Galvin v. U.S. Bank, N.A.

United States Court of Appeals
For the First Circuit

Nos. 15-2436, 16-1077

MARK B. GALVIN; JENNY G. GALVIN,

Plaintiffs, Appellants,

v.

U.S. BANK, N.A., as Trustee Relating to Chevy Chase Funding, LLC
Mortgage Back Certificates Series 2007-1; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; CAPITAL ONE, N.A., a/k/a CAPITAL ONE
BANK, f/k/a CHEVY CHASE BANK, FSB,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Thompson and Kayatta, Circuit Judges,
and Barbadoro,* District Judge.

James T. Ranney for appellants.
Kevin P. Polansky, with whom Christine M. Kingston and Nelson
Mullins Riley Scarborough LLP were on brief, for appellees.

March 29, 2017

* Of the District of New Hampshire, sitting by designation.
 KAYATTA, Circuit Judge. This appeal arises out of a

suit by defaulting borrowers who seek to assign fault to the manner

in which a creditor foreclosed on its collateral, in this instance

a multi-million dollar home located on Martha's Vineyard. For the

following reasons, we reject the borrowers' fusillade of

challenges to the creditor's conduct, except that we find that the

creditor waived its rights to a deficiency judgment by failing to

comply with a Massachusetts statute that regulates the

availability of actions for such judgments.

I. Background

We summarize the uncontested facts, reserving further

discussion of the facts alleged in the complaint for the section

on the motion to dismiss and further discussion of the evidentiary

facts in the summary judgment record for the section on the motion

for summary judgment.

On November 15, 2006, the plaintiffs, Mark and Jenny

Galvin, took out a loan to buy a property in Tisbury,

Massachusetts, and executed a mortgage naming the Mortgage

Electronic Registration Systems, Inc. ("MERS") as the mortgagee

"acting solely as a nominee for [Chevy Chase Bank, FSB] and [its]

successors and assigns." On the same day, Mark Galvin executed a

promissory note in the amount of $2,385,000 to Chevy Chase Bank,

FSB (now known as Capital One, N.A.--for our purposes, "Capital

One"). In late 2009, the Galvins fell behind on their mortgage

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payments. On March 2, 2011, their loan servicer, Specialized Loan

Servicing ("SLS"), sent them a "Notice of Default and Notice of

Intent to Foreclose."

At some point prior to August 3, 2012, U.S. Bank as

Trustee Relating to Chevy Chase Funding, LLC Mortgage Back

Certificates Series 2007-1 ("U.S. Bank") came into physical

possession of the note, which was indorsed from "Chevy Chase Bank,

F.S.B." to "U.S. Bank, N.A. as Trustee."1 In July 2012, MERS

assigned the mortgage to U.S. Bank. On October 2, 2012, this

assignment was recorded in the town land records.

From December 2011 to November 2014, employees of a

company hired by SLS2 entered onto the Galvins' property roughly

once per month to perform inspections. In February 2012 and

November 2012, these individuals entered the house to inspect and

winterize it. During the November 2012 interior inspection, they

also changed the lock on the rear door. On September 7, 2012, the

Galvins sent SLS a letter demanding that no one trespass on their

1 The Galvins' complaint alleges that "U.S. Bank does not,
and never has had, have [sic] physical possession of the original
note," and that "[t]he location of the original note is unknown
and it is denied that any party lawfully acting on behalf of U.S.
Bank currently holds the note on U.S. Bank's behalf in compliance
with applicable law." The Galvins abandoned this contention at
oral argument.
2 U.S. Bank does not dispute on appeal that SLS acted as its
agent, or that the entries of the company hired by SLS to perform
inspections can be attributed both to SLS and to U.S. Bank.

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property. On April 17, 2013, the Galvins sent a thirty-day demand

letter to U.S. Bank regarding these "unreasonable" inspections and

any related fees, pursuant to Chapter 93A of the Massachusetts

General Laws.

U.S. Bank conducted a foreclosure sale of the property

on November 18, 2014, four days after the Galvins filed their

complaint in this action. U.S. Bank itself was the purchaser.

The Galvins' complaint contained six counts relevant to

this appeal: a claim against all defendants3 for a declaratory

judgment that the foreclosure was invalid (count I); a claim

against U.S. Bank and MERS for breach of contract (count II); a

claim against U.S. Bank and MERS for breach of the implied covenant

of good faith and fair dealing (count III); a claim against U.S.

Bank for trespass (count IV); a claim against U.S. Bank for a

Chapter 93A violation (count VI); and a claim against all

defendants for intentional and/or negligent infliction of

emotional distress (count VII). U.S. Bank filed an answer and

asserted counterclaims for deficiency, unjust enrichment, and

possession.

The district court disposed of the Galvins' complaint in

three separate rulings. In the first ruling, the district court

3U.S. Bank, N.A., as trustee relating to Chevy Chase Funding,
LLC Mortgage Back Certificates Series 2007-1, MERS, and Capital
One.

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granted the defendants' partial motion to dismiss several counts

under Federal Rule of Civil Procedure 12(b)(6). In the second

ruling, it granted summary judgment to U.S. Bank on its

counterclaim for possession. The district court entered a separate

judgment (the "first judgment") on this counterclaim for

possession pursuant to Rule 54(b) of the Federal Rules of Civil

Procedure. In the third ruling, the district court granted summary

judgment to the defendants on the Galvins' remaining claims and to

U.S. Bank on its counterclaim for deficiency (the "second

judgment").4 Between the ruling on the partial motion to dismiss

and the ruling on the counterclaim for possession, the district

court granted in part U.S. Bank's motion for a preliminary

injunction and "enjoin[ed] and prevent[ed] the short term

occupancies" of fourteen parties who had entered into leases with

the Galvins to occupy their home during the summer of 2015.

II. Discussion

We review the motion to dismiss and motion for summary

judgment rulings de novo, see Gorski v. N.H. Dep't of Corrs., 290

F.3d 466, 471 (1st Cir. 2002), and the grant of the preliminary

injunction for abuse of discretion, see Waldron v. George Weston

Bakeries Inc., 570 F.3d 5, 8 (1st Cir. 2009). The parties agree

4
The Galvins filed notices of appeal as to both the first
and second judgments. Those appeals have been consolidated in
this court.

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that we apply Massachusetts substantive law. See Wilson v. HSBC

Mortg. Servs., Inc., 744 F.3d 1, 7 (1st Cir. 2014).

A. Appellate Jurisdiction

Although neither party raised this issue, "we have an

independent obligation to confirm our jurisdiction to hear this

dispute." Me. Med. Ctr. v. Burwell, 841 F.3d 10, 15 (1st Cir.

2016). The district court had jurisdiction over this case under

28 U.S.C. § 1332 based on diversity of citizenship. The only

arguable basis for our jurisdiction over these appeals is 28 U.S.C.

