JOSEPH CHAVIS v. CITIZENS BANK (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff owned residential property that was encumbered by a mortgage held by the defendant, Citizens Bank, N.A. (bank). The plaintiff defaulted on the mortgage, and the bank foreclosed on the property and sold it at auction pursuant to the statutory power of sale. See G. L. c. 183, § 21. The plaintiff brought this breach of contract action against the bank, seeking to set aside the sale, alleging that the notice of default and acceleration that the bank sent him did not strictly comply with the terms of the mortgage. The bank denied all claims and filed a motion for summary judgment. After a hearing, a Superior Court judge allowed the motion and dismissed the plaintiff's complaint. We affirm.

Discussion. The plaintiff argues that the notice did not strictly comply with the mortgage terms as required under G. L. c. 183, § 21, because it (1) inaccurately advised him that he had a right to reinstate the loan, which right a rider to the mortgage stated was “deleted”; and (2) weakened the language advising him of his right to bring suit. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 235 (2015). We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law. See id. at 231.

Under G. L. c. 183, § 21, a mortgagee bank may foreclose on a property by exercise of the statutory power of sale where, as here, the mortgage agreement gives the bank a power of sale by reference. See Pinti, 472 Mass. at 232. To effectuate a valid foreclosure sale this way, a bank must strictly comply with certain terms of the mortgage. See id. at 232-233. The mortgage terms requiring strict compliance are limited to “(1) terms directly concerned with the foreclosure sale authorized by the power of sale in the mortgage, and (2) those prescribing actions the mortgagee must take in connection with the foreclosure sale -- whether before or after the sale takes place.” Thompson v. JPMorgan Chase Bank, N.A., 486 Mass. 286, 289 (2020), quoting Pinti, supra at 235.

Those terms are largely contained in paragraph 22 of the plaintiff's mortgage ² and require that, after any breach by the plaintiff but before acceleration of the loan, the notice from the bank to the plaintiff must specify

“(a) the default; (b) the action required to cure the default; (c) a date, not less than [thirty] days from the date the notice is given to [the plaintiff], by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by [the mortgage].”

Paragraph 22 further required that the notice inform the plaintiff “of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of [the plaintiff] to acceleration and sale.” If the plaintiff does not cure the default, the bank may invoke the statutory power of sale. Pertinent to this appeal, a rider to the plaintiff's mortgage deleted paragraph 19, which paragraph was entitled “Borrower's Right to Reinstate After Acceleration,” but did not otherwise mention the right to reinstate.

1. Right to reinstate the loan after acceleration. First, the plaintiff argues that the notice did not strictly comply with the mortgage because it said he had a right to reinstate after acceleration, even though a rider affixed to the mortgage eliminated any such right. The bank does not dispute that the rider deleted the section entitled “Borrower's Right to Reinstate After Acceleration.” Rather, the bank argues that because the rider deleted none of paragraph 22, which details the notice requirements, the inclusion of the right to reinstate is not inconsistent with paragraph 22 of the mortgage. We agree with the bank.

The bank's notice (a) listed the amount of the default; (b) stated that the default could be cured by paying that amount plus any additional amounts that might become due between the date of the notice and the date of the payment; (c) provided a deadline (which exceeded thirty days from the date of the notice) for the plaintiff to cure the default to avoid acceleration of the loan; and (d) advised him of his right to reinstate the loan after acceleration and “to bring a court action to assert the non-existence of a default or any other defenses [the plaintiff] may have to acceleration and foreclosure sale.”

We can see no specific provision of paragraph 22 with which the notice conflicted or did not comply. The notice informed the plaintiff of all matters required under paragraph 22, including the right to reinstate the loan after acceleration. And the rider's deletion of related conditions (here, on the plaintiff's exercise of the right to reinstate) is not a term with which the notice must strictly comply -- especially where the plaintiff's interpretation of that deletion would make compliance with paragraph 22 impossible. Paragraph 19 was not the sole term of the mortgage conferring upon the plaintiff the right to reinstate;³ its deletion neither eliminated that right nor brought the notice out of strict compliance with the terms of the mortgage.

