Summary
discussing events that trigger duties and obligations under § 35B
Summary of this case from Jackson v. Rushmore Loan Mgmt. Servs. (In re Jackson)Opinion
No. 18-P-1274
11-18-2019
BANK OF NEW YORK MELLON v. Timothy MORIN & others.
Laura F. Camara, for the defendants. Shawn M. Masterson, Pawtucket, for the plaintiff.
Laura F. Camara, for the defendants.
Shawn M. Masterson, Pawtucket, for the plaintiff.
Present: Massing, Ditkoff, & Wendlandt, JJ.
DITKOFF, J. The defendants, homeowners and occupants of a home in Attleboro, appeal from the entry of summary judgment in favor of the plaintiff, Bank of New York Mellon as trustee for investors in a security (bank), in consolidated postforeclosure summary process cases in the Housing Court. We conclude that the notice to cure required by G. L. c. 244, § 35A, does not apply after a proper acceleration of a mortgage debt but that here there is a genuine issue of material fact whether the debt was accelerated within the statutory time period. We further conclude that there are genuine issues of material fact whether the bank fulfilled its statutory duty under G. L. c. 244, § 35B, to take all reasonable steps and make a good faith effort to avoid foreclosure, and whether the foreclosure sale actually occurred. Accordingly, we reverse.
1. Background. Defendants Timothy and Nancy Morin (borrowers) purchased 122 Emory Street in Attleboro (property) in 1989 and have resided there since. In 2005, the borrowers took out a loan from Countrywide Home Loans, Inc. (Countrywide), executing an "interest only fixed rate note" in the amount of $206,125. As security for the note, the borrowers executed a thirty-year mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide.
In April 2008, the borrowers defaulted. On May 5, 2008, Countrywide sent the borrowers a notice, pursuant to G. L. c. 244, § 35A, informing them that they were in default and had a right to cure the default within ninety days and avoid acceleration of the loan. The borrowers promptly cured the default.
In 2009, the borrowers again fell behind on their monthly loan payments. On December 21, 2010, the loan servicer, Bank of America Home Loans, sent the borrowers a notice of intention to foreclose. The letter informed the borrowers of their right (derived from the mortgage) to cure the default within thirty days. The letter stated, "If the default is not cured on or before January 20, 2011, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and the mortgagee may take steps to terminate [the borrowers'] ownership in the property by a foreclosure proceeding." The note and mortgage were thereafter transferred to the bank. The borrowers failed to cure the second default.
On March 6, 2012, the bank filed an action against the borrowers under the Servicemembers Civil Relief Act. On March 13, 2012, the bank's attorney sent the borrowers a letter that stated, "[The bank] has brought to our attention your delinquent mortgage account regarding the property located at 122 Emory Street, Attleboro, MA, and the acceleration of the entire indebtedness." The letter further informed the borrowers that they had thirty days to notify the bank of any dispute as to the validity of the debt, but that this would not necessarily prevent the bank from filing a complaint to foreclose the mortgage within that time.
In late 2014 to early 2015, the borrowers' household income increased, such that they were now able to afford a substantial monthly payment. The parties agreed that "[t]he [borrowers] wanted to avoid foreclosure and, had they been notified of the foreclosure protections provided by M.G.L. c. 244 § 35B, they would have taken advantage of such statutory protections." On March 4, 2015, Green Tree Servicing LLC (Green Tree), the loan servicer for the bank, generated a letter to the borrowers informing them that they were ineligible for the Home Affordable Modification Program (HAMP) because they did not return all the required documents and that they had thirty days to appeal that determination.
On March 9, 2015 (five days later), the bank sent the borrowers a letter notifying them of the bank's intention to foreclose by sale on or after March 30, 2015, at 12 P . M . The bank published a notice of the foreclosure sale in the Sun Chronicle newspaper on March 9, 16, and 23, 2015. On March 20, 2015, however, the bank sent the borrowers a letter notifying them that the auction "was postponed by public proclamation of the auctioneer" to April 30, 2015, at 10 A . M . The letter indicated that the sale would still take place at the property. The bank purports to have held an auction and purchased the property on April 30, 2015. The borrowers, however, aver that they were physically present at the property on both scheduled auction days and no bank personnel appeared.
