Haskins v. Deutsche Bank National Trust Co. , 86 Mass. App. Ct. 632 ( 2014 )

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13-P-506 Appeals Court
JOHN E. HASKINS vs. DEUTSCHE BANK NATIONAL TRUST COMPANY,
trustee,1 & others.2
No. 13-P-506.
Worcester. September 3, 2014. - November 10, 2014.
Present: Green, Graham, & Katzmann, JJ.
Mortgage, Foreclosure. Notice, Foreclosure of mortgage.
Assignment. Consumer Protection Act, Investigative demand.
Fraud. Practice, Civil, Complaint. Contract, Implied
covenant of good faith and fair dealing.
Civil action commenced in the Superior Court Department on
June 13, 2012.
A motion to dismiss was heard by Janet Kenton-Walker, J.
Adam T. Sherwin for the plaintiff.
Christopher A. Cornetta for the defendants.
GREEN, J. We are called upon to address a question raised
but not resolved in U.S. Bank Natl. Assn. v. Schumacher, 467
1
Of the Residential Asset Securitization Trust 2004-A2,
Mortgage Pass-Through Certificates, Series 2004-B.
2
OneWest Bank, FSB; MERSCORP Holdings, Inc.; and Mortgage
Electronic Registration Systems, Inc.
2
Mass. 421 (2014) (Schumacher): whether a notice of a
mortgagor's right to cure a mortgage loan default, sent pursuant
to G. L. c. 244, § 35A, is deficient if it is sent by the
mortgage servicing agent (rather than the record holder of the
mortgage), or if it identifies the servicing agent as the
mortgage holder. We conclude that the notice in the present
case complied with the statute, and affirm the judgment of the
Superior Court dismissing the plaintiff's complaint.3
Background. The plaintiff, John E. Haskins, purchased his
residence at 98 Southville Road, Southborough, in 2002. In
2004, incident to a refinancing transaction, he granted a
mortgage to defendant Mortgage Electronic Registration Systems,
Inc. (MERS), as nominee for First Magnus Financial Corporation
(First Magnus).4 Haskins thereafter defaulted on his loan
payment obligations and, by letter dated May 4, 2010, IndyMac
Mortgage Services, the mortgage servicing division of defendant
OneWest Bank, FSB (IndyMac), informed Haskins that he was in
default, but that he had the right to cure the default within
ninety days. The letter identified "IndyMac Mortgage Services,
3
As discussed infra, we likewise reject the plaintiff's
various other claims of error in the dismissal of his complaint.
4
As part of the refinancing, Haskins also executed a
promissory note in favor of First Magnus.
3
a Division of OneWest Bank" as the mortgage holder.5 In fact,
record title to the mortgage was held at the time by MERS, and
the equitable or beneficial ownership of the loan secured by the
mortgage was held by defendant Deutsche Bank National Trust
Company (Deutsche Bank), as trustee of the Residential Asset
Securitization Trust 2004-A2, Mortgage Pass-Through
Certificates, Series 2004-B (securitization trust). By letter
dated December 8, 2010, IndyMac again advised Haskins of the
default, and of his right to cure the default (this time within
150 days); like the May 4 letter, the December 8 letter
identified "IndyMac Mortgage Services, a Division of OneWest
Bank" as the mortgage holder. Haskins did not cure the default,
and Deutsche Bank thereafter obtained a judgment from the Land
Court, pursuant to the Servicemembers Civil Relief Act, allowing
it to foreclose the mortgage pursuant to the statutory power of
sale. Prior to foreclosure, however, Haskins commenced the
present action in Superior Court, seeking declaratory and
injunctive relief to prevent the foreclosure, as well as money
damages. A judge allowed the defendants' motion to dismiss the
complaint for failure to state a claim upon which relief may be
granted. The case comes to us on the plaintiff's appeal from
the resulting judgment of dismissal.
5
The copy of the May 4 letter in the record (and attached
as an exhibit to the plaintiff's amended complaint) contains
only the first page of the letter.
4
Discussion. 1. Section 35A notice. In Schumacher, the
Supreme Judicial Court considered whether alleged deficiencies
in notice given to a defaulted borrower pursuant to G. L.
c. 244, § 35A, furnished a basis to challenge the title acquired
pursuant to a subsequent extrajudicial foreclosure sale. 467
Mass. at 422. The court concluded that the notice of a
borrower's right to cure a default, required under § 35A, is not
a part of the foreclosure process, but instead "is designed to
give a mortgagor a fair opportunity to cure a default before the
debt is accelerated and before the foreclosure process is
commenced through invocation of the power of sale." Id. at 431.
