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13-P-874 Appeals Court

AURORA LOAN SERVICES, LLC vs. WALTER MURPHY.

1

No. 13-P-874.

Plymouth. November 4, 2015. - December 11, 2015.

Present: Berry, Meade, & Maldonado, JJ.

Mortgage, Foreclosure, Real estate. Real Property, Mortgage, 

Sale. Sale, Real estate. Notice, Foreclosure of mortgage. 

Practice, Civil, Retroactivity of judicial holding. 

Retroactivity of Judicial Holding.

Summary process. Complaint filed in the Southeast Division 

of the Housing Court Department on February 6, 2012. 

The case was heard by Anne Kenney Chaplin, J., and a motion 

for reconsideration was heard by her.

Paul R. Collier, III, for the defendant.

Shawn Michael Masterson for the plaintiff.

MEADE, J. Walter Murphy purchased his home in 2007 with a 

mortgage loan from GreenPoint Mortgage Funding, Inc. 

(GreenPoint). In November of 2010, Murphy received a notice 

 

1 Also known as Walter W. Murphy.
2

from Aurora Loan Services, LLC (Aurora), notifying him that he 

had defaulted on his loan. The letter also informed him of his 

right to cure the default, or to assert the nonexistence of a 

default or any other defense to acceleration of the loan in a 

foreclosure proceeding. Acting as nominee for GreenPoint, the 

Mortgage Electronic Registrations Systems, Inc. (MERS), assigned

the mortgage to Aurora on April 13, 2011. In October, 2011, 

Aurora foreclosed on and purchased the property in an 

extrajudicial foreclosure auction. Thereafter, Aurora commenced 

a summary process action to evict Murphy. 

In Housing Court, the judge determined that Aurora, as 

mortgage servicer, adequately complied with the requirements 

under G. L. c. 244, § 35A, as mortgagee, and granted it summary 

process to recover possession of the premises. On appeal from 

the judgment, Murphy claims that, pursuant to the Supreme 

Judicial Court's (SJC) recent decision in Pinti v. Emigrant 

Mort. Co., 472 Mass. 226 (2015), Aurora's failure to strictly 

comply with the notice of foreclosure procedures contained in

Murphy's mortgage renders the subsequent foreclosure void. 

Asserting that a ruling in his favor would not impair existing 

property interests and doing so would apply Pinti's otherwise 

prospective limitation equitably and without appearing arbitrary 

and capricious, Murphy claims the Pinti ruling ought to extend

to cases pending on appeal (when the claim was raised and 
3

preserved) at the time of the Pinti decision's release. We 

agree and therefore reverse. 

1. Background. Murphy purchased 245 Holmes Street in 

Halifax on March 13, 2007, through a mortgage loan secured from 

GreenPoint in the principal amount of $230,000. The mortgage 

conveys a security interest in Murphy's home and explicitly sets 

out the rights, powers, and obligations of the parties. Under 

its terms, Murphy was the mortgagor (borrower), and GreenPoint 

was the mortgagee and lender, with MERS as nominee for its 

successors and assigns. 

Paragraph 22 of the mortgage describes in bold print the 

terms of a power of sale -- including the circumstances in which 

Murphy's home could be foreclosed upon and sold at auction, the 

appropriate process for doing so, and the entity with the right 

to initiate and to conduct such a sale -- in the event that 

Murphy defaulted under the terms of the mortgage, thereby 

accelerating the loan: 

"22. Acceleration; Remedies. Lender shall give notice to 

Borrower prior to acceleration following Borrower's breach 

of any covenant or agreement in this Security Instrument 

. . . . The notice shall specify: (a) the default; (b) 

the action required to cure the default; (c) a date, not 

less than 30 days from the date the notice is given to 

Borrower, by which the default must be cured; and (d) that 

failure to cure the default on or before the date specified 

in the notice may result in acceleration of the sums 

secured by this Security Instrument and sale of the 

Property. The notice shall further inform Borrower of the 

right to reinstate after acceleration and the right to 

bring a court action to assert the non-existence of a 
4

default or any other defense of Borrower to acceleration 

and sale. If the default is not cured on or before the 

date specified in the notice, Lender at its option may

require immediate payment in full of all sums secured by 

this Security Instrument without further demand and may 

invoke the STATUTORY POWER OF SALE and any other remedies 

permitted by Applicable Law."

