Preview
%
oo
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
e
Plaintiffs,
v. CYYIYRCTIONNO! N | .
WILMINGTON TRUST NATIONAL . 3 .
ASSOCIATION, MFRA TRUST 2015-1, PLANET
HOME LENDING, LLC, et al., . d . : 2
Defendants. 4 .
x 4 a ¢
f
| xxxxx xxxxx, xxxxxx xxxxx . y
—s
DEFENDANTS’ -RGENCY EX PARTE MOTION FOR A TEMPORARY
'RAININ ER TO ENJOIN THE NONJUDICIAL FORECLOSURE SALE (
~ IL INTRODUCTION
P. 65, respectfully move this Court to grant a temporary restraining order (“TRO”) to enjoin the
nonjudicial foreclosure sale Wilmington Trust National Association (“Wilmington”) and MFRA *
Trust 2015-1 (“MFRA 2015”) scheduled for February 6, 2023 at 10:00 am on the Property. Exhibit
A, Notice of Sale. Wilmington and MFRA 2015 failed to comply with the requirements of the
| Plaintiffs xxxxx and xxxxxx xxxxx (collectively, the “Najdas”), pursuant to Mass. R. Civ, ;
Sey
statutory power of sale by failing, pursuant to Mass. Gen. Laws ch. 244, § 14, to send the Notice (
~perurr 2itlaz © [30h
8
4 8 of Sale “30 days prior to the date of sale” to the owner of the equity of redemption (i.e. mortgagor).
x
cy Wilmington and MFRA 2015 failed to comply with the condition precedent to the Mortgage’s
the Najdas “prior to acceleration”. Exhibit D, Mortgage P 22; ee > Roragraph 22 Notice.
aaa
Y
ii
i
q ‘ YW
TUS HEU 8
e488
rolored, thin 80 dog Ptbrcarmngr L045.
hhooire ark duld cn
§
|
i
ih
a
y
Fe
:
power of sale by failing to send the notice required by paragraph 22 (“Paragraph 22 Notice”) to 2The failure of the Notice of Sale is fatal and independently sufficient for the TRO to issue
as no valid title could pass at the sale given the insufficiency of the Notice of Sale. The failure of
the Paragraph 22 Notice is also fatal and independently sufficient for the TRO to issue as no valid
title could pass at the sale given insufficiency of the Paragraph 22 Notice. Moreover, Wilmington
and MFRA 2015 could not resolve the deficiencies. The Najdas are likely to succeed on the merits
of these claims. This Court should issue the TRO to halt the February 6, 2023 foreclosure sale.
I. ARGUMENT
A. The February 6, 2023 Nonjudicial Foreclosure Sale Will Be Void Because It Does Not
Strictly Comply With the Statutory Power of Sale, Notice Requirements, and
Conditions Precedent in the Mortgage
1. Strict Compliance With the Notice Requirements and Conditions Precedent of the
Statutory Power of Sale Is Required
“[T]he mortgagee, to effect a valid foreclosure sale, must strictly comply not only with the
terms of the actual power of sale in the mortgage, but also with any conditions precedent to the
exercise of the power that the mortgage might contain.” Pinti v. Emigrant Mortg. Co., Inc., 472
Mass. 226, 233-34 (Mass. 2015). “The manner in which the notice of the proposed sale shall be
given is one of the important terms of the power, and a strict compliance with it is essential to the
valid exercise of the power.” U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 647-648 (Mass.
2011) (quoting Moore v. Dick, 187 Mass. 207, 212 (Mass. 1905)). “A related statutory requirement
that must be strictly adhered to in a foreclosure by power of sale is the notice requirement
articulated in G. L. c. 244, § 14.” Ibanez, 458 Mass. at 647.
“G.L. c. 244, § 14 is thus, broadly speaking, a consumer protection statute and, as the courts
have repeatedly made clear, one that requires ‘strict compliance’ with its notice provisions.
Bottomly v. Kabachnick, 13 Mass. App. Ct. 480, 484 (1982) and cases cited therein.” SunTrustMortg. Inc. v. Forsberg, No. MISC 11-449295, 2013 BL 326972, at *7 (Mass. Land Ct. Oct. 28,
2013).
2. A Foreclosure Sale Not in Strict Compliance With the Power of Sale, Notice
Requirements, and Conditions Precedent Is Void
“{O]ne who sells under a power [of sale] must follow strictly its terms. If he fails to do so
there is no valid execution of the power, and the sale is wholly void.” Ibanez, 458 Mass. at 646
(quoting Moore, 187 Mass. at 211).
