NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1499
RAYMOND F. LABONTE, JR.
vs.
ANN M. BECKER & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal involves a postforeclosure eviction. The
plaintiff, Raymond Labonte, Jr., brought a successful summary
process action following his purchase of a residential property
from the Bank of New York Mellon (bank) in 2019 that the
defendants occupied. The defendants seek (1) reversal of the
judge's order granting partial summary judgment in favor of
Labonte, (2) reversal of the judgment of possession against all
defendants, and (3) return of use and occupancy payments in
excess of the actual costs for maintaining the property.
Finding no error, we affirm.
1 John C. Becker, Fourth and Joseph Wilson. 1 Background. On November 16, 2005, Ann Becker2 granted a
mortgage to Mortgage Electronic Registration Systems, Inc.
(MERS) for $268,000. In 2015, MERS assigned the mortgage to the
bank as trustee. On October 1, 2016, Ann defaulted on the
mortgage loan. Meanwhile, the defendants assert that Joseph
Wilson moved onto the property in 2017 as a tenant, occupying a
single room pursuant to a verbal agreement with the Beckers that
he would help maintain the property in lieu of rent.
On December 19, 2017, the bank sent Ann a notice by first
class mail, pursuant to G. L. c. 244, § 35A, and paragraph 22 of
the mortgage, informing her that she was in default and had a
right to cure the default within ninety days to avoid
acceleration of the loan. Ann did not cure the default and at a
foreclosure auction on July 12, 2018, the bank purchased the
property from itself and later recorded the deed. On May 28,
2019, Labonte purchased the property from the bank via quitclaim
deed and on July 31, 2019, provided the defendants with a notice
to quit, informing them that he had acquired the property and
needed to prepare it for sale. Labonte commenced this summary
process action in September 2019 to recover possession and
unpaid use and occupancy dating back to the date of the bank's
sale of the property to him.
2 As the Beckers share a surname, we use their first names to avoid confusion. 2 The Housing Court judge granted Labonte's motion for
summary judgment as to his claim against the Beckers, but denied
the motion as to his claim against Wilson because genuine
disputes of fact existed with respect to Wilson's tenancy
status. On March 10, 2022, following a bench trial, the judge
issued a final judgment for possession in favor of Labonte as
against all three defendants. The judge found that Wilson was a
licensee and did not require a ninety-day termination notice.
Accordingly, the judge found that the termination notice Labonte
used "was sufficient to terminate Wilson's occupancy rights --
to the extent that he had any." This appeal followed, and on
April 6, 2022, the judge ordered the Beckers to make monthly use
and occupancy payments pending appeal and for Wilson to make
similar and separate payments.
Discussion. 1. Standard of review. As to the Beckers, we
review a decision to grant summary judgment de novo. Ritter v.
Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). Summary
judgment is to be granted when the moving party demonstrates the
absence of a triable issue and that they are entitled to
judgment as a matter of law. Pederson v. Time, Inc., 404 Mass.
14, 17 (1989). As to the question of Wilson's status, "[w]hen
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
3 deference the legal standard which the judge applied to the
facts'" (citations omitted). Wells Fargo Bank, N.A. v. Sutton,
103 Mass. App. Ct. 148, 154-155 (2023).
2. Right to cure letter. The defendants claim that the
bank's foreclosure sale in 2018 was invalid because they did not
receive the right to cure letter and the bank did not produce
any material proof to show that the notice had been mailed. We
disagree.
The defendants argue that the bank could have provided a
copy of a postmarked form. While that is true, it is not
dispositive. Faced with a mortgagee's affidavit attesting to
the mailing of a right to cure letter, a mortgagor's professed
lack of recollection is insufficient to create a genuine issue
of material fact as to the mailing. See Brandt v. Davis, 98
Mass. App. Ct. 734, 739 (2020). Here, the affidavit of a
litigation manager (manager) at Bayview Loan Servicing, LLC
(Bayview), the bank's loan servicer, supported the bank's claims
that it had mailed the letter following the manager's review of
Bayview's business records and that the default notice had been
mailed with adequate postage. The defendants allege that the
affidavit presents conclusions derived from an inadmissible
review of business records rather than specific facts as
required under Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974).
However, when read in its entirety, the affidavit establishes
4 that the manager had personal knowledge of its contents given
his familiarity with the documents attached to the affidavit and
review of Bayview's business records. See First Nat'l Bank of
Cape Cod v. North Adams Hoosac Sav. Bank, 7 Mass. App. Ct. 790,
793-795 (1979) (affidavits made from personal knowledge and
review of business records are sufficient to shift burden of
"setting forth specific facts showing that there was a genuine
issue" to defendant). Therefore, the bank here satisfied the
requirements of both G. L. c. 244, § 35A, and paragraph 22 of
the mortgage. See Thompson v. JPMorgan Chase Bank, N.A., 486
Mass. 286, 292 (2020).
