Bank of America, N.A. v. Mary Ellen Petrone.

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
22-P-490
BANK OF AMERICA, N.A.
vs.
MARY ELLEN PETRONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this postforeclosure summary process eviction action,
the defendant, Mary Ellen Petrone, has filed two notices of
appeal. The first seeks to appeal from a Housing Court summary
judgment in favor of the plaintiff, Bank of America, N.A.
(bank), and from an order entered on December 28, 2021, denying
Petrone's motion to vacate that judgment. The second seeks to
appeal from a postjudgment procedural order entered on January
25, 2022. We conclude that the appeals from the judgment and
the procedural order are not properly before us; we affirm the
order denying the motion to vacate the judgment.
Background. On October 2, 2009, Petrone's father executed
a reverse mortgage on his property, where Petrone lived. On
February 4, 2018, the father died, triggering a default under
the reverse mortgage. Through various assignments, the reverse
mortgage was acquired by the bank, which foreclosed on the
property in 2019, brought this summary process action, and
obtained a judgment for possession.
Judgment entered on December 14, 2021. Petrone filed a
motion to vacate the judgment on December 27, 2021. The motion,
filed under Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974),
asserted that because the bank had not sent Petrone certain
preforeclosure notices, the foreclosure was void, the bank
lacked standing to bring the summary process action, and thus
the judgment was void for lack of subject matter jurisdiction.
The motion was denied on December 28, 2021, and Petrone filed
her first notice of appeal on January 7, 2022. We defer
discussion of the January 25, 2022 procedural order, and
Petrone's second notice of appeal challenging it, until later in
this decision.
Discussion. 1. First notice of appeal. On May 4, 2022, a
single justice of this court issued an order that, among other
things, deemed the first notice of appeal "to encompass both the
[December 14, 2021] judgment and the [December 28, 2021] order
denying [Petrone's] motion to vacate the judgment." There is no
dispute that the notice was timely as to, and thus effective to
appeal, the order denying the motion to vacate the judgment. As
to the judgment itself, however, we conclude that the notice was
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untimely. We proceed to address the judgment and then the
order.
a. Judgment. The bank asserts that the notice was
untimely as to the judgment, because it was filed beyond the
ten-day appeal period established by G. L. c. 239, § 5 (a), and
because the motion to vacate the judgment was filed too late to
toll the running of the appeal period under Mass.
R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606 (2019). See
generally Youghal, LLC v. Entwistle, 484 Mass. 1019, 1020-1021
(2020) (running of summary process appeal period is tolled by
timely motion listed in Mass. R. A. P. 4 [a] [2]).
We first note that whether the appeal period was tolled
depends not on when the motion to vacate was filed but on when
it was served. See Mass. R. A. P. 4 (a) (2) (C). In order to
toll the appeal period, the motion must have been served within
ten days of the entry of judgment. See id. Here, the tenth
calendar day after the entry of judgment was December 24, 2021,
a Friday. The motion to vacate that judgment was not
accompanied by a certificate of service, but the motion itself
was dated "Monday, December 27, 2021," which was the earliest
the motion could have been served. Construing the record in
Petrone's favor, we therefore take December 27, 2021, to be the
date of service. Although that was more than ten calendar days
after the entry of judgment, Petrone asserts that it was
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nevertheless timely. More specifically, she argues that Friday,
December 24, 2021, was "appointed as a holiday by the President
. . . of the United States," and therefore is a "legal holiday"
within the meaning of Mass. R. Civ. P. 6 (a), 365 Mass. 747(1974).1 If she were correct, then, under that rule, the ten-day
period for serving the motion to vacate under Mass.
R. A. P. 4 (a) (2) (C) would have ended on Monday, December 27,
2021, which we take to be the date it was indeed served.
We are not persuaded, however, that the President appointed
December 24, 2021, as a holiday. Petrone bases her argument on
Executive Order 11582, 36 Fed. Reg. 2957, at § 4 (Feb. 13, 1971)
(EO 11582). Section 4 of EO 11582 provides a method for
determining holidays for a specific group of Federal employees.2
For such employees, "If a holiday occurs on Saturday, the head
of the department shall designate in advance either the Saturday
or the preceding Friday as the employee's holiday and the
employee's basic 40-hour tour of duty shall be deemed to include
1 The computation of time under Mass. R. A. P. 4, (a) (2) would
appear to be governed not by Mass. R. Civ. P. 6 (a) but by Mass.
R. A. P. 14 (a), as appearing in 481 Mass. 1626 (2019). In any
event, the relevant language of the latter two rules is
identical.
2 Section 4 begins, "The holiday for a full-time employee for
whom the head of a department has established the first 40 hours
of duty performed within a period of not more than six days of
the administrative workweek as his basic workweek because of the
impracticability of prescribing a regular schedule of definite
hours of duty for each workday, shall be determined as follows."
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eight hours on the day designated as the employee's holiday."
EO 11582, § 4(b). Under this provision, when a holiday such as
Christmas falls on a Saturday, as it did in 2021, then the
question whether any particular Federal employee covered by EO
11582 is given the holiday on the Saturday, or instead on the
preceding Friday, is determined by the head of the employee's
department.