Moreover, paragraph 15 of the plaintiff's mortgage provided, “If any notice required by this Security Instrument is also required under Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement under this Security Instrument.” Under paragraph 16, “Applicable Law” includes Federal law and Massachusetts law. And in the event of a default, Massachusetts law requires notice to the borrower that he “may redeem the property by paying the total amount due, prior to the foreclosure sale.” G. L. c. 244, § 35A (c) (8). See Thompson, 486 Mass. at 289.⁴ Thus, the language of the mortgage itself gave the plaintiff notice that the right to reinstate the loan was not deleted alongside the paragraph sharing its name. See id. at 293-294.

2. Right to bring a court action. Second, the plaintiff argues the notice added unnecessary language that “water[ed] down” his right to affirmatively bring a court action, again failing to strictly comply with the terms of the mortgage and rendering the foreclosure void. The relevant portion of the notice provided as follows:

“You have the right to bring a court action to assert the non-existence of a default or any other defenses you may have to acceleration and foreclosure sale. Should a judicial foreclosure action be filed, you have the right to assert defenses in the court action to the non-existence of a default or any other defenses you may have to acceleration and sale.”

The plaintiff argues that the second sentence implies that borrowers may wait for the lender to file a judicial foreclosure action that may never come, thereby failing to exercise their right to bring suit themselves in reliance on that expectation. Thus, he argues it operates like the “and/or” language that the First Circuit held was misleading in Aubee v. Selene Fin. LP, 56 F.4th 1, 8 (1st Cir. 2022).⁵ Despite the plaintiff's contentions, the language in the notice he received is distinguishable from that in the cases he relies on.⁶ See Pinti, 472 Mass. at 229 (notice did not strictly comply where it said plaintiffs “have the right to assert in any lawsuit for foreclosure and sale the nonexistence of a default” [emphasis omitted], but it did not notify them of right to initiate legal action challenging foreclosure); Aubee, supra at 7-8 (use of “and/or” to connect the borrower's rights in “the” foreclosure proceeding rendered notice easily susceptible to confusion).

The language the plaintiff challenges does not carry with it the same potential for confusion as “and/or,” which may lull Massachusetts borrowers into believing the diverse avenues through which they may assert their rights are mere alternatives from which they may choose. Aubee, 56 F.4th at 7-8. See Pinti, 472 Mass. at 237-238. Instead, the notice informed the plaintiff of a right available to him to sue to prevent a wrongful foreclosure and of his rights as a defendant in any potential judicial foreclosure action brought against him, a related but different context. The former satisfies the requirements of paragraph 22. That the notice also informed the plaintiff of his right to assert defenses in a judicial foreclosure action -- should one be brought -- does not undermine the portion of the notice informing the plaintiff of his separate right to bring suit to prevent a wrongful foreclosure. The notice the plaintiff received strictly complied with the terms of his mortgage agreement with the bank.

Judgment affirmed.

FOOTNOTES

2.   The parties used a standard form residential mortgage, an instrument widely used across Massachusetts. See Thompson, 486 Mass. at 289; Pinti, 472 Mass. at 236 n.16.

3.   Paragraph 20 states, “[t]he notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 ․ shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20.” This reference supports an inference that the right exists independent of paragraph 19.

4.   In Thompson, 486 Mass. at 294, the Supreme Judicial Court clarified that in Massachusetts, the temporal limitation in paragraph 19 of the “GSE Uniform Mortgage” (giving the borrower up to five days prior to the sale to cure) is superseded by our statutory scheme's more generous ninety day reinstatement time. See G. L. c. 244, § 35A.

5.   The plaintiff also challenges language in the preceding paragraph, arguing that it implies he has the option to wait and see if the bank files a judicial foreclosure action first: “Failure to make the required payment ․ may result in, 1) acceleration ․ and 2) the commencement of a foreclosure action or a foreclosure sale of your property“ (emphasis added). This statement unequivocally informed the plaintiff of the two foreclosure methods available to the bank under Massachusetts law, presenting them as alternative outcomes. See G. L. c. 244, § 3; G. L. c. 183, § 21. See generally Layman v. Massachusetts Bay Transp. Auth., 106 Mass. App. Ct. 642, 645 (2026) (noting word “or” is disjunctive unless context and main purpose of all words demand otherwise).

6.   At times in his brief, the plaintiff states that the notice he received used the “and/or” conjunction in relaying the right to bring a court action. It did not.