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22-P-516 Appeals Court

WELLS FARGO BANK, N.A. vs. JASON A. SUTTON.

No. 22-P-516.

Hampden. May 12, 2023. - August 23, 2023.

Present: Massing, Ditkoff, & Singh, JJ.

Mortgage, Foreclosure. Real Property, Mortgage. Notice, 

Foreclosure of mortgage. Veteran. Practice, Civil, Notice 

of appeal. Clerk of Court. Housing Court.

Summary process. Complaint filed in the Western Division of 

the Housing Court Department on July 5, 2018. 

A motion for summary judgment was heard by Dina E. Fein, 

J., and the case was also heard by her.

Sean R. Higgins (Brandon R. Dillman also present) for the 

plaintiff.

Jason A Sutton, pro se, submitted a brief.

DITKOFF, J. The homeowner, Jason A. Sutton, appeals from a 

judgment after a Housing Court bench trial awarding the 

plaintiff, Wells Fargo Bank, N.A. (bank), possession after a 
2

foreclosure.1 Based on its interpretation of the Massachusetts 

COVID-19 pandemic eviction moratorium, the Housing Court clerk's 

office refused to docket the homeowner's timely notice of 

appeal. We conclude that the clerk's office should have 

accepted the homeowner's notice of appeal and docketed it, and 

that the timely notice of appeal grants us appellate 

jurisdiction despite the clerk's office's refusal to accept it. 

Further concluding that the bank complied with Federal 

regulations governing loans guaranteed by the United States 

Department of Veterans Affairs (VA), see 38 C.F.R. 

§ 36.4350(g)(1) (2018), by making reasonable efforts to arrange 

a face-to-face meeting with the homeowner before foreclosing on 

the property, we affirm.

1. Background. a. Loan proceedings. In July 2011, the 

homeowner obtained a mortgage loan from Residential Mortgage 

Services, Inc., in the amount of $237,900 to finance the 

purchase of a home in East Longmeadow (the property). The loan 

was guaranteed by the VA. On October 9, 2015, the mortgage was 

assigned to the bank. Shortly thereafter, the homeowner 

defaulted. On February 15, 2016, the bank sent the homeowner a 

1 The homeowner was not present at oral argument, despite 

having repeatedly been provided with notice by phone and e-mail. 

Counsel for the bank represented that he had repeatedly tried to 

contact the homeowner by phone and e-mail as well but had 

received no response.
3

letter informing him of his right to cure the default and his

right "to request a modification of [his] mortgage." Because 

the loan was guaranteed by the VA, the bank was required to 

comply with the VA's regulations requiring reasonable efforts to 

avoid foreclosure, pursuant to 38 C.F.R. § 36.4350, before it 

could initiate foreclosure proceedings.

On November 30, 2017, the homeowner called the bank to 

discuss loan assistance options. The homeowner explained that 

he had fallen behind on payments after the death of his wife. 

The bank representative informed the homeowner that the bank had 

"several options available" to help him cure the default, 

including a loan modification program, a repayment program, and 

a forbearance option. After the representative explained these

options, the homeowner asked if he could pay $15,000 up front,

"and then do the repayment option over the next couple months?" 

The representative responded, "that's definitely a possibility." 

The representative then asked the homeowner if he could pay 

$3,000 per month, to which the homeowner replied that "[he] 

could for the next couple months." The homeowner stated, "Maybe 

I can try for a loan modification first and then if I have to, 

do the payment." 

The representative proceeded to ask the homeowner various 

questions regarding his financial circumstances. The 

representative asked about the homeowner's employment status and 
4

learned that, although the homeowner was currently unemployed, 

he "plan[ned] on getting back into the workplace" at the start 

of the new year. Next, the representative inquired into the 

homeowner's income sources, which included social security

payments, VA disability payments, and a military annuity. In 

addition, the representative confirmed the homeowner's contact 

information, including his mailing address, telephone number, 

and e-mail address.

