AMY L. STEPHENS-MARTIN vs. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. F/K/A THE BANK OF NEW YORK TRUST COMPANY AS SUCCESSOR TO JPMORGAN CHASE BANK N.A., AS TRUSTEE FOR RAMP 2006RZ4 ("BONYM"), MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ("MERS") GMAC MORTGAGE, LLC, RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., ("RAMP"), JP MORGAN CHASE BANK N.A., SOUTH STAR FUNDING LLC ("SOUTH STAR") BY AND THROUGH ITS CHAPTER 7 TRUSTEE HARRY W. PETTIGREW, ET AL.

Amy L. Stephens-Martin (“Petitioner”) filed her unverified Complaint on June 4, 2012, pursuant to G. L. c. 240, § 1-5, challenging the validity of a foreclosure sale by Defendant Bank of New York Mellon Trust Company, N.A.’s (“BONYM”) on property allegedly owned by Petitioner and located at 52 Bridge Street, South Hadley, MA (“Locus”). [Note 1], [Note 2] A case management conference was held on July 9, 2012, and continued to September 26, 2012 because of lack of service on all Respondents. All Respondents filed a Motion to Dismiss the Second Amended petition on October 17, 2012 [Note 3]. On December 14, 2012, Petitioner filed her Opposition to the Motion to Dismiss. Respondents filed their Response to the Opposition on January 31, 2013. A hearing was held on the Motion to Dismiss on May 7, 2013. [Note 4] After reviewing the submissions relative to the Motion to Dismiss, this court held a telephone status conference on July 10, 2013, at which time the court notified the parties that it intended to avail itself of its discretion pursuant to Rule 12 of the Mass. R. Civ. P. (the “Rules”), and to convert the matter from a Motion to Dismiss to a Motion for Summary Judgment. [Note 5] In light of this procedural conversion, this court gave the parties time to submit additional briefs in the context of a Motion for Summary Judgment. On August 2, 2013, Petitioners filed an Opposition to Respondents’ Motion to Dismiss Being Treated by the Court as a Motion for Summary Judgment, together with Exhibits, Affidavit of Daniel Martin, and Affidavit of James Ranney, Esq. On August 13, 2013, Respondents filed a Response to Petitioners’ Opposition to Respondents’ Motion for Summary Judgment, together with Affidavit of James L. Rogal, Esq. (the “Rogal Affidavit”) and Affidavit of Julie A. Brennan, Esq. The matter was then 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).

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

1. Joseph N. Gormley and Darla L. Gormley (the “Gormleys”) executed a mortgage (“MERS Mortgage 1”) on Locus to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Applied, dated October 31, 2002, and recorded with the Hampshire County Registry of Deeds (the “Registry”) at Book 6861, Page 263. MERS Mortgage 1 secured a promissory note from the Gormleys to Applied in the amount of $86,400.

2. Applied purported to assign MERS Mortgage 1, together with the underlying note, to Merrimack, by Assignment dated October 31, 2002 (the “Merrimack Assignment”), which was recorded with the Registry at Book 6861, Page 263.

3. Petitioner became record owner of Locus pursuant to a deed (“the Deed”) from the Gormleys, dated June 20, 2006, and recorded with the Registry at Book 8768, Page 86.

4. On June 26, 2006, Petitioner executed a mortgage (“MERS Mortgage 2”) to MERS, as nominee for SouthStar Funding LLC (“SouthStar”), recorded with the Registry at Book 8768, Page 89. On the same day Petitioner executed a note (the “Note”) to SouthStar in the amount of $154,900. [Note 6] Paragraph 22 of the Non-Uniform Covenants section of MERS Mortgage 2 states in part, “If the default is not cured ... Lender may invoke the STATUTORY POWER OF SALE and any other remedies permitted by Applicable Law.” Paragraph 20 of MERS Mortgage 2 states in relevant part, “[t]he note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.”

5. MERS executed a Discharge of MERS Mortgage 1, by virtue of an instrument titled “Mortgage Release, Satisfaction, and Discharge,” on June 30, 2006, recorded with the Registry at Book 8807, Page 325 (the “Discharge”).

6. On August 19, 2009, Petitioner and Danial Martin (“Martin”) as borrowers, and GMAC as Lender, executed a Mortgage Modification Agreement (the “Modification”). The Modification references the Note and also defines the “Security Instrument” as MERS Mortgage 2. The Modification also states, “Borrower acknowledges that Lender [i.e. GMAC] is the legal holder and the owner of the Note and Security Instrument...”

7. By document dated May 17, 2010, MERS assigned MERS Mortgage 2 to BONYM, recorded with the Registry on May 21, 2010, at Book 10180, Page 308 (“the BONYM Assignment”). The BONYM Assignment was executed before a notary by Sarah Hargrove, as Assistant Secretary and Vice President of MERS.

8. On April 5, 2011, GMAC sent Petitioner and Martin a notice of default and right to cure pursuant to G. L. c. 244,, §§ 35(a),(b) and (c) (the “Notice to Cure”).

9. On or about December 29, 2011, BONYM filed a Complaint in this court, pursuant to the Servicemember’s Civil Relief Act, to foreclose MERS Mortgage 2. Judgment entered on this Complaint on May 21, 2012.

