GEORGE MENDES v. SCOTT HALL & Another.

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

24-P-1269

GEORGE MENDES

vs.

SCOTT HALL & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following his purchase of a foreclosed property in Brockton

(the property), plaintiff George Mendes brought a summary

process action in the Housing Court against the occupant and

former owner, Scott Hall.2 A judge partially allowed Mendes's

motion for summary judgment on the issue of possession and,

after a jury-waived trial, found that Mendes did not engage in

an unlawful self-help eviction in violation of G. L. c. 186,

§ 14. Hall appeals, claiming that the judge erred in granting

summary judgment because the notice of default and the chain of

1 Kristy Hall.

2While Kristy Hall was a defendant below, she does not
appear to have participated in the litigation and was not a
party to this appeal.
title were defective and because the promissory note was

unenforceable. Hall further contends that the evidence

introduced at the jury-waived trial established that Mendes

interfered with his right to quiet enjoyment in violation of

G. L. c. 186, § 14. We affirm.

Background. In 2003, Hall and his sister took out a loan

on the property in question and granted a mortgage to GMAC

Mortgage Corp. (GMAC). In 2009, the mortgage servicer,

Nationstar Mortgage, LLC (Nationstar), notified the Halls that

the loan was in default and initiated foreclosure proceedings in

the Land Court. A series of assignments occurred between 2009

and 2017, and the Halls apparently remained at the property. In

2017, the mortgage was assigned to and recorded by another

company, MTGLQ Investors, L.P. (MTGLQ), which initiated new

foreclosure proceedings in the Land Court, exercising the power

of sale provided in the mortgage and relying on the notice of

default provided by Nationstar in 2009. MTGLQ then sold the

property at public auction in 2018, where it was the highest

bidder.

Later in 2019, Mendes purchased the property from MTGLQ in

a separate transaction and initiated a summary process action in

the Housing Court against the Halls a short time later. Hall

raised several affirmative defenses in response, most notably

alleging that Mendes lacked standing to bring the action because

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the notice of default was legally insufficient, the chain of

title was defective, and the promissory note was unenforceable.

Hall also raised a counterclaim, alleging that Mendes attempted

to perform a self-help eviction in violation of G. L. c. 186,

§ 14.

Mendes moved for summary judgment, and the judge granted

the motion in part. The judge found, among other things, that

Mendes established standing by making an unrebutted prima facie

case that he possessed legal title to the property. Hall's

counterclaim survived summary judgment, and, after a jury-waived

trial, the judge found in favor of Mendes.

Discussion. 1. Summary process action. On appeal, Hall

claims that summary judgment should have been denied, arguing

the underlying foreclosure was invalid because (1) the notice of

default was defective; (2) MTGLQ did not have proper title to

the property; and (3) the promissory note underlying the

mortgage was unenforceable because the statute of limitations on

enforcement had elapsed. "The allowance of a motion for summary

judgment 'is appropriate where there are no genuine issues of

material fact in dispute and the moving party is entitled to

judgment as a matter of law'" (citation omitted). Williams v.

Board of Appeals of Norwell, 490 Mass. 684, 689 (2022). We

review the judge's decision granting partial summary judgment de

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novo. See Metcalf v. BSC Group, Inc., 492 Mass. 676, 680

(2023). We address each issue in turn.3

a. Notice of default under Pinti. Hall first claims that

summary judgment should not have been granted because the 2009

notice of default did not strictly comply with the terms of the

mortgage. In a summary process action, legal title is

established "by proof that the title was acquired strictly

according to the power of sale provided in the mortgage"

(citation omitted). U.S. Bank Nat'l Ass'n v. Schumacher, 467

Mass. 421, 428 (2014). "Failure to comply strictly with the

power of sale renders the foreclosure sale void." Id. In 2015,

six years after the Halls received the notice at issue in this

case, the Supreme Judicial Court held that "strict adherence to

the notice of default provisions in the [mortgage] was

required." Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 232

(2015). In that same case, however, the court made clear that

its holding applied only to foreclosures "for which the notice

of default required by paragraph 22 is sent after the date of

this opinion."4 Id. at 243.

Mendes argues that the issue of possession is moot because
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Hall has already vacated the property. We are not persuaded
because the foreclosure sale would be rendered void if Hall's
argument were successful. See Pinti v. Emigrant Mtge. Co., 472
Mass. 226, 243 (2015).