3. Wilmington and MFRA 2015 Failed to Strictly Comply Because the Notice of Sale
Was Not Mailed to Ms. xxxxx, the Owner of the Equity of Redemption, 30 Days
Before the Sale
a) M.G.L. c. 244, § 14 Required the Notice of Sale Be Sent 30 Days Before the Sale to
Mortgagor Ms. xxxxx
Mass. Gen. Laws c. 244, § 14 requires that the “notice of the sale has been sent by registered
mail to the owner or owners of record of the equity of redemption as of 30 days prior to the date
of sale”. “[T]he mortgagor is the owner of the equity of redemption.” Kirtz v. Wells Fargo Bank
N.A., Civil Action No. 12-10690-DJC, 2012 U.S. Dist. LEXIS 170357, at *28 (D. Mass. Nov. 29,
2012). As the mortgagor, Ms. xxxxx is the owner of the equity of redemption to whom the Notice
of Sale had to be sent “30 days prior to the date of sale”. M.G.L. c. 244, § 14; Exhibit D, Mortgage
at 14.
b) Wilmington and MFRA 2015’s Predecessor Privy Admitted the Notice of Sale Was Sent
to Mortgagor Ms. xxxxx on January 13, 2023, Less Than 30 Days Before the Sale
Wilmington and MFRA 2015 failed to strictly comply with Mass. Gen. Laws ch. 244, § 14
because they sent the Notice of Sale to the Najdas on January 13, 2023, only 24 days before the
February 6, 2023 foreclosure sale. Exhibit A, Notice of Sale (dated January 13, 2023); Exhibit E
Notice of Sale Tracking (mailed January 13, 2023). Not at least “30 days prior to the date of sale”as M.G.L. ch. 244, § 14 requires. In the United States District Court for the District of
Massachusetts (“Federal District Court”), Citibank No. 2!, Wilmington and MFRA 2015’s
predecessor and privy, admitted Wilmington and MFRA 2015 sent the “Notice of Sale” on
“January 13, 2023”, which is a “binding, [] judicial admission”. Citibank, N.A. v. xxxxx, No. 14-
13593-GAO (D. Mass.), Nos. 19-1434, 20-1057 (1st Cir.) (collectively, the “Judicial Foreclosure”)
D. E. No. 478 at 9; Harrington v. City of Nashua, 610 F.3d 24, 31 (1st Cir. 2010).
c) The Massachusetts Appeals Court Held Sending the Notice of Sale to the Mortgagor 30
Days Before the Sale Is a Necessary Antecedent to the Exercise of the Statutory Power of
Sale
“Section 14 provides, in relevant part, that a ‘mortgagee . .. may, upon breach of condition
and without action, do all the acts authorized or required by the power [of sale]; but no sale under
such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof
has been published . . . and notice thereof has been sent by registered mail to the owner or owners
of record of the equity of redemption as of thirty days prior to the date of sale...” G. L. c. 244, §
14, as amended through St. 1998, c. 142. The notice requirements prescribed by statute are
necessary antecedents to the exercise of the power of sale”. Housman v. LBM Fin., LLC, 80 Mass.
App. Ct. 213, 220-21 (Mass. App. Ct. 2011).
d) The February 6, 2023 Nonjudicial Foreclosure Sale Will Be Void as a Matter of Law
Wilmington and MFRA 2015 failed to strictly comply with M.G.L. ch. 244, § 14. Since
Wilmington and MFRA 2015 sent the Notice of Sale to the mortgagor Ms. xxxxx less than 30 days
' Citibank, N.A. not in its individual capacity, but solely as separate trustee for PMT NPL
Financing 2015-1 (“Citibank No. 2”). The third plaintiff of the Judicial Foreclosure after two
substitutions.
4before the day of the sale, the February 6, 2023 nonjudicial foreclosure sale will be void as a matter
of law. The void salé should be enjoined.
4. Wilmington and MFRA 2015 Failed to Strictly Comply With the Conditions
Precedent in the Mortgage to the Power of Sale
a) Wilmington and MFRA 2015 Did Not Send the Paragraph 22 Notice Before Acceleration
as the Mortgage’s Conditions Precedent to the Exercise of the Power of Sale Required
On September 4, 2019, Wilmington and MFRA 2015, sent the purported Paragraph 22
Notice, a combined notice of default and right to cure, to the Najdas after the loan had been
accelerated on October 21, 2010 (Complaint P 19) and after the March 30, 2018 judgment
(“Judgment”) had entered in the Judicial Foreclosure. Exhibit B, Paragraph 22 Notice; Citibank,
N.A. v. xxxxx, No. 14-13593-GAO, 2018 U.S. Dist. LEXIS 55476 (D. Mass. Mar. 30, 2018)
(March 30, 2018 Judgment). Not “prior to acceleration” as the condition precedent to the power
of sale in paragraph 22 required. Exhibit D, Mortgage P 22. Wilmington and MFRA 2015 then
used the void 2019 notice to file Wilmington Trust v. xxxxx, No. 19 SM 006105 (Mass. Land Ct.),
falsely presenting the notice as compliant.
No paragraph 22 notice after acceleration and after entry of the Judgment in the judicial
foreclosure could be compliant with the condition precent to the statutory power of sale. Emigrant
Mortg. Co. v. Bourke, Civil Action No. 21-11133-NMG, 2022 U.S. Dist. LEXIS 147913, at *4 (D.
Mass. Aug. 18, 2022) (“rejected Emigrant’s contention that a second [paragraph 22] notice,
containing compliant language, cured the defect because that notice had been sent after
acceleration”) (citing Pinti, 472 Mass. at 237-238) (emphasis added).
b) The February 6, 2023 Nonjudicial Foreclosure Sale Will Be Void as a Matter of Law
Wilmington and MFRA 2015 failed to strictly comply with the mortgage’s