Accordingly, "G. L. c. 244, § 35A, is not one of the statutes
'relating to the foreclosure of mortgages by the exercise of a
power of sale,'" ibid., quoting from G. L. c. 183, § 21, and a
deficiency in the notice sent pursuant to § 35A does not furnish
a basis to challenge the validity of the foreclosure. See id.
at 429-430. Instead, the appropriate avenue for a borrower to
raise a challenge to the form of notice given under § 35A is by
means of an equitable action, prior to foreclosure, seeking to
enjoin the foreclosure. Id. at 422 n.4.
By virtue of its conclusion, the court did not reach the
second of two questions on which it solicited amicus briefs:6
6
For reference to the amicus briefs filed in Schumacher,
see 467 Mass. at 423 n.5. We take judicial notice of the
5
whether a notice sent pursuant to § 35A that lists the name and
address of the mortgage servicer, but incorrectly identifies it
as the current holder of the mortgage, satisfies the statutory
requirement that the notice inform the mortgagor of, inter alia,
"the name and address of the mortgagee, or anyone holding
thereunder." G. L. c. 244, § 35A(c)(4), inserted by St. 2007,
c. 206, § 11.7 The present appeal requires us to reach that
question.
General Laws c. 244, § 35A, gives a mortgagor of real
property in the Commonwealth a right to cure a payment default
before foreclosure proceedings may be commenced.8 In its present
questions framed for amici, as described in the docket of that
case.
7
This language now appears in § 35A(h)(4).
8
As approved on November 29, 2007, and made effective on
May 1, 2008, § 35A gave mortgagors a ninety-day cure period.
St. 2007, c. 206, § 11. The 2010 amendment, effective August 7,
2010, among other things extended the presumptive cure period
from ninety to 150 days, subject to certain exceptions not
applicable in the present case. St. 2010, c. 258, § 7. The
2007 version of § 35A was in effect at the time of the May 4
notice (and throughout the ninety-day cure period following it).
The 2010 version was in effect at the time of the December 8
notice. The parties do not address why IndyMac sent the
December 8 notice, or whether it, or the May 4 notice, should be
considered the effective notice for purposes of this case. (As
we indicated in note 5, the copy of the May 4 notice includes
only the first page, and ends before the signature.) The
question is immaterial, as both notices are identical in their
references to IndyMac as the "mortgage holder," and the
plaintiff asserts no claim that the December 8 notice failed in
any other respect to meet the requirements imposed by the 2010
amendments. For purposes of our discussion, we shall refer to
6
form, the statute provides that "[t]he mortgagee, or anyone
holding thereunder, shall not accelerate maturity of the unpaid
balance of [a residential mortgage or note secured thereby] or
otherwise enforce the mortgage because of a default consisting
of the mortgagor's failure to make any [payment required by such
residential mortgage or note secured thereby] by any method
authorized by this chapter or any other law until at least 150
days after the date a written notice is given by the mortgagee
to the mortgagor." G. L. c. 244, § 35A(g), inserted by
St. 2010, c. 258, § 7. Subsection (h) of the statute provides
that the required notice "shall inform" the mortgagor of various
matters, as set out in the margin.9
the December 8 notice and the version of the statute then in
effect.