Pinti also applies to "any case where the issue was timely
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and fairly asserted in the trial court or on appeal before July

4
It is undisputed in this case that the notice of default

sent to the Halls would run afoul of the holding in Pinti if it

were sent today -- indeed, it features the very same language at

issue in that case.5 The only question, therefore, is whether

the Pinti holding applies retroactively to a foreclosure sale

initiated several years after that decision where the relevant

notice of default predated the decision. It does not. To be

sure, part of the court's reasoning in support of giving its

decision only prospective effect was to prevent the muddying of

title to property where a foreclosure had occurred some time in

the past. See Pinti, 472 Mass. at 243. The court later

clarified, however, that Pinti does not apply retroactively

merely because a foreclosing party could have issued a new

notice of default after the decision. See Fannie Mae v. Branch,

494 Mass. 343, 353 n.18 (2024) (Branch). Instead, a party in

Hall's position "is required to show that the [deficient notice]

'rendered the foreclosure so fundamentally unfair that [he or]

17, 2015." Federal Nat'l Mtge. Ass'n v. Marroquin, 477 Mass.
82, 83 (2017).

5 The language in question informs the mortgagor that they
"have the right to 'cure' or reinstate the loan after
acceleration and the right to assert in the foreclosure
proceeding the non-existence of a default or any other defense."
Because Massachusetts is a nonjudicial foreclosure State, proper
notice would indicate that the mortgagor has "the right to bring
a court action to assert the non-existence of a default."
Pinti, 472 Mass. at 237.

5
she is entitled to affirmative equitable relief'" (citation

omitted). Id. at 354. Hall raised no argument, here or below,

that equity favors the invalidation of the foreclosure sale.6

Because Pinti does not apply to the notice of default in

question, strict compliance with the notice provisions of the

mortgage was not required.

b. Chain of title. Next, Hall argues that Mendes's chain

of title is defective, rendering his prima facie case of

superior title invalid. Specifically, Hall argues that the

chain of title is incomplete because there is no record of any

assignment to or from the Federal National Mortgage Association

(Fannie Mae) and that the recorded chain of assignments that do

appear are defective.7

In order to foreclose on a mortgage, the foreclosing entity

must hold the mortgage "at the time of the notice of sale and

the subsequent foreclosure sale" (citation omitted). U.S. Bank

Nat'l Ass'n v. Ibanez, 458 Mass. 637, 648 (2011). "In the

6 Hall does argue that the notice did not "substantially
comply" with the mortgage, the relevant standard pre-Pinti. The
court in Branch, however, made clear that the relevant standard
for pre-Pinti notices is fundamental fairness. See Branch, 494
Mass. at 354.

7 Hall's argument that the fact that there is no recorded
assignment to or from Fannie Mae somehow invalidates the chain
of title necessarily fails because an unrecorded assignment does
not alter the chain of title. See U.S. Bank Nat'l Ass'n v.
Ibanez, 458 Mass. 637, 653 (2011). See also Gomes v. Harrison,
97 Mass. App. Ct. 745, 751–752 (2020).

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absence of a valid written assignment of a mortgage or a court

order of assignment, the mortgage holder remains unchanged."

Id. at 653. In support of his motion for summary judgment,

Mendes provided an affidavit from a loan service employee with

personal knowledge of the mortgage assignments describing the

recordation of four assignments in the property's chain of

title. The first assignment, dated May 13, 2009, shows an

assignment from GMAC's nominee to Nationstar. The second, dated

January 17, 2017, purports also to assign the property from GMAC

to Nationstar. The third, dated May 16, 2013, is a void attempt

to backdate an assignment from Nationstar to GMAC. See id. at

654 ("A confirmatory assignment . . . cannot . . . backdate an

assignment being made for the first time"). The fourth, dated

January 17, 2017, is an assignment from Nationstar to MTGLQ.

Because the second and third assignments are nullities, the

chain of title shows an assignment from GMAC to Nationstar and

then from Nationstar to MTGLQ. MTGLQ was the foreclosing

entity, and there was, accordingly, no break in the chain of

title.8 Summary judgment on this issue was appropriate.

8 Hall's argument that the initial assignment from GMAC to
Nationstar was ineffective because it did not use the full name
of the GMAC entity lacks merit because this amounts to a
scrivener's error. See Sullivan v. Kondaur Capital Corp., 85
Mass. App. Ct. 202, 213 (2014) (scrivener's error in assignment
"need not itself invalidate the assignment").