10. On March 23, 2012, BONYM sent to Petitioner and Martin via First Class Mail and Certified mail, Notices of Intent to Foreclose under power of sale and by entry on or after April 18, 2012.

11. BONYM caused to be published a Notice of Foreclosure Sale in the Daily Hampshire Gazette, on March 28, 2012, April 4, 2012, and April 11, 2012.

12. The foreclosure auction was initially scheduled for April 18, 2012. [Note 7] Counsel for BONYM sent to Petitioner and Martin via First Class Mail a courtesy notice (the “Courtesy Notice”) informing them that the foreclosure sale was postponed from April 18, 2012, to June 4, 2012, at 12:00 P.M. [Note 8] On June 4, 2012, BONMY held a foreclosure auction at or near Locus at which BONYM was the highest bidder. Martin attests that on June 4, 2012, he served the foreclosure auctioneer with a no trespass notice and the foreclosure sale was not conducted on Locus but within several feet of the lot lines of Locus. On June 8, 2012, Caleb J. Shureb (“Shureb”), attorney in fact for BONYM, executed an “Affidavit of Sale,” recorded with the Registry on July 25, 2012, at Book 10985, Page 289. On July 21, 2012, BONYM executed a Foreclosure Deed to BONYM, recorded with the Registry on July 25, 2012, at Book 10985, Page 289. BONYM also caused a Certificate of Entry to be recorded with the Registry at Book 10985, Page 287. The Certificate of Entry claimed that James Palumbo, a duly authorized attorney in fact for BONYM, “made an open, peaceable and unopposed entry onto Locus...then declared, of foreclosing [MERS Mortgage 2] for breach of conditions thereof.” The Certificate of Entry was executed by two purported witnesses (David Bergeron and Charlene Henchey), and notarized.

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Petitioner’s Second Amended Petition sets forth a variety of factual allegations and legal grounds which, she argues, state a claim under the try title statute, G.L. c. 240 §§ 1-5, and require Respondents to initiate an action to prove their title. Petitioner alleges that she has record title to Locus by virtue of the Gormley Deed, that she maintains possession of Locus, and that Petitioner’s record title is clouded by adverse claims, or potentially adverse claims, by one or more of Respondents. As a threshold issue, Petitioner challenges this court’s decision to convert the matter from a Motion to Dismiss to a Motion for Summary Judgment. Respondents state that this court had the authority to take such action pursuant to Rules 12(b) of the Rules. In her Opposition to the Motion to Dismiss and in the Opposition to Motion for Summary Judgment, Petitioner raises the following substantive issues: (1) the discharge of MERS Mortgage 1 was ineffective; (2) BONYM had no standing to foreclose Locus for various reasons; (3) the Note and MERS Mortgage 2 were impermissibly split; (4) and the foreclosure of Locus did not comply with each of the procedural requirements of a foreclosure by statutory power of sale pursuant to G.L. c. 244, §§ 14-15 and § 35. Respondents contend that MERS Mortgage 1 was properly discharged, that Petitioner lacks standing to challenge the BONYM Assignment of MERS Mortgage 2, that BONYM had standing to foreclose MERS Mortgage 2, that Massachusetts law clearly permits splitting a mortgage and underlying note, and that BONYM and its agents complied with G.L. c. 244, §§ 14-15 and § 35. I shall examine each issue in turn.

I. Try Title Statute - Conversion to Summary Judgment:

G.L. c. 240, § 1, the Try Title statute, states in relevant part:

If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land claiming an estate of freehold therein . . . may file a petition in the land court stating his interest, describing the land, the claims and the possible adverse claimants so far as known to him, and praying that such claimants may be summoned to show cause why they should not bring an action to try such claim.

“There are thus two steps to a try title action: the first, which requires the plaintiff to establish jurisdictional facts ...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). “The establishment of jurisdictional facts, although essential in all cases, is thus a matter of particular salience in the initial stage of a try title action.” Id. at 766-767. There are two jurisdictional facts that must be established by Petitioner to have standing to maintain a try title action. First, only a person in possession of Locus may maintain a try title action. See id. at 767. “Second, although less obviously clear, a plaintiff must hold a ‘record title’ to the land in question.” Id.

Petitioner contends that both a Motion to Dismiss and/or a Motion for Summary Judgment are premature. In this regard, Petitioner contends that she must show (1) possession of Locus, (2) record title, and (3) that she is threatened by an adverse claim to Locus. According to Petitioner, once such threshold matters have been established, the burden is on Respondents, as adverse claimants, to bring an action to prove that they have superior title to Locus. The try title statute is indeed amorphous and a bit anachronistic [Note 9]; however, this action before the Land Court is governed by the Rules. Thus, when appropriate, a respondent in a try title action may exercise its right to bring a Motion to Dismiss pursuant to Rule 12(b)(6) of the Rules. See Abate v. Freemont, 20 LCR 630 (2012). This court may also convert a Rule 12(b)(6) Motion to Dismiss a try title action to a Motion for Summary Judgment. See Rule 12(b) (a Rule 12(b) motion may be converted to a motion for summary judgment by the court if documents outside of the pleadings are submitted and considered by the court). [Note 10] This court held a telephone conference and gave both parties adequate time to submit any Exhibits that they deemed to be necessary for this court to resolve the converted Motion for Summary Judgment. Such notice and opportunity to submit additional evidence comports with Rule 12(b).