9
General Laws c. 244, § 35A(h), provides as follows:
"(h) The notice required in subsection (g) shall inform the
mortgagor of the following: --
"(1) the nature of the default claimed on such mortgage of
residential real property and of the mortgagor's right to
cure the default by paying the sum of money required to
cure the default;
"(2) the date by which the mortgagor shall cure the default
to avoid acceleration, a foreclosure or other action to
seize the home, which date shall not be less than 150 days
after service of the notice and the name, address and local
or toll free telephone number of a person to whom the
payment or tender shall be made unless a creditor chooses
to begin foreclosure proceedings after a right to cure
period lasting less than 150 days that engaged in a good
faith effort to negotiate and agree upon a commercially
7
reasonable alternative but was not successful in resolving
the dispute, in which case a foreclosure or other action to
seize the home may take place on an earlier date to be
specified;
"(3) that, if the mortgagor does not cure the default by
the date specified, the mortgagee, or anyone holding
thereunder, may take steps to terminate the mortgagor's
ownership in the property by a foreclosure proceeding or
other action to seize the home;
"(4) the name and address of the mortgagee, or anyone
holding thereunder, and the telephone number of a
representative of the mortgagee whom the mortgagor may
contact if the mortgagor disagrees with the mortgagee's
assertion that a default has occurred or the correctness of
the mortgagee's calculation of the amount required to cure
the default;
"(5) the name of any current and former mortgage broker or
mortgage loan originator for such mortgage or note securing
the residential property;
"(6) that the mortgagor may be eligible for assistance from
the Homeownership Preservation Foundation or other
foreclosure counseling agency, and the local or toll free
telephone numbers the mortgagor may call to request this
assistance;
"(7) that the mortgagor may sell the property prior to the
foreclosure sale and use the proceeds to pay off the
mortgage;
"(8) that the mortgagor may redeem the property by paying
the total amount due, prior to the foreclosure sale;
"(9) that the mortgagor may be evicted from the home after
a foreclosure sale; and
"(10) the mortgagor may have the following additional
rights, depending on the terms of the residential mortgage:
(i) to refinance the obligation by obtaining a loan which
would fully repay the residential mortgage debtor; and (ii)
to voluntarily grant a deed to the residential mortgage
lender in lieu of foreclosure.
8
At the time of the December 8 notice, MERS held record
title to the mortgage. Accordingly, the notice was inaccurate
in its identification of IndyMac as the current mortgage holder,
if and to the extent an entity's status as mortgagee under the
statute is determined by record title.10 The plaintiff contends
that the disparity requires a conclusion that the notice is
ineffective, because "we adhere to the familiar rule that 'one
who sells under a power [of sale] must follow strictly its
terms. If he fails to do so there is no valid execution of the
power, and the sale is wholly void.'" U.S. Bank Natl. Assn. v.
Ibanez, 458 Mass. 637, 646 (2011), quoting from Moore v. Dick,
187 Mass. 207, 211 (1905). In response, the defendants contend
that a defect in a § 35A notice will render it ineffective only
if the noncompliance would render a subsequent foreclosure "so
fundamentally unfair that [the homeowner] is entitled to
"The notice shall also include a declaration, in the
language the creditor has regularly used in its
communication with the borrower, appearing on the first
page of the notice stating: 'This is an important notice
concerning your right to live in your home. Have it
translated at once.'
"The division of banks shall adopt regulations in
accordance with this subsection."
10
It also appears that, as servicer, IndyMac held no
beneficial ownership interest in the mortgage, or in the debt
secured thereby; instead, its role was strictly as servicing
agent for Deutsche Bank (which in turn served as trustee of the
securitization trust), the note holder and owner of the debt
secured by the mortgage.
9
affirmative equitable relief . . . 'for reasons other than
failure to comply strictly with the power of sale provided in
the mortgage.'" Schumacher, 467 Mass. at 433 (Gants, J.,
concurring), quoting from Bank of America, N.A. v. Rosa, 466
Mass. 613, 624 (2013). See Bank of N.Y. Mellon Corp. v. Wain,
85 Mass. App. Ct. 498, 501-502 (2014). In our view, neither
position is correct.
As the Supreme Judicial Court made clear in Schumacher,
§ 35A "is not one of the statutes 'relating to the foreclosure
of mortgages by the exercise of a power of sale.'" 467 Mass. at
431, quoting from G. L. c. 183, § 21. Accordingly, the rule of
strict adherence observed in Ibanez and invoked by the plaintiff
is inapposite. However, the circumstances here are unlike those
in Schumacher in a particularly important respect; indeed, the
present case is in precisely the posture recognized by the court
in Schumacher as appropriate to challenge the validity of a
§ 35A notice in order to prevent a foreclosure sale from going
forward. See Schumacher, supra at 422 n.4. Accordingly, the
standard of "fundamental unfairness" furnishes too narrow a lens
through which to view potential grounds for relief based on a
defective notice.11 We accordingly consider how the statutory
11
The fundamental unfairness standard discussed in
Schumacher applies when a § 35A violation is raised in a
postforeclosure summary process action, instead of properly in a
preforeclosure equity action. 467 Mass. at 433 (Gants, J.,
10
requirements should be construed, using familiar principles of
statutory construction.
"Our primary duty in interpreting a statute is 'to
effectuate the intent of the Legislature in enacting it.'
