MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in the Superior Court, Amy Carny appeals from a judgment for defendant Provident Funding Associates, L.P. (Provident) on her claims for wrongful foreclosure and breach of the covenant of good faith and fair dealing.
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Because we discern no error in the judges determination that Provident properly conducted the foreclosure and sale, we affirm.
Background. We briefly summarize the facts found by the judge, none of which the plaintiff challenges as clearly erroneous, reserving some facts for later discussion. The plaintiff and her then-husband (borrowers) purchased a home in Walpole (property) in 1990. Provident was the mortgage servicer. By 2010, the borrowers had fallen behind on their mortgage payments and Provident began foreclosure proceedings. Pursuant to G. L. c. 244, § 35A, Provident sent documents to the borrowers titled “Notice of Right to Cure” on September 30, 2010, and January 3, 2011. The borrowers cured their default in 2011 and entered into a loan modification agreement; Provident withdrew the pending foreclosure.
In 2012, after the borrowers again failed to make payments on their mortgage, Provident renewed the foreclosure proceedings. Having divorced from her husband (who was also her co-borrower) in 2012, the plaintiff filed for bankruptcy in 2013. Her bankruptcy petition was dismissed in 2014; shortly thereafter, the plaintiffs former husband filed for bankruptcy and, when his petition was dismissed, the plaintiff filed a second petition. Although the foreclosure proceedings were automatically stayed while each of the bankruptcy petitions was pending, in September 2015, Provident sought, and was granted, relief from the automatic stay and moved forward with the foreclosure sale. After an auction, Christopher Olson, trustee of the 42 Gill Street Realty Trust, became the record owner of the property.
Following the foreclosure sale, the plaintiff filed suit in the Superior Court alleging wrongful foreclosure (count I), negligent misrepresentation (count II), and breach of the covenant of good faith and fair dealing (count III) against Provident, and seeking to enjoin Olson from pursuing a summary process action against her. Count II was dismissed and, following a jury-waived trial, the judge found in favor of the defendants on counts I and III.
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This appeal followed.
Discussion. 1. Propriety of foreclosure. General Laws c. 244, § 35A, “affords homeowners who have fallen behind in their mortgage payments a ninety-day right to cure a default.” United States Bank Natl Assn v. Schumacher, 467 Mass. 421, 430 (2014), citing G. L. c. 244, § 35A (a). Section 35A requires that written notice be provided to the defaulted borrowers, informing them, inter alia, of the right to cure the default and the date by which their payment must be made. G. L. c. 244, § 35A (b)-(c). To cure, the borrower then must make “full payment of all amounts that are due without acceleration of the ․ unpaid balance.” G. L. c. 244, § 35A (a). The opportunity to make full payment without acceleration is to be “granted once during any [five]-year period.” Id.
A homeowner facing foreclosure may file an independent equity action in the Superior Court to challenge the mortgagees compliance with § 35A. Schumacher, 467 Mass. at 422 n.4; Bank of Am., N.A. v. Rosa, 466 Mass. 613, 624 (2013). Because, however, “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,’ ” Schumacher, supra at 431, quoting G. L. c. 183, § 21, to set aside a foreclosure, the borrower must prove more than “a mere violation of § 35A,” id. at 433 (Gants, J., concurring), and instead bears the burden of showing that the alleged violation “rendered the foreclosure so fundamentally unfair that [the borrower] is entitled to affirmative equitable relief, specifically the setting aside of the foreclosure sale.” Id. at 433 (Gants, J., concurring), citing Rosa, supra at 624.
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Here, the judge determined that Carny had failed to meet her burden. Reviewing the question de novo, we reach the same conclusion. See id. at 427, citing T.W. Nickerson, Inc. v. Fleet Natl Bank, 456 Mass. 562, 569 (2010).
In doing so, we need not decide the disputed question whether Provident improperly relied on its 2011 “right to cure” notice after the plaintiffs 2012 default.
