Mortgages - foreclosure - scrivener's error.
Byline: Tom Egan
Where the plaintiff bank foreclosed on the defendants' home, a mere deviation in the plaintiff's name was a minor scrivener's error that did not render the foreclosure sale invalid.
Consequently, the plaintiff was properly awarded summary judgment on a summary process action when the defendants refused to move out.
"The (defendant] Gonicks base their appeal on what they call a misnomer in (plaintiff] Citibank's name as trustee of a mortgage securities trust. Contained in the description of that trust is a certain pooling and services agreement dated July 1, 2007. Several pertinent documents, however, including the foreclosure deed and public notice, show this agreement as dated May 1, 2007, which is incorrect. Citibank concedes the May date is incorrect, but it claims that this amounts to a mere scrivener's error, which the foreclosing attorney appropriately cured by simultaneously recording an affidavit under G.L.c. 183, s.5B, as amended by St. 2002, c. 496, s.1.
"Citibank obtained rights to the mortgage by assignment; that assignment reflects the correct July, 2007, date. However, the public notice and the foreclosure deed each showed the incorrect May, 2007. The Gonicks claim that Citibank with the May date and Citibank with the July date are two different legal entities. It follows, the Gonicks contend, that the Citibank which foreclosed (the 'May' Citibank) lacked legal rights do so because it was not the entity (the 'July' Citibank) which possessed the right to foreclose. We disagree.
"It is of course true that foreclosures in Massachusetts require 'strict compliance' with the statutory power of sale under G.L.c. 183, s.21, and G.L c. 244, s.s.11-17C, and that when a foreclosing mortgagee fails to so comply, the resulting sale is 'wholly void.' ... But it takes more than a minor scrivener's error to invalidate an otherwise valid foreclosure sale. ...
"The deviation in Citibank's name was a minor scrivener's error which does not render the sale or conveyance of the property invalid. ... One mistaken word in the lengthy title of Citibank as trustee cannot be compared to cases where the foreclosing bank's name was entirely omitted. ... Consequently, the notice and foreclosure deed were valid. ...
"While there are undoubtedly circumstances where a misnomer could cause a party to be unaware or uncertain as to the identity of the foreclosing party, this is not such a case. ... Despite the error, Citibank strictly complied with all requirements of legal notice, and the foreclosure deed (clarified by a simultaneously recorded c. 183, s.5B, affidavit) was valid. Citibank was thus entitled to summary judgment and possession of the subject property."
Citibank, N.A. v. Gonick, et al. (Lawyers Weekly No. 82-103-14) (5 pages) (Appeals Court - Unpublished) (No. 13-P-1560) (Oct. 30, 2014).
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|Title Annotation:||Citibank N.A. v. Gonick; Massachusetts|
|Publication:||Massachusetts Lawyers Weekly|
|Date:||Nov 4, 2014|
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