As in Bevilacqua, Petitioner alleges that she is in possession of Locus and that she has record title. Such allegation of record title “requires more than the bare assertion that there is a recorded instrument giving [her] title.” Abate, supra, quoting Bevilacqua, supra at 770-771. Respondents have the right to challenge whether Petitioner does in fact have record title to Locus or whether Petitioner lost record title pursuant to the foreclosure sale of Locus. The thrust of this dispute relates to the validity of the foreclosure sale of Locus. If the foreclosure sale is valid, then Petitioner has no record title to Locus and therefore cannot maintain a try title action. The validity of the foreclosure sale is discussed, infra. [Note 11]

II. Discharge of MERS Mortgage 1:

Petitioner contends that the discharge of MERS Mortgage 1 is ineffective. This argument hinges on whether the BONYM Assignment of MERS Mortgage 1 from Applied to Merrimack was a valid assignment. [Note 12] In Massachusetts, a mortgage is the “legal title to the mortgaged property, and it serves as security for an underlying note or other obligation.” Eaton v. Federal Nat. Mortg. Ass’n, 462 Mass. 569 , 575 (2012). In order to make a valid assignment of a mortgage under Massachusetts law, the BONYM Assignment must comply with the requirements of G.L. c. 183, §54B, and must be executed by someone acting on behalf of the entity that holds record title to the mortgage. [Note 13] Rosa v. Mortgage Electronic Systems, Inc., 821 F.Supp.2d. 423, 430 (D. Mass. 2011). A valid assignment “must be (1) executed before a notary public or person with similar authority to acknowledge such instruments; and (2) executed by a person purporting to hold the position of vice president or the like, with the entity holding such mortgage.” (citations omitted) In re Lopez, 486 B.R. 221, 229 (Bankr. D. Mass. 2013); See e.g. Federal Nat. Mortg. Ass’n v. Carr, 2012 Mass. App. Div. 223 (Dist. Ct. 2012) (holding that the purported assignment by Regions Bank to Chase was invalid because Regions Bank was not the holder of the mortgage at the time of making the assignment).

Petitioner admits that the Gormleys, Petitioner’s predecessor, executed a mortgage on Locus naming Applied as lender and MERS as mortgagee as nominee for Applied. Petitioner recognizes that there is no evidence of an assignment of MERS Mortgage 1 from MERS to Applied. However, on October 31, 2002, Applied executed and recorded a document with the Registry at Book 6861, Page 274, purporting to assign MERS Mortgage 1 to Merrimack. Based on the facts admitted by Petitioner, the BONYM Assignment of MERS Mortgage 1 by Applied is invalid because MERS, as mortgagee of MERS Mortgage 1, was the holder of the mortgage and thus the only one that could assign the rights to the mortgage. Applied, as lender, cannot execute a valid assignment of MERS Mortgage 1 when it was not the named mortgagee. As a result, MERS remained mortgagee of MERS Mortgage 1 on and after October 31, 2002.

Under G.L. 183, § 54, a mortgage may be discharged by the mortgagee, amongst other named parties. [Note 14] As mortgagee of MERS Mortgage 1, MERS was authorized to effectuate a valid discharge of MERS Mortgage 1, and did so by executing and recording the Discharge. Accordingly, I find that the Discharge was valid and there is no possibility of a cloud on title resulting from MERS Mortgage 1. [Note 15]

III. Assignment of MERS Mortgage 2 by MERS to BONYM:

Petitioner raises a number of issues relating to the validity of the BONYM Assignment. First, Petitioner contends that MERS was no longer the mortgagee at the time it purportedly assigned MERS Mortgage 2 to BONYM, as evidenced by the Modification. Next, Petitioner claims that MERS had no authority to assign MERS Mortgage 2. Respondents argue that Petitioner has no standing to challenge the BONYM Assignment and that even if she has standing, the BONYM Assignment was a valid transfer of MERS Mortgage 2 from MERS to BONYM.

A. Standing to Challenge Assignment:

The issue of a mortgagor’s standing to challenge an assignment of its mortgage is far from novel. Indeed, in Bank of N.Y. Mellon Corp. v. Wain, 2012 Mass. LCR LEXIS 115 (2012) (“Wain”), this court addressed this issue in detail. Petitioner, knowing well this court’s ruling in Wain, has brought to this court’s attention two other Decisions issued subsequent to this court’s Decision in Wain: Abate, supra, and Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 291 (1st Cir. Mass. 2013). Contrary to Petitioner’s contention, this court is not bound by either Abate (a decision issued by another justice of the Land Court) or by Culhane. This court is not bound by decisions of the First Circuit Court of Appeals.

