SJC-11742
LINDA PINTI & another1
vs.
EMIGRANT MORTGAGE COMPANY, INC., &
another.2
Middlesex. January 8, 2015. – July 17, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Mortgage, Foreclosure, Real estate. Real Property, Mortgage,
Sale. Sale, Real estate. Notice, Foreclosure of mortgage.
Declaratory Relief. Practice, Civil, Declaratory
proceeding, Summary judgment.
BOTSFORD, J. In 2012, the defendant Emigrant Mortgage
Company, Inc. (Emigrant), foreclosed on the mortgage of the
plaintiffs Lesley Phillips and Linda Pinti by exercise of the
power of sale contained in the mortgage. Thereafter, the
plaintiffs filed this action in the Superior Court against
Emigrant and the defendant Harold Wilion, the purchaser of the
property at the foreclosure sale, seeking a declaratory judgment
that the sale was void because Emigrant failed to comply with
paragraph 22 of the mortgage, which concerns the mortgagee’s
provision of notice to the mortgagor of default and the right to
cure, and also the remedies available to the mortgagee upon the
mortgagor’s failure to cure the default, including the power of
sale (notice of default provisions). We agree with the
plaintiffs that strict compliance with the notice of default
provisions in paragraph 22 of the mortgage was required as a
condition of a valid foreclosure sale, and that Emigrant failed
to meet the strict compliance requirement. Accordingly, we
reverse the allowance of the defendant Emigrant’s motion to
dismiss and of the defendant Wilion’s motion for summary
judgment.3