The representative informed the homeowner that he would be 

sending the homeowner an application form and requesting certain 

documents, which the homeowner would then need to return so that 

the bank could conduct a formal review and modify his loan. At 

the end of the call the representative stated, "Throughout this 

process, we will need to have communication rather frequently, 

so look out for my phone and if I don't reach you, I will leave 

you a voicemail, so go ahead and check for those." That same 

day, the bank sent the homeowner a letter informing him that a 

payment of $23,712.52 would be sufficient to reinstate his 

mortgage (even without modification).

On December 1, 2017, the representative sent the homeowner 

a packet containing the loan modification application, a stepby-step guide "that takes [the applicant] through the process," 

and an income documentation guide. The cover letter was signed 

by the representative who had spoken with the homeowner on the 
5

telephone, and it contained his e-mail address, telephone 

number, and extension.

The homeowner testified that he mailed the completed 

application with four months of monthly bank statements to the 

bank. At trial, the judge orally stated that she credited this 

testimony, although no such finding appears in the judge's 

written findings. In any event, there is no record of the bank 

having actually received the documents.

On five different occasions over the course of December, 

the bank attempted to establish contact with the homeowner 

regarding his request for mortgage assistance. On December 6, 

8, and 13, 2017, the bank2 called the homeowner to inform him 

that it had not received the necessary documentation, each time 

leaving a voice message. On December 15, the representative who 

had spoken with the homeowner sent an e-mail to the homeowner, 

stating, "we have not received any of the required documents 

needed to begin reviewing your home assistance application."

The e-mail listed three different methods by which the homeowner 

could submit the documents. Again, the representative provided 

his e-mail address, telephone number, and extension. On 

December 20, the bank left another voice message. On January 

2 The record does not reflect whether these phone calls were 

made by the same bank representative who spoke to the homeowner 

on November 30, 2017. Who made the calls on behalf of the bank 

is not material to our decision.
6

10, 2018, the bank representative sent an e-mail to the 

homeowner to inform him that it was "no longer moving forward 

with [his] request" for mortgage assistance.

On February 15, 2018, the bank (through counsel) sent the 

homeowner a letter informing him of the bank's intent to 

foreclose by sale on or after March 19, 2018. On March 19, 

2018, the bank foreclosed on the property. On April 23, 2018, 

the bank transferred the property to the VA in exchange for 

$218,983.20, presumably the amount required for the VA to 

fulfill its guarantor obligation, see 38 U.S.C. § 3732(c)(5)(A).

b. Procedural history. On June 19, 2018, the VA served 

the homeowner with a notice to quit. On June 28, 2018, the VA 

served the homeowner with a summary process summons and 

complaint. The defendant timely answered, and the VA moved for 

summary judgment on the issue of possession. After a hearing, a

judge denied the motion. On July 17, 2019, the parties 

proceeded to trial.

At trial, the sole issue was whether the bank had complied 

with the VA regulations, and specifically whether the bank was 

required to conduct a face-to-face meeting with the homeowner

before it foreclosed on the property. The evidence at the first 

day of trial established the bank's December 2017 and January

2018 attempts to contact the homeowner, but the bank employee 

who testified was unable to provide information concerning the 
7

November 30, 2017, telephone call. The homeowner testified 

that, during the call, he repeatedly asked to pay off the 

deficiency, but the bank insisted that he modify the loan

instead.3

Faced with this inconsistency, the judge ordered 

"additional testimony and evidence as to the telephone 

conversation on November 30, 2017, the amount in default at that 

time, and the [homeowner's] ability to cure the default at that 

time." The VA then transferred the property back to the bank,

and the bank was substituted as the plaintiff by agreement.

At the second day of trial, the bank provided a recording 

of the November 30 telephone call, as well as several other 

documents. The homeowner, for his part, testified that he had 

at least $26,000 in cash at the time of the November 30 

telephone call.

