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SJC-12798

MARK R. THOMPSON & another1 vs. JPMORGAN CHASE BANK, N.A.

Suffolk. February 13, 2020. - November 25, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.2

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

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

Certification of a question of law to the Supreme Judicial 

Court by the United States Court of Appeals for the First 

Circuit.

Alan E. Schoenfeld, of New York (Arpit Garg, of the 

District of Columbia, & Mark C. Fleming also present) for the 

defendant.

Todd S. Dion for the plaintiffs.

The following submitted briefs for amici curiae:

Andrew C. Glass, Gregory N. Blase, & Hollee M. Watson for 

American Bankers Association & others.

Marissa I. Delinks & Samuel C. Bodurtha for Federal 

National Mortgage Association & another.

Francis J. Nolan for Real Estate Bar Association for 

Massachusetts, Inc., & another.

Jack Saade, pro se.

 

1 Beth A. Thompson.

2 Chief Justice Gants participated in the deliberation on 

this case prior to his death.
2

GAZIANO, J. Eight years after the plaintiff homeowners

defaulted on their mortgage payments, JPMorgan Chase Bank, N.A.

(Chase or bank), foreclosed on their home and sold it at auction 

pursuant to the statutory power of sale. See G. L. c. 183, 

§ 21. In the course of the foreclosure, Chase sent the notice 

required by G. L. c. 244, § 35A, and scripted in regulations 

issued by the Division of Banks (division) at 209 Code Mass. 

Regs. § 56.04. The division does not permit a foreclosing 

mortgagee to alter the language of the required notice, which 

provides, inter alia, that "you can still avoid foreclosure by 

paying the total past-due amount before a foreclosure sale takes 

place." 209 Code Mass. Regs. § 56.04. The terms of the 

plaintiffs' mortgage, however, specified that they could

reinstate their mortgage by paying all past due amounts until

"five days before sale of the Property pursuant to any power of 

sale contained in this Security Instrument."

One month after the foreclosure sale, the plaintiffs 

commenced this action in the Superior Court to set aside the 

foreclosure. They argued that these conflicting statements as 

to the last day upon which they possibly could reinstate their 

mortgage -- up to the foreclosure sale, as the notice stated, or 

up to five days before the foreclosure sale, as the terms of the 

mortgage provided -- meant that the bank's notice was 
3

misleading, potentially deceptive, and therefore should render 

the foreclosure sale void. See, e.g., Pinti v. Emigrant Mtge. 

Co., 472 Mass. 226, 240 (2015).

After the matter was removed to the United States District 

Court for the District of Massachusetts, a Federal District 

Court judge granted summary judgment to Chase. See Thompson vs. 

J.P. Morgan Chase Bank, N.A., U.S. Dist. Ct., No. 18-10131 (D. 

Mass. May 11, 2018) (Thompson I). The United States Court of 

Appeals for the First Circuit reversed. See Thompson v. 

JPMorgan Chase Bank, N.A., 915 F.3d 801, 805 (1st Cir.) 

(Thompson II), opinion withdrawn, 931 F.3d 109 (1st Cir. 2019)

(Thompson III). It concluded that, because the notice failed to 

include the five-day limitation specified in the mortgage 

contract, the notice was potentially deceptive and, therefore,

void pursuant to our decision in Pinti. Thompson II, 915 F.3d 

at 804-805, citing Pinti, 472 Mass. at 237-238.

On a petition for reconsideration, in which Chase and 

numerous amici pointed out for the first time that the bank was 

required under Massachusetts law to send the notice verbatim, 

the First Circuit vacated its decision and certified the 

following question to this court:

"Did the statement in the August 12, 2016, default and 

acceleration notice that 'you can still avoid 

foreclosure by paying the total past-due amount before 

a foreclosure sale takes place' render the notice 

inaccurate or deceptive in a manner that renders the 
4

subsequent foreclosure sale void under Massachusetts 

law?"

Thompson III, 931 F.3d at 111.

We answer the reported question, "No." Paragraph 16 of the 

plaintiffs' mortgage states that "[a]ll rights and obligations 

contained in this Security Instrument are subject to any 

requirements and limitations of Applicable Law." Accordingly, 

the longer time for reinstatement specified by G. L. c. 244, 

§ 35A -- any time prior to the foreclosure sale -- constitutes 

controlling and applicable law that supersedes the conflicting 

provision of the mortgage contract. Because that statute and 

its enabling regulations obligate mortgagees to accept a 

reinstatement payment at any time prior to a foreclosure sale,

just as the notice stated, the notice sent by Chase was neither

deceptive nor misleading.

1. Background. On June 13, 2006, the plaintiffs entered 

into a residential mortgage agreement with Washington Mutual 

Bank to secure a $322,500 loan. See Thompson II, 915 F.3d at 

802. The mortgage was a standard form "Freddie Mac/Fannie Mae"

residential mortgage (a so-called GSE Uniform Mortgage), an 

instrument widely used across Massachusetts. See Pinti, 472 

Mass. at 236 n.16.

a. Legal background. Two provisions of a GSE Uniform 

Mortgage contract are particularly relevant here. Paragraph 22 
5

specifies notice requirements that must be met before a 

mortgagee may accelerate a loan and begin foreclosure 

proceedings.3 Paragraph 19 of the GSE Uniform Mortgage places 

limits and conditions on mortgagors' rights to reinstate a

mortgage after acceleration. Paragraph 19 includes the 

provision at issue here, which purports to terminate the 

plaintiffs' right to reinstate "five days before sale of the 

Property pursuant to any power of sale contained in this 

Security Instrument."4

 

3 Paragraph 22 provides:

"Lender shall give notice to Borrower prior to 

acceleration following Borrower's breach of any 

covenant or agreement in this Security Instrument (but 

not prior to acceleration under Section 18 unless 

Applicable Law provides otherwise). 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 nonexistence of a 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. . . ."

4 Paragraph 19 of the mortgage states:
6

As do the contractual obligations of paragraph 22 of the

GSE Uniform Mortgage, G. L. c. 244, § 35A, also establishes 

notice requirements before a foreclosing mortgagee can 

accelerate a mortgage obligation and foreclose based on borrower 

default. Under the statute, the required notice must inform the 

mortgagor, inter alia, "that the mortgagor may redeem the 

property by paying the total amount due, prior to the 

foreclosure sale." G. L. c. 244, § 35A (c) (8). As mentioned,

the division has issued regulations specifying the precise form 

that this notice must take; a foreclosing mortgagor may not 

 

"Borrower's Right to Reinstate After Acceleration. If 

Borrower meets certain conditions, Borrower shall have 

the right to have enforcement of this Security 

Instrument discontinued at any time prior to the 

earliest of: (a) five days before sale of the 

Property pursuant to any power of sale contained in 

this Security Instrument; (b) such other period as 

Applicable Law might specify for the termination of 

Borrower's right to reinstate; or (c) entry of a 

judgment enforcing this Security Instrument. Those 

conditions are that Borrower: (a) pays Lender all 

sums which then would be due under this Security 

Instrument and the Note as if no acceleration had 

occurred; (b) cures any default of any other covenants 

or agreements; (c) pays all expenses incurred in 

enforcing this Security Instrument, including, but not 

limited to, reasonable attorneys' fees, property 

inspection and valuation fees, and other fees incurred 

for the purpose of protecting Lender's interest in the 

Property and rights under this Security Instrument; 

and (d) takes such action as Lender may reasonably 

require to assure that Lender's interest in the 

Property and rights under this Security Instrument, 

and Borrower's obligation to pay the sums secured by 

this Security Instrument, shall continue 

unchanged. . . ."
7

alter the notice. See 209 Code Mass. Regs. § 56.04 ("the '90-

day Right to Cure Your Mortgage Default' notice must conform to 

the following: . . ." [emphasis added]).

b. Foreclosure and prior proceedings. Sometime after 

2008, the United States Office of Thrift Supervision seized 

Washington Mutual Bank and placed it in receivership with the 

Federal Deposit Insurance Corporation (FDIC); the FDIC then sold 

its banking subsidiaries to Chase. See Thompson II, 915 F.3d

at 803. In this way, Chase became the mortgagee on the 

plaintiffs' mortgage. Id. In July of 2009, the plaintiffs

defaulted on their mortgage; since that time, they have made no 

payments.

On August 12, 2016, Chase sent the plaintiffs notice of its 

intention to accelerate the loan and foreclose on their home. 

In accordance with the requirements of both G. L. c. 244, § 35A,

and paragraph 22 of the plaintiffs' mortgage, the notice relayed 

that (1) the mortgage loan was in default; (2) tendering the 

past-due amount of $200,056.60 would cure the default; (3) the 

default had to be cured by November 10, 2016; and (4) if the 

plaintiffs failed "to cure the default on or before [November 

10, 2016], Chase [could] accelerate the maturity of the 

Loan, . . . declare all sums secured by the Security Instrument 

immediately due and payable, commence foreclosure proceedings, 

and sell the Property." See Thompson II, 915 F.3d at 803. The 
8

notice also informed the plaintiffs of their right to reinstate 

the mortgage after acceleration, and explained that they could 

bring a court action asserting any defenses to foreclosure. Id. 

It further stated that the plaintiffs could "still avoid 

foreclosure by paying the total past-due amount before a 

foreclosure sale takes place." This notice conformed verbatim 

to the template required by 209 Code Mass. Regs. § 56.04.

After the foreclosure sale and the filing of the 

plaintiffs' complaint to set aside the foreclosure in the 

Superior Court, Chase removed the case to the United States 

District Court for the District of Massachusetts. There, the 

plaintiffs argued that, while the notice sent by Chase informed 

them of a "right to reinstate," it did not specify the temporal 

limitations on that right contained in paragraph 19 of their 

mortgage. This, they claimed, rendered the notice potentially 

deceptive such that the foreclosure sale was void. A United 

States District Court judge disagreed, and determined that 

strict compliance with the notice requirements of paragraph 22 

did not require specifying the conditions placed upon the 

plaintiffs' right to reinstate contained in paragraph 19. 

Accordingly, the judge allowed Chase's motion to dismiss.

On appeal to the First Circuit, the plaintiffs renewed this 

argument. See Thompson II, 915 F.3d at 803. Considering the 

claim de novo, the court concluded that Chase had complied with 
9

the facial requirements of paragraph 22, which only obligated 

Chase to give notice of the plaintiffs' substantive right to 

reinstate. Id. at 804. The court also correctly noted that 

paragraph 19 contains no independent notice requirement. Id. 

Nonetheless, the court concluded Chase's notice was potentially 

deceptive because it "could mislead the [plaintiffs] into 

thinking that they could wait until a few days before the sale 

to tender the required payment." Id. The court reached this 

determination by reading our decision in Pinti, 472 Mass. at 

238, to stand for the proposition that "accuracy and avoidance 

of potential deception are conditions of the validity of the 

foreclosure." Id. at 805. Thus, it concluded that "the bank 

had no obligation under paragraph 19 to lay out its procedures, 

but it did have an obligation under paragraph 22 to provide 

notice and, under Pinti, to make anything it did say accurate 

and avoid potential deception." Id.

As noted, supra, Chase and several amici argued on 

reconsideration that Massachusetts law required the notice in 

question to be sent unaltered, and that substantial upheaval in 

the residential mortgage market would result from the 

Thompson II decision. See Thompson III, 931 F.3d at 110. The 
10

First Circuit then set aside its decision and certified the 

relevant question to this court. See id. at 110-111.5

2. Discussion. Massachusetts is a "non-judicial 

foreclosure state," meaning that it allows a mortgagee to 

foreclose on a mortgaged property without judicial 

authorization, so long as the mortgage instrument grants that 

right by reference to the statutory power of sale. See Pinti, 

472 Mass. at 232, citing U.S. Bank Nat'l Ass'n v. Ibanez, 458 

Mass. 637, 645–646 (2011); G. L. c. 183, § 21. A foreclosing 

mortgagee, however, "first [must] 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." G. L. c. 183, 

§ 21. Because of the "substantial power . . . to foreclose in 

Massachusetts without judicial oversight," we repeatedly have 

emphasized that "one who sells under a power [of sale] must 

follow strictly its terms; the failure to do so results in no 

valid execution of the power, and the sale is wholly void." 

Federal Nat'l Mtge. Ass'n v. Marroquin, 477 Mass. 82, 86 (2017), 

quoting Pinti, 472 Mass. at 232–233. See Pryor v. Baker, 133 

 

5 We acknowledge the amicus brief of American Bankers 

Association, American Financial Services Association, Bank 

Policy Institute, Massachusetts Bankers Association,

Massachusetts Mortgage Bankers Association, and Mortgage Bankers 

Association in support of the defendant; of Federal National 

Mortgage Association and Federal Home Loan Mortgage Corporation 

in support of the defendant; of Real Estate Bar Association for 

Massachusetts, Inc., and the Abstract Club; and of Jack Saade.
11

Mass. 459, 460 (1882) ("The exercise of a power to sell by a 

mortgagee is always carefully watched, and is to be exercised 

with careful regard to the interests of the mortgagor").

This regime of strict compliance does not require a 

mortgagee to "demonstrate punctilious performance of every 

single mortgage term." Pinti, 472 Mass. at 235. Rather, since 

the Nineteenth Century, our cases consistently have required 

strict compliance "with the terms of the actual power of sale in 

the mortgage [and] with any conditions precedent to the exercise 

of the power that the mortgage might contain." Id. at 233-234

(collecting cases). In Pinti, 472 Mass. at 235, we summarized 

our jurisprudence concerning what counts as a condition 

precedent as "(1) terms directly concerned with the foreclosure 

sale authorized by the power of sale in the mortgage,[6] and 

(2) those prescribing actions the mortgagee must take in 

connection with the foreclosure sale -- whether before or after 

the sale takes place." Id.

Consistent with these long-standing principles, in that and 

subsequent cases, we have continued to delineate which aspects 

 

6 For example, in McGreevey v. Charlestown Five Cents Sav. 

Bank, 294 Mass. 480, 481, 484 (1936), we voided a foreclosure 

sale because the mortgage required the sale to be advertised and 

held in Suffolk County, even though the property was located in 

Middlesex County. Similarly, in Moore v. Dick, 187 Mass. 207, 

210-212 (1905), we voided a foreclosure sale for failure to 

comply with the terms of a mortgage contract which specified 

that the sale be advertised in a particular newspaper.
12

of the regulatory scheme require strict compliance before a 

valid foreclosure sale may take place. See, e.g., Turra v. 

Deutsche Bank Trust Co. Americas, 476 Mass. 1020, 1022 (2017) 

(failure strictly to comply with postforeclosure requirements of 

G. L. c. 244, § 15A, did not render sale void); Pinti, 472 Mass. 

at 227, 239–240 (failure strictly to comply with notice 

requirements of GSE Uniform Mortgage paragraph 22 renders

foreclosure void); U.S. Bank Nat'l Ass'n v. Schumacher, 467 

Mass. 421, 422 (2014) (failure strictly to comply with notice 

requirements of G. L. c. 244, § 35A, does not render foreclosure 

void because G. L. c. 244, § 35A, is not part of foreclosure 

process); Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569,

571, 580–581 (2012) (failure strictly to comply with 

requirements of G. L. c. 244, § 14, renders foreclosure void).

Here, Chase sent one notice which satisfied the 

requirements of both G. L. c. 244, § 35A, and, at least 

facially, those of paragraph 22 of the plaintiffs' GSE Uniform 

Mortgage.7 The possibility of such a so-called "hybrid notice" 

 

7 Some potential complexity arises because we have concluded 

that the terms of GSE Uniform Mortgage paragraph 22 are subject 

to strict compliance, while the requirements of G. L. c. 244, 

§ 35A, are not. See Pinti, 472 Mass. at 238-240 (distinguishing 

strict compliance requirement of paragraph 22 from decision in 

Schumacher, 467 Mass. at 430-431, that G. L. c. 244, § 35A, is

not subject to strict compliance). There is no actual conflict, 

however, in applying the holdings of both Pinti and Schumacher

to a single notice. Any provision contained in GSE Uniform 

Mortgage paragraph 22 must meet the heightened strictures of 
13

is explicitly contemplated by paragraph 15 of the GSE Uniform 

Mortgage itself: "[i]f 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."

We agree with the First Circuit that Massachusetts law 

under Pinti, 472 Mass. at 235, 240, requires that any notice 

given pursuant to paragraph 22 of the GSE Uniform Mortgage, 

regardless whether hybrid, must be accurate and not deceptive. 

See Thompson II, 915 F.3d. at 804. We disagree, however, that 

the notice here was potentially deceptive. We reach this 

conclusion because we determine that the more generous 

reinstatement period provided under G. L. c. 244, § 35A, governs 

over the contractually imposed time limits on reinstatement 

articulated in paragraph 19 of the GSE Uniform Mortgage.

"The words of a contract must be considered in the context 

of the entire contract rather than in isolation." Brigade 

Leveraged Capital Structures Fund Ltd. v. PIMCO Income Strategy 

Fund, 466 Mass. 368, 374 (2013), quoting General Convention of 

New Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449 Mass. 

832, 835 (2007). When interpreting a contract (such as the GSE 

 

Pinti's compliance regime, while those notice provisions found 

only in G. L. c. 244, § 35A, would be subject to the lesser 

requirements articulated in Schumacher, supra.
14

Uniform Mortgage), we construe it "as a whole, so as to give 

reasonable effect to each of its provisions" (quotation 

omitted). James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 

664, 669 (2018).

Here, paragraph 12 of the plaintiffs' mortgage gives Chase 

the contractual ability to extend the deadline for a 

reinstatement payment. Paragraph 16 provides that all "rights 

and obligations contained in this Security Instrument are 

subject to any requirements and limitations of Applicable Law." 

Applicable law is defined to include all "[F]ederal, [S]tate and 

local statutes, regulations, ordinances and administrative rules 

and orders (that have the effect of law) as well as all 

applicable final, non-appealable judicial opinions." Thus, the 

language of the mortgage itself gives notice to the plaintiffs 

that the five-day limitation of paragraph 19 could be extended 

either by the discretion of the mortgagee or, as is the case 

here, relevant provisions of State law.

Specifically, G. L. c. 244, § 35A, and its accompanying 

regulations require foreclosing mortgagees to send a notice 

specifying that, even after acceleration, homeowners have a 

legal right to "avoid foreclosure by paying the total past-due 

amount before a foreclosure sale takes place." 209 Code Mass. 

Regs. § 56.04. Reading paragraphs 12 and 16 of the plaintiffs'

mortgage together with this applicable regulation makes clear 
15

that Chase not only had the contractual option to accept a 

reinstatement payment at any point prior to foreclosure, it was 

required to do so. Thus, while in other States the "five days

prior" limitation contained in GSE Uniform Mortgage paragraph 19 

may limit a mortgagee's unequivocal reinstatement rights, in 

Massachusetts, this limitation is superseded by the more 

generous reinstatement time period specified in the statutory 

scheme.

For this reason, the scenario that concerned the First 

Circuit, in which the plaintiffs would arrive three days prior 

to the sale, cash-in-hand, only to be rebuffed by Chase pointing 

to paragraph 19, could not happen. Chase would be obligated to 

accept such a reinstatement payment under Massachusetts law; the 

fact that Massachusetts law would govern to allow a longer 

reinstatement period might not be abundantly clear to 

homeowners, based on the language that "limitations" of 

applicable law are applicable to the mortgage, but it is 

properly represented by the terms of the notice.

Ultimately, the plaintiffs' contention that the notice 

requirements of G. L. c. 244, § 35A, are "of no significance" to 

Chase's duty to notify pursuant to paragraph 22 is unavailing. 

While we have read the terms of a mortgage and the statutes 

relating to the foreclosure of mortgages "as being separately 

grounded and having an independent meaning," Pinti, 472 Mass. 
16

at 240, and the signatories certainly must comply strictly with 

the requirements of paragraph 22, even if G. L. c. 244, § 35A, 

were to be repealed or modified, there is nothing that says a 

single notice could not satisfy both the requirements of G. L. 

c. 244, § 35A, and of paragraph 22. Indeed, the possibility 

explicitly is contemplated in the GSE Uniform Mortgage itself in 

paragraph 15. Moreover, as a practical matter, the consumer 

protection aims of both the statutory scheme8 and paragraphs 19 

and 22 of the GSE Uniform Mortgage are better served by a single 

accurate notice rather than two potentially conflicting 

communications.

3. Conclusion. Because the notice in question was neither 

inaccurate nor deceptive, we answer the reported question, "No."

The Reporter of Decisions is to furnish attested copies of 

this opinion to the clerk of this court. The clerk in turn will 

transmit one copy, under the seal of the court, to the clerk of 

the United States Court of Appeals for the First Circuit, as the 

answer to the question certified, and also will transmit a copy 

to each party.

 

8 See Schumacher, 467 Mass. at 430.