3. Deposit at foreclosure auction. The defendants allege
that the bank did not qualify as a bidder at the foreclosure
auction because the bank did not make a $10,000 deposit as
listed within the terms of sale, making any subsequent
conveyance of the property invalid.
However, the alleged failure to give a deposit to the
auctioneer does not void the sale. See De Freitas v. Cote, 342
Mass. 474, 477 (1961) (condition inserted in contract "for the
benefit of the buyer" may be waived by buyer). As the mortgagee
and seller of the property, the bank inserted the deposit
provision for its own benefit -- the $10,000 would have been
held by the bank until the purchaser paid the balance of the
purchase price.
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1499
RAYMOND F. LABONTE, JR.
vs.
ANN M. BECKER & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal involves a postforeclosure eviction. The
plaintiff, Raymond Labonte, Jr., brought a successful summary
process action following his purchase of a residential property
from the Bank of New York Mellon (bank) in 2019 that the
defendants occupied. The defendants seek (1) reversal of the
judge's order granting partial summary judgment in favor of
Labonte, (2) reversal of the judgment of possession against all
defendants, and (3) return of use and occupancy payments in
excess of the actual costs for maintaining the property.
Finding no error, we affirm.
1 John C. Becker, Fourth and Joseph Wilson. 1 Background. On November 16, 2005, Ann Becker2 granted a
mortgage to Mortgage Electronic Registration Systems, Inc.
(MERS) for $268,000. In 2015, MERS assigned the mortgage to the
bank as trustee. On October 1, 2016, Ann defaulted on the
mortgage loan. Meanwhile, the defendants assert that Joseph
Wilson moved onto the property in 2017 as a tenant, occupying a
single room pursuant to a verbal agreement with the Beckers that
he would help maintain the property in lieu of rent.
On December 19, 2017, the bank sent Ann a notice by first
class mail, pursuant to G. L. c. 244, § 35A, and paragraph 22 of
the mortgage, informing her that she was in default and had a
right to cure the default within ninety days to avoid
acceleration of the loan. Ann did not cure the default and at a
foreclosure auction on July 12, 2018, the bank purchased the
property from itself and later recorded the deed. On May 28,
2019, Labonte purchased the property from the bank via quitclaim
deed and on July 31, 2019, provided the defendants with a notice
to quit, informing them that he had acquired the property and
needed to prepare it for sale. Labonte commenced this summary
process action in September 2019 to recover possession and
unpaid use and occupancy dating back to the date of the bank's
sale of the property to him.
2 As the Beckers share a surname, we use their first names to avoid confusion. 2 The Housing Court judge granted Labonte's motion for
summary judgment as to his claim against the Beckers, but denied
the motion as to his claim against Wilson because genuine
disputes of fact existed with respect to Wilson's tenancy
status. On March 10, 2022, following a bench trial, the judge
issued a final judgment for possession in favor of Labonte as
against all three defendants. The judge found that Wilson was a
licensee and did not require a ninety-day termination notice.
Accordingly, the judge found that the termination notice Labonte
used "was sufficient to terminate Wilson's occupancy rights --
to the extent that he had any." This appeal followed, and on
April 6, 2022, the judge ordered the Beckers to make monthly use
and occupancy payments pending appeal and for Wilson to make
similar and separate payments.
Discussion. 1. Standard of review. As to the Beckers, we
review a decision to grant summary judgment de novo. Ritter v.
Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). Summary
judgment is to be granted when the moving party demonstrates the
absence of a triable issue and that they are entitled to
judgment as a matter of law. Pederson v. Time, Inc., 404 Mass.
14, 17 (1989). As to the question of Wilson's status, "[w]hen
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
3 deference the legal standard which the judge applied to the
facts'" (citations omitted). Wells Fargo Bank, N.A. v. Sutton,
103 Mass. App. Ct. 148, 154-155 (2023).
2. Right to cure letter. The defendants claim that the
bank's foreclosure sale in 2018 was invalid because they did not
receive the right to cure letter and the bank did not produce
any material proof to show that the notice had been mailed. We
disagree.
The defendants argue that the bank could have provided a
copy of a postmarked form. While that is true, it is not
dispositive. Faced with a mortgagee's affidavit attesting to
the mailing of a right to cure letter, a mortgagor's professed
lack of recollection is insufficient to create a genuine issue
of material fact as to the mailing. See Brandt v. Davis, 98
Mass. App. Ct. 734, 739 (2020). Here, the affidavit of a
litigation manager (manager) at Bayview Loan Servicing, LLC
(Bayview), the bank's loan servicer, supported the bank's claims
that it had mailed the letter following the manager's review of
Bayview's business records and that the default notice had been
mailed with adequate postage. The defendants allege that the
affidavit presents conclusions derived from an inadmissible
review of business records rather than specific facts as
required under Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974).