On April 7, 2020, the judge awarded the bank judgment for 

possession because it had "established its prima facie case and 

satisfied the requirements of 38 C.F.R. § 36.4350 without the 

necessity of a face-to-face meeting." The judge found that,

3 Although the homeowner's version proved to be inaccurate, 

nobody suggests that the homeowner was lying. The homeowner 

specifically informed the judge that he "was pretty shaken" 

during the phone call and it "was a pretty emotional phone 

call." It is hardly unusual for a person in the homeowner's 

circumstances to have imperfect recall of a telephone call of 

this nature.
8

after the November 30 call, "[the bank] sent multiple 

communications indicating that it had not received the necessary 

information and would proceed to foreclosure" and that it had 

"attempted to establish contact through phone calls and emails, 

to which [the homeowner] did not respond." The judge determined 

that "[the bank's] attempts to continue communication with [the 

homeowner] after the initial contact on November 30, 2017 

constituted a reasonable effort to establish a realistic and 

mutually satisfactory loss mitigation plan." Judgment entered 

the same day.

Nine days later, on Thursday, April 16, 2020, the homeowner 

filed a timely notice of appeal from the judgment. On April 20, 

2020, the Legislature passed an emergency act creating an 

eviction moratorium in response to the COVID-19 pandemic. 

St. 2020, c. 65. The Housing Court's clerk's office then 

rejected the notice of appeal and refused to docket it. When 

the homeowner's counsel inquired about the reason for this, the 

clerk's office stated that it had been "instructed to reject all 

items regarding" summary process actions because of the eviction 

moratorium. The clerk-magistrate opined that, "[i]n my reading, 

nothing will prejudice your client from pursuing an appeal once 

the moratorium is lifted."

The eviction moratorium ended on Saturday, October 17, 

2020. See Expiration of Moratorium on Evictions and 
9

Foreclosures, https://www.mass.gov/info-details/expiration-ofmoratorium-on-evictions-and-foreclosures [https://perma.cc/4XV7-

3862]. On October 20, 2020, the homeowner refiled his notice of 

appeal, attaching a copy of the correspondence with the clerk's 

office. This appeal followed.

2. Appellate jurisdiction. "A timely notice of appeal is 

a jurisdictional prerequisite to our authority to consider any 

matter on appeal." DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 

170 (2018). Although the bank does not challenge the timeliness 

of the notice of appeal, we have the duty to consider sua sponte 

whether we have jurisdiction. See Federal Nat'l Mtge. Ass'n v. 

Gordon, 91 Mass. App. Ct. 527, 531 (2017). Accord Krimkowitz v. 

Aliev, 102 Mass. App. Ct. 46, 48-50 (2022).

"[A] party seeking to appeal from a judgment on a summary 

process action" must file a notice of appeal within ten days of 

the entry of final judgment. Graycor Constr. Co. Inc. v. 

Pacific Theatres Exhibition Corp., 490 Mass. 636, 646 n.13 

(2022), citing G. L. c. 239, § 5. See DeLucia, supra at 169 

("appeal period, set by statute, cannot be enlarged").

Here, we have the odd circumstances of a notice of appeal 

that was filed in a timely manner but was rejected by the 

clerk's office. "In the absence of an order from a judge, 

[clerks] may not refuse to accept a notice of appeal, even if 

they believe that no appeal is available or that the notice is 
10

untimely or otherwise defective." Loftfield v. Ferreira, 440 

Mass. 1012, 1012 (2003), quoting Gorod v. Tabachnick, 428 Mass. 

1001, 1001, cert. denied, 525 U.S. 1003 (1998). See Farzana K. 

v. Indiana Dep't of Educ., 473 F.3d 703, 708 (7th Cir. 2007) 

(clerk has limited "power to reject documents tendered for 

filing"). Cf. Jahm v. Mall at Liberty Tree, LLC, 487 Mass. 

1009, 1010 (2021) (judge may strike notice of appeal but order 

striking notice of appeal always appealable).