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Even assuming that Provident had been required to provide the plaintiff with a new notice and failed to do so, we are not persuaded that Providents actions deprived the plaintiff of the ability to cure her deficiency as contemplated by § 35A. See G. L. c. 244, § 35A.
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In reaching this conclusion, we note that Provident provided the plaintiff with updates on the amounts due; at a minimum, on April 3, 2012, Provident wrote to the plaintiff informing her of the default (providing her with the amount of the then-current arrearage, and specifying the date by which payment had to be made to avoid acceleration of the loan) and in 2015, sent a “reinstatement letter” listing the amount necessary to bring the loan obligations current.
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Additionally, before the foreclosure sale was completed, Provident provided the plaintiff with multiple modification packages, and yet, despite these ongoing communications, the plaintiff neither contacted Provident for more specific arrearage amounts before the sale nor fully completed any loan modification package.
Satisfied that as to the 2012 default the plaintiff was aware of the arrearage and provided an opportunity to cure it, but failed to do so, we discern no error in the judges conclusion that the plaintiff failed to prove that any violation of § 35A rendered the foreclosure fundamentally unfair. See Schumacher, 467 Mass. at 430, quoting G. L. c. 244, § 35A (a) (“Consistent with [the] purpose [of § 35A to provide mortgage protection,] the statute “affords ․ a ninety-day right to cure a default”); Haskins v. Deutsche Bank Natl Trust Co., 86 Mass. App. Ct. 632, 640 (2014) (“To accomplish [the] purpose [of allowing a mortgagor a fair opportunity to cure a default], the statutory notice is designed to provide the mortgagor with the information necessary to contact the party who holds all relevant information”).
2. Breach of the covenant of good faith and fair dealing. The plaintiff also contends that the judge erred in rejecting her claim that Provident breached the covenant of good faith and fair dealing in both its approach to the plaintiffs last-ditch attempts to negotiate a resolution to her arrearage and in its handling of certain aspects of the auction process. We are not persuaded by either of these arguments, which we discuss in turn.
i. Refusal to negotiate. In September 2015 the bankruptcy court granted Provident relief from the automatic stay associated with the plaintiffs second bankruptcy petition. Over the next seven months, Provident sent the plaintiff several invitations to apply for a loan modification to which the plaintiff did not respond. Ultimately, Provident scheduled the foreclosure sale for June 13, 2016.
On May 2, 2016, with the foreclosure sale pending, Provident sent the plaintiff another loan modification package. Rather than completing the modification package, the plaintiff offered to pay $50,000 toward her arrearage in exchange for another postponement of the auction so that the plaintiff could “come up with a plan to cure the arrears or sell the property.” Provident rejected the offer. Although the plaintiff did submit a request for loan modification six days prior to the foreclosure sale, her application was incomplete; notably, it lacked necessary financial information from her former husband, who remained a co-borrower on the loan. Provident itemized the missing information, but when the plaintiff failed to provide it, the sale went forward as planned.
We discern no error in the judges conclusion that Providents approach to the plaintiffs $50,000 offer was not a violation of the covenant of good faith inherent in the mortgage. Mortgage holders “have a duty to ‘act in good faith and must use reasonable diligence to protect the interests of the mortgagor’ in the context of an extrajudicial foreclosure and exercise of power of sale.” Santos v. United States Bank Natl Assn, 89 Mass. App. Ct. 687, 701 (2016), quoting Williams v. Resolution GGF Oy, 417 Mass. 377, 382-383 (1994). See Kerrigan v. Boston, 361 Mass. 24, 33 (1972), quoting Clark v. State St. Trust Co., 270 Mass. 140, 152-153 (1930) (“Every contract implies good faith and fair dealing between the parties to it”). The scope of the covenant is limited by the terms of the contract, however -- it may not “be invoked to create rights and duties not otherwise provided for in the existing contractual relationship.” Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004).