International Org. of Masters v. Woods Hole, Martha's
Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984).
We begin with the language of the statute, as 'the
principal source of insight into legislative intent.'
Providence & Worcester R.R. v. Energy Facilities Siting
Bd., 453 Mass. 135, 142 (2009), quoting New Bedford v.
Energy Facilities Siting Council, 413 Mass. 482, 485
(1992), S.C., 419 Mass. 1003 (1995). Where the words are
'plain and unambiguous' in their meaning, we view them as
'conclusive as to legislative intent.' Sterilite Corp. v.
Continental Cas. Co., 397 Mass. 837, 839 (1986). Where the
meaning of a statute is not plain from its language, we
consider 'the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers
may be effectuated.' DiFiore v. American Airlines, Inc.,
454 Mass. 486, 490 (2009), quoting Industrial Fin. Corp. v.
State Tax Comm'r, 367 Mass. 360, 364 (1975). See Oxford v.
Oxford Water Co., 391 Mass. 581, 588 (1984), quoting
Commonwealth v. Welosky, 276 Mass. 398, 401-402 (1931),
cert. denied, 284 U.S. 684 (1932) ('Statutes are to be
interpreted . . . in connection with their development,
their progression through the legislative body, the history
of the times . . .'). 'Where possible, we construe the
various provisions of a statute in harmony with one
another, recognizing that the Legislature did not intend
internal contradiction.' DiFiore v. American Airlines,
Inc., supra at 491."
Water Dept. of Fairhaven v. Department of Envtl. Protection, 455
Mass. 740, 744-745 (2010).
concurring). Here, the plaintiff indeed filed a preforeclosure
equity action. Because our view is that the § 35A notice in
this case conformed to the statutory requirements, we do not
reach the question what type of defect in the notice would
entitle a mortgagor to relief.
11
Though the term "mortgagee" rests on centuries of common
law, relatively recent developments in the methods by which
residential mortgages are funded, held, and managed have
introduced new complexity in typical residential finance
transactions, creating some ambiguity in how some traditionally
well-understood terms should be understood with reference to
contemporary transaction structures. Indeed, the Supreme
Judicial Court recently observed that the term "mortgagee" as
used in the statutes governing the foreclosure process "is not
free from ambiguity." Eaton v. Federal Natl. Mort. Assn., 462
Mass. 569, 571 (2012). In Eaton, the court adopted an
interpretation of the term in the context of a foreclosure sale
to mean "the person or entity . . . holding the mortgage [at the
time of a foreclosure sale] and also either holding the mortgage
note or acting on behalf of the note holder." Ibid. However,
recognizing that its interpretation represented a departure from
traditional practices resting on the understanding that a
foreclosing mortgagee need hold only the mortgage and not the
note, the court held that its interpretation would apply only
prospectively.12 Id. at 588-589.
12
The notice at issue in the present case preceded the
Eaton decision.
12
Section 35A contains no definition of the term
"mortgagee."13 The recognized ambiguity of the term in the
context of foreclosure sales, and in light of contemporary
financing structures, precludes us from relying solely on the
plain language of the statute to resolve the question of its
meaning. We accordingly consider "the cause of its enactment,
the mischief or imperfection to be remedied and the main object
to be accomplished, to the end that the purpose of its framers
may be effectuated." DiFiore, 454 Mass. at 490, quoting from
Industrial Fin. Corp., supra.
General Laws c. 244, § 35A, was adopted in response to
recommendations made in the "Report of the Mortgage Summit
Working Groups, Recommended Solutions to Prevent Foreclosures
and to Ensure Massachusetts Consumers Maintain the Dream of
Homeownership," dated April 11, 2007 (Mortgage Summit Report),
which itself was commissioned in "response to rising
foreclosures both locally and nationally, increasing evidence of
mortgage fraud, and other developments in the mortgage market."
13
We note that the 2010 amendments added a definition of
"Creditor" as "a person or entity that holds or controls,
partially, wholly, indirectly, directly, or in a nominee
capacity, a mortgage loan securing a residential property,
including, without limitation, an originator, holder, investor,
assignee, successor, trust, trustee, nominee holder, Mortgage
Electronic Registration System or mortgage servicer, including
the Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation. 'Creditor' shall also include any
servant, employee or agent of a creditor." G. L. c. 244,
§ 35A(a), inserted by St. 2010, c. 258, § 7.