An assignment of a mortgage is at its core a contract. See Oum v. Wells Fargo, N.A., 842 F.Supp.2d 407, 413 (2012). It therefore follows that, as a contract, an assignment of a mortgage “is to be interpreted according to ordinary rules of contract interpretation.” Spellman v. Shawmut Woodworking & Supply, Inc., 445 Mass. 675 , 681 (2006). A general rule of contract law is that only parties to a contract or the intended third-party beneficiaries have the right to enforce or challenge a contract. See Harvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College., 413 Mass. 66 , 70-71 (1992); see also Rae v. Air-Speed, Inc., 386 Mass. 187 , 194 (1982). Thus, it follows that, to challenge an assignment of a mortgage, the party bringing the claim must either be a party to the contract or an intended third party beneficiary. See Cumis Ins. Soc’y, Inc. V. BJ’s Wholesale Club, Inc., 455 Mass. 458 , 464 (2009).

It is clear that Petitioner was not a party to the BONYM Assignment. [Note 16] Furthermore, it is a longstanding principle that a mortgagor is not an intended beneficiary of an assignment of a mortgage. Oum, 842 F.Supp.2d at 413. This court stands by its Decision in Wain, supra, holding that a mortgagor lacks standing to challenge an assignment of their mortgage. [Note 17] See also. Oum, 842 F.Supp.2d at 413 (mortgagor has no standing to challenge assignment because the mortgagor suffered no injury as a result of the BONYM Assignment). Petitioner has no economic interest in the BONYM Assignment, and suffered no injury as a result. The fact that MERS assigned MERS Mortgage 2 has no bearing on Petitioner’s obligation to pay the Note. Based on the foregoing, I find that Petitioner does not have standing to challenge the validity of the BONYM Assignment.

B. Validity of the BONYM Assignment

The foregoing notwithstanding, this court shall address the parties’ arguments that the BONYM Assignment is invalid. Petitioner contends that MERS was not the holder of MERS Mortgage 2 at the time it executed the BONYM Assignment, and Petitioner also contends that there is no evidence that MERS was acting on behalf of the holder of the Note at the time of the BONYM Assignment.

The record chain of title in the instant case is clear. On June 26, 2006, Petitioner granted a mortgage (MERS Mortgage 2) on Locus to MERS, as nominee for SouthStar. MERS was the mortgagee of record until May 17, 2010, when it executed the BONYM Assignment, which was recorded at the Registry on May 21, 2010. Petitioner, however, contends that the Modification is conclusive proof that MERS was not the holder of MERS Mortgage 2 at the time of the BONYM Assignment. Petitioner points out that the Modification, which was executed before a notary, states that “Borrower acknowledges that [GMAC] is the legal holder and the owner of the Note and Security Instrument...” It is clear that the defined “Security Instrument” in the Modification is MERS Mortgage 2. As such, Petitioner contends that there must have been some off-record assignment of MERS Mortgage 2 from MERS to GMAC and therefore MERS could not be the holder of MERS Mortgage 2 at the time of the BONYM Assignment.

Neither Petitioner nor Respondents have produced any evidence that MERS Mortgage 2 was transferred from MERS to GMAC prior to the Modification. Indeed, it appears that GMAC was the holder of the Note (or at least acting at the behest of the holder of the Note) at the time of the Modification and therefore GMAC had an interest in MERS Mortgage 2, which secured the Note. As Petitioner points out elsewhere in its arguments, MERS holds only “bare legal title” to a mortgage for the benefit of the holder of the underlying note. See e.g. In re Marron, No. 1045395, 455 B.R. 1, 2011 Bankr. LEXIS 2487, *11 (Bankr.D.Mass. June 29, 2011) (“In Massachusetts, when a mortgage and applicable note are owned by different entities, the mortgagee is deemed to hold the mortgage in trust for the owner of the note...”); Mack v. Wells Fargo Bank, N.A., 29 Mass. L. Rep. 14, 2011 Mass. Super. LEXIS 207, 11 (Mass. Super. Ct. 2011); Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 2013 U.S. App. LEXIS 3313 (1st Cir. Mass. 2013). No party disputes that GMAC (as either note holder or loan servicer) held an interest in MERS Mortgage 2 at the time of the Modification. The statement in the Modification is not inconsistent with MERS continuing to hold record title to MERS Mortgage 2 for the benefit of GMAC. The Modification does not prove nor does it raise a question of disputed fact as to the ownership of MERS Mortgage 2. Both at the time of the Modification and the BONYM Assignment, MERS was the legal, record holder of MERS Mortgage 2 for the benefit of whomever owned the note (which appears to be GMAC).

Next, Petitioner alleges that MERS had no authority to assign MERS Mortgage 2 to BONYM. There is a plethora of persuasive case law in this Commonwealth that recognizes MERS’ authority to assign a mortgage on behalf of the underlying holder of the Note. See Culhane, supra; In re Marron, supra. MERS Mortgage 2 contains no prohibition against MERS’ assignment of MERS Mortgage 2. There is no provision in MERS Mortgage 2 that requires MERS to obtain an express or discrete instruction from the Note holder prior to assigning said mortgage. By the plain terms of MERS Mortgage 2, MERS is the mortgagee with the authority to act as the agent of the underlying Note holder. There is absolutely no evidence that MERS was on a “frolic” and acted contrary to the interest of its principal, i.e. the holder of the Note.