Here, Petrone offers no evidence that any such designation
was made by the head of any particular Federal department as to
Christmas 2021. More important, Petrone offers no argument that
a Federal department head's determination that certain full-time
Federal employees were to be given their 2021 Christmas holiday
on Friday, December 24, 2021, would equate to that day being
"appointed as a holiday by the President" within the meaning of
Mass. R. Civ. P. 6 (a). Nor does Petrone dispute the Housing
Court judge's determination, in denying her motion, that "courts
were open for business" on Friday, December 24, 2021.
Accordingly, that date was not a holiday, the motion to
vacate the judgment was served too late to toll the period for
appealing the judgment, and thus the first notice of appeal did
not bring the judgment before us. We must therefore order the
appeal dismissed to the extent it seeks review of the judgment.3
3 Even if the judgment were properly before us, we would affirm
it. Petrone's attack on the judgment is based on the same
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b. Order on motion to vacate judgment. Although the first
notice of appeal was timely as to the order denying Petrone's
motion to vacate the judgment under Mass. R. Civ. P. 60 (b) (4),
we conclude that the motion was correctly denied. The basis for
the motion was Petrone's assertion that the bank, before
foreclosing, did not send her either a notice of the right to
cure under G. L. c. 244, § 35A, or a notice of foreclosure under
G. L. c. 244, § 14. Petrone thus contended that the foreclosure
was void, the bank lacked standing, and thus the Housing Court
lacked subject matter jurisdiction, making its judgment void.
The statutes on which Petrone relies, to the extent
applicable, require the mortgagee (here, the bank) to give
notice to the mortgagor, not to residents of the property. See
G. L. c. 244, § 35A (b) (written notice of right to cure must be
"given by the mortgagee to the mortgagor"); G. L. c. 244, § 14
(notice of foreclosure sale must be sent to "to the owner or
owners of record of the equity of redemption").4 Moreover, the
grounds as were asserted in her motion to vacate the judgment,
and we conclude infra that those grounds have no merit and the
motion was properly denied.
4 Petrone also argued that she was entitled to be sent, with the
notice of foreclosure, a certification and a copy of the
endorsed note, as then provided by 209 Code Mass. Regs.
§ 18.21A(2)(c) (2013). That regulation, however, required such
materials to be provided "to the borrower." See Ressler v.
Deutsche Bank Trust Co. Ams., 92 Mass. App. Ct. 502, 504 & n.5
(2017). The regulation now appears as 209 Code Mass. Regs.
§ 18.24(2)(c) (2021).
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right to cure applies to "a default of a required payment as
provided in [the applicable] residential mortgage or note,"
G. L. c. 244, § 35A (a), whereas, under the reverse mortgage
here, the event of default was not nonpayment but, instead, the
death of the original mortgagor, Petrone's father. Thus, in
this case, the statute did not require notice of a right to
cure. And, as to the notice of foreclosure sale, the judge
determined that there was no dispute that such notice had been
given to the mortgagor, which at the relevant time was the
estate of Petrone's father, as well as to Petrone herself.
Petrone's motion to vacate the judgment offered no evidence
or persuasive legal argument calling into question the
conclusion that the foreclosure process complied with the
applicable statutes. Therefore, the bank had standing, the
Housing Court had subject matter jurisdiction, the judgment was
not void, and the motion to vacate it was correctly denied.
2. Second notice of appeal. Petrone's second notice of
appeal, filed on April 26, 2022, stated that she appealed "from
the order entered as judgment/final order/denial of
reconsideration by this court on 12/28/2021. And entered on
1/25/22." The notice of appeal is confusing, because the order
entered on January 25 did not directly address any judgment or
order dated or entered December 28. Rather, the January 25
order was endorsed on a motion filed on January 7, 2022, in
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which Petrone (1) sought clarification of the deadline for
appeal and (2) sought to delay processing of her January 7, 2022
notice of appeal. The January 25 order allowed the January 7
motion insofar as it sought clarification and denied that motion
insofar as it sought to delay processing of the appeal.
We construe the second notice of appeal as intended to
bring before us the order entered January 25, 2022. As to that
order, the notice of appeal was untimely. It was filed on April
26, 2022, well beyond both the ten-day appeal period established
by G. L. c. 239, § 5 (a), and the thirty-day appeal period
established by Mass. R. A. P. 4 (a) (1), as appearing in 481
Mass. 1606 (2019), assuming without deciding that the latter
applies. Therefore, the appeal must be dismissed.5
Conclusion. The appeals from the judgment entered on
5 Even if we construe the second notice of appeal as intended to
bring before us the December 28, 2021 order denying Petrone's
motion to vacate the judgment, the appeal would be untimely. In
any event, we have concluded above that the motion to vacate the
judgment was correctly denied.
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December 14, 2021, and the order entered January 25, 2022, are
dismissed. The order entered December 28, 2021, is affirmed.
So ordered.
By the Court (Sacks, Shin &
D'Angelo, JJ.6),
Clerk
Entered: July 19, 2023.
6 The panelists are listed in order of seniority.
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