On October 21, 2015, the bank served the borrowers with a notice to quit and vacate a property located at 146 Margin Street, Lawrence, rather than the borrowers' Attleboro home. The notice was addressed to the borrowers -- Timothy and Nancy Morin -- but neglected to name the other three adult occupants residing at the Attleboro home. On November 4, 2015, the bank served the borrowers with a copy of the summons and complaint. Again, the other occupants were not named. The bank rectified this error by serving a separate summary process action against the other occupants and consolidating the two actions.
On July 12, 2016, the bank filed a motion for summary judgment on its claim for possession of the property. The defendants filed a cross-motion for summary judgment and counterclaims for violations of G. L. c. 93A. The judge granted summary judgment and possession to the bank. This appeal followed. 2. Standard of review. "We review a grant of summary judgment de novo." Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253, 28 N.E.3d 416 (2015). "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177, 37 N.E.3d 39 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). "In deciding a motion for summary judgment the court may consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits." Niles v. Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18, 81 N.E.3d 805 (2017).
3. General Laws c. 244, § 35A . At the time of the first default, G. L. c. 244, § 35A (a ), inserted by St. 2007, c. 206, § 11, provided that most residential homeowner borrowers "shall have a 90 day right to cure a default of a required payment ... by full payment of all amounts that are due without acceleration of the maturity of the unpaid balance of such mortgage. The right to cure a default of a required payment shall be granted once during any 5-year period ...." In 2010, the provision was moved to G. L. c. 244, § 35A (b ), the time period was extended to 150 days in most circumstances, and the right to cure was permitted every three years. St. 2010, c. 258, § 7. "Significantly, a mortgagee 'shall not accelerate the maturity of the unpaid balance of [the] mortgage ... until at least 90 days after the date a written notice [regarding the right to cure] is given by the mortgagee to the mortgagor,' G. L. c. 244, § 35A (b ), at which point a mortgagee then can commence the foreclosure process by invoking the statutory power of sale." U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 430, 5 N.E.3d 882 (2014). Accord Sovereign Bank v. Sturgis, 863 F. Supp. 2d 75, 103 (D. Mass. 2012) (" G. L. c. 244, § 35A, denies the lender the right to accelerate the maturity of the unpaid balance of the mortgage for a period of time after default").
Effective January 1, 2016, the provision reverted in substance to the original language and location. St. 2010, c. 258, §§ 8, 14.
The parties disagree about the meaning of this provision. The borrowers contend that, so long as the bank does not foreclose before the (three- or five-year) time period has passed, a borrower is entitled to a new § 35A notice to cure. The bank, by contrast, argues that the right to cure does not apply after the mortgage loan has been properly accelerated. We agree with the bank. "We review conclusions of law, including questions of statutory construction, de novo." New England Forestry Found., Inc. v. Assessors of Hawley, 468 Mass. 138, 149, 9 N.E.3d 310 (2014). "The language of the statute is the starting point for all questions of statutory interpretation." Retirement Bd. of Stoneham v. Contributory Retirement Appeal Bd., 476 Mass. 130, 135, 65 N.E.3d 650 (2016). "Statutory language should be given effect consistent with its plain meaning. Where ... that language is clear and unambiguous, it is conclusive as to the intent of the Legislature." Patriot Resorts Corp. v. Register of Deeds for the County of Berkshire, N. Dist., 71 Mass. App. Ct. 114, 117, 879 N.E.2d 716 (2008). In giving effect to the plain meaning of the statute, we "must look to the statutory scheme as a whole." Retirement Bd. of Stoneham, supra.