13
Mortgage Summit Report, supra at 2. The Mortgage Summit Report
highlighted what the authors considered "[f]our problems with
existing Massachusetts law": (1) "[t]he only pre-foreclosure
notice required by Massachusetts law may be sent as few as 14
days before the [foreclosure] sale"; (2) "Massachusetts law does
not include a right to cure a default to prevent foreclosure";
(3) "Massachusetts law allows foreclosure sales without a prior
court proceeding"; and (4) "Massachusetts homeowners get no
notice of what happens at the foreclosure sale of their home."
Id. at 16. Accordingly, the Mortgage Summit Report recommended
implementation of a requirement that notice be sent to
defaulting borrowers ninety days before commencement of
foreclosure, advising them of a right to cure a payment default
and thereby avoid foreclosure, and a prohibition against
imposition of attorney's fees or other costs during the
specified cure period. Id. at 17.
As originally adopted, § 35A tracked the Mortgage Summit
Report recommendation of a notice requirement preceding
commencement of foreclosure, and a ninety-day cure period,
exactly. The statute also required the notice to advise the
mortgagor of, inter alia, the nature of the default, the name of
any current and former mortgage broker or mortgage loan
originator, the potential eligibility of the mortgagor for
assistance from the Massachusetts Housing Finance Agency (and
14
information about how the mortgagor might request such
assistance), and the "name and address of the mortgagee, or
anyone holding thereunder, and the telephone number of a
representative of the mortgagee whom the mortgagor may contact
if the mortgagor disagrees with the mortgagee's assertion that a
default has occurred or the correctness of the mortgagee's
calculation of the amount required to cure the default." G. L.
c. 244, § 35A(c)(4), inserted by St. 2007, c. 206, § 11.
The evident purpose of the notice required by § 35A is to
"give a mortgagor a fair opportunity to cure a default before
the debt is accelerated and before the foreclosure process is
commenced through invocation of the power of sale." Schumacher,
467 Mass. at 431. To accomplish that purpose, the statutory
notice is designed to provide the mortgagor with the information
necessary to contact the party who holds all relevant
information about the loan (including balances, payment history,
and overdue payment amounts), and who holds authority to make
decisions or otherwise take action to allow the mortgagor to
cure any default, pay off the loan balance by means of a sale or
refinancing, or undertake discussions of a possible modification
of the loan. In the circumstances of loans such as the one
here, that party is the mortgage servicer.
MERS typically holds a bare legal title to the mortgage
security instrument. See, e.g., Eaton, 462 Mass. at 572;
15
Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 209
(2014). See generally Culhane v. Aurora Loan Servs. of Neb.,
708 F.3d 282, 287 (1st Cir. 2013). A securitization trust
holding the equitable or beneficial interest in the debt secured
by the mortgage likewise typically plays no active role in
managing the mortgage (though a securitization trust does hold
the authority to accept or reject modification proposals
negotiated by the servicer, and to direct ultimate decisions
concerning whether to complete or abandon a foreclosure sale);
instead the servicer is responsible for collecting and recording
instalment payments on the loan, conducting communications with
the mortgagor, and managing the foreclosure process if the loan
goes into default (or alternatively considering terms of a loan
modification). See generally Levitin & Twomey, Mortgage
Servicing, 28 Yale J. on Reg. 1, 16, 23 (2011). Viewed against
the statutory objective of furnishing a mortgagor with the
information necessary to contact the party from whom information
about the loan may be obtained, to whom any curative payment may
be made, or with whom modification discussions might be
conducted, it is sensible to consider the servicer within the
scope of parties encompassed by the term "mortgagee" in
§ 35A(h)(4).14 Moreover, nothing in the statutory objective
14
We acknowledge the observation in Eaton that "[w]here the
Legislature uses the same words in several sections which
16
appears to be furthered by furnishing the mortgagor with the
name and address of the mortgagee in circumstances where the
loan is serviced by a different entity. In such circumstances,
as we have observed, all relevant information concerning the
loan and all communications with the mortgagor will be with the
servicer (here, IndyMac) and not the holder of either the legal
interest in the mortgage (here, MERS) or the beneficial interest
in the loan (here, the securitization trust).15
We are buttressed in our conclusion by the regulations
promulgated by the division of banks pursuant to its rule-making
authority set forth in § 35A(h), which include mortgage
servicers among the entities included in the definition of the
term "mortgagee" for purposes of effectuating the right to cure
concern the same subject matter, the words must be presumed to
have been used with the same meaning in each section." 462
Mass. at 583 (citation omitted). However, Eaton considered the
meaning of "mortgagee" in the context of a foreclosure sale
conducted under the statutory power of sale and, as we have
observed, § 35A is not part of the foreclosure process. See
Schumacher, 467 Mass. at 431.
