Valle v. Jocelyn

2014 Mass. App. Div. 178, 2014 Mass. App. Div. LEXIS 56
CourtMassachusetts District Court, Appellate Division
DecidedSeptember 11, 2014
StatusPublished

This text of 2014 Mass. App. Div. 178 (Valle v. Jocelyn) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Valle v. Jocelyn, 2014 Mass. App. Div. 178, 2014 Mass. App. Div. LEXIS 56 (Mass. Ct. App. 2014).

Opinion

Swan, P.J.

Yvette Jocelyn (“Jocelyn”) defaulted on a mortgage on her house at 31 Union Street in Everett (“premises”). The mortgagee foreclosed, and later sold the premises to Alberto Valle (“Valle”), who proceeded to evict Jocelyn in summary process. After a trial, a jury returned a verdict for Valle for possession of the premises, and judgment entered. Jocelyn has appealed from the judgment, alleging that the trial judge erroneously denied her motion for judgment notwithstanding the verdict on (he ground that Valle failed to prove his title to the premises.

“In reviewing the denial of [a] motion for judgment notwithstanding the verdict, the same standard applies as would apply to a review of a motion for a directed verdict. ...’’Abraham, v. City of Woburn, 383 Mass. 724, 727 (1981). Indeed, the making of a motion for a directed verdict at the close of an opponent’s evidence is a prerequisite for a motion for judgment notwithstanding the verdict. Mass. R. Civ. R, Rule 50(b). Jocelyn made a timely motion for a directed verdict, which the judge heard at an “indiscernible” sidebar conference. We assume that the motion was denied, since Jocelyn then presented evidence. On a denial of a motion for directed verdict, and thus of a motion for judgment notwithstanding the verdict, “the test is whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’” Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972), quoting Kelly v. Railway Express Agency, Inc., 315 Mass. 301, 302 (1943).

The issue in contention was the propriety of Valle’s title arising from the foreclosure process, and specifically whether the mortgagee gave Jocelyn the statutory notice of the foreclosure sale under G.L.c. 244, §14. That statute provides, in relevant part, that notice be “sent by registered mail to the owner or owners of record of the equity of redemption as of 30 days prior to the date of sale, said notice to be mailed by registered mail at least 14 days prior to the date of sale to said owner or owners ... to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage, if any, or if none, to the address of the owner or owners as given on the deed.” Id. Valle’s evidence at trial on this issue [179]*179came in the form of testimony of Daniel Bartlett (“Bartlett”), a real estate title examiner, who opined as to documents on record and their significance and concluded that Valle received clear title to the premises.2 According to this evidence, Jocelyn purchased the premises in November, 2005, and granted a mortgage to Aames Funding Corporation, d/b/a Aames Home Loan, which in turn assigned the mortgage to Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the holders of the Aames Mortgage Investment Trust 2006-1, Mortgage Backed Notes (“Deutsche Bank”). In the portion of his title report relating to the foreclosure, Bartlett relied on an affidavit executed by Adam Shields (“Shields”), the document control officer of Deutsche Bank’s attorney in fact. The affidavit stated that Deutsche Bank caused to be published a notice of sale for three successive weeks in a newspaper purporting to be published in Everett; that Shields complied with the exercise of the power of sale prescribed by G.L.c. 244, §14 and the mortgage; and that the required statutory notices were sent by certified mail. Shields concluded in his affidavit that at the noticed time and place, Deutsche Bank sold the premises at public auction to the highest bidder, namely, itself, for $271,430.00. A foreclosure deed was executed and recorded, and thereafter, Deutsche Bank sold the premises to Valle for $150,000.00. The deed for that sale was executed and recorded as well. Valle served a notice to quit on Jocelyn two weeks later.3