Section 35A was enacted "with the purpose of providing 'mortgage protection for existing and new home owners.'" Schumacher, 467 Mass. at 430, 5 N.E.3d 882, quoting St. 2007, c. 206, preamble. To that end, § 35A is focused on preventing acceleration of the indebtedness. The statutory language repeatedly expresses the intention that § 35A be a preacceleration remedy. The statute states that the lender "shall not accelerate maturity of the unpaid balance" prior to the expiration of the ninety days. G. L. c. 244, § 35A (b ), inserted by St. 2007, c. 206, § 11. G. L. c. 244, § 35A (g ), as amended by St. 2010, c. 258, § 7. The notice to the borrower must specify "the date by which the mortgagor shall cure the default to avoid acceleration." G. L. c. 244, § 35A (c ) (2), inserted by St. 2007, c. 206, § 11. G. L. c. 244, § 35A (h ) (2), as amended by St. 2010, c. 258, § 7. Addressing payment, the statute commands that, "[t]o cure a default prior to acceleration under this section, a mortgagor shall not be required to pay any charge, fee, or penalty." G. L. c. 244, § 35A (d ), inserted by St. 2007, c. 206, § 11. G. L. c. 244, § 35A (i ), as amended by St. 2010, c. 258, § 7. It also allows the borrower to cure a default once "by full payment of all amounts that are due without acceleration," G. L. c. 244, § 35A (a ), inserted by St. 2007, c. 206, § 11; G. L. c. 244, § 35A (b ), as amended by St. 2010, c. 258, § 7, a provision that would make little sense if the right to cure existed after a proper acceleration of the debt. Accordingly, the right to cure under § 35A does not apply once the lender has properly accelerated the debt because of a default. See Schumacher, supra at 431, 5 N.E.3d 882 (" § 35A is designed 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"). Here, the borrowers were first provided the statutory right to cure letter pursuant to § 35A in May 2008. The borrowers cured the default but defaulted again. In accordance with the terms set out in the note, on December 21, 2010, the bank sent the borrowers a notice of intention to foreclose. This occurred within three years of the first § 35A right to cure, and thus the borrowers were not entitled to another § 35A notice and right to cure at that time. G. L. c. 244, § 35A (b ), as amended by St. 2010, c. 258, § 7.
The notice of intention to foreclose stated that, "[i]f the default is not cured on or before January 20, 2011, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and the mortgagee may take steps to terminate your ownership in the property by a foreclosure proceeding or other action to seize the home." On March 13, 2012, the bank's attorneys sent the borrowers a letter stating that they were aware of the borrowers' delinquent mortgage account "and the acceleration of the entire indebtedness." Thus, there is no genuine dispute that the mortgage was accelerated sometime between January 20, 2011, and March 13, 2012.
The summary judgment record, however, provides no indication exactly when the mortgage balance was accelerated within that time period. This is important because, between August 7, 2010, and January 1, 2016, the right to cure was available every three years. G. L. c. 244, § 35A (b ), as amended by St. 2010, c. 258, § 7. As the original § 35A notice to cure was sent on May 5, 2008, the borrowers had the right to cure again before acceleration in May 2011. If the lender failed to accelerate the mortgage before May 2011, the borrowers were entitled to a second § 35A notice and the right to cure before acceleration occurred. Accordingly, there is a genuine issue of material fact whether the bank was required to send a new § 35A notice to cure before accelerating the mortgage loan.
Both the note and the mortgage allowed, but did not require, the lender to accelerate the loan if a default remained uncorrected.
4. General Laws c. 244, § 35B . a. Applicability. Where a lender makes a high foreclosure risk loan, such as the instant interest-only loan, G. L. c. 244, § 35B, provides certain extra protections, including a duty on the bank to take reasonable steps and make a good faith effort to avoid foreclosure and, under certain circumstances, to inform the borrowers of their right to pursue a modified mortgage loan. See G. L. c. 244, § 35B (b ), (c ). Relying on the effective date provision in the act creating § 35B (November 1, 2012), the bank argues that § 35B is inapplicable whenever "[t]he § 35A notice was sent prior to November 2012." We disagree.