§ 1291, which grants this court "jurisdiction of appeals from all

final decisions of the district courts." See also Guillemard-

Ginorio v. Contreras-Gómez, 490 F.3d 31, 37 n.4 (1st Cir. 2007)

(noting that "[i]n the ordinary course, our jurisdiction extends

only to appeals from 'final decisions of the district courts'

(quoting 28 U.S.C. § 1291)). Thus, we must determine whether the

second judgment entered by the district court was a "final

decision."5 When dealing with a "garden-variety" civil judgment

like this one, "a final decision is one 'that disposes of all

claims against all parties.'" Me. Med. Ctr., 841 F.3d at 15

(quoting Bos. Prop. Exch. Transfer Co. v. Iantosca, 720 F.3d 1, 6

5 The first judgment (the separate judgment on U.S. Bank's
counterclaim for possession) was indisputably a final judgment, as
it was entered under Rule 54(b). See Spiegel v. Trs. of Tufts
Coll., 843 F.2d 38, 42 (1st Cir. 1988) ("[Rule] 54(b) permits the
entry of judgment, and thus an appeal, on fewer than all the claims
in a multi-claim action.").

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(1st Cir. 2013)). There are three defendants in this action: U.S.

Bank, MERS, and Capital One. We pause to consider whether the

second judgment was a final decision as to Capital One.

The record is somewhat ambiguous on this point. All

three defendants were named in the original complaint filed in

state court. In the notice of removal, U.S. Bank and MERS noted

that Capital One had not provided consent to removal because, as

far as the state court docket showed, the plaintiffs had not served

it with process. After the case was removed to federal court,

Capital One never filed an appearance. The district court noted

this fact in its ruling on the partial motion to dismiss.

Following that ruling, the parties filed a "Joint Statement"

pursuant to Local Rule 16.1(d), in which they stated that

"according to the Court's docket, it does not appear that Defendant

Capital One, N.A., a/k/a Capital One Bank, f/k/a Chevy Chase Bank,

FSB ('Capital One') has yet been served with the complaint." The

district court subsequently ordered that "Amended Pleadings &

Joinder of Parties" would be "due by 5/15/2015," but that date

passed without action or comment.

Two counts in the complaint named Capital One as a

defendant: the declaratory judgment count (count I) and the

intentional infliction of emotional distress count (count VII).

The district court disposed of these counts at different times.

It dismissed the declaratory judgment count in its entirety when

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ruling on the partial motion to dismiss. It dismissed the

intentional infliction of emotional distress count as to MERS only

in the same ruling. The district court later allowed U.S. Bank's

motion for summary judgment as to the intentional infliction of

emotional distress count and instructed the clerk of court to

"close the case."

We conclude that the court disposed of both claims

against Capital One. The ruling dismissing the declaratory

judgment count was not limited to the two defendants who had

appeared. The ruling on U.S. Bank's motion for summary judgment

is a closer question. However, in granting that motion and

ordering the clerk to close the case, the district court

effectively granted summary judgment to Capital One on the

intentional infliction of emotional distress claim against it.

Between that ruling and the ruling on the partial motion to

dismiss, the district court held that the factual basis for the

intentional infliction of emotional distress claim against Capital

One was insufficient as a matter of law.6 Neither party contended

otherwise in the district court or on appeal. The district court's

order and its instruction to the clerk to close the case therefore

constituted a final decision. See Mohawk Indus., Inc. v.

6 We express no opinion as to whether the district court had
personal jurisdiction over Capital One. See Fed. R. Civ.
P. 4(c)(1), (e)(1)-(2); Mass. R. Civ. P. 4(d)-(e); Echevarria-
Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988).

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Carpenter, 558 U.S. 100, 106 (2009) ("A 'final decisio[n]' is

typically one 'by which a district court disassociates itself from

a case.'" (alteration in original) (quoting Swint v. Chambers Cty.

Comm'n, 514 U.S. 35, 42 (1995))).7 Having concluded that we have

jurisdiction over this appeal, we proceed to the merits.

B. Motion to Dismiss

The Galvins challenge the district court's dismissal of

the counts for declaratory judgment, breach of contract, breach of

the covenant of good faith and fair dealing, negligent infliction

of emotional distress as to MERS, and intentional infliction of

emotional distress as to MERS. We review these decisions under

the usual Rule 12(b)(6) standard. "Setting aside any statements

that are merely conclusory, we construe all factual allegations in

the light most favorable to the non-moving party to determine if

there exists a plausible claim upon which relief may be granted."

Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 353 (1st Cir. 2013).

7 We do not consider the different question as to whether
there was also a judgment set out in a separate document entered
on the docket in compliance with Federal Rule of Civil
Procedure 58. Parties can waive that requirement. See P.R.
Aqueduct & Sewer Auth. v. Constructora Lluch, Inc., 169 F.3d 68,
76 (1st Cir. 1999). Such a waiver occurred here, where the
plaintiffs filed the notice of appeal and neither party raised the
issue before this court. See de Jesús-Mangual v. Rodríguez, 383
F.3d 1, 5 (1st Cir. 2004) (finding waiver where district court
order "clearly indicated that it intended to dispose of the case
finally" and defendant did not object to appeal).

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 1. Declaratory Judgment of Invalid Foreclosure (All
Defendants)8

On appeal, the Galvins advance two arguments as to why

the foreclosure on their property was invalid. First, they argue

that U.S. Bank lacked standing to foreclose because it did not own

both the note and the mortgage at the time of foreclosure. Second,

they argue that U.S. Bank could not exercise the statutory power

of sale because it had failed to adhere strictly to the terms of

the mortgage, in particular paragraph 22.

Under Massachusetts law, the note and the mortgage are

separate legal instruments and, under the common law, they can

travel separately. See Eaton v. Fed. Nat'l Mortg. Ass'n, 969

N.E.2d 1118, 1124 (Mass. 2012). However, "where a note has been

assigned but there is no written assignment of the mortgage

underlying the note . . . the holder of the mortgage holds the

mortgage in trust for the purchaser of the note, who has an

equitable right to obtain an assignment of the mortgage." U.S.

Bank Nat'l Ass'n v. Ibanez, 941 N.E.2d 40, 53-54 (Mass. 2011)

(citing Barnes v. Boardman, 21 N.E. 308, 309 (Mass. 1889)).

8 Because of the large number of counts, the variations in
the defendants for each count, and the fact that some of the counts
were disposed of in part in the ruling on the motion to dismiss
and in part in the ruling on the motion for summary judgment, we
identify the relevant defendants for each count in a parenthetical
included in the section headings.

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 The note and mortgage may be transferred using different

legal mechanisms. The note may be transferred by indorsement and

delivery. Eaton, 969 N.E.2d at 1121 n.5. The Massachusetts

Appeals Court has applied the provisions of the Uniform Commercial

Code ("UCC") to the transfer of a mortgage note. See First Nat'l

Bank of Cape Cod v. N. Adams Hoosac Sav. Bank, 391 N.E.2d 689, 693

(Mass. App. Ct. 1979); cf. Eaton, 969 N.E.2d at 1131 n.26

(reserving borrower's argument based on the UCC, but noting that

the court "perceive[d] nothing in the UCC inconsistent with [its]

view that in order to effect a valid foreclosure, a mortgagee must

either hold the note or act on behalf of the note holder"). By

contrast, the mortgage is an interest in land, which for our

purposes can only be transferred by written assignment. See Mass.