Provident made multiple overtures toward modification of the loan in the months before the foreclosure sale was scheduled, advising the plaintiff of what was required and what was missing from her applications; where the plaintiff failed to complete the modification applications and to provide the required documentation, we discern no breach in Providents failure to do more. Likewise, we do not read the terms of the mortgage to require Provident to entertain the plaintiffs offer to exchange a $50,000 payment for more time to develop a “plan” for payoff of an arrearage “far in excess” of that amount. This would be true even had the offer appeared likely to resolve the arrearage (a fact about which the judge found Provident had been “skeptical”). The plaintiff points to no legal authority or provision in her mortgage which obligated Provident to forbear foreclosing in these circumstances, and we are aware of none. Cf. Santos, 89 Mass. App. Ct. at 701 (“neither the implied covenant nor the duties arising from foreclosure extends to preforeclosure loan modification processing where the mortgage loan documents do not themselves contemplate such modifications”).
ii. Other “irregularities” in foreclosure. Although the plaintiff identified several additional “irregularities” that she asserts demonstrate Providents breaches of the covenant of good faith and fair dealing, on appeal, as at trial, she fails to provide legal support for her arguments. Accordingly, they do not reach the level of appellate argument and we do not address them.
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See Zora v. State Ethics Commn, 415 Mass. 640, 642 n.3 (1993) (“bald assertions of error, lacking legal argument and authority,” do not “rise[ ] to the level of appellate argument”); Donovan v. Gardner, 50 Mass. App. Ct. 595, 602 (2000) (conclusory statements in brief do not rise to the level of appellate argument).
As we affirm the judgment for the defendants, we need not, and do not, reach Olsons arguments on appeal.
Conclusion. The judgment of the Superior Court is affirmed.
Judgment affirmed.
FOOTNOTES
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. The plaintiff makes no specific argument as to Christopher Olson; her claims against Olson depend on the success of her claims against Provident.
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. The plaintiff did not appeal from the judgment of dismissal of count II.
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. “[T]he passage from the [Schumacher] concurring opinion ․ reflects the unanimous view of the court.” Bank of New York Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 501 n.8 (2014), citing Schumacher, 467 Mass. at 429 n.12.
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. Provident takes the position that it was not required to “restart” the foreclosure proceedings by sending a new notice simply because the borrowers successive bankruptcies prevented the 2012 foreclosure from continuing within five years’ time of the original notice.
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. Because we assume, arguendo, that the plaintiff was entitled to a new notice of the right to cure, we need not address whether the timing of the loans acceleration impacts whether and when the plaintiff was entitled to a new notice. See Bank of New York Mellon v. Morin, 96 Mass. App. Ct. 503, 507-508 (2019).
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. The plaintiff testified that she did not receive this letter, and that it might have been sent to her former husband; the judge rejected her testimony. We do not second-guess the judges credibility determinations. See Goddard v. Goucher, 89 Mass. App. Ct. 41, 47-48 (2016). Even if the plaintiff had not received the April 23, 2012 letter, however, it is undisputed that she received other mailings from Provident listing the payoff amount due, and could have inquired of Provident the amount owed during any of Providents communications.
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. Even were this not the case, we discern no error in the judges determination that the postponement of the auction was properly announced by proclamation, see Goddard, 89 Mass. App. Ct. at 47-48 (deference to judges credibility determinations); that, following the first high bidders default, Provident properly sought out other bidders rather than holding a second auction, cf. 146 Dundas Corp. v. Chemical Bank, 400 Mass. 588 (1987) (sale to second highest bidder following highest bidders default); or that the assignment of the winning bids was proper, cf. Federal Natl Mtge. Assn v. Marroquin, 477 Mass. 82, 84 (2017) (assignment of winning bid at foreclosure auction). See Pehoviak v. Deutsche Bank Natl Trust Co., 85 Mass. App. Ct. 56, 64-65 (2014) (no error where there is “evidence to support the judges findings”).