The clerk's office should have accepted the homeowner's 

timely notice of appeal. Nothing in St. 2020, c. 65, provided

authority for a clerk's office to refuse to accept a notice of 

appeal. That law required that, in a "non-essential eviction" 

case for a residence or small business,4 the court not "accept 

for filing a writ, summons or complaint." St. 2020, c. 65, 

§ 3 (b) (i).5 Although we recognize the difficulty imposed on a 

clerk's office by a legislative mandate to reject a filing 

(rather than merely making that filing inoperative), this 

4 A "non-essential eviction" was an eviction that did not 

involve issues of criminal activity or lease violations "that 

may impact the health or safety of other residents, health care 

workers, emergency personnel, persons lawfully on the subject 

property or the general public." St. 2020, c. 65, § 1.

5 The law also prohibited, in a "non-essential eviction," 

scheduling a summary process trial, entering a judgment for 

possession for the plaintiff, issuing an execution for 

possession, or denying a defendant's request to continue 

proceedings or to stay an execution. St. 2020, c. 65, § 3 (b).
11

statute did not prohibit a court from accepting a notice of 

appeal and should not have been read as broader than it was 

written.

The law also provided the following:

"A deadline or time period for action by a party to a nonessential eviction for a residential dwelling unit or small 

business premises unit, whether such deadline or time 

period was established before or after the effective date 

of this act, including, but not limited to, a date to 

answer a complaint, appeal a judgment or levy upon an 

execution for possession or a money judgment, shall be 

tolled."

St. 2020, c. 65, § 3 (c). It is not evident that this provision 

had any applicability to the instant case, where the notice of 

appeal was filed (though not docketed) prior to the enactment of 

the moratorium, especially where the time to appeal had run 

before the enactment of the moratorium.

Even if the deadline had been tolled, the fact that a

deadline for filing an appeal was tolled simply meant that a 

notice of appeal could be filed until (at least) the end of the 

tolling period; it did not mean that a notice of appeal could 

not be filed until after the tolling period ended. It was 

inappropriate for the clerk's office to impose upon summary 

process defendants the burden of monitoring legal developments 

so as to determine when the moratorium ended and file a notice 

of appeal within ten days of the moratorium's end -- which the 

homeowner's legal aid attorney, exhibiting exemplary diligence, 
12

did in this case. It was especially inappropriate here, where 

the duration of the moratorium was indefinite. See St. 2020, 

c. 65, § 6 ("sections 3 [and 4] shall expire 120 days after the 

effective date of this act or 45 days after the COVID-19 

emergency declaration has been lifted, whichever is sooner; 

provided, however, that the governor may postpone such 

expiration in increments of not more than 90 days").

Instead, the clerk's office should have accepted the notice 

of appeal and docketed it as soon as possible (which 

understandably could have been delayed because of the staffing 

challenges occasioned by the pandemic). See Skandha v. Clerk of 

the Superior Court for Civil Business in Suffolk County, 472 

Mass. 1017, 1019 (2015), quoting Gorod, 428 Mass. at 1001

("Clerks . . . are ministerial officers of the court when it 

comes to receiving and filing papers"). Accordingly, because 

the original notice was timely filed, we have appellate 

jurisdiction to review the merits. See McNeff v. Cerretani, 489 

Mass. 1024, 1025-1026 (2022).

3. Bank's compliance with 38 C.F.R. § 36.4350(g). "When 

reviewing the decision of a trial judge in a summary process 

action, 'we accept [the judge's] findings of fact as true unless 

they are clearly erroneous,' but 'we scrutinize without 

deference the legal standard which the judge applied to the 

facts.'" Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 
13

123 (2018), quoting Andover Hous. Auth. v. Shkolnik, 443 Mass. 