In a letter dated November 4, 2010, Aurora informed Murphy

that his loan was "in default" and that it would accelerate the 

loan unless he remitted the overdue balance and cured the 

default by April 4, 2011. In the letter, Aurora asserted that

unless Murphy cured the default, it would take steps to 

terminate his ownership in a foreclosure proceeding. The letter 

also notified Murphy of his right to assert the "non-existence 

of a default or any other defense" that he might have to 

acceleration of the loan and sale of his property.

Nothing in the record indicates that Murphy cured the 

default within the prescribed 150-day period. After this period 

passed, MERS formally assigned the mortgage to Aurora on or 

about April 13, 2011. On October 6, 2011, Aurora commenced 

foreclosure proceedings against Murphy and subsequently recorded 

a foreclosure deed through which Aurora purported to become the 

title owner of the property. In a mailing dated December 16, 

2011, Aurora sent Murphy a "notice to quit and vacate premises" 

informing him that his rights to occupy the property would 

terminate within seventy-two hours; Aurora then commenced a

summary process action to evict him.
5

In the summary process proceeding, a judge of the Housing 

Court determined that Aurora established its case for possession 

of the premises, plus costs. Murphy had argued that Aurora 

failed to prove its superior right to possession of the premises 

because (1) it did not strictly comply with the "terms of the 

mortgage and with the statutes relating to the foreclosure of 

mortgages by the exercise of a power of sale" as required by 

G. L. c. 183, § 21, (2) Aurora failed to comply with the 

provisions of G. L. c. 244, § 35A, because it was not the 

assignee of the mortgage when it sent Murphy notice of his right 

to cure, and (3) the notice of the right to cure itself did not 

comply with either § 35A or paragraph 22 of Murphy's mortgage.

The judge found no merit to Murphy's claims and ruled that 

"mortgagee" in relation to § 35A properly included Aurora as a 

"mortgage servicer." In addition, the judge held that there was 

"no dispute" whether Murphy received notice of his right to cure 

and that disputes regarding the notice's failure strictly to

comply with paragraph 22 or § 35A were "not the types of claims 

that would render the foreclosure void ab initio." The judge 

further held that there was no express obligation strictly to 

comply with § 35A in defining the statutory power of sale.

2

 

2 The SJC since has resolved this legal question in U.S. 

Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 430-431 (2014), 

which holds that § 35A is not one of the statutes relating to 

the foreclosure of mortgages by exercise of the power of sale 
6

Murphy further contested the notice of his right to cure as 

inadequate in a motion for reconsideration. He claimed that, 

because Massachusetts is a nonjudicial foreclosure State without 

a mandated "foreclosure proceeding," Aurora's failure to notify 

him that he would need affirmatively to bring a court action in 

order to assert a defense or the nonexistence of default

deprived him of proper notice, and made the foreclosure sale 

void ab initio, not merely voidable. In her order denying the 

motion, the judge held that, while providing such notice is a 

necessary condition precedent, the content of the notice is not.

Relying on Superior Court decisions, Murphy claimed that other 

Massachusetts courts had found that parties must strictly comply 

with § 35A as a statute that is part of the power of sale under 

G. L. c. 183, § 21. Because the SJC had not yet decided the 

relevant points governing this matter, the judge declined to 

follow the trend in the Superior Court and denied Murphy's 

motion for reconsideration. Murphy timely noticed an appeal

from the judgment and the order denying reconsideration.

 

under G. L. c. 183, § 21, because § 35A is designed to give a 

mortgagor a fair opportunity to cure a mortgage before the debt 

is accelerated and foreclosure proceedings begin. Therefore, "a 

mere violation of § 35A" is insufficient to render a foreclosure 

proceeding void; the violation must be so "fundamentally unfair" 

as to entitle the mortgagor to equitable relief. Schumacher, 

supra at 433 (Gants, J., concurring). Because we reverse on 

alternate grounds, we need not consider here whether the notice 

under § 35A was fundamentally unfair.
7

2. Discussion. On review of a jury-waived proceeding, we 

accept the judge's findings of fact unless they are clearly 

erroneous. See U.S. Bank Natl. Assn. v. Schumacher, 467 Mass.

