower.

In Pinti, the notice of default informed the borrowers that they would have the right to assert any defenses they may have "in any lawsuit for foreclosure," which the court found could mislead the borrowers into believing that they could wait for the mortgagee to institute a lawsuit for foreclosure, when in fact, Massachusetts is a non-judicial foreclosure state in which the mortgagee would not need to bring an action to exercise the statutory power of sale. Pinti v. Emigrant Mortg. Co., supra, 472 Mass. at 227. Similarly, in Marroquin, the notice sent by the mortgagee was deficient because it introduced contingencies to the rights that Paragraph 22 requires be absolute. The Marroquin notice provided, incorrectly, that the borrower "may, if required by law," have the right to cure the default, and "may" have the right to bring a court action to assert the non-existence of a default or to raise any other defenses. Federal Nat'l Mortg. Ass'n v. Marroquin, supra, 477 Mass. at 89-90. Both of these notices "watered down" the Paragraph 22 rights of the borrower. Id. at 90.

Similarly, in the present case, the Notice sent by AHMSI inexplicably, unnecessarily, and inexcusably introduces a contingency to the rights otherwise stated without contingency in Paragraph 22.

A plain reading of Paragraph 8 of the Notice indicates that upon receipt of the Notice, the Glowackis must then wait for some future event to occur before they can assert their rights; the beginning phrase "[i]f foreclosure proceedings are initiated" essentially operates as a condition precedent to the Glowackis' ability to assert their rights. It begs the question, what is the foreclosure proceeding that triggers the Glowackis' rights? The Glowackis contend that this is a slippery slope and the so-called "foreclosure proceedings" could be the publication of the notice of sale or even the sale itself. Citibank counters that the steps it began taking in response to the Glowackis' default constitute the foreclosure proceedings and that Paragraph 22 is itself conditional--if the Glowackis had not breached the terms of the mortgage by defaulting, Paragraph 22 would not have gone into effect. This argument ignores the fact that Paragraph 22 unequivocally requires that the Glowackis be informed of their right to bring a court action to assert the non-existence of a default, and does not condition that right on the commencement of "foreclosure proceedings," whatever they might be. Further, if, as argued by Citibank, the sending of the notice of default itself was enough to constitute the commencement of foreclosure proceedings, the condition precedent would have already been satisfied, and the phrase, "If foreclosure proceedings are initiated" would be mere surplusage.

Furthermore, the analyses of the foreclosure process in Haskins and Schumacher are contrary to Citibank's position that the Notice is part of a foreclosure proceeding. In Schumacher, the SJC examined the purpose of the "right to cure" statute, G. L. c. 244, § 35A ("§ 35A"), and explained that the statute gives mortgagors who fall behind on their mortgage payments a chance to cure the default. 467 Mass. at 430. Reasoning that a mortgage foreclosure means "termination of all rights of the mortgagor or his grantee in the property covered by the mortgage," the SJC concluded that the§ 35A notice is not part of the foreclosure proceedings because the purpose of § 35A "strongly suggests that a homeowner's right to cure a default is not the first step in terminating the mortgagor's rights." Id. at 430-431 (internal citation omitted). Likewise, in Haskins, the Appeals Court acknowledged the SJC's conclusion that a § 35A notice is not part of the foreclosure process and determined that the purpose of a § 35A notice is simply to give a mortgagor the information necessary to cure the default. 86 Mass. App. Ct. at 640. Similar to the purpose that a § 35A notice serves, the notice of default required by paragraph 22 of a standard mortgage serves to alert the mortgagor of the default, the right to cure the default, and what will occur if the default is not cured. It cannot be said that the notice of default constitutes part of a foreclosure proceeding. Rather, it provides a mortgagor with notice of how to prevent the institution of foreclosure proceedings.

Citibank argues that Paragraph 8 of the Notice should be read in conjunction with Paragraph 4 of the Notice. Paragraph 4, however, does not help Citibank's position. Paragraph 4 provides:

"if you do not cure this default by the Cure Deadline, the entire unpaid balance of the loan may be accelerated and become due and payable immediately, and we may take steps to terminate your ownership in the property by foreclosure proceedings or other action to seize the home. If a foreclosure sale occurs, all occupants will be required to vacate the property." (emphasis added).

Paragraph 4 buttresses the conclusion that as of the date of the Notice, foreclosure proceedings have not yet begun, further undermining Citibank's argument that the Notice is part of the foreclosure proceedings. As specified in Paragraph 4, the mortgagee concedes that (I) foreclosure proceedings will not commence until the mortgagor fails to cure the default by a specified date, and (2) the mortgagee incorrectly suggests that foreclosure is only one of the ways in which the mortgagee may "seize the home." Reading Paragraph 4 and Paragraph 8 together, it would appear that the Glowackis' right to assert the non-existence of a default is not triggered until they fail to cure the default, and even then, only if the mortgagee takes steps "by foreclosure proceedings." By providing in Paragraph 4 that "foreclosure proceedings or other action to seize the home," will result from a failure to cure, the mortgagee implies that the mortgagee may take some other action to seize the home other than a foreclosure proceeding, in which case Paragraph 8 is rendered irrelevant and in which case the Glowackis would apparently not have the right to bring an action. This is not the message that the mortgagee has contractually obligated itself to give to the mortgagor in Paragraph 22.

Further, the language does not unequivocally inform the Glowackis of their right "to bring a court action" as provided in Paragraph 22 of the mortgage. The mangled syntax of Paragraph 8 suggests that the Glowackis have a right to "bring any defenses . . . including a court action," which could be read as implying that the right to bring a court action is limited to the right to raise defenses. The language in the Notice is not sufficiently clear to put mortgagors on notice that they have the right to bring a court action to challenge the default without waiting for any other event to trigger their right to bring such an action. See Pinti v. Emigrant Mortg. Co., Inc., supra, 472 Mass. at 237 (where language indicated mortgagors had right to assert defense in any lawsuit "it is obvious that [mortgagors] could be misled into thinking that they had no need to initiate a preforeclosure action against the mortgagee"). [Note 8]

Citibank simply could have easily copied and pasted the requirements of Paragraph 22 into the Notice of Default detailing the mortgagors' right to cure, instead of adding contingencies and mangling the syntax of the notice so as to change the meaning of the required notice with respect to the mortgagors' right to bring a court action. On its face, the language in Paragraph 8 of the Notice is confusing and problematic, and most importantly, renders it an inaccurate messenger concerning the mortgagors' right to bring an action. Accordingly, the foreclosure sale is void. [Note 9]

CONCLUSION

For the reasons stated above, Citibank's renewed motion for summary judgment is DENIED.

Judgment will enter in accordance with this Decision.