Because the law creating § 35B, "an act preventing unlawful and unnecessary foreclosures," St. 2012, c. 194, contained an emergency preamble, it was effective on the day the Governor signed it, August 3, 2012. See Federal Nat'l Mtge. Ass'n v. Nunez, 460 Mass. 511, 515, 952 N.E.2d 923 (2011). The act, however, provided that the portion creating § 35B (that is, St. 2012, c. 194, § 2) would take effect on November 1, 2012. St. 2012, c. 194, § 9. Another provision stated, "Notwithstanding the effective date of section 2 [of the act], the provisions of section 2 [ § 35B and G. L. c. 244, § 35C,] shall apply to any person receiving notice under [ G. L. c. 244, § 35A,] after the effective date of this act [August 3, 2012]; provided, further, that if a creditor has sent the right to cure notice described in [ § 35A ] after the effective date of this act [August 3, 2012], the creditor shall send the notice described in section 35B ... if the borrower would otherwise qualify for such notice." St. 2012, c. 194, § 7.
The bank asks us to insert the word "only" into the effective date provision. The Legislature, however, did not state that § 35B shall "apply only to any person receiving notice under [ § 35A ] after the effective date of this act." See City Elec. Supply Co. v. Arch Ins. Co., 481 Mass. 784, 789, 119 N.E.3d 735 (2019), quoting National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 727, 802 N.E.2d 82 (2004) ("We do not read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose"). Accord Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 621, 682 N.E.2d 624 (1997) (omitted language should not be read into statute especially where Legislature included that language in other statutes). It merely stated that § 35B would apply to persons who received such a § 35A notice after August 3, 2012, regardless of whether November 1, 2012, had been reached. Applying the plain meaning of the statutory text, after November 1, 2012, § 35B applied to all loans where publication of notice of a foreclosure sale had not yet occurred and furthermore barred publication of notice of a foreclosure sale (absent compliance with § 35B ) where the § 35A notice was received after August 3, 2012, and the borrower qualified for a § 35A notice. Here, the publication of the notice of a foreclosure sale first occurred in March 2015, well after the effective date of § 35B. b. Notice of the right to pursue a modified mortgage loan. One of the duties imposed by § 35B is the duty of the lender to notify the borrowers of their right to pursue a modified mortgage loan. G. L. c. 244, § 35B (c ). This notice, however, is required to be sent "concurrently with the notice required by ... section 35A, of the borrower's rights to pursue a modified mortgage loan." G. L. c. 244, § 35B (c ), inserted by St. 2012, c. 194, § 2. Accordingly, the notice under § 35B (c ) is required only when a § 35A notice to cure is required. If the borrowers here were entitled to a § 35A notice to cure (if the acceleration occurred after May 2011), they were also entitled to notice of the right to pursue a modified mortgage loan under § 35B (c ). As there is no dispute that the bank did not provide such notice, whether the borrowers' right to a notice under § 35B (c ) was violated will turn on whether they were entitled to a § 35A notice. As there is a genuine issue of material fact whether the bank was required to send a § 35A notice to cure before accelerating the mortgage loan, there is also a genuine issue of material fact whether the bank was required to send a § 35B (c) notice at the same time.
The statute references "subsection (g) of section 35A." Effective January 1, 2016, the notice requirements of G. L. c. 244, § 35A (g ), as amended by St. 2010, c. 258, § 7, were moved to G. L. c. 244, § 35A (c ), as amended by St. 2010, c. 258, § 8. See note 3, supra.