Pursuant to G.L. c. 183, § 54B, an assignment of a mortgage is binding if executed by a person purporting to hold the position of vice president of the holder of the mortgage and is executed before a notary public. At the time of the BONYM Assignment of MERS Mortgage 2, MERS was the mortgagee of record and holder of the mortgage as nominee for the holder of the Note. On May 17, 2010, Sarah Hargrove, purportedly the Assistant Secretary and Vice President of MERS, executed the BONYM Assignment before Melissa Hall, notary public. The notarized assignment is prima facie proof that MERS complied with G.L. c. 183, § 54B, and Petitioner has presented no evidence to dispute this.

Based on the foregoing, I find that the BONYM Assignment is valid.

III. Issues Relating to the Note:

A. Splitting the Note and MERS Mortgage 2:

Petitioner contends that the foreclosure of MERS Mortgage 2 is invalid because the mortgage and underlying Note were impermissibly split. Massachusetts law provides that “the holder of the mortgage and the holder of the note may be different persons.” U.S. Bank Nat. Ass’n v. Ibanez, 17 LCR 649 (2009), aff’d by 458 Mass. 637 (2011). Petitioner concedes this well established rule of law, but Petitioner states as a matter of contract law MERS Mortgage 2 could not be split from the Note. Paragraph 20 of MERS Mortgage 2 states in relevant part: “[t]he Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.” Petitioner contends that this contractual language prohibits the splitting of the Note and MERS Mortgage 2. This court refuses to take such a narrow reading of paragraph 20. Paragraph 20 allows for the sale of the Note in conjunction with MERS Mortgage 2, but does not require the two be conveyed together. Paragraph 20 simply indicates to the borrower that both the note and the mortgage can be transferred and the borrower may not receive notice of such transfer. There is nothing in paragraph 20 that explicitly prohibits the splitting of MERS Mortgage 2 from the Note and this court refuses to import such terms. Moreover, MERS Mortgage 2 and the Note were split when the mortgage interest was first created. The mortgage went to MERS and the Note was initially held by Southstar. This fact obliterates Petitioner’s argument in this regard.

Based on the forgoing I find that the Note and MERS Mortgage 2 can be split.

B. Re-Unification of the Note and MERS Mortgage 2:

G.L. c. 183, § 21 states, in pertinent part, that “the mortgagee or his executors, administrators, successors or assigns may sell the mortgaged premises or such portion thereof as may remain subject to the mortgage.” Moreover, G.L. c. 244, § 14 states, in pertinent part, that “[t]he mortgagee ... may, upon breach of condition and without action, do all the acts authorized or required by the power of sale.” Defining a “mortgagee”, and specifically, whether the mortgagee must hold both the mortgage and underlying note, is critical to determining whether a party can effectuate a valid foreclosure under power of sale.

Recently, the Massachusetts Supreme Judicial Court (the “SJC”) addressed this issue, and held that the term “mortgagee” shall be construed “to mean a mortgagee who also holds the underlying mortgage note.” Eaton v. Fannie Mae, 462 Mass. 569 , 584 (2012). However, the Supreme Judicial Court limited the effect of their holding by giving it prospective effect. Id. at 588-589. Thus, a “mortgagee” foreclosing under power of sale must hold both the mortgage and underlying note where the notice of sale has been given after June 22, 2012. Id. at 588-589. In this case, however, BONYM published the first notice of sale in the Daily Hampshire Gazette on March 28, 2012, prior to the decision in Eaton. Therefore, the requirement announced in Eaton does not apply. Had the SJC intended for its holding in Eaton to apply to all pending and subsequent foreclosure proceedings and litigation, it would not have made its holding prospective only. As such, this court does not have to determine whether BONYM was holder of the Note as well, because “the holder of the mortgage and the holder of the note may be different persons.” Ibanez, supra.

IV. Validity of Foreclosure:

Petitioner brings this Try Title action and challenges BONYM to prove that it has superior claim to title to Locus. BONYM has alleged that Petitioner has failed to state a claim because she cannot prove record title to Locus as a result of the foreclosure sale. BONYM contends that it strictly complied with all statutes relative to both a foreclosure by power of sale and foreclosure by entry. Specifically, BONYM contends that it strictly complied with the Notice to Cure requirements set forth in G.L. c. 244, § 14A. BONYM also contends that it strictly complied with the statutory procedures set forth in G.L. c.183, § 21 (and authorized under MERS Mortgage 2) as well as G.L. c. 244, §§ 14-15. Petitioner contends that BONYM did not strictly comply with all of the statutory foreclosure procedures. [Note 18]

A. Notice to Cure - G.L. c. 244, § 35A

Petitioner claims that BONYM and/or its agent failed to give Petitioner a compliant Notice to Cure pursuant to G.L. c. 244, § 35A, and as a result, BONYM is not entitled to enforce its rights under MERS Mortgage 2. Generally speaking, G.L. c. 244, § 35A requires a mortgagee to provide notice to a mortgagor that it intends to foreclose the mortgagor’s interest in the mortgaged property. [Note 19] The notice must also inform the mortgagor that he or she has one hundred and fifty (150) days to cure any default. [Note 20] The Notice to Cure must be sent to the mortgagor and an affidavit attesting to compliance with G.L. c. 244, § 35A must be filed with the Land Court either before or contemporaneously with a Complaint to Determine Military Status pursuant to the Sevicemembers Civil Relief Act. Among other things, G.L. c. 244, § 35A requires the Notice to Cure to contain (1) the nature of the right to cure, (2) the date by which the mortgagor must cure default to avoid acceleration, (3) the name and address of the mortgagee, or “anyone holding thereunder”; and (4) the name of any current and former mortgage broker or mortgage loan originator. See G.L. c. 244, § 35A.