However, when read in its entirety, the affidavit establishes
4 that the manager had personal knowledge of its contents given
his familiarity with the documents attached to the affidavit and
review of Bayview's business records. See First Nat'l Bank of
Cape Cod v. North Adams Hoosac Sav. Bank, 7 Mass. App. Ct. 790,
793-795 (1979) (affidavits made from personal knowledge and
review of business records are sufficient to shift burden of
"setting forth specific facts showing that there was a genuine
issue" to defendant). Therefore, the bank here satisfied the
requirements of both G. L. c. 244, § 35A, and paragraph 22 of
the mortgage. See Thompson v. JPMorgan Chase Bank, N.A., 486
Mass. 286, 292 (2020).
3. Deposit at foreclosure auction. The defendants allege
that the bank did not qualify as a bidder at the foreclosure
auction because the bank did not make a $10,000 deposit as
listed within the terms of sale, making any subsequent
conveyance of the property invalid.
However, the alleged failure to give a deposit to the
auctioneer does not void the sale. See De Freitas v. Cote, 342
Mass. 474, 477 (1961) (condition inserted in contract "for the
benefit of the buyer" may be waived by buyer). As the mortgagee
and seller of the property, the bank inserted the deposit
provision for its own benefit -- the $10,000 would have been
held by the bank until the purchaser paid the balance of the
purchase price. As the highest bidder at auction, the bank was
5 entitled to waive the deposit term that it had inserted. See
Bossi v. Whalen, 19 Mass. App. Ct. 966, 967 (1985) (mortgage
contingency clause conditioning sale to buyers obtaining a
$115,000 mortgage at "current rates and terms" could be waived
by them).3
4. Wilson's status.4 Wilson argues that the defendants'
intent when he moved onto the property in 2017 was not to create
a license, but rather a tenancy through an oral lease whereby
Wilson would provide manual labor in lieu of rent. He argues
that the uncontroverted testimony established his tenancy.
Wilson and the Beckers never entered into a written lease at the
outset of his stay. The trial judge was not bound to accept
their say so. The trial judge made a credibility determination
that Wilson was a licensee of the Beckers, which we accept
unless clearly erroneous. Mass. R. Civ. P. 52 (a), as amended,
423 Mass. 1402 (1996). Here, because the trial judge had the
opportunity to weigh the defendants' credibility as to the
nature of their relationship since 2017, due regard shall be
3 Accordingly, we reject the defendants' argument that Labonte's notices to quit were invalid because the foreclosure was invalid. Similarly, the defendants' argument that it would be inequitable to evict them on the basis of an invalid foreclosure fails.
4 Although all of the defendants make this argument, the argument is Wilson's alone. The Beckers could not recast themselves as Wilson's guest. 21st Mortgage Corp. v. DeMustchine, 100 Mass. App. Ct. 792, 793 (2022). 6 given to the determination. See Demoulas v. Demoulas Super
Mkts., Inc., 424 Mass. 501, 509 (1997).
Wilson more resembled a lodger who "by agreement with the
owner of housing accommodations acquires no property, interest,
or possession therein but only the right . . . to live in and
occupy a room or other designated portion therein that still
remains in the owner's legal possession." Boston Redev. Auth.
v. Pham, 88 Mass. App. Ct. 713, 720 n.11 (2015). Therefore,
Labonte was free to evict Wilson, a licensee, from the property
without a ninety-day notice.
5. Use and occupancy payments.5 On the basis of unjust
enrichment, the defendants request the return of use and
occupancy payments in excess of actual costs paid exclusively
for carrying the property since the April 6, 2022 order.6 This
argument is without merit as the correct measure for a use and
occupancy charge is the "fair rental value of the premises"
(citation omitted). Davis v. Comerford, 483 Mass. 164, 169-170
(2019). See Frechette v. D'Andrea, 494 Mass. 167, 182-183
5 The order dated April 6, 2022, granting use and occupancy payments, was entered after the judgment for possession and after the defendants' notice of appeal and addendum. Nonetheless, we address the defendants' arguments.
6 The defendants do not challenge whether the use and occupancy payments set for the Beckers or for Wilson represented the fair market value of the property and even redact those amounts from the record. 7 (2024) (judge properly considered uncontroverted evidence of
fair rental value of property in setting use and occupancy
payments).7
Judgment affirmed.
Order dated April 6, 2022, granting use and occupancy payments affirmed.
By the Court (Henry, Smyth & Toone, JJ.8),
Clerk
Entered: May 30, 2025.
7 Labonte's request for attorney's fees is denied.
8 The panelists are listed in order of seniority. 8