c. Duty to take reasonable steps and make a good faith effort to avoid foreclosure. Section 35B (b ) requires a lender, before publishing a notice of a foreclosure sale, to take "reasonable steps and ma[k]e a good faith effort to avoid foreclosure." One way a lender may comply with this requirement is by assessing "a borrower's current ability to make an affordable monthly payment" and comparing the net present value of a mortgage loan modified to require the affordable monthly payment to the anticipated net recovery at foreclosure. G. L. c. 244, § 35B (b ) (2). If the anticipated net recovery at foreclosure is greater than the net present value of a modified mortgage loan, the lender may "provide[ ] a written summary of the creditor's net present value analysis and the borrower's current ability to make monthly payments" and proceed with foreclosure. G. L. c. 244, § 35B (b ) (2) (iv) (B). Otherwise, the lender may agree to modify the loan. G. L. c. 244, § 35B (b ) (2) (iv) (A). In short, the lender satisfies its duty by doing the necessary work to determine whether the holders of the mortgage note would be better off with a modified loan than with a foreclosure and acting accordingly. See Easthampton Sav. Bank v. Springfield, 470 Mass. 284, 291, 21 N.E.3d 922 (2014). At the very least, if the bank was required to send a notice to cure under § 35A and a notice of the right to pursue a modified mortgage loan under § 35B (c ) -- a matter about which there remains a genuine issue of material fact -- the bank had the duty to take reasonable steps and make a good faith effort to avoid foreclosure.
The parties have not briefed whether, in the case of a high foreclosure risk loan, a bank has the duty to take reasonable steps and to make a good faith effort to avoid foreclosure even where the bank was not required to send a notice to cure under § 35A or notice of the right to pursue a modified mortgage loan under § 35B (c ). Accordingly, we do not reach this question but, rather, leave it for resolution by the Housing Court, should it be determined that the acceleration occurred before May 2011.
The bank argues that, notwithstanding its position that it was not subject to § 35B (b ), it nonetheless made a reasonable and good faith effort to avoid foreclosure. The bank, however, failed to demonstrate the absence of a genuine issue of material fact regarding whether it made such efforts. The borrowers aver that, by the time the bank published notice of a foreclosure sale in March 2015, their household income had increased such that they would have been able to afford a reasonable monthly mortgage payment. The borrowers further aver that, if the bank had made a good faith effort to modify the mortgage loan and achieve affordable monthly payments, as provided by § 35B, they would have been able to avoid foreclosure. Cf. Beck v. Bank of N.Y. Mellon Corp., 91 F. Supp. 3d 154, 170 (D. Mass. 2015) (no right to another modified loan under G. L. c. 244, § 35B [c ], where plaintiffs accepted loan modification agreement less than three years before commencing present action).
To be sure, the borrowers applied for a loan modification pursuant to HAMP prior to foreclosure. The bank provided a certification by Green Tree, challenged by the borrowers, not under the pains of perjury, and dated after the publication of the notice of foreclosure, that the borrowers failed to respond to requests for documents and that "all available loss mitigation alternatives have been exhausted." The bank provided no evidence that the certification was a business record or otherwise admissible. Such a document, presented without an affidavit or other evidence demonstrating its admissibility, is inadequate to entitle a party to summary judgment. See Federal Home Loan Mtge. Corp. v. Bartleman, 94 Mass. App. Ct. 800, 808, 119 N.E.3d 1200 (2019), quoting Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974) ("summary judgment [must] rest on 'facts as would be admissible in evidence' at trial"); Bardige v. Performance Specialists, Inc., 74 Mass. App. Ct. 99, 103, 904 N.E.2d 464 (2009) (unsworn letter ineligible for consideration in motion for summary judgment). Cf. McLaughlin v. CGU Ins. Co., 445 Mass. 815, 819-820, 840 N.E.2d 935 (2006) (documents considered for summary judgment purposes if affidavit shows they were made in good faith, in regular course of business, and before action began, and it was regular course of business to make record at time of occurrences recorded).
The only other evidence provided by the bank to show that it took all reasonable steps to avoid foreclosure is a letter from Green Tree, dated only five days before the first publication of the notice of foreclosure, asserting that the borrowers "have not returned all the required documents." Even though the letter provided the borrowers with thirty days to appeal and stated, in bold type, that "no foreclosure sale will be conducted and you will not lose your home" during this thirty-day period, the bank scheduled a foreclosure auction for twenty-six days later and published the notice of foreclosure sale five days later. Moreover, the bank provided no other information pertaining to the borrowers' HAMP application to substantiate Green Tree's assertion that the borrowers failed to respond to document requests. Although HAMP may have satisfied the bank's § 35B duty, the record surrounding this issue is sparse and inconclusive. Accordingly, there is a genuine issue of material fact as to whether this attempt was sufficient to meet the requirements of § 35B.