Petitioner raises trivial issues with respect to noncompliance with G.L. c. 244, § 35A. Indeed, Petitioner does not contend that the Notice to Cure was never mailed or was never received by her. Petitioner states that the Notice to Cure did not strictly comply with G.L. c. 244, § 35A because it failed to give the name and address of the “mortgagee” and it did not identify the trust for which BONYM was trustee (i.e. the party named as a Respondent in the Petition). BONYM submitted a copy of letters (i.e. the Notice to Cure), dated April 2, 2011, sent by GMAC to both Petitioner and Martin. The Notice to Cure contains all material information required by G.L. c. 244, § 35A and explicitly states that it was sent pursuant to G.L. c. 244, § 35A. [Note 21]

The Notice to Cure informed Petitioner and Martin that they were in default with respect to MERS Mortgage 2 and advised them that “failure to bring your account current by 9/02/11 may result in our election to exercise our right to accelerate the Mortgage and take steps to terminate your ownership in the property by a foreclosure proceedings.” The Notice to Cure also states: “[GMAC] is providing this notice as servicing agent, or otherwise on behalf of The Bank of New York Mellon Trust Company, National Association fka The Bank of New York Trust Company N.A. as successor to JPMorgan Chase Bank N.A. as Trustee, whose address is 2 North LaSalle St Suite 1010 Chicago, IL 60602.” As discussed, supra, BONYM was the mortgagee on April 2, 2011, when the Notice to Cure was sent to Petitioner and Martin. The plain language of G.L. c. 244, § 35A requires that the Notice to Cure provide the name and address of the mortgagee. The Notice to Cure sent by GMAC in this case provides such information. The fact that the word “mortgagee” does not appear in the Notice to Cure is not fatal. Similarly, the fact that the Trust of which BONYM was Trustee was not identified is also not fatal. The name and address of the mortgagee, BONYM, was clearly stated in the Notice to Cure in compliance with G.L. c. 244, § 35A.

Petitioner rests her argument on “strict compliance” with G.L. c. 244, § 35A, without considering the purpose and the substance of the Notice to Cure. The purpose of the Notice to Cure is to inform a borrower of its right to cure any default prior to acceleration and initiation of foreclosure proceedings. The party sending the Notice to Cure must identify who the borrower should contact to attempt to cure the default. In the case at bar, GMAC was the loan servicer at the time it sent the Notice to Cure. Petitioner and Martin successfully negotiated the Modification less than two years prior to their receipt of the Notice to Cure. If Petitioner had been willing and able to cure her default under the Modification, she knew exactly who to contact: GMAC. In fact, the Notice to Cure provides a phone number and address to contact GMAC regarding the right to cure. Petitioner’s contention that the name and address of the mortgagee were not provided on the Notice to Cure fails. [Note 22]

Based on the foregoing, I find that BONYM and its agents complied with G.L. c. 244, § 35A.

B. Foreclosure by Power of Sale

BONYM contends that it strictly complied with the power of sale granted to it by MERS Mortgage 2 and G.L. c. 183, § 21. [Note 23] BONYM also states that it strictly complied with the requirements of G.L. c. 244, §§ 14-15. Petitioner contends that BONYM did not strictly comply with G.L. c. 244, §§ 14-15, because she alleges that BONYM or its agent never made a public proclamation at Locus that the foreclosure sale was to be postponed. Pursuant to G.L. c. 244, § 14 [Note 24], the mortgagee must publish a notice of foreclosure sale in a newspaper published in the town where Locus lies for three consecutive weeks. The mortgagee must also send a notice of foreclosure sale to the mortgagor via registered mail. An affidavit pursuant to G.L. c. 244, § 15 [Note 25] attesting to publication and notice to mortgagor must be recorded at the Registry. An affidavit of sale is evidence of strict compliance 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”).

BONYM submitted the Affidavit of Sale as an Exhibit. The Affidavit of Sale is signed by Caleb J. Shureb (“Shureb”), attorney in fact for BONYM. On its face, the Affidavit of Sale demonstrates strict compliance with G.L. c. 244, § 14. Shureb attested that notice of the foreclosure sale was published in the Hampshire Daily Gazette on March 28, 2012, April 4, 2012, and April 11, 2012. Sherub further attested that he complied with G.L. c. 244, § 14 by timely mailing the required notices to Petitioner by certified mail. The Affidavit of Sale continues, and Sherub attests, that the foreclosure sale was postponed, by public proclamation upon Locus, to June 4, 2012 at 12:00 PM. The Affidavit of Sale concludes that on June 4, 2012, Kathleen D. Essler, a licensed auctioneer, sold the property on behalf of BONYM, in its capacity as mortgagee, to BONYM.

