Bank of new york mellon trust company foreclosures

Kevin P. Polansky and Christine M. Kingston for the plaintiff.

Ernest J. Ciccotelli for the defendants.

COVEN, P.J. The plaintiff, The Bank of New York Mellon Trust Company, National Association, as successor to Deutsche Bank Trust Company Americas, formerly known as Bankers Trust Corporation, as trustee for Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2002-KS1 ("BNY Mellon Trustee"), appeals the decision of the trial court to deny possession of real property in this postforeclosure eviction action.

David and Susan Bradeen ("defendants") obtained a mortgage in 2001 for 91 Higgins Road, Framingham, MA. The defendants defaulted on their mortgage loan on July 1, 2004 and have not made any payments on their mortgage in at least eight years. BNY Mellon Trustee was assigned the defendants' mortgage in 2014 from a previous mortgagee.

In 2013, Specialized Loan Servicing ("SLS"), loan servicer for the plaintiff, began servicing the loan for the defendants. SLS sent the defendants loan modification applications in early 2014. The defendants submitted an incomplete loan modification packet in August, 2014 and a complete packet in October, 2014. The defendants did not qualify for a loan modification.

The foreclosure sale was scheduled for October, 2014 but was stayed for SLS to complete the loan modification review. SLS sent another loan modification packet in January, 2015, which the defendants submitted in February, and again did not qualify for loan modification. The foreclosure sale was scheduled for May 5, 2015. The notice of intention to foreclose was dated April 8, 2015 and sent April 10, 2015 through certified and first-class mail by Orlans Moran, SLS's retained law firm. [Note 3] The foreclosure sale letter to the defendants sent by Orlans Moran states, "For breach of

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the conditions of said mortgage and for the purpose of foreclosing the same will be sold at public auction at 11 a.m. on May 5, 2015 at 91 Higgins Road, Framingham, MA." The defendants received this notice of the foreclosure sale. [Note 4]

The foreclosure sale was continued by public proclamation on May 5, 2015 to May 19, 2015. [Note 5] BNY Mellon Trustee was the highest bidder at the May 19, 2015 foreclosure sale. It is not disputed that on the date of the foreclosure, plaintiff was the valid holder of the defendants' note and mortgage. BNY Mellon Trustee executed a foreclosure deed on October 26, 2015 and recorded the foreclosure deed and statutory affidavit of sale on December 7, 2015. A notice to quit the property was sent to the defendants on December 21, 2015, and the defendants did not quit and vacate the premises.

Plaintiff appeals the court's findings after trial that the plaintiff did not strictly comply with statutory requirements, that it gave no notice of the foreclosure sale date of May 19, 2019, thus acting fundamentally unfair, and appeals the entry of judgment granting possession of the property to the defendants.

The trial judge failed to address adequately the proposed findings of fact and rulings of law pursuant to Mass. R. Civ. P. 52(c). "Pursuant to Rule 52(c), a party must now file proposed findings of fact and rulings of law before the beginning of closing arguments. Upon receipt of the same, the trial court is required to 'find the facts specially and state separately its conclusions of law.'" New England Sports Therapy, Inc. v. Metlife Auto & Home, 2013 Mass. App. Div. 67, 69, quoting Mass. R. Civ. P. 52(c). The plaintiff filed its proposed findings of fact and conclusions of law at the close of the evidence, and prior to closing arguments. In response, the trial court issued findings and rulings that state:

"Court finds plaintiff did not strictly comply with statutory requirements. No record of continued date of sale offered by plaintiff. Court finds no notice of foreclosure sale date of 5/19 was given, despite plaintiff's claim of

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public proclamation of 5/19 date. Mrs. Bradeen credibly testified she was present at property on 5/5 and no one appeared. Plaintiff's actions were so fundamentally unfair that defendants are entitled to affirmative equitable relief in the form of setting aside the foreclosure sale."