300, 306 (2005). We owe no deference to the Housing Court's 

interpretation of 38 C.F.R. § 36.4350(g) because "[t]he 

interpretation of a regulation is a question of law which we 

review de novo." Commonwealth v. Aldana, 477 Mass. 790, 801 

n.22 (2017), quoting Commonwealth v. Hourican, 85 Mass. App. Ct. 

408, 410 (2014).

Federal regulations impose various requirements for loans 

guaranteed by the VA. In particular, "38 C.F.R. § 36.4350(g)

. . . governs collection actions by the lender." Wells Fargo 

Bank, N.A. v. LaTouche, 340 Ga. App. 515, 518 (2017) (LaTouche). 

These requirements aim to ensure that veterans "receive every 

reasonable opportunity to bring [a] loan current and to retain 

[a] home." 38 C.F.R. § 36.4350(g)(1)(iv)(B)(4). Specifically, 

holders of such loans "must make a reasonable effort to 

establish . . . (1) The reason for the default and whether the 

reason is a temporary or permanent condition; (2) The present 

income and employment of the borrower(s); (3) The current 

monthly expenses of the borrower(s) including household and debt 

obligations; (4) The current mailing address and telephone 

number of the borrower(s); and (5) A realistic and mutually 

satisfactory arrangement for curing the default." 38 C.F.R. 

§ 36.4350(h).
14

The regulations require that, in attempting to obtain this 

information, a lender must make an effort "to establish contact 

with the borrower(s) by telephone." 38 C.F.R. 

§ 36.4350(g)(1)(i). "In the event the holder has not 

established contact with the borrower(s) and has not determined 

the financial circumstances of the borrower(s) or established a 

reason for the default or obtained agreement to a repayment plan 

from the borrower(s), then a face-to-face interview with the 

borrower(s) or a reasonable effort to arrange such a meeting is 

required." 38 C.F.R. § 36.4350(g)(1)(iii). Accord LaTouche, 

340 Ga. App. at 519.

Here, we need not determine the exact contours of what 

information a bank needs to receive before being excused from 

the duty of seeking a face-to-face interview, as the findings of 

the trial judge establish that the bank made "a reasonable 

effort" to meet with the homeowner. 38 C.F.R. 

§ 36.4350(g)(1)(iii). Cf. Wells Fargo Bank, N.A. v. Sowell, 

2012-Ohio-2987, ¶ 13 (10th Dist.) (no face-to-face meeting was 

required where there was "extensive contact and correspondence 

between Wells Fargo and the [homeowners] over the lengthy period 

preceding actual foreclosure upon the note"). After the 

homeowner defaulted, the bank sent the homeowner a letter 

informing him that he had a right to cure the default and that 

he was eligible to modify his mortgage. On November 30, 2017,
15

the bank engaged in a lengthy telephone conversation with the 

homeowner regarding his request for mortgage assistance. During 

that call the bank obtained a considerable amount of financial 

information from the homeowner. See Bulmer v. MidFirst Bank, 

FSA, 59 F. Supp. 3d 271, 280 (D. Mass. 2014), quoting 38 C.F.R. 

§ 36.4350(h) ("The holder shall solicit sufficient information 

to properly evaluate the prospects for curing the default").

After the bank sent the homeowner a loan modification 

application, it contacted the homeowner on five different 

occasions by telephone and e-mail stating that it had not 

received the required documents. See Secretary of Veterans 

Affairs v. Leonhardt, 2015-Ohio-931, 29 N.E.3d 1, ¶ 88 (3d 

Dist.) ("the record reflects extensive contact and 

correspondence between the VA's loan servicers . . . and [the 

homeowner]" prior to foreclosure). Despite the bank's continued 

efforts, the homeowner never responded. There was, simply, no 

reasonable way the bank could proceed to schedule a face-to-face 

meeting in light of the homeowner's complete silence in response 

to the bank's many efforts to contact him after the initial 

telephone conversation. Accordingly, under these circumstances, 

a face-to-face meeting prior to foreclosure "was not required." 

LaTouche, 340 Ga. App. at 520.

Judgment affirmed.