As stated in Hendricks, supra, if a challenge to an affidavit of sale shows it is defective on its face, then it cannot be used to establish compliance with G.L. c. 244, § 14. Petitioner alleges that the Affidavit of Sale cannot be relied upon to demonstrate strict compliance with G.L. c. 244, § 14, because the Martin Affidavit attests to facts that directly contradict facts in the Affidavit of Sale. Specifically, the Martin Affidavit states:

“[I was] present and observed the outside of [Locus] the entire period of time beginning well before and after 12:00 P.M. on [April 18, 2012]. No announcement or public proclamation was made on that day postponing the scheduled foreclosure sale. We never received any other notice that the foreclosure sale scheduled for April 18, 2012 was postponed. No one came to the property that day representing the auctioneer or any other party...”

Petitioner contends that this inconsistency between the Affidavit of Sale and the Martin Affidavit demonstrate that Sherub had no actual knowledge of any of the facts attested to in the Affidavit of Sale. As such, Petitioner contends that the Affidavit of Sale is defective. [Note 26] Aside from the public proclamation issue, Petitioner does not contend that any other attestation in the Affidavit of Sale is false. The public proclamation inconsistency by no means proves that the Affidavit of Sale is “deficient” on its face for proving strict compliance with G.L. c. 244, § 14. At most, the Martin Affidavit calls into question whether public proclamation was made. The Martin Affidavit does not demonstrate that Sherub had no knowledge of the facts to which he was attesting. Indeed, the Martin Affidavit does not challenge the attested to facts that notice was timely published for three consecutive weeks in the Hampshire Daily Gazette or that notice was timely sent to Petitioner and Martin via certified mail. [Note 27] Therefore, I find that the Affidavit of Sale is prima facie evidence that BONYM and its agents complied with such requirements.

The next issue is whether the foreclosure sale must be voided because of the alleged lack of public proclamation of postponement of the foreclosure sale on April 18, 2012. There are conflicting affidavits in this regard: (1) the Affidavit of Sale attesting that public proclamation of the postponement was made, (2) the Rogal Affidavit, which also states, “[t]he foreclosure auction was postponed to June 4, 2012 by public proclamation at [Locus],” and (3) the Martin Affidavit attesting that no public proclamation of postponement was made. For the purposes of the following discussion, this court shall assume that no such public proclamation was made. This assumption in no way passes judgment on the veracity of the Affidavit of Sale, the Rogal Affidavit, and the Martin Affidavit. Whether public proclamation was made is a hotly disputed fact. The following analysis regarding other means of notice will determine whether the issue of public proclamation is indeed a material fact.

“It has long been accepted practice in Massachusetts that, while details of the initial auction must be provided by written notice to the appropriate parties and published in a newspaper in accordance with G.L. c. 244, §§ 11-17B, a postponement of the sale may be announced by public proclamation to those present at the auction site.” Fitzgerald v. First Nat’l Bank of Boston, 46 Mass. App. Ct. 98 , 100 (1999); see also Way v. Dyer, 176 Mass. 448 , 450 (1900); see also Burke v. Sun Am., 2000 Mass. Super. LEXIS 203, 30, 2000 WL 1273412 (Mass. Super. Ct. Apr. 19, 2000). The court in Fitzgerald, also stated, “there was no state law requirement for noticing continuances [of foreclosure sales]...” Fitzgerald, supra, at 100, citing In re Ruebeck, 55 B.R. 163, 169-171 (Bankr. D. Mass. 1985). Fitzgerald continued:

Apart from the statutory requisites to which the mortgagee must strictly adhere, questions regarding notice of foreclosure proceedings will continue to be viewed according to the criteria set forth in our cases, rather than under any hard and fast rule, in light of the mortgagee’s general obligations of good faith, diligence, and fairness in the disposition of the mortgaged property. Id. at 101, citing Clark v. Simmons, 150 Mass. 357 , 360 (1890).

Petitioner seeks to have the foreclosure sale voided for lack of public proclamation. There is no question that a mortgagee must strictly adhere to G.L. c. 244, § 14, with regard to publishing for three consecutive weeks and notice to the mortgagee by registered mail. It is also evident, though, that there is no “hard and fast rule” for noticing continuances of foreclosure sales by public auction. The court in Fitzgerald explicitly noted that there is no statutory procedure specifically addressing the proper noticing requirement for postponement. See id., at 100. As articulated in Fitzgerald, it seems that noticing of a postponement of a foreclosure sale falls under the good faith and commercial reasonableness obligations of a mortgagee. See id, at 101; Burke, supra. This obligation must include providing notice of the postponement to any party that appears on the initially scheduled foreclosure date. Id.

“Under Massachusetts law, the mortgagor has the burden of proving commercial unreasonableness.” Burke, supra, citing Chartrand v. Newton Trust Co., 296 Mass. 317 , 320 (1936). It should be noted as a starting point, in both Fitzgerald and Burke, it was undisputed that the foreclosing mortgagee (or its agent) went to the property and made a public proclamation regarding the postponement. All parties that appeared at the foreclosure sale in those cases were therefore on notice of the new auction date. [Note 28] The Martin Affidavit attests that “no one came to the property [on April 18, 2012] representing the auctioneer or any other party.” As such, it appears, based on the Martin Affidavit, that Martin was the only one present at Locus on the originally scheduled foreclosure date. Therefore, there were no bidders for Locus that showed up on April 18, 2012.