421, 427 (2014). However, where the judge has not assessed 

witness credibility, but instead based her findings on 

documentary evidence, we may draw our own conclusions from the 

record. Ibid. We examine the judge's rulings on questions of 

law de novo. Ibid.

On appeal, Murphy claims that Pinti, 472 Mass. at 231-244, 

which holds that the failure to comply strictly with the notice 

of default provisions in the mortgage renders the foreclosure 

sale void, not merely voidable, ought to apply to cases pending 

on appeal when that claim was raised and preserved.

3 Applying 

the principles governing application of new doctrines to cases 

pending on appeal determined in Galiastro v. Mortgage Electronic

Registration Sys., Inc., 467 Mass. 160, 165-170 (2014), we 

agree.

In Pinti, supra at 235-236, the SJC held that a notice of 

default provision (nearly identical to Murphy's) in paragraph 22 

 

3 Murphy also claims that Aurora had no right to exercise 

authority as lender because it did not receive a written 

assignment of the mortgage for several months after it sent the 

notice of foreclosure and right to cure. In support of his 

argument, Murphy claims that G. L. c. 183, § 21, confirms that 

only the original mortgage holder or holder of the written 

mortgage assignment may exercise the powers of foreclosure 

granted under a mortgage. We need not reach the issue.
8

of the plaintiff's mortgage required strict compliance as a 

necessary component of the power of sale in the mortgage and the 

statutory power of sale in G. L. c. 183, § 21. The court 

explained that the errant notice, which informed the defaulting 

mortgagors of their right to bring a court action, did not 

strictly comply with the provisions of paragraph 22 of the 

mortgage because the notice did not inform the mortgagors of 

their right and the need to initiate legal action to challenge 

the validity of the foreclosure, a necessary step in a 

nonjudicial foreclosure State like Massachusetts. Pinti, supra

at 237. Therefore, because the notice failed to strictly comply 

with paragraph 22 of the mortgage, the court held the subsequent 

foreclosure sale was void, not voidable. Id. at 238, 240-243. 

Specifically, the court distinguished the requirements for 

strict compliance with paragraph 22, the focus of Pinti, from 

the less stringent notice requirements of § 35A. Id. at 239-

240. The court previously had determined that "strict or exact 

compliance with all the provisions of § 35A was not a 

prerequisite of a valid foreclosure" because § 35A was designed 

to protect existing and new homeowners from foreclosure and loan 

acceleration by providing a grace period. Id. at 239, citing 

Schumacher, 467 Mass. at 430-431. Because of this distinct

purpose, § 35A is not a foreclosure sale statute within the 

meaning of G. L. c. 183, § 21. Pinti, supra at 239, citing 
9

Schumacher, supra at 431. Pinti explains that the "terms of the 

mortgage" and a statute "relating to the foreclosure of 

mortgages by the exercise of a power of sale" under G. L.

c. 183, § 21, should be understood to have separate requirements 

with independent meanings that include paragraph 22 as a term of 

the mortgage requiring strict or exact compliance, yet exclude 

§ 35A as a statute not within the fixed set of foreclosure sale 

statutes. Pinti, supra at 239, citing Schumacher, supra at 430. 

As such, notice to cure a default must strictly comply with the 

terms of paragraph 22 of a mortgage in order to conduct a valid 

subsequent foreclosure proceeding.

4

Citing a willingness to apply property law decisions 

prospectively and noting the impact the case otherwise could 

have on the validity of titles, the Pinti court applied the 

decision prospectively. Id. at 243. Specifically, the court 

stated that the case "will apply to mortgage foreclosure sales 

of properties that are the subject of a mortgage containing 

paragraph 22 or its equivalent and for which the notice of 

 

4 Aurora also argues that compliance with § 35A satisfies 

the notice requirements of paragraph 22 and cites to paragraph 

15 of Murphy's mortgage, which provides: "If any notice 

required by this Security Instrument is also required under 

Applicable Law, the Applicable Law requirement will satisfy the 

corresponding requirement under this Security Instrument." 