The trial court failed to state separately its findings of fact and conclusions of law as mandated by Mass. R. Civ. P. 52(c). "[T]he court shall find the facts specially and state separately its conclusions of law thereon . . . ." Further, the trial court's findings do not fulfill the purpose of Rule 52(c) as they are not "clear, complete, and accurate." Millennium Equity Holdings, LLC v. Mahlowitz, 73 Mass. App. Ct. 29, 36 (2008). The trial court does not state which statutory requirements were not complied with, whether written notice of foreclosure sale postponement is needed, or whether the plaintiff made a public proclamation at the property on the May 5, 2015 foreclosure sale date. Thus, the trial court's findings of fact and rulings of law leave no basis behind the court's reasoning, are not clear or separately stated, and fail to satisfy the requirements of Rule 52.

Because a new trial will be necessary, we take the opportunity to address two issues likely to arise at that trial. Defendants admitted to receiving notice of the May 5, 2015 foreclosure sale date by first-class mail. General Laws c. 244, § 14 states that a notice of foreclosure sale must be sent to the address of the mortgagor by registered mail. The defendants admit that the notice of foreclosure sale was received, but dispute that it was sent by registered mail, and argue that the failure of strict compliance with the statute can void the foreclosure sale. The purpose of the fourteen-day registered mail notice requirement is to "provide notice to those affected by the foreclosure sale and to facilitate proof of notice." Hull v. Attleboro Sav. Bank, 33 Mass. App. Ct. 18, 25 (1992). This purpose is achieved when a mortgagor has actual notice of the foreclosure sale, regardless of whether the particular requirements of G.L. c. 244, § 14 are met. Id. When a mortgagor has actual notice of the foreclosure sale, failure to comply with the statutory procedure is not fatal. Kiah v. Carpenter, No. 15-P-911 (Mass. App. Ct. March 18, 2016) (unpublished Rule 1:28 decision). "If actual timely notice is proved . . ., failure to comply with a registered or certified mail requirement is not a fatal deviation from statutory procedures." Cinder Prods. Corp. v. Schena Constr. Co., 22 Mass. App. Ct. 927, 929 (1986).

General Laws c. 244, § 14 is silent on the issue of public proclamation to postpone foreclosure sales. "[W]hile details of the initial auction must be provided by written notice . . ., 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). The affidavit of sale states that a public proclamation to postpone the foreclosure sale occurred on the original May 5, 2015 foreclosure sale date. An affidavit of sale in the statutory form is "evidence that the power of sale was duly executed." Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 641 (2012). An affidavit of sale in the statutory form is a prima facie case of possession for the plaintiff, and the defendant must counter the prima facie case "with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact" to avoid judgment against him. Id. at 642. See also Stephens-Martin v. Bank of N.Y. Mellon Trust Co., Mass. Land Court, 21 LCR 516, 523 (2013), reaffirming written notice is needed for the initial auction, but a postponement of

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the sale may be announced by public proclamation. However, a public proclamation must be governed under the good faith and commercial reasonableness obligations of a mortgagee, which are to be determined under the facts elicited at trial. Id.

The judgment of the trial court is vacated, and the matter is returned for a new trial.

So ordered.

FOOTNOTES

[Note 1] As successor to Deutsche Bank Trust Company Americas, formerly known as Bankers Trust Corporation, as trustee for Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2002-KS1.

[Note 2] Susan A. Bradeen.

[Note 3] Notices of foreclosure sale are prepared for attorney review at the Orlans Moran office in Waltham and are sent to Orlans Moran in Michigan for mailing. SLS receives notification of mailing from Orlans Moran through USPS-stamped firm books, which are downloaded and incorporated into business records. The USPS firm book is an Excel sheet with all names and addresses of letters that USPS stamps to certify that each letter was sent. All the standard markings were present in the foreclosure sale letter to the defendants, and the letter was sent. The foreclosure notices of sale do not contain tracking numbers, as Orlans Moran relies on the USPS firm book.

[Note 4] David Bradeen testified that the notice was sent by first-class mail and not registered mail.

[Note 5] On May 5, 2015, Susan Bradeen was at home all day, in anticipation of the foreclosure sale. Susan Bradeen did not see a foreclosure sale at her property on May 5 and claims that one did not take place. Neither Susan nor David were aware of the public proclamation on May 5, 2015. David Bradeen was at work on May 19, 2015 when the foreclosure sale took place. He left work and went home after receiving a call from Susan about the foreclosure at 11:30 A.M. On May 19, 2015, Susan Bradeen had a doctor's appointment and returned home to find the foreclosure sale taking place on her property.