GENE ESPINOLA v. PAUL S. MURPHY & 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-486

GENE ESPINOLA

vs.

PAUL S. MURPHY & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In October 2018, the plaintiff, Gene Espinola, filed a

summary process complaint in the Housing Court against the

defendants, Eileen M. Murphy and her former husband, Paul S.

Murphy,2 seeking possession of a property at 44 East View Street

in Lowell (the property), which the plaintiff purchased in

foreclosure. On appeal, the defendant contends that the judge

erred in allowing the plaintiff's renewed motion for summary

1 Eileen M. Murphy.

2Because the parties share a last name, we will refer to
each by their first name. As Paul has not participated in this
appeal or the matter below, "defendant" as used in this decision
shall mean Eileen M. Murphy.
judgment3 because the foreclosing mortgagee, Nationstar Mortgage,

LLC (Nationstar), failed to strictly comply with notice

provisions in the mortgage and Massachusetts law, rendering the

foreclosure unlawful and the plaintiff's title to the property

void. We affirm.

Background. The following facts are undisputed unless

otherwise noted. In May 1984, the property was conveyed to the

defendant and her then husband, Paul, by the defendant's

parents. In December 2001, the defendant and Paul granted a

mortgage on the property to Mortgage Electronic Registration

Systems, Inc. (MERS).

The defendant and Paul divorced in 2008. Their divorce

agreement, which was executed in the Probate and Family Court on

October 10, 2008, gave the defendant "sole right, title and

interest" in the property, and stipulated that she would

"refinance the home in her individual name within two (2) years

from the date of this Agreement or payoff the mortgage on the

marital home with the proceeds from the sale of the business

condo, whichever occurs first." However, Paul failed to deed

3 The plaintiff initially filed a motion for summary
judgment in 2019, and the defendant filed a cross motion for
summary judgment. Both motions were denied after a hearing on
April 22, 2019. Both parties filed renewed motions for summary
judgment in 2023, and the plaintiff's renewed motion was allowed
on August 30, 2023.

2
the property to the defendant as required by the divorce

agreement.4

Since November of 2010, neither the defendant nor Paul made

any payments on the mortgage or any payments for real estate

taxes on the property. On January 17, 2011, Nationstar, as the

servicer of the mortgage, sent a notice of default (2011

notice), to the defendant and Paul at the property address,

specifying that the defendant had defaulted on the mortgage and

that it intended to foreclose if the full amount of the default

was not paid by a specified date. On August 26, 2011, MERS

assigned the mortgage to Nationstar, which was recorded in the

Registry of Deeds.5 Nationstar then held a public auction,

conducted a foreclosure sale, and sold the property to Brian

McMahon on August 8, 2012. McMahon subsequently initiated a

summary process action for possession against the defendants.

Due to legal defects in the 2011 notice sent by Nationstar to

the defendant,6 the defendant successfully defended that action

4 In a sworn affidavit, the defendant stated that she has
"made several complaints for contempt against Paul in Probate
Court for his failures to comply with the Divorce Agreement."

5 Although not the subject of this appeal, the defendant
maintains that this was not a legally effective assignment.

6 Paul was separately dismissed from the case.

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in Housing Court.7 Ultimately, a judge of the Superior Court

issued a judgment in accordance with the Housing Court ruling,

rescinding the foreclosure and reinstating the defendant's

mortgage "as if the Foreclosure had not been conducted and the

Foreclosure Deed had never been executed."

On October 19, 2016, Nationstar sent a second notice of

default (2016 notice) via certified mail to the property

address. The 2016 notice listed all principal and interest

payments, which had not been made since 2010, including escrow

real estate tax payments. The defendant failed to cure the

default. Ultimately, on April 9, 2018, Nationstar held another

public auction and sold the property to the plaintiff. The

foreclosure deed conveying the property from Nationstar to the

plaintiff was recorded with the Registry of Deeds on July 25,

2018. The plaintiff then filed this action in Housing Court

seeking possession of the property.

Discussion. "We review a grant of summary judgment de novo

to determine 'whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to a judgment as a

matter of law.'" Pinti v. Emigrant Mtge. Co., 472 Mass. 226,

7 The Housing Court judgment was upheld on appeal by this
Court. See McMahon v. Murphy, 89 Mass. App. Ct. 1108 (2016).

4
231 (2015), quoting Juliano v. Simpson, 461 Mass. 527, 529-530

(2012).

To prevail on summary judgment, the plaintiff was required

to show that there was no dispute of material fact that he

obtained a valid title to the property, and that the foreclosure

strictly complied with the terms of the mortgage and applicable

Massachusetts law. On appeal, the defendant argues that the

plaintiff's title to the property is void because Nationstar

failed to comply with paragraphs twenty-two and fifteen of the

mortgage and applicable Massachusetts law.

Paragraph twenty-two provides that, prior to the

acceleration of the loan following any breach of the mortgage by

the defendant, Nationstar is required to notify the defendant of

the following:

"(a) the default; (b) the action required to cure the
default; (c) a date, not less than [thirty] days from
the date the notice is given to Borrower [the
defendant], 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 [the mortgage]."