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c. Promissory note. Hall also argues that G. L. c. 106,

§ 3-118, renders the foreclosure invalid. Under the statute,

"an action to enforce the obligation of a party to pay a note

payable at a definite time must be commenced within six years

after the due date or dates stated in the note or, if a due date

is accelerated, within six years after the accelerated due

date." G. L. c. 106, § 3-118 (a). Because the statute

undisputedly renders the underlying note unenforceable, Hall

argues, so must that invalidate the mortgage holder's power of

sale. We are unpersuaded.

"[T]he inability to recover directly on a note due to the

expiration of a statute of limitations is no bar to recovery

under a mortgage, so long as the underlying debt remains unpaid"

(citation omitted). Thornton v. Thornton, 97 Mass. App. Ct.

694, 695 (2020). Here, Hall makes no argument that the debt at

issue was paid. Rather, he focuses his argument on cases in

which the debt underlying the mortgage was separated from the

mortgage interest. He points to Eaton v. Federal Nat'l Mtge.

Ass'n, 462 Mass. 569 (2012), for the proposition that an

unenforceable debt renders a mortgage unenforceable, but this

misidentifies the Eaton court's holding. Rather, that case

depended on the assignment of the mortgage separately from the

note. See id. at 576 ("where a mortgage and note are separated,

the holder of the mortgage holds the mortgage in trust for the

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purchaser of the note, who has an equitable right to obtain an

assignment of the mortgage" [quotation and citation omitted]).

Because here the debt and mortgage were assigned together, the

foreclosure did not run afoul of Eaton.

2. General Laws c. 186, § 14. We turn next to the only

claim that survived summary judgment, i.e., Hall's counterclaim

that Mendes attempted a self-help eviction in violation of G. L.

c. 186, § 14. When reviewing a judgment in a jury-waived trial,

we accept the judge's findings of fact unless clearly erroneous.

Board of Registration in Med. v. Doe, 457 Mass. 738, 742 (2010).

We review legal conclusions de novo and without deference to the

trial judge's decision. See Trace Constr., Inc. v. Dana Barros

Sports Complex, LLC, 459 Mass. 346, 351 (2011).

We recite the facts as found by the judge. See Beal Bank,

SSB v. Eurich, 444 Mass. 813, 814 (2005). After Mendes

purchased the property from the foreclosing company, he paid an

"abandonment fee" to the city of Brockton. In the event that

someone was occupying the premises, Mendes posted a letter on

the door of the house to announce that he was the new owner. He

later returned to the premises with some associates to show them

the property, saw that the letter had been removed, and knocked

on the door in an attempt to ascertain if anyone was occupying

the premises. Mendes received no response, but he noticed a

large amount of trash and debris in the back yard. He returned

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to his truck to get a hammer, intending to use it to open a

locked gate in the driveway next to the house and assess the

yard. At this time, Hall, who was in fact residing at the

property, called 911 to report an active break-in. Police

officers arrived, spoke with Mendes and his associates, and

departed. The officer who testified at trial did not notice any

damage to the property. Upon learning that Hall was occupying

the property, Mendes left and did not return. Mendes never

approached Hall, attempted to enter the dwelling, or asked Hall

to leave the property.

Hall does not challenge any of these findings as clearly

erroneous, nor does he challenge the judge's ultimate conclusion

that Mendes did not attempt to conduct a self-help eviction.

Instead, for the first time on appeal, Hall claims that the

judge erred by failing to consider whether Mendes was in breach

of the implied warranty of quiet enjoyment, a separate injury

contemplated by G. L. c. 186, § 14. Issues not raised below

cannot be argued for the first time on appeal. See Boss v.

Leverett, 484 Mass. 553, 563 (2020) ("it is important that an

appellate court have before it an adequate record and findings

concerning a claim to permit it to resolve that claim properly"

[citation omitted]). Here, the only legal theory Hall pursued

at trial was that Mendes attempted a self-help eviction. At no

time in the proceedings below did Hall argue that Mendes was in

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breach of the implied warranty of quiet enjoyment. He presents

no legal argument or authority for the proposition that the

judge should have, sua sponte, found that Mendes was in breach

of the implied warranty of quiet enjoyment where no such breach

was alleged. Accordingly, we treat this argument as waived.

Judgment affirmed.

By the Court (Desmond, Shin &
Walsh, JJ.9),

Clerk

Entered: January 7, 2026.

9 The panelists are listed in order of seniority.

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