Because Aurora raises this claim for the first time on appeal, 

we decline to reach it. See Cariglia v. Bar Counsel, 442 Mass. 

372, 379 (2004). 
10

default required by paragraph 22 is sent after the date of [the 

Pinti] opinion." Ibid. However, the court specifically left 

open the question whether its decision should be applied to "any 

other class of cases pending on appeal." Id. at 243 n.25. 

This case presents the opportunity to resolve that open 

question. Murphy claims that a failure to extend Pinti to this 

and other pending cases (where the issue has been raised and 

preserved) would unjustly deprive him of the benefit that the 

similarly situated Pinti mortgagors received. See Galiastro, 

467 Mass. at 167-168. We agree.

This appeal was stayed after the SJC granted direct 

appellate review in Pinti on the same issue, i.e., whether 

paragraph 22 requires strict compliance. "Where multiple cases 

await appellate review on precisely the same question, it is 

inequitable for the case chosen as a vehicle to announce the 

court's holding to be singled out as the 'chance beneficiary' of 

an otherwise prospective rule." Ibid. Here, Murphy should not 

be "deprived of the benefit of . . . challenging the old rule," 

nor deterred from challenging existing precedent merely because 

the SJC selected Pinti, and not Murphy, to announce and to 

clarify the terms and statutes requiring strict compliance. Id.

at 169, quoting from Powers v. Wilkinson, 399 Mass. 650, 664 

(1987) (Abrams, J., concurring in part and dissenting in part). 

Applying Pinti to Murphy's appeal also comports with the SJC's 
11

practice of extending prospective-only holdings to the parties 

that bring the issue before the court, as well as similar 

actions pending on appeal.

5 See Galiastro, supra at 170. See

also Commonwealth v. Pring-Wilson, 448 Mass. 718, 736 (2007) 

(applying new rule of criminal law decided in prior case to 

different defendant on appeal, "even though we said in the 

decision that the new rule would apply prospectively"). This 

exception to the prospective-only rule for the party bringing 

the doctrinal case (Pinti) and the party on appeal specifically 

preserving and raising the issue (here, Murphy), helps to limit 

the unevenness and inequity that might otherwise follow a 

doctrinal change. See Galiastro, supra. We do not extend the 

Pinti rule to cases pending in the trial court as the SJC has 

already limited the new rule's application "to mortgage 

foreclosure sales of properties that are the subject of a 

mortgage containing paragraph 22 or its equivalent and for which 

the notice of default required by paragraph 22 is sent after 

[July 17, 2015,] the date of [the Pinti] opinion." Pinti, 472 

Mass. at 243. 

 

5 As in Galiastro, cases that were pending on appeal when 

Pinti was released included those cases in which the case was 

docketed in this court before July 17, 2015, and this court had 

not yet issued a decision in the case. See Galiastro, supra at 

167 n.14. Cases where we had issued a decision, and the 

litigants have filed a petition for further appellate review,

will also be considered pending on appeal for purposes of the 

retroactive reach of Pinti. Ibid.
12

Having decided that the requirement for strict compliance 

with paragraph 22 announced in Pinti applies, we hold that 

because the notice of default and the right to cure that Aurora 

sent Murphy did not inform him of his need to initiate a court 

action to assert his rights and defenses in a foreclosure 

proceeding in a nonjudicial foreclosure State like 

Massachusetts, Aurora did not strictly comply with paragraph 22, 

a term of Murphy's mortgage, as required under G. L. c. 183, 

§ 21. This failure to strictly comply with paragraph 22 

therefore renders Aurora's foreclosure on the property void.

3. Conclusion. The motion for reconsideration should have 

been allowed. The judgment is reversed and the case is remanded 

for further proceedings consistent with this opinion.

So ordered.