The defendant asserts that the 2016 notice was deficient under

this paragraph because the default and reinstatement demands

within the notice were erroneous. In support, the defendant

alleges that by accelerating the mortgage through the prior 2011

notice, Nationstar was entitled to collect only the outstanding

principal, interest, and real estate tax escrow payments as they

5
existed at that time. According to the defendant, the

subsequent 2016 notice was therefore erroneous because it

contained a demand for payments for principal, interest, and

real estate tax payments that became due under the mortgage

between 2011 and 2016. While it is true that "[w]hen a note is

given for a fixed sum representing principal and interest for

the period of the note, the clause accelerating the maturity of

the debt will not be enforced as to future interest[,]" A-Z

Servicenter, Inc. v. Segall, 334 Mass. 672, 677 (1956), the

Superior Court judgment that voided the 2012 foreclosure,

specifically stated that "[t]he Mortgage remains in full force

and effect to the same extent as if the Foreclosure had not been

conducted and the Foreclosure Deed had never been executed and

recorded with the Registry." In other words, the mortgage was

effectively never accelerated in 2011. Nationstar was therefore

entitled to seek outstanding payments due under the mortgage

between the time of the 2011 foreclosure and 2016.8 As such, the

8 The defendant asserts that McMahon paid all property
ownership obligations from August 8, 2012, through "some period
between February 26, 2016, and December 29, 2016." However, the
record provides no support for that assertion. Furthermore,
pursuant to the disclosures within the 2016 notice, the
defendant was entitled to "bring a court action [against
Nationstar] to assert the non-existence of a default or any
other defense you may have to acceleration and sale." This, of
course, would have included challenging the payments due between
the first and second foreclosures.

6
2016 notice strictly complied with the terms of paragraph

twenty-two.9

The defendant also argues that the 2016 notice did not

comply with paragraph fifteen of the mortgage or with G. L.

c. 244, § 35A (b). Paragraph fifteen of the mortgage states:

"Any notice to Borrower in connection with this
Security Instrument shall be deemed to have been given
to Borrower when mailed by first class mail or when
actually delivered to Borrower's notice address if
sent by other means. Notice to any one Borrower shall
constitute notice to all Borrowers unless Applicable
Law expressly requires otherwise. The notice address
shall be the Property Address unless Borrower has
designated a substitute notice address by notice to
Lender."

Furthermore, G. L. c. 244, § 35A (b), requires that the notice

of default "shall be deemed to be delivered . . . when sent by

first class mail and certified mail . . . to the mortgagor at

the mortgagor's address last known to the mortgagee." The

defendant avers that Nationstar did not comply with paragraph

fifteen because the 2016 notice was not mailed to the notice

address. Under paragraph fifteen, the "notice address shall be

the Property Address unless [the] Borrower has designated a

substitute notice address by notice to [the] Lender." The

defendant alleges that following their divorce in 2008, Paul

changed the notice address from the property address to his

9 For the reasons stated above, we also conclude that the
2016 notice complied with G. L. c. 183, § 21.

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personal residential address in New Hampshire. However, the

only evidence cited by the defendant for such a change is the

defendant's own affidavit as well as a copy of a 2011 loan

statement sent by Nationstar to Paul at his New Hampshire

address. Notably, there is no correspondence in the record

between Paul and Nationstar detailing a change in the notice

address, and Nationstar also sent correspondence to Paul's

address in Dracut. We therefore cannot discern on the record

before us that a change in the notice address ever occurred.

Rather, the record supports the inference that the notice

address was not changed and remained the property address.

Accordingly, because it is undisputed that Nationstar sent the

notice of default via certified mail to the property address,

Nationstar fully complied with paragraph fifteen.10

The defendant further seeks to use the plaintiff's "summary

process action to invalidate the foreclosure and, by extension,

[the plaintiff's] title to the property," U.S. Bank Nat'l Ass'n

v. Schumacher, 467 Mass. 421, 429 (2014), by arguing that the

2016 notice was deficient under G. L. c. 244, § 35A (b), because

10While the defendant states that she could "plausibly
argue" that the notice was defective because it contained the
words "C/O LAW OFFICES OF MICHAEL M. MCARDLE" in the address
line, she cites no authority that supports this position.
Importantly, as noted supra, the notice was addressed to both
herself and Paul.

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it was not sent to "the mortgagor's address last known to the

mortgagee." However, this "challenge to the notice should have

been raised in an independent equity action in the Superior

Court, not in a postforeclosure summary process action in the

Housing Court where the only legal issue for the court is

whether the mortgagee obtained title to the property in strict

accordance with the power of sale." U.S. Bank Nat'l Ass'n, 467

Mass. at 429.11

Judgment affirmed.

By the Court (Desmond,
Grant & Hodgens, JJ.12),

Clerk

Entered: June 20, 2025.

11For these reasons, we also disagree with the defendant
that Nationstar violated its duty of good faith and fair dealing
or that the 2018 foreclosure was fundamentally unfair.

12 The panelists are listed in order of seniority.

9