5. Violation of G. L. c. 244, § 35A or 35B, as a defense to possession. Despite the genuine issue of material fact regarding whether the bank violated § 35A and § 35B (b ) and (c ), a violation of § 35A or § 35B is not enough, by itself, to defeat a summary process action for possession. See Schumacher, 467 Mass. at 431, 5 N.E.3d 882. To defeat the action for possession, the borrowers must prove a violation and, further, "that the violation of § 35A rendered the foreclosure so fundamentally unfair that [they are] entitled to affirmative equitable relief, specifically the setting aside of the foreclosure sale." Schumacher, supra at 433, 5 N.E.3d 882 (Gants, J., concurring). Accord Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 696, 54 N.E.3d 548 (2016). Because § 35B is no more (or less) a part of the foreclosure process than § 35A, the same requirement applies to violation of § 35B.
Here, the parties agreed in their joint statement of undisputed facts that "[t]he [borrowers] wanted to avoid foreclosure and, had they been notified of the foreclosure protections provided by M.G.L. c. 244 § 35B, they would have taken advantage of such statutory protections." The borrowers aver that, once their son started working full time in 2013, they had sufficient household income "to support an affordable monthly mortgage payment." They aver that they received a large amount of money as "retroactive disability pay" in January 2015, and that they had a household income of $4,800 per month by August 2016, which presumably would be adequate even to pay the monthly payment of $1,343.86 required by the original loan (after the interest-only period expired).
The summary judgment record, therefore, supports the borrowers' claim that they could have avoided foreclosure as early as 2013 had the bank complied with § 35A and § 35B. Accordingly, the borrowers have raised a genuine issue of material fact whether the foreclosure was so fundamentally unfair as to entitle them to affirmative equitable relief, at least as to any failure of the bank that occurred after 2012.
Because the borrowers' claims under c. 93A are dependent on their claims that the bank failed to comply with § 35A and § 35B and that the foreclosure was fundamentally unfair, and because there is a genuine issue of material fact as to all of these questions, summary judgment should not have been granted as to the c. 93A claims.
6. Foreclosure sale. There is a genuine issue of material fact whether the foreclosure sale actually occurred. The affidavit of sale states that a public auction was held at the property on April 30, 2015, and that the bank was the highest bidder. The affidavit of sale also states that on March 30, 2015, the auction was postponed by public proclamation of the auctioneer to April 30, 2015. According to the affidavit of sale, the bank's agent appeared on the property at the original published sale date and time to postpone the sale. The borrowers, however, aver that they were present on both the date of the originally scheduled foreclosure sale and the rescheduled date and that no agents of the bank appeared on the property and no auction occurred. Although an uncontroverted affidavit of sale "is sufficient to show compliance with the power of sale for the purpose of establishing the right of possession by motion for summary judgment in a summary process action," the same cannot be said where the borrowers' affidavit directly conflicts with that affidavit of sale. Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 635-636, 977 N.E.2d 552 (2012). "If a plaintiff makes a prima facie case, it is then incumbent on a defendant to counter with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact to avoid summary judgment against him." Id. at 642, 977 N.E.2d 552. See Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 566, 965 N.E.2d 875 (2012). Here, the borrowers did exactly that. Taken in the light most favorable to the nonmoving party, we conclude that there is a genuine issue of material fact whether the foreclosure sale actually occurred. Accordingly, summary judgment should not have been granted on this issue.
Similarly, there is a genuine issue of material fact whether the postponement was properly noticed, either by public pronouncement on the property or by some other reasonable method. The bank submitted an affidavit stating that an advertisement "was placed in the Boston Herald" on April 26, 2015, a mere four days before the foreclosure sale. The content of that advertisement was not provided, and the assertion that it was viewed 594 times is supported only by the number 594 appearing, unexplained, on a computer printout next to the words "Published Expired" and the unsupported assertions of counsel. This was not adequate to entitle the bank to summary judgment. See Bardige, 74 Mass. App. Ct. at 103, 904 N.E.2d 464.
7. Notice to vacate. "Although the sort of notice to quit to which [a defendant is] entitled depends upon the nature of [the defendant's] tenancy, see, e.g., G.L. c. 186, §§ 11, 11A, 12, 13, 15A, and 17, any occupant is entitled to some notice to quit before a summary process action may properly be commenced. See W.E. Hartwell, Residential Landlord-Tenant Bench-Book, at 7 (Flaschner Jud. Inst. 2013), and cases cited." Federal Nat'l Mtge. Ass'n v. Hoyle, 2014 Mass. App. Div. 204, 207. After an entry to foreclose, a mortgagor becomes a tenant at sufferance. See Singh v. 207-211 Main St., LLC, 78 Mass. App. Ct. 901, 903, 937 N.E.2d 977 (2010). "At common law, a tenant at sufferance is entitled to no notice of the termination of that status [as a mortgagor]." Santander Bank, N.A. v. O'Connor, 2015 Mass. App. Div. 185, 187, 2015 WL 9597921. Accord Rubin v. Prescott, 362 Mass. 281, 284, 284 N.E.2d 902 (1972) ("At common law a tenant at sufferance is entitled to no notice of the termination of that status before the landlord moves against him to obtain possession"). A tenant at sufferance, however, is "entitled to some form of notice of the intent to secure possession of the premises prior to the commencement of a summary process action to allow [the tenant] enough time to vacate." Georgia Driz, LLC v. Spenlinhauer, 2017 Mass. App. Div. 120, 122, 2017 WL 4181378 ( Spenlinhauer ). Accord Homer Apartments, LP v. Postoronka, 2013 Mass. App. Div. 6, 7, 2013 WL 510050. Cf. Gabriel, 81 Mass. App. Ct. at 573, 965 N.E.2d 875 ("a person who is entitled to assert defenses under G. L. c. 239, § 8A, does not lose that entitlement by later becoming a tenant at sufferance"). As a practical matter, it would be futile to expect a defendant to vacate his or her foreclosed home without providing notice to do so. See Poutahidis v. Clingan, 2001 Mass. App. Div. 217, 218-219, 2001 WL 1251687 ("The occupant is, however, entitled to a reasonable period to remove himself or herself from the premises").
Here, the defendants became tenants at sufferance when the borrowers failed to cure their mortgage payment default, and the bank entered for foreclosure (if the bank in fact did so, see supra ). Accordingly, the defendants were entitled only to notice of the bank's intention to secure possession of the property. See O'Connor, 2015 Mass. App. Div. at 187. The borrowers contend that, because the seventy-two hour notice to quit and vacate the premises that they received on October 21, 2015, listed the wrong address, they did not receive sufficient notice. The seventy-two hour notice to quit, however, is not the only notice the borrowers received. The borrowers received several notices of the impending sale of the property prior to the notice to quit. On March 9, 2015, the bank sent the borrowers a notice of sale pursuant to G. L. c. 244, § 14. The letter stated, "You are hereby notified, in accordance with Massachusetts General Laws, Chapter 244, Section 17B, of our intention, on or after March 30, 2015 at 12:00 PM, to foreclose by sale." On March 20, 2015, the borrowers received a notice that the sale of the property was rescheduled for April 30, 2015, at 10 A . M . We conclude that the two notices of sale were sufficient to inform the borrowers that the bank was seeking possession of the property. "In a foreclosure by sale ... the notice of the sale as required by G.L. c. 244, §§ 14 and 15, is enough notice of an intent to secure possession of the premises." O'Connor, supra at 187 n.6. See id. at 187 (notice to quit not required but no proof of notice at all was insufficient). Accord Spenlinhauer, 2017 Mass. App. Div. at 122 n.2. Here, unlike in O'Connor, the borrowers received sufficient notice in the form of two notices of sale prior to the seventy-two hour notice to vacate. Accordingly, the mistake in address on the seventy-two hour notice to quit was inconsequential.
8. Conclusion. The grant of summary judgment for the bank is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.