15
By comparison, the requirement that the notice include
the name and address of the mortgage broker or the loan
originator, see G. L. c. 244, § 35A(h)(5), appears (in
conjunction with § 35A[k], which requires a copy of the notice
to be filed with the commissioner of the division of banks)
designed to collect a database of information about mortgage
loan originators who engaged in predatory loan origination
practices. See Mortgage Summit Report, supra at 14.
17
notification process. See 209 Code Mass. Regs. § 56.02 (2012).16
Though that particular regulation was not promulgated until
March 2, 2012, after the notice at issue here, it illustrates
the interpretation of the statute by the administrative
authority charged with its enforcement, which we consider to be
reasonable for the reasons explained supra. We accordingly
extend it substantial deference. See Commerce Ins. Co. v.
Commissioner of Ins., 447 Mass. 478, 481 (2006). See also
Massachusetts Med. Soc. v. Commissioner of Ins., 402 Mass. 44,
62 (1988) ("Where the [agency's] statutory interpretation is
reasonable, . . . [we] should not supplant [its] judgment").
For the foregoing reasons, we discern no merit in the
plaintiff's contention that the § 35A notice was defective
because it identified IndyMac (the mortgage servicer) as the
16
We also note that the "Frequently Asked Questions"
section on the division of banks Web site includes the
following:
"Q: Is it acceptable for the servicer to put its name
in the Notice everywhere the word 'Mortgagee' appears?"
"A: Yes. It is acceptable for the servicer or any
entity authorized to act on behalf of the mortgagee to put its
name in every space that references mortgagee. The references
should be consistent throughout the Notice."
See Frequently Asked Questions on 150/90 Day Right To Cure
Notice, available only at http://www.mass.gov/ocabr/banking-and-
finance/laws-and-regulations/dob-faqs/faq04042012.html
[http://perma.cc/R38E-KF6Y] (last visited November 6, 2014).
18
mortgage holder. The motion judge correctly dismissed the count
of the plaintiff's complaint asserting that claim.
2. Other issues. The plaintiff's remaining claims of
error require little discussion. There is no merit to the
plaintiff's claim that the § 35A notice was invalid because it
was not sent by certified mail; the statute provides that notice
given in that manner is "deemed delivered," but does not require
the notice to be sent in that manner. St. 2010, c. 258, § 7.
In any event, the plaintiff acknowledges that he received the
notice. There is likewise no merit to the plaintiff's claim
that MERS is without capacity to execute a valid assignment of
the mortgage (because it held a bare legal title to the
mortgage, separated from any beneficial interest). See
Sullivan, 85 Mass. App. Ct. at 209-210. The plaintiff's claim
under G. L. c. 93A was properly dismissed because he did not
send the requisite demand prior to commencement of suit.17 See
G. L. c. 93A, § 9(3); Kanamaru v. Holyoke Mut. Ins. Co., 72
Mass. App. Ct. 396, 407-408 (2008). Similarly, the plaintiff's
claim of fraud was properly dismissed because his complaint did
not plead it with particularity. See Mass.R.Civ.P. 9(b), 365
17
The plaintiff argues for the first time on appeal that
the demand requirements of G. L. c. 93A, § 9(3), do not apply
because the defendants do not maintain a place of business or
keep assets in the Commonwealth. The plaintiff failed to plead
this exception in his amended complaint, and he failed to raise
the argument below. Thus, the argument is waived. Carey v. New
England Organ Bank, 446 Mass. 270, 285 (2006).
19
Mass. 751 (1974). The plaintiff's challenge to the validity of
the signatures on the mortgage assignment is precluded by the
provisions of G. L. c. 183, § 54B.18 Finally, the plaintiff
pleaded no facts to support his claim that the defendants'
attempts to proceed with foreclosure of the property, based upon
the plaintiff's payment default, constituted a breach of the
implied covenant of good faith and fair dealing.
Judgment affirmed.
18
Conformably to § 54B, the assignment was executed by a
person identified as "JC San Pedro," who purported to be an
assistant secretary of MERS.