Gen. Laws ch. 183, § 3; Ibanez, 941 N.E.2d at 51. Although

assignments may be recorded, "[a] valid assignment of a mortgage

gives the holder of that mortgage the statutory power to sell after

a default regardless whether the assignment has been recorded."

Ibanez, 941 N.E.2d at 55.

In this case, as in many others, the mortgage names MERS

as the mortgagee "acting solely as a nominee for [the lender] and

[the lender's] successors and assigns."

MERS is mortgagee of record for mortgage loans
registered on [its] system, which tracks
servicing rights and beneficial ownership
interests in those loans . . . . [W]hen the
beneficial interest in a loan is sold, the

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 note is transferred by indorsement and
delivery between the parties, and the new
ownership interest is reflected in the MERS
system. MERS remains the mortgagee of record
so long as the note is sold to another MERS
member; no aspect of such a transaction is
publicly recorded.

Eaton, 969 N.E.2d at 1121 n.5. Although MERS holds mortgages as

a "nominee," MERS has the authority to assign the mortgage without

authorization from the holder of the note. Sullivan v. Kondaur

Capital Corp., 7 N.E.3d 1113, 1118 (Mass. App. Ct.), rev. denied,

15 N.E.3d 761 (Mass. 2014).

Massachusetts is a nonjudicial foreclosure state, so

banks generally foreclose by exercising the statutory power of

sale. See Mass. Gen. Laws ch. 183, § 21; Mass. Gen. Laws ch. 244,

§§ 11-17C; Pinti v. Emigrant Mortg. Co., 33 N.E.3d 1213, 1221

(Mass. 2015). In order to exercise this statutory power of sale,

the bank must satisfy a number of requirements. Two of these

requirements are relevant here. First, the foreclosing bank must

hold both the note and the mortgage in order to have standing to

sell the property at a foreclosure sale. See Eaton, 969 N.E.2d at

1125, 1129-30; Ibanez, 941 N.E.2d at 50 (citing Mass. Gen. Laws

ch. 183, § 21; Mass. Gen. Laws ch. 244, § 14). If it does not,

the foreclosure is void. See Galiastro v. Mortg. Elec.

Registration Sys., Inc., 4 N.E.3d 270, 276 (Mass. 2014); Eaton,

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969 N.E.2d at 1131; Ibanez, 941 N.E.2d at 50.9 Second, the

foreclosing bank must strictly comply with the default notice

provisions in paragraph 22 of the mortgage. Pinti, 33 N.E.3d at

1221 n.16, 1222-24. Again, failure to do so renders the

foreclosure void. Id. at 1225-26.10

When borrowers challenge an entity's standing to

foreclose, they often assert defects in the chain of mortgage

assignments that ends with that entity. Under Massachusetts law,

the borrowers themselves have standing to press such challenges to

the validity of a mortgage assignment when a defect renders the

assignment void, but not when it renders the assignment merely

voidable by one of the parties to the assignment. See Bank of

9
The requirement that the mortgagee also hold the note or
act on behalf of the noteholder applies only to foreclosures for
which notices of sale were given after the Eaton opinion and to
the parties in that case. 969 N.E.2d at 1133. That ruling was
extended to any parties who had raised the issue addressed in Eaton
and whose cases were pending on appeal on the date of the decision.
Galiastro, 4 N.E.3d at 277. The notice of sale in this case was
sent on October 20, 2014, so Eaton applies.
10
By its terms, Pinti only applied to the parties before the
court and "mortgage foreclosure sales of properties . . . for which
the notice of default required by paragraph 22 [wa]s sent after
the date of th[e] opinion[, July 17, 2015]." Pinti, 33 N.E.3d at
1227. This rule was later extended to cases in which the issue
was preserved and appeal was pending at the time Pinti was decided.
Aurora Loan Servs., LLC v. Murphy, 41 N.E.3d 751, 756 (Mass. App.
Ct. 2015). Murphy contained dicta stating that the rule would not
extend "to cases pending in the trial court" at time of Pinti.
Id. Because we affirm the district court's conclusion that there
was no violation of paragraph 22 on the grounds asserted by the
Galvins, see infra Section II.B.1.b, we need not decide whether to
accept this dicta as a correct statement of Massachusetts law.

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N.Y. Mellon Corp. v. Wain, 11 N.E.3d 633, 638 (Mass. App. Ct.

2014); Sullivan, 7 N.E.3d at 1116 & n.7; see also Culhane v. Aurora

Loan Servs. of Neb., 708 F.3d 282, 291 (1st Cir. 2013).

a. Whether U.S. Bank was Holder of the Note and
Mortgage

The Galvins argue that they adequately pled that U.S.

Bank lacked standing to foreclose because it did not hold both the

note and the mortgage at the time of the foreclosure sale. They

pled a number of different bases for this argument, but advance

just three on appeal: (1) the initial mortgage and all subsequent

assignments of the mortgage were invalid because paragraph 20 of

the mortgage did not allow it to be held and assigned separately

from the note; (2) MERS could not hold the mortgage or assign the

interest in the mortgage because doing so violated its internal

"Rules of Membership," and therefore the assignment to U.S. Bank

was invalid; and (3) U.S. Bank does not hold the note because it

was indorsed to "U.S. Bank as Trustee" without specifying the

trust. The district court ruled that these allegations could not

establish that U.S. Bank lacked standing to foreclose as a matter

of law. We agree.

The Galvins' first argument points to paragraph 20 of

the mortgage, which states that "[t]he Note or a partial interest

in the Note (together with this Security Instrument) can be sold

one or more times without prior notice to Borrower." The Galvins

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contend that this language restricted the bank's ability to

transfer the note without the mortgage. On two prior occasions,

however, we have rejected this reading of materially identical

language in similar mortgages. See Mills v. U.S. Bank, NA, 753

F.3d 47, 52 n.1 (1st Cir. 2014); Culhane, 708 F.3d at 292 n.6.

This court noted in Culhane that the role paragraph 20 appears to

serve is to allow the bank to sell the note without telling the

borrower, not to place restrictions on the bank's ability to

transfer the note. 708 F.3d at 292 n.6.

Even if we were not bound by this precedent, we would

reach the same conclusion. The most the Galvins can show is that

this isolated section of paragraph 20 is ambiguous, but whatever

ambiguity may exist vanishes when one reads the contract as a

whole. As in Mills and Culhane, from the very beginning of this

loan, the note and mortgage were held by different parties. The

mortgage indicates as much. Under Massachusetts law, contract

language is not ambiguous when one of the two possible readings

conflicts with other provisions of the contract. See Starr v.