“Challenging a plaintiffs entitlement to possession has long been considered a valid defense to a summary process action for eviction where the property was purchased at a foreclosure sale.” Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011). Failure to comply with the statutory power of sale voids the foreclosure sale and any grant arising from it. U.S. Bank Nat'l Ass’n v. Ibanez, 458 Mass. 637, 646-647 (2011). Here, Bartlett opined as to documents showing a chain of title from Jocelyn ultimately to Deutsche Bank, followed by a foreclosure sale evidenced by an affidavit of Shields as to his actions and those of Deutsche Bank. On its face, the affidavit followed the required format for such an affidavit as set forth in G.L.c. 244, §15, and Form 12 in the Appendix to G.L.c. 183. In the affidavit, Shields specifically stated that the required notices were sent by certified mail at least 14 days prior to the sale, as mandated by G.L.c. 244, §14.4The affidavit of sale under G.L.c. 244, §15 is “evidence that the power of sale was duly executed.” Federal Nat'l Mtge. Ass’n v. Hendricks, 463 Mass. 635, 641 (2012), quoting G.L.c. 244, §15, and citing Silva v. Turner, 166 Mass. [180]*180407,412 (1896). While Jocelyn testified that she received no notice, the jury was not obliged to believe her, and by its verdict, instead relied on Bartlett’s opinion, which in turn was based on Shields’s affidavit. The motion for judgment notwithstanding the verdict was properly denied.

Included within Jocelyn’s posttrial motion was a motion for a new trial. “Ruling on a motion for a new trial presents a limited question of fact, because the judge should not decide the case as if sitting without a jury; rather, the judge should only set aside the verdict if satisfied that the jury ‘failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.’” Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520 (1989), quoting Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948). Jocelyn now argues for the first time on appeal that the jury could not have understood or followed the judge’s instruction. The judge charged the jury that it was Valle’s burden to prove that the “title was acquired strictly according to the power of sale,” this after the jury had heard testimony from a title examiner as to the how the power was exercised. The trial transcript records no objection to the charge. “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Mass. R. Civ. R, Rule 51(b). There is nothing to indicate that the jury misunderstood the law. Moreover, “the grant or denial of a new trial will be disturbed only if there has been an abuse of that discretion.” Robertson, supra at 520-521. We find no abuse.

For future guidance, we address one matter mentioned in passing in footnote 2 but not raised on appeal. Bartlett was an expert witness on the question of title. The documents on which he relied for his opinion regarding the foreclosure — namely, the foreclosure deed, G.L.c. 244, §15 affidavit of Shields, Land Court judgment, power of attorney, and certificate of entry — were offered into evidence during his testimony on direct examination by Valle’s counsel. When the first one was offered, Jocelyn’s attorney objected.

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Related

Robertson v. Gaston Snow & Ely Bartlett
536 N.E.2d 344 (Massachusetts Supreme Judicial Court, 1989)
Raunela v. Hertz Corp.
280 N.E.2d 179 (Massachusetts Supreme Judicial Court, 1972)
Abraham v. City of Woburn
421 N.E.2d 1206 (Massachusetts Supreme Judicial Court, 1981)
Department of Youth Services v. a Juvenile
499 N.E.2d 812 (Massachusetts Supreme Judicial Court, 1986)
US Bank National Association v. Ibanez
941 N.E.2d 40 (Massachusetts Supreme Judicial Court, 2011)
Bank of New York v. Bailey
951 N.E.2d 331 (Massachusetts Supreme Judicial Court, 2011)
da Silva v. Turner
44 N.E. 532 (Massachusetts Supreme Judicial Court, 1896)
Kelly v. Railway Express Agency, Inc.
52 N.E.2d 411 (Massachusetts Supreme Judicial Court, 1943)
Hartmann v. Boston Herald-Traveler Corp.
80 N.E.2d 16 (Massachusetts Supreme Judicial Court, 1948)
Federal National Mortgage Ass'n v. Hendricks
977 N.E.2d 552 (Massachusetts Supreme Judicial Court, 2012)
Commonwealth v. Greineder
984 N.E.2d 804 (Massachusetts Supreme Judicial Court, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
2014 Mass. App. Div. 178, 2014 Mass. App. Div. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valle-v-jocelyn-massdistctapp-2014.