Considering this fact, any postponement of the foreclosure sale by public proclamation would have been fruitless and would not affect the outcome of the foreclosure sale in June, 2012. The only persons entitled to notice would certainly be anyone who appeared at the foreclosure sale on April 18, 2012, which was only Martin, and out of basic fairness, Petitioner as mortgagor. See Fitzgerald, supra; Sun Trust, supra (notice sent to mortgagor at residence was sufficient). BONYM contends that it sent the Courtesy Notice to Petitioner and Martin; however, the Martin Affidavits attests “[w]e never received any other notice that the foreclosure sale scheduled for April 18, 2012, was postponed.” The Courtesy Notice was sent to Petitioner and Martin by First Class Mail rather than by Certified Mail. As such, there is no guarantee that Martin and Petitioner received the Courtesy Notice because no “green card” or return receipt are issued with First Class Mail. It is therefore possible that the Courtesy Notice was sent to Petitioner and Martin but they never received it. [Note 29]

With that understanding, however, it is undisputed, that Martin was home when the foreclosure sale took place on June 4, 2012, and he attended the same. He also attested that he was home on April 18, 2012, “to attend the foreclosure sale.” It might be inferred that he was home on April 18, 2012, for the sole purpose of attending the foreclosure sale and similarly, he was home on June 4, 2012, for the sole purpose of attending the foreclosure sale. Based on that inference, it would seem that at least Martin (Petitioner’s husband) had notice that the foreclosure sale was postponed to June 4, 2012. Furthermore, Martin served or handed a “no trespass notice” to the foreclosure auctioneer on June 4, 2012. This court can infer from common sense that most persons do not generally keep a written notice of no trespass ready to hand out on a whim. To the contrary, Petitioner and Martin had the notice of no trespass ready to serve on the foreclosure auctioneer on June 4, 2012. This lends further support to the notion that Petitioner and Martin had notice of the June 4, 2012 auction date.

This court has concluded that G.L. c. 244, § 14, does not apply to the postponement of a foreclosure. Petitioner and Martin, however, were entitled to notice because Martin was present at Locus on April 18, 2012, and Petitioner is entitled to notice of the postponement as the mortgagor. This court cannot conclusively state that public proclamation was made because there are diametrically opposed Affidavits in this regard. This court cannot establish the credibility of Affidavits without a trial on the issue. Moreover, although there are inferences that Martin and Petitioner had notice (via the Courtesy Notice or otherwise) that the foreclosure sale was postponed to June 4, 2012, this court cannot conclusively state that they had such notice. Had the Courtesy Notice been mailed via certified or registered mail, this court would have concluded that Petitioner and Martin had notice of the June 4, 2012 date. Based on the foregoing, I find that the issue of notice of the postponement of the foreclosure sale gives rise to a material disputed fact.

C. Foreclosure by Entry and Possession:

Foreclosure by entry and possession is an alternative method of foreclosure under Massachusetts law. G.L. c. 244, § 1 states:

A mortgagee may, after breach of condition of a mortgage of land, recover possession of the land mortgaged by an open and peaceable entry thereon, if not opposed by the mortgagor or other person claiming it, or by action under this chapter; and possession so obtained, if continued peaceably for three years from the date of recording of the memorandum or certificate as provided in section two, shall forever foreclose the right of redemption.

The Martin Affidavit attests that the foreclosure auction took place outside of the bounds of Locus, therefore no entry was made. The Affidavit of Sale and the Certificate of Entry state that an entry was in fact made onto Locus. As such, the issue of whether entry was actually made onto Locus is an issue of disputed fact. The Martin Affidavit further attests that any entry was opposed because Martin served or provided a no trespass notice to the auctioneer. Next, the Martin Affidavit also attests that the auctioneer did not ask for identification to the two parties who allegedly witnessed the entry and signed the Certificate of Entry. As such, the Certificate of Entry was not properly witnessed, according to Petitioner. This gives rise to another issue of disputed fact. Finally, it is undisputed that Petitioner rather than BONYM is in possession of Locus. Therefore, possession of BONYM has never commenced and certainly has not continued peaceably for three years.

As a result of the foregoing, BONYM’s Motion to Dismiss treated by the Court as a Motion for Summary Judgment is DENIED IN PART. The only issues that are in dispute and shall be tried are (1) whether public proclamation was made on April 18, 2012, (2) whether Petitioner and/or Martin received notice of the postponement date by any other means (including but not limited to the Courtesy Notice), (3) whether an unopposed entry was made onto Locus on June 4, 2012, and (4) whether the Certificate of Entry was properly executed. The parties shall keep in mind that if notice was given by public proclamation and/or other valid means of notice, this court shall deem any attempt to foreclosure by entry and possession superfluous and irrelevant. BONYM is not in possession of Locus, however, and therefore cannot effectively foreclose by entry and possession (at this juncture). At trial, the parties shall primarily focus on the validity of the foreclosure by power of sale, and more specifically, whether there was a public proclamation of postponement or notice of postponement by other means. The parties shall attend a pre-trial conference on November 14, 2013, at 9:30 A.M., at which time the court shall provide a tightly scheduled trial date. The parties shall submit a joint pre-trial memorandum by October 31, 2013.

Judgment shall enter after all issues have been resolved.