Fordham, 648 N.E.2d 1261, 1270 (Mass. 1995) ("[A]n interpretation

which gives a reasonable, lawful, and effective meaning to all the

terms is preferred to an interpretation which leaves a part

unreasonable, unlawful, or of no effect." (quoting Restatement

(Second) of Contracts § 203(a) (Am. Law Inst. 1981))).

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 The Galvins' second argument--based on MERS's Rules of

Membership--fares little better. The Galvins alleged that MERS

violated its internal Rules of Membership by holding and then

assigning their mortgage because Chevy Chase Bank, FSB, and the

Series 2007-1 Trust are not MERS members. Therefore, they claim,

the assignment of the mortgage to U.S. Bank as Trustee was void.

The district court ruled that a failure by MERS to adhere to its

internal Rules of Membership might make the assignment voidable by

a MERS member but does not make it void. Thus, under Wain, the

Galvins lack standing to challenge the assignment. See Wain, 11

N.E.3d at 638 ("[A] mortgagor's standing [i]s limited to claims

that a defect in the assignment rendered it void, not merely

voidable.")

The district court was correct. This court has already

noted that, under Massachusetts law, a similar type of infirmity

makes a contract voidable, not void. See Wilson v. HSBC Mortg.

Servs., Inc., 744 F.3d 1, 10 (1st Cir. 2014) ("[W]hen a corporate

officer acts beyond the scope of his authority, 'his acts in excess

of his authority, although voidable by the corporation, legally

could be ratified and adopted by it.'" (alteration omitted)

(quoting Comm'r of Banks v. Tremont Tr. Co., 156 N.E. 7, 15 (Mass.

1927))). Under Massachusetts law, as long as the assignor is the

record holder of the mortgage at the time of the assignment, as

MERS was here, an assignment that complies with the statute

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governing mortgage assignments, Mass. Gen. Laws ch. 183, § 54B,

"cannot be shown to be void." Wain, 11 N.E.3d at 638; see also

Wilson, 744 F.3d at 13 ("An assignment binding on the assignor is

not, by definition, void."). Although in the district court the

Galvins initially challenged whether section 54B had been

satisfied, they later abandoned that contention and have not argued

it on appeal. Under Wain and Wilson, this proves fatal to their

argument that the assignment is void.11 Because the Galvins'

allegations establish, at most, that MERS's assignment of the

mortgage was voidable by a MERS member, the Galvins have failed to

demonstrate that they have standing to challenge the assignment.

See Wain, 11 N.E.3d at 638–39; Sullivan, 7 N.E.3d at 1116 & n.7;

see also Culhane, 708 F.3d at 291.

Finally, the Galvins' third argument fails in light of

the UCC. They argue that if the original note in U.S. Bank's

possession is indorsed to "U.S. Bank as Trustee," then this

11 The Galvins' argument that Wells Fargo Bank, N.A. v.
Anderson, 49 N.E.3d 682 (Mass. App. Ct. 2016) implicitly reversed
Wain and undercut Wilson relies on a misreading of the opinion.
Anderson merely held that section 54B "binds only the entity making
and recording the assignment, if such action has been made in
compliance with its provisions. The statute does not bind any
other party that has standing to contest the validity of the
assignment." Id. at 684. This holding is consistent with Wain
and Wilson, which held that compliance with section 54B means that
an assignment is not void. Those opinions left open the
possibility that such an assignment may be voidable by a party
with standing. Indeed, later in Anderson, the court stated that
very rule and cited Wain approvingly. Id. at 685.

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indorsement is insufficient to grant holder status to the

foreclosing entity, which is "U.S. Bank as Trustee Relating to

Chevy Chase Funding, LLC Mortgage Back Certificates Series 2007-

1." The UCC defines "special indorsement" in a way that includes

this indorsement to "U.S. Bank as Trustee" and states that the

principles in chapter 106, section 3-110 apply to special

indorsements. See Mass. Gen. Laws ch. 106, § 3-205(a). Under

those principles,

[t]he person to whom an instrument is
initially payable is determined by the intent
of the person, whether or not authorized,
signing as, or in the name or behalf of, the
issuer of the instrument. The instrument is
payable to the person intended by the signer
even if that person is identified in the
instrument by a name or other identification
that is not that of the intended person.

Id. § 3-110(a). The Galvins have not alleged that the signer of

the indorsement, an Assistant Vice President of Chevy Chase Bank,

FSB, did not intend to indorse the note to "U.S. Bank as Trustee

Relating to Chevy Chase Funding, LLC Mortgage Back Certificates

Series 2007-1." They have thus failed to state a claim that this

indorsement was inadequate.

b. Whether the Default Notice Complied with
Paragraph 22

The Galvins also argue that the March 2, 2011, notice of

default failed to comply with paragraph 22 of the mortgage, and,

therefore, the foreclosure was void. See Pinti, 33 N.E.3d at 1226.

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But see id. at 1227 (applying the newly announced rule

prospectively only); Murphy, 41 N.E.3d at 755–56. They alleged in

their complaint that the notice failed to comply with paragraph 22

in five ways: (1) it failed to identify the "Lender" or owner of

the note; (2) it falsely stated SLS was the "creditor"; (3) it was

not from the "Lender"; (4) it stated the total amount due without

breaking it down; and (5) the servicer who sent the notice, SLS,

did not send the Galvins a breakdown of an alleged $30,000 in fees

or other information about the loan upon request.

We consider only the last of these arguments, as it is

the only one the Galvins briefed on appeal. This court does not

permit parties to incorporate by reference arguments they made in

memoranda filed in the district court. See Sleeper Farms v. Agway,

Inc., 506 F.3d 98, 104 (1st Cir. 2007) ("[T]his court will only

consider arguments made before this court; everything else is

deemed forfeited."). This rule that a party appealing a decision

must explain to us why the decision is wrong, rather than merely

pointing to what it said before the decision was even issued,

applies with particular force where one of the arguments the party

attempts to incorporate by reference involves an unsettled

question of law.12

12
The argument that the failure of the note holder itself to
send the default notice violates paragraph 22 raises two questions
as to which the District of Massachusetts is currently split.
First, judges in the district court have reached different

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 That leaves the Galvins' briefed argument that there was

a violation of paragraph 22 because SLS failed, on request, to

provide them with "a breakdown of more than $30,000.00 in fees and

costs assessed to their loan account as well as proof of who owned

their loan." This argument cannot succeed, since paragraph 22

does not require either the lender or the servicer to respond to

such a request.13

conclusions as to whether a default notice that is not from the
note holder violates paragraph 22. Compare Paiva v. Bank of N.Y.
Mellon, 120 F. Supp. 3d 7, 10 (D. Mass. 2015) (holding that the
holder of the note must send the default notice to comply with
paragraph 22), with Anderson v. Nationstar Mortg., LLC, 172 F.
Supp. 3d 371, 376 (D. Mass. 2016) (holding that the assignee of
the mortgage may send the default notice under paragraph 22), and
HMC Assets, LLC v. Conley, No. 14-10321-MBB, 2016 WL 4443152, at
*22 (D. Mass. Aug. 22, 2016) (applying Anderson to default notice
sent by servicer). Second, judges in the district court have
reached different conclusions as to whether the Pinti rule may
apply retroactively in a situation, like this one, where the
borrower raised an argument in the district court about the bank's
compliance with paragraph 22 prior to the Supreme Judicial Court's
("SJC's") opinion in Pinti and the property had been sold to the
foreclosing entity itself at the foreclosure sale. Compare Paiva,
120 F. Supp. 3d at 10 (applying Pinti retroactively in this
situation), with Carver v. Bank of N.Y. Mellon, No. 13-10005-MLW,
2016 WL 1301053, at *13 & n.15 (D. Mass. Mar. 31, 2016) (applying
Pinti prospectively in same situation), and Klevisha v. Provident
Funding Assocs. L.P., 167 F. Supp. 3d 250, 254 (D. Mass. 2016)
(applying Pinti prospectively in similar situation).
13 That paragraph reads in relevant part:
Lender shall give notice to Borrower prior to
acceleration following Borrower's breach of
any covenant or agreement in this Security
Instrument (but not prior to acceleration
under Section 18 unless Applicable Law
provides otherwise). The notice shall
specify: (a) the default; (b) the action
required to cure the default; (c) a date, not

- 20 -
 2. Breach of Contract (U.S. Bank and MERS)

The Galvins alleged in their complaint that U.S. Bank

and MERS breached the mortgage contract by "failing to comply with

the terms [of the MERS mortgage] including but not limited to

complying with applicable law (as defined in the mortgage) and the

requirements of Paragraph[s] 20 and 22 before defaulting." In the

section of their brief addressing the breach of contract claim,

they do not offer any additional argument as to how paragraphs 20

and 22 were breached, so this allegation does not succeed for the

reasons stated above. The allegation that the defendants failed

to comply with "applicable law" does not specify the law with which

the defendants allegedly failed to comply or how they failed to

comply with it. Such an allegation is too vague and conclusory to

state a claim for which relief can be granted. See Freeman v.

Town of Hudson, 714 F.3d 29, 35 (1st Cir. 2013) ("In order to

survive a motion to dismiss, the complaint must include 'enough

detail to provide a defendant with fair notice of what the . . .

less than 30 days from the date the notice is
given to Borrower, 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 this Security Instrument and sale
of the property. The notice shall further
inform Borrower 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 Borrower to
acceleration and sale.

- 21 -
claim is and the grounds upon which it rests.'" (quoting Ocasio–

Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011))).

3. Breach of the Covenant of Good Faith and Fair Dealing
(U.S. Bank and MERS)

The district court dismissed the count for violation of

the covenant of good faith and fair dealing. On appeal, the

Galvins argue that the district court treated this claim as

premised only on U.S. Bank's failure to consider them for a loan

modification, when in fact their complaint listed a number of

additional bases, including trespassing, unlawful lockouts,

violations of both the mortgage and "applicable law," assessments

of unreasonable fees, costs, and expenses, and violations of

Chapter 93A. Their brief does not, however, go on to make any

developed argument about how these other acts constituted

violations of the covenant of good faith and fair dealing. It

cites no cases or legal authority and makes no attempt to explain

how these other acts would "have the effect of destroying or

injuring the[ir] right . . . to receive the fruits of the

contract." Weiler v. PortfolioScope, Inc., 12 N.E.3d 354, 361

(Mass. 2014) (citation omitted). This conclusory assertion in the

guise of an argument is waived. See Ryan v. Royal Ins. Co. of

Am., 916 F.2d 731, 734 (1st Cir. 1990) ("It is settled in this

circuit that issues adverted to on appeal in a perfunctory manner,

- 22 -
unaccompanied by some developed argumentation, are deemed to have

been abandoned.").

4. Negligent Infliction of Emotional Distress (All
Defendants)

The Galvins challenge the dismissal of their negligent

infliction of emotional distress claim against all defendants.

However, they do not argue that the district court erred in

dismissing their negligence count or otherwise argue that they

pled negligence adequately. Negligence is an element of negligent

infliction of emotional distress under Massachusetts law. See

Rodriguez v. Cambridge Hous. Auth., 823 N.E.2d 1249, 1253 (Mass.

2005). Thus, the Galvins have abandoned an argument that was

essential to maintaining this claim.

5. Intentional Infliction of Emotional Distress (MERS)

The Galvins argue that their intentional infliction of

emotional distress claim against MERS should not have been

dismissed because MERS took "extreme and outrageous" actions by

not following its own Rules of Membership when dealing with their

mortgage.

To make out a claim of intentional infliction
of emotional distress, the plaintiffs were
required to show (1) that [the defendant]
intended, knew, or should have known that his
conduct would cause emotional distress;
(2) that the conduct was extreme and
outrageous; (3) that the conduct caused
emotional distress; and (4) that the emotional
distress was severe.

- 23 -
Polay v. McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014). "The standard

for making a claim of intentional infliction of emotional distress

is very high." Id. (quoting Doyle v. Hasbro, Inc., 103 F.3d 186,

195 (1st Cir. 1996)). There is no liability even if the defendant

acted "with an intent which is tortious or even criminal," with

"malice," or with "a degree of aggravation which would entitle the

plaintiff to punitive damages for another tort." Id. (citations

omitted). Not even an "inten[t] to inflict emotional distress" is

sufficient. Id. (citation omitted). "Conduct qualifies as extreme

and outrageous only if it 'go[es] beyond all possible bounds of

decency, and [is] regarded as atrocious, and utterly intolerable

in a civilized community.' A judge may grant a motion to dismiss

where the conduct alleged in the complaint does not rise to this

level." Id. at 1128–29 (alterations in original) (citations

omitted) (quoting Roman v. Trs. of Tufts Coll., 964 N.E.2d 331,

341 (Mass. 2012)). On its face, MERS's alleged sloppiness in

dotting i's and crossing t's under its own Rules of Membership by

allegedly acting as nominee mortgagee for a non-member does not

meet this standard as a matter of law.

C. Preliminary Injunction

The Galvins argue that the district court abused its

discretion in issuing the preliminary injunction. Their argument,

however, is premised in part on a misunderstanding of the effect

of that injunction. They argue at length that the district court

- 24 -
should not have ordered them to transfer any rental payments they

had received for their property to U.S. Bank. The docket reveals,

though, that the preliminary injunction did no such thing.

Their second argument, that the district court should

not have enjoined them from renting out the property in the future,

is now moot. The district court granted U.S. Bank's motion for

summary judgment as to possession, and the Galvins subsequently

agreed to vacate the property. The Galvins do not challenge the

grant of summary judgment in favor of U.S. Bank on its possession

counterclaim and we have affirmed the dismissal of the declaratory

judgment count above. The Galvins do not argue that they have a

right to rent out the property in the present circumstances, where

they are no longer in possession and the foreclosure sale has not

been ruled void. These developments moot this aspect of the

appeal. See CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48

F.3d 618, 621 (1st Cir. 1995) ("It has been common ground

throughout the last century that an appeal, although live when

taken, may be rendered moot by subsequent developments.").

D. Motion for Summary Judgment

The Galvins challenge the summary judgment rulings in

favor of the defendants on the Galvins' claims for trespass,

violation of Chapter 93A, and intentional infliction of emotional

distress (as to U.S. Bank and Capital One), and on U.S. Bank's

counterclaim for deficiency. As usual, the court reviews these

- 25 -
decisions de novo, drawing all inferences in favor of the Galvins

as the non-moving parties. See Frangos v. Bank of Am., N.A., 826

F.3d 594, 596 (1st Cir. 2016).

1. Trespass (U.S. Bank)

The Galvins' complaint alleged that U.S. Bank and its

agents trespassed on their property by going onto it multiple times

between December 2011 and November 2014, despite the Galvins'

request that they not do so, and by locking them out of the property

on two occasions when they entered the house and changed the locks.

On summary judgment, the district court ruled that the mortgage

permitted the bank and its agents to engage in these activities

and that therefore they had not committed a trespass. After

considering the summary judgment record, we affirm.

The mortgage contains two provisions that bear on this

dispute. The relevant portion of paragraph 7 reads:

Lender or its agent may make reasonable
entries upon and inspections of the Property.
If it has reasonable cause, Lender may inspect
the interior of the improvements on the
Property. Lender shall give Borrower notice
at the time of or prior to such an interior
inspection specifying such reasonable cause.

The relevant portion of paragraph 9 reads:

If . . . Borrower fails to perform the
covenants and agreements contained in this
Security Instrument . . . then Lender may do
and pay for whatever is reasonable or
appropriate to protect Lender's interest in
the Property and rights under this Security
Instrument, including protecting and/or

- 26 -
 assessing the value of the Property, and
securing and/or repairing the Property. . . .
Securing the Property includes, but is not
limited to, entering the Property to make
repairs, change locks, replace or board up
doors and windows, drain water from pipes,
eliminate building or other code violations or
dangerous conditions, and have utilities
turned on or off. . . . Any amounts disbursed
by Lender under this Section 9 shall become
additional debt of Borrower secured by this
Security Instrument.

The Galvins agree that if these paragraphs permitted

U.S. Bank to take the actions it took, then their claim for

trespass cannot succeed. They also do not contest that all of the

challenged actions occurred after the default on the mortgage, and

that therefore the "fail[ure] to perform" condition in paragraph

9 was satisfied. They argue, however, that there is a disputed

issue of material fact as to whether U.S. Bank's post-default

entries were "reasonable or appropriate," and thus permitted by

the mortgage, and that the district court should not have

determined that the entries were reasonable as a matter of law.

If the entries were not reasonable, they were not permitted by the

mortgage, and thus constituted trespass. See New England Box Co.

v. C & R Constr. Co., 49 N.E.2d 121, 128 (Mass. 1943) ("To support

an action of trespass . . . it is necessary to prove the actual

possession of the plaintiff, and an illegal entry by the

defendant." (alteration in original) (citation omitted)). A jury

might find the inspections unreasonable, say the Galvins, because

- 27 -
of their frequency, the occasional occupancy of the house, the

lack of written notice, and the changing of the locks.

We disagree. To begin, inspections occurred less than

once per month. The record shows that over the course of thirty-

six months between December 2011 and November 2014, twenty-six

inspections occurred. Of the twenty-six inspections, twenty-four

were drive-by or walk-around inspections, conducted without

entering the house.14 From 2011 through 2013, the Galvins occupied

the property only in the late spring through early fall. Ten of

the inspections occurred after November 1 and before March 31 in

2011 to 2013 and two occurred during that period of 2014, when the

Galvins were unlikely to be home. That leaves fourteen inspections

during the remaining twenty-one months in the three-year period.

14
The summary judgment record shows that entries onto the
property occurred on the following dates: 12/9/2011, 1/6/2012,
2/4/2012, 2/13/2012, 3/7/2012, 4/12/2012, 5/9/2012, 6/9/2012,
8/10/2012, 9/10/2012, 10/19/2012, 11/14/2012, 11/26/2012,
1/12/2013, 4/23/2013, 5/21/2013, 9/22/2013, 11/26/2013,
12/28/2013, 3/31/2014, 5/7/2014, 6/4/2014, 7/3/2014, 8/2/2014,
9/6/2014, and 11/10/2014. The Galvins do not point to any evidence
that any property inspection reports were missing from the summary
judgment record. These reports reflect twenty-six entries over
the course of three years. Two inspections, on 2/13/2012 and
11/26/2012, apparently involved interior inspections,
winterization, and lock changing. There is some doubt as to
whether the 2/13/2012 entry in fact occurred, since the report
states that the inspection was "NOT COMPLETED." An SLS
representative testified at her deposition that the inspection did
occur, however. Reading the record in the light most favorable to
the Galvins, we assume it did.

- 28 -
 Inspections of this frequency were reasonable as a

matter of law. The house was a substantial asset, having been

purchased for over $2.3 million. It was unoccupied much of the

year. During the time the inspections were conducted, the owners

had been in default for between two and five years. The Galvins

did not present any evidence tending to show that the bank acted

unreasonably in performing less-than-monthly exterior inspections

in these circumstances. For instance, they offered no evidence to

show that this periodic diligence was out of keeping with industry

norms or that it was performed in an unreasonable manner.

A reasonable jury also could not find that the Galvins'

part-time occupancy, the lack of written notice, or the changing

of the locks rendered the inspections unreasonable in these

circumstances. The mortgage does not require the mortgagee to

rely on the defaulting owners' assertions that the house remains

in good condition. Indeed, it explicitly grants the mortgagee

additional rights to enter onto the property after a default. The

mortgage also imposes no duty on the bank to give written notice

of an upcoming inspection. As to the locks, the evidence indicates

that the inspectors entered the house and changed the locks on two

occasions: on February 13, 2012, and on November 26, 2012, when

they entered the house to weatherize it. During the November

inspection, the inspectors replaced the lock on the rear door.

The record does not indicate which lock the inspectors replaced

- 29 -
during the February inspection, but SLS policy is to replace the

lock on the side or back door. The Galvins offer no evidence that

this policy was not followed.15 Entering a seasonally occupied

house to weatherize it before or during the winter when the owners

are not home is unambiguously permitted by paragraph 9, which

allowed the bank to "enter[] the Property to make repairs" and

"change locks" as part of its broader power to do whatever was

"reasonable or appropriate" to protect its interest in the

property, including "securing and/or repairing the Property."

Making one such entry per winter, the February 2012 entry for the

winter of 2011–2012 and the November 2012 entry for the winter of

2012–2013, is reasonable as a matter of law.

The Galvins argue that the assessment of reasonableness

is nevertheless always a question for the jury, not a question of

law. Massachusetts law in a closely analogous context is not so

absolute. When a contract does not specify a time for performance,

the law implies a contract term providing for performance in a

reasonable period of time. What amount of time is reasonable is

often a jury question, but it becomes a question of law at the

extremes. See Flagship Cruises, Ltd. v. New England Merchs. Nat'l

Bank of Bos., 569 F.2d 699, 702 (1st Cir. 1978) ("The

reasonableness of a period of time--except as to extremes--would

15
The Galvins inaccurately describe the deposition testimony
on the subject of this policy in their brief.

- 30 -
seem to be a classic issue for the trier of fact."); Cataldo v.

Zuckerman, 482 N.E.2d 849, 857 n.20 (Mass. App. Ct. 1985) (quoting

Flagship Cruises); see also Marcus v. Boston Edison Co., 56 N.E.2d

910, 913 (Mass. 1944) ("On undisputed facts what is a reasonable

time is a question of law."); Lorenzo-Martinez v. Safety Ins. Co.,

790 N.E.2d 692, 696–97 (Mass. App. Ct. 2003) (same); Town of

Middleborough v. Middleborough Gas & Elec. Dep't, 715 N.E.2d 467,

470 (Mass. App. Ct. 1999) (same); Plymouth Port, Inc. v. Smith,

530 N.E.2d 194, 196 (Mass. App. Ct. 1988) (imputing a "reasonable

time" term into an exclusive brokerage contract and determining

that four years was not a reasonable time as a matter of law).

We think that Flagship Cruises states the correct rule

in this context as well and conclude that this case falls into the

"extremes." Even reading the record in the light most favorable

to the Galvins, we conclude that no reasonable jury could deem the

inspection activity to exceed the express license granted by the

mortgage. Thus, the Galvins' trespass claim fails as a matter of

law.

Finally, the Galvins have not cited any authority for

the proposition that after the foreclosure sale, when the bank

owned the property, its agents could still commit a trespass. The

case and statute they do cite are inapposite. See In re Prichard

Plaza Assocs. Ltd. P'ship, 84 B.R. 289, 295 (Bankr. D. Mass. 1988)

(addressing whether foreclosing bank had the right to collect rents

- 31 -
while out of possession); Mass. Gen. Laws ch. 183, § 26 ("Until

default in the performance or observance of the condition of a

mortgage of real estate, the mortgagor . . . may hold and enjoy

the mortgaged premises . . . ."). This under-developed argument

is therefore waived. See Ryan, 916 F.2d at 734.

2. Chapter 93A Violation (U.S. Bank)

The district court granted summary judgment on the

Galvins' Chapter 93A claim against U.S. Bank because it was

derivative of the trespass claim, the grant of summary judgment on

which we have affirmed. The Galvins argue on appeal that their

Chapter 93A claim also rested independently on the allegation that

U.S. Bank assessed unreasonable fees for the inspections, and that

the district court failed to address that aspect of the claim.

The Galvins are correct that the portion of their

complaint pleading a violation of Chapter 93A incorporated their

April 17, 2013 demand letter, which mentioned fees for any

"unreasonable inspections" and demanded damages. However, in

their opposition to U.S. Bank's motion for summary judgment, the

Galvins did not point to any evidence that such fees had been

assessed. Likewise, on appeal, the Galvins have not pointed to

any evidence demonstrating that there is a disputed issue of

material fact as to whether they were charged unreasonable fees

- 32 -
for any inspections.16 The documents to which they do point list

charges assessed to the Galvins' account on November 20, 2014--

two days after the foreclosure sale. The amounts of these charges

do not match up with the evidence of the cost of the inspections.

The Galvins have provided no reason for a jury to believe that

these charges were assessed for unreasonable inspections rather

than legitimate expenses arising from the foreclosure sale.

By contrast, U.S. Bank has pointed to evidence that it

only charged the Galvins' account for a single inspection: $366

for winterizing the house and changing the lock on the rear door

in November 2012. U.S. Bank has argued that this interior

16In their brief, the Galvins argue, as they did below, that
they were denied discovery on this question and were entitled to
know what fees were assessed to their account for the inspections.
This contention is not supported by the record. The Galvins did
file an affidavit pursuant to Federal Rule of Civil
Procedure 56(d), in response to U.S. Bank's initial motion for
summary judgment. Based on this affidavit, the district court
granted summary judgment only as to possession, deferred judgment
on the Galvins' remaining claims, and ordered additional
discovery. As part of that discovery, the Galvins deposed an SLS
representative, who testified that the Galvins were only charged
for one of the inspections. The Galvins filed a supplemental
opposition to the motion for summary judgment incorporating this
discovery and did not file an additional affidavit under
Rule 56(d). Thus, they have waived any further challenge to the
adequacy of the discovery. See Kiman v. N.H. Dep't of Corrs., 451
F.3d 274, 282 n.7 (1st Cir. 2006) ("Since [plaintiff] proceeded to
oppose summary judgment without filing a Rule 56(f) motion with
the district court, he cannot now argue that the district court's
ruling was incorrect due to insufficient discovery."); Fed. R.
Civ. P. 56 Advisory Committee Notes to the 2010 Amendment
("Subdivision (d) carries forward without substantial change the
provisions of former subdivision (f).").

- 33 -
inspection, and the associated fee, was reasonable, but that

nevertheless it is not seeking this $366 as part of the deficiency

judgment.

The fact that U.S. Bank is not seeking the $366 would

not prevent the plaintiffs from recovering under Chapter 93A. See

Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066,

1077 (Mass. 2014) ("To the extent that a plaintiff already has

received compensation for its underlying loss prior to the

resolution of its [Chapter 93A] claim, such compensation has been

treated as an offset against any damages ultimately awarded, rather

than as a bar to recovery."). Therefore, reaching the merits of

the claim, we conclude that the single $366 fee charged for

inspection and weatherization of the property was not an

unreasonable fee as a matter of law, as the inspection itself was

reasonable and the assessment of fees for such an inspection is

explicitly allowed by paragraph 9 of the mortgage. We need not

decide whether it would have been reasonable for the bank to assess

more than one such fee in a three-year period. Accordingly, we

affirm the grant of summary judgment on the Galvins' Chapter 93A

claim.

3. Intentional Infliction of Emotional Distress (U.S. Bank
and Capital One)

Reading the record in the light most favorable to the

Galvins, as a matter of law none of U.S. Bank's activities meet

- 34 -
the high standard for intentional infliction of emotional

distress. Entering the house twice to winterize it while the

Galvins were not there does not go "beyond all possible bounds of

decency," and it is not "regarded as atrocious, and utterly

intolerable in a civilized community." Roman, 964 N.E.2d at 341

(citation omitted). Neither is performing an exterior visual

inspection of the premises less than once per month. As we have

already discussed, the mortgage permitted these activities.

The district court did not separately address the

intentional infliction of emotional distress claim against Capital

One when it granted summary judgment. However, the Galvins do not

argue on appeal that the district court erred in granting summary

judgment to Capital One on this count. Thus, they have waived any

argument that the district court should not have granted summary

judgment in favor of Capital One.

4. U.S. Bank's Counterclaim for Deficiency

The district court ruled that the Galvins were obligated

to pay the deficiency, and that U.S. Bank had followed

Massachusetts law governing notices of intention to foreclose and

seek a deficiency, Mass. Gen. Laws ch. 244, § 17B, by sending the

Galvins a notice of its intent to foreclose and to seek a

deficiency judgment in October 2014. The Galvins argue that U.S.

Bank has not shown that it complied with section 17B because that

statute also requires that a foreclosing entity sign and swear to

- 35 -
an affidavit confirming the mailing of the notice within thirty

days of the foreclosure sale. U.S. Bank argues that it was not

required to create this affidavit because the Galvins actually

received the notice--or, at least, have not claimed otherwise. We

conclude that the plain language of section 17B requires reversal.

This issue turns on a question of statutory

interpretation. Section 17B contains both a notice requirement

and an affidavit requirement to be satisfied by a foreclosing

mortgagee who might wish to receive a deficiency. The notice

requirement specifies that a notice of intent to foreclose and a

warning in a specified form must be mailed in a particular manner

no less than twenty-one days before the foreclosure sale to the

person against whom the deficiency will be sought. The affidavit

requirement is as follows:

No action for a deficiency shall be
brought . . . by the holder of a mortgage note
or other obligation secured by mortgage of
real estate after a foreclosure sale by
him . . . unless a notice in writing of the
mortgagee's intention to foreclose the
mortgage has been mailed . . . and an affidavit
has been signed and sworn to, within thirty
days after the foreclosure sale, of the
mailing of such notice. . . . [S]uch an
affidavit made within the time specified shall
be prima facie evidence in such action of the
mailing of such notice.

Id. Although no Massachusetts appellate court has definitively

interpreted the affidavit requirement of this statute, the

Massachusetts Appeals Court's opinions that have interpreted the

- 36 -
statute's notice requirement have uniformly held that the statute

is to be interpreted strictly. See, e.g., Carmel Credit Union v.

Bondeson, 772 N.E.2d 1089, 1091 (Mass. App. Ct. 2002) ("Courts

interpret a statute in accordance with its plain words. They may

not add words to a statute that the Legislature did not put there."

(citation omitted)). In rejecting an argument that actual notice

is sufficient to satisfy the notice provision of the statute, the

Appeals Court has observed that "[t]he statutory language of

[section 17B] is more than ordinarily prescriptive," and that

"[c]ompliance with the statute is not burdensome," since

"[s]ection 17B goes so far as to set out texts of a form of notice

and form of affidavit of notice that will satisfy the statute's

requirements." Framingham Sav. Bank v. Turk, 664 N.E.2d 472, 474

(Mass. App. Ct. 1996); see also Bead Portfolio, LLC v. Follayttar,

714 N.E.2d 372, 374 (Mass. App. Ct. 1999) (holding that actual

notice would not be adequate to comply with § 17B's notice

provision since the written notice was sent to the wrong address

and substantially deviated from the statutory form); Carmel Credit

Union, 772 N.E.2d at 1091–92 (approving Turk and Follayttar). The

Appeals Court recently reaffirmed this strict construction of the

statute in an unpublished decision. See Bank of New England v. B-

P Nantucket LLC, No. 11-P-1141, 966 N.E.2d 868 (Table), 2012 WL

1658354, at *1 (Mass. App. Ct. May 14, 2012) ("The defendants

- 37 -
argue, understandably, that the requirements of [section] 17B are

meant to protect mortgagors and are to be strictly construed.").

We see no reason to anticipate that Massachusetts's

highest court would interpret the mandatory language of the

affidavit requirement any less straightforwardly. U.S. Bank can

bring "[n]o action for a deficiency . . . unless . . . an affidavit

has been signed and sworn to, within thirty days after the

foreclosure sale, of the mailing of [the required] notice."

Because U.S. Bank admittedly signed and swore no such affidavit

within that time period, its claim for a deficiency must fail.

To avoid this conclusion, U.S. Bank points to a different

statute, Mass. Gen. Laws ch. 244, § 15, which governs another

affidavit requirement related to the statutory power of sale. In

Federal National Mortgage Association v. Hendricks, 977 N.E.2d 552

(Mass. 2012), the SJC relied upon longstanding precedent, see,

e.g., O'Meara v. Gleason, 140 N.E. 426, 427 (Mass. 1923); Burns v.

Thayer, 115 Mass. 89, 93 (1874); Field v. Gooding, 106 Mass. 310,

312–13 (1871), to state that a deficient section 15 affidavit "does

not void a foreclosure sale or the right to possession" and "may

be cured by extrinsic evidence that the power of sale was exercised

properly and the foreclosure was valid." Hendricks, 977 N.E.2d at

555, 558. Instead, the failure to have a section 15 affidavit

merely deprives the foreclosing party of a tool that would be

sufficient to prove its prima facie case. Id. at 558–59. U.S.

- 38 -
Bank argues that we should therefore adopt an analogous conclusion

(i.e., that the section 17B affidavit is just a tool to make U.S.

Bank's proof easier). And there is indeed a district court opinion

seemingly accepting such an argument. See Santander Bank, Nat'l

Ass'n v. Sturgis, No. 11-10601-DPW, 2013 WL 6046012, at *8-10 (D.

Mass. Nov. 13, 2013).

We do not agree that the interpretation of section 15

controls the interpretation of section 17B. Section 15 is itself

entirely silent concerning the ramifications of not sending a

section 15 notice. At the time of Hendricks, it read:

The person selling, or the attorney duly
authorized by a writing or the legal guardian
or conservator of such person, shall, after
the sale, cause a copy of the notice and his
affidavit, fully and particularly stating his
acts, or the acts of his principal or ward, to
be recorded in the registry of deeds for the
county or district where the land lies . . . .

Mass. Gen. Laws ch. 244, § 15 (2014). The fact that the SJC

fashioned a remedy in the face of legislative silence offers no

reason to think that it would fashion an analogous remedy in the

face of an express legislative mandate that "[n]o action for a

deficiency shall be brought." Mass. Gen. Laws ch. 244, § 17B. We

conclude, instead, that "[n]o action for a deficiency shall be

brought."

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 III. Conclusion

For the foregoing reasons, we reverse the entry of

judgment in favor of U.S. Bank on its deficiency claim in the

amount of $204,535.20. We otherwise reject the appeal and affirm

the challenged rulings of the district court.17 Each party shall

bear its own costs.

17 U.S. Bank conceded at oral argument that no section 17B
affidavit was filed within thirty days after the foreclosure sale.
Therefore, on remand the Galvins will be entitled to summary
judgment on U.S. Bank's deficiency counterclaim.

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