) Conmonfeealth of Massachusetts BARNSTABLE, SS: HOUSING COURT DEPARTMENT BRISTOL, SS SOUTHEASTERN DIVISION DUKES, SS Docket No. 17-SP-03379 NANTUCKET, SS PLYMOUTH, SS ‘Wells Fargo Bank, N.A. Plaintiff vs. Jose Roias, Ryan Camara, Estate of Fernando G. Camara, Leonor Ferrira Linhares, Joao Monteiro, Maria Madrugada C.G. Camara Defendants SUDGMENT ‘This action came on for tria/hearing before the Court, Chaplin, F.J. presiding, and the issues having been duly tried/heard and findings having been duly rendered, it is ORDERED and ADJUDGED under Rule 10 of the Uniform Rules of Summary Process that: Judgment denying Plaintiff's Motion for Summary Judgment as to possession and counterclaims. Judgment for the Defendants for possession. ‘The within matter shall be set down for a Pre-Trial Conference as to all remaining issues on June 24, 2019 at 2:00 p.m. Accordingly, judgment enters at 10:00 a.m. this 6" day of June 2019 Pursuant to Massachusetts General Laws Chapter 239, Section 5, an aggrieved party must file a notice of appeal with the Court within ten (10) days after the entry of the judgment.COMMONWEALTH OF MASSACHUSETTS, THE TRIAL COURT BARNSTABLE, SS HOUSING COURT DEPARTMENT BRISTOL, SS - SOUTHEASTERN DIVISION DUKES; SS Docket No, 17-SP-03379 NANTUCKET, SS PLYMOUTH; SS Juco inicio manmade ‘Wells Fargo Bank, N. A. PLAINTIFF Jose Roias, Ryan Camara, Estate of Fernando G. Camara, Leonor Ferrira Linhares, Joao Monteiro, Maria Madrugada C. G. Camara DEFENDANTS Jerr sedi ire ai fies oe MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGME! INTRODUCTION ‘The plaintiff, Wells Fargo Bank, N.A., has moved for the entry of summary judgment in its favor against the defendants, Jose Roias, Ryan Camara, Estate of Femando G. Camara, Leonor Ferrira Linhares, Joao Monteiro, and Maria Madrugada C. G. Camara, on all of the issues in this action, As grounds for this Motion, the plaintiff contends that there are no genuine issues of material fact in dispute and that it is entitled to summary judgment in its favor as a matter of law. ‘A Motion for Summary Judgment should be allowed if, viewed in the light most favorable to the non-moving party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as a matter of law.” M.R.Ci 56(c). Route One Liquors, Inc. v. Secretary of Administration and Finance, 439 Mass. 111, 115 (2003); Community National Bank v. Dawes, 369 Mass. 550, 553-556 (1976). “Summary judgment, when appropriate, may be rendered against the moving party.” M.R.Civ.P. 56(¢). The moving party bears the burden of affirmatively demonstrating these elements. Pederson v. ‘Time, Inc., 404 Mass. 14, 16-17 (1980), “[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” Lalonde v. Fissner, 405 Mass. 207, 209 (1989), Rather, the non-moving party must “show with admissible evidence the existence of a dispute as to material facts.” Godbout v. Cousens, 396 Mass. 254, 261 (1985). ‘The plaintiff filed a Memorandum of Law and several exhibits in support of its Motion, ‘The defendants filed a Memorandum and an exhibit in opposition to the plaintiff's Motion. FACTS The Court finds that the following facts are undisputed: The plaintiff, Wells Fargo Bank, N.A., is the record owner of 507 Summer Street, Rockland, MA (“the premises”). ‘The plaintiff's Massachusetts Foreclosure Deed By Corporation was recorded in the Plymouth County Registry of Deeds at Book 48160, Page 263, on March 1, 2017. (Plaintiff's Memorandum In Support of Its Motion for Summary Judgment [“Plaintiff's Memorandum”] Ex. C). On January 5, 2009, Femando G. Camara and the defendant Maria Madrugada C. G. ‘Camara granted a mortgage to Mortgage Electronic Registrations Systems, Inc. (‘“MERS”) as nominee for Premium Capital Funding, LLC d/b/a Topdot Mortgage, using the premises ascollateral, This mortgage wes recorded in the Plymouth County Registry of Deeds at Book 36717, Page 282 on January 26, 2009. (Plaintiff's Memorandum Ex. A). On June 21, 2012, MERS, as nominee for Premium Capital Funding, Limited Liability ‘Company, doing business as Topdot Mortgage assigned the mortgage to Wells Fargo Bank NA. This Assignment was recorded in the Plymouth County Registry of Deeds at Book 41545, Page 1 on June 22, 2012. (Plaintiff's Memorandum Ex. B). On February 13, 2017, Sheila Williams, Vice President, Loan Documentation of Wells Fargo Bank, N.A. executed an Affidavit Regarding Note Secured by Foreclosed Mortgage and said Affidavit was recorded in the Plymouth County Registry of Deeds at Book 48160, Page 266 as of the dates when notice of sale on March 1, 2017. This Affidavit states, in pertinent part relating to the mortgage at issue were published and provided, up to and including the Foreclosure Sale Date, Foreclosing Mortgagee was:...the holder of the promissory note secured by the above mortgage...” (Plaintiff's Memorandum Ex. D). Jody DiGiacomandrea, Esq. executed a mortgagee’s affidavit as Employee, Authorized Signatory, Real Property of Orlans Moran PLLC on February 27, 2017. The Affidavit states that Wells Fargo Bank, N.A. sent the statutory foreclosure sale notice to the defendant Estate of Femando G. Camara and the defendant Maria Madrugada C. G. Camara by certified mail, return receipt requested, that the foreclosure sale was scheduled for February 3, 2017 at 3:00 p.m. and that Wells Fargo Bank, N.A. published a notice of sale in The Abington Mariner/Rockland Standard on January 13, 2017, January 20, 2017 and January 27, 2017. On February 3, 2017, Wells Fargo Bank, N.A, conducted a public foreclosure auction, at which it was the highest bidder. The Affidavit of Sale was recorded in the Plymouth County Registry of Deeds at Book48160, Page 264 on March 1, 2017. (Plaintiff's Memorandum Ex. C), On February 3, 2016, Kishia Givens, Vice President, Loan Documentation, Wells Fargo Bank, N.A., executed an Affidavit Pursuant To M.G.L. Ch. 244, §§ 35B and 35C, and said Affidavit was recorded in the Plymouth County Registry of Deeds at Book 46639, Page 325 on March 1, 2016. This Affidavit provides, in pertinent part: “.. certify that: Wells Fargo complied with MGL Ch. 244 § 35B...On this date, Wells Fargo Bank, N.A. is: the holder of the promissory note secured by the above mortgage.” (Plaintiff's Memorandum Ex. D). On February 13, 2017, Andrea Mahungu, Vice President Loan Documentation of Wells Fargo Bank, N.A., executed an Affidavit regarding Notice of Default, and said Affidavit was recorded in the Plymouth County Registry of Deeds at Book 48160, Page 267 on March 1, 2017. ‘This Affidavit provides, in pertinent part: “...1 certify that: Notice(s) of Default to Mortgagor(s) was/were sent on or before July 17,2015...” (Plaintiff's Submission In Response to Interim Order). On March 22, 2017, the plaintiff served the defendants with a 72 Hour Notice To Quit. ‘The defendants continue to occupy the premises. (Complaint; Defendants Opposition 16). DISCUSSION The plaintiff contends that itis entitled to summary judgment in its favor against the defendants on its Summary Process Summons and Complaint for possession of the premises on the grounds that there are no genuine issues of material fact in dispute. The defendants contend that the plaintiff is not entitled to summary judgment as a matter of law.The defendants contend that, since the defendants’ mortgage was insured by the Federel Housing Administration (“FHA”), the plaintiff's failure to comply with regulations of the U.S. Department of Housing and Urban Development (“HUD”) renders the foreclosure sale void, 24 CFR §203,604(b) provides, in pertinent part: “The mortgagee must have a face-to- face meeting with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid. if default occurs in a repayment plan arranged other than during a personal interview, the mortgagee must have a face-to-face meeting with the mortgagor, or make a reasonable attempt to arrange such a meeting within 30 days after such default and at least 30 days before foreclosure is commenced...” ‘The Court finds that Paragraph 9 of the defendants’ mortgage provides, in pertinent part: rounds for Acceleration of Debt, (a) Default. Lender may, except as limited by regulations issued by the [HUD] Secretary in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrament {) Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment...(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender’s rights, in the case of payment defaults, to require immediate payment in fall and foreclose if not paid. ‘This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.” ‘The Court finds that the defendants’ mortgage “contained a power of sale and authorized the mortgagee to exercise it only upon certain conditions precedent. Specifically, paragraph 9 of the mortgage expressly preconditioned acceleration and foreclosure on compliance with HUD regulations. Where such regulations have been incorporated into the mortgage, compliance withthe regulations has been held to be a condition precedent to foreclosure of FHA-insured mortgages. (citations omitted). Accordingly, courts have specifically held the ‘face-to-face meeting requirement [to be] a condition precedent to the accrual of the rights of acceleration and foreclosure incorporated into’ the operative instrument. (citation omitted). We concur.” Wells Fargo Bank, N.A. v. Cook, 87 Mass.App.Ct. 382, 386 (2015). The Court finds that the plaintiff's failure to conduct a face-to-face meeting with the defendants prior to acceleration and foreclosure renders the February 3, 2017 foreclosure sale void ab initio. Accordingly, the Court finds that the plaintiff has not established that it has a superior right to possession of the premises. CONCLUSION For the above-stated reasons, the Court rules as follows: 1. The Plaintiff's Motion for Summary Judgment on the complaint for possession and the counterclaims is DENIED. 2. Judgment enter for the defendants for possession of the premises. 3. This matter is set down for Pre-trial Conference on the remaining issues on Monday, ANNE bm bebe FIRST JUSTICE June 24, 2019 at 2:00 p.m. Date: June 5: ,2019 ce: Jason MacKeen, Esq. Glenn F. Russell, Jr., Esa.Mailing List: June 6, 2019 Docket No. 17-SP-03379 Jason MacKeen, Esq. Orlans PC P.O. Box 540540 Waltham, MA 02454 Glenn F, Russell, Jr., Esq. 38 Rock Street, Suite 12 Fall River, MA 02720