Opinion
14-P-453
01-30-2015
SUSAN ENFELD v. ROCKLAND TRUST COMPANY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Susan Enfeld, appeals from the entry of summary judgment in favor of Rockland Trust Company in the Superior Court. We affirm.
Background. The plaintiff sued the defendant bank after it foreclosed a mortgage on her property. The bank filed a motion to dismiss, which a judge of the Superior Court, sua sponte, converted into a motion for summary judgment pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). Serreze v. YWCA of Western Mass., Inc., 30 Mass. App. Ct. 639, 640 n.5 (1991). After a hearing, the judge granted summary judgment in favor of the bank. On appeal, the plaintiff asserts that the judge improperly applied G. L. c. 244, § 35B, and did not take into consideration all of the facts relevant to her negligence claim. There was no error.
In her amended complaint, the plaintiff asserted "negligent performance of duty," breach of contract, breach of covenant of quiet enjoyment and a G. L. c. 93A violation. The plaintiff does not appeal from the grant of summary judgment for her claims of breach of contract or violation of c. 93A.
Discussion. The plaintiff first claims that granting summary judgment on her claim of "negligent performance of duty" was improper because she was entitled to the protection of G. L. c. 244, § 35B. We review a grant of summary judgment de novo. Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014). There is no merit to the plaintiff's statutory claim. General Laws c. 244, § 35B, was inserted by the Legislature to provide additional notice and modification protection to homeowners facing foreclosure. St. 2012, c. 194, preamble. With one exception not applicable here, the effective date of G. L. c. 244, § 35B, was November 1, 2012. St. 2012, c. 194, § 9. By its own language, the statute has no retroactive effect and thus does not apply to the plaintiff. Fleet Natl. Bank v. Commissioner of Rev., 448 Mass. 441, 448 (2007). The plaintiff received her 150-day notice as required by G. L. c. 244, § 35A(b), on April 19, 2012, approximately seven months before the provisions of § 35B went into effect, in November, 2012. As such, the plaintiff was not entitled by law either to the notice or the modification process set forth in § 35B.
The Legislature extended the protections of § 35B to certain homeowners who would otherwise not be covered by the act as long as they received notice after August 3, 2012. St. 2012, c. 194, § 7, and St. 2012, c. 194, emergency preamble.
That the bank chose to accept a modification application from the plaintiff after the effective date of the statute does not change this analysis. The modification application does not serve to terminate or interrupt the foreclosure process after it has been initiated. The statute's plain language does not protect homeowners in the plaintiff's position who received notice before the act's effective date but filed for modification on January 9, 2013, after the effective date. See ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 603 (2000).
Even if § 35B were applicable here, it would not avail the plaintiff. A review of the record reveals that summary judgment for the bank would have been appropriate in any event because the plaintiff did not offer any specific facts to rebut the bank's affidavit demonstrating that it acted in good faith in processing, and ultimately denying, the plaintiff's application for modification. See generally Regis College v. Weston, 462 Mass. 280, 291-292 (2012).
The plaintiff also contends that the judge erred in failing to consider that the bank negligently sent additional notice of the foreclosure to a third party. However, this fact was not alleged in support of the negligence claim, but rather as part of the claim for breach of the covenant of quiet enjoyment. As noted by the judge in his decision, the covenant of quiet enjoyment applies to interference with a tenancy and is not applicable here. See generally Blackett v. Olanoff, 371 Mass. 714 (1977).
The plaintiff does not allege that she did not receive notice.
The plaintiff claims that the bank interfered with her "quiet enjoyment" of other properties she owns, in which the bank has no interest, either by mortgage or otherwise.
Judgment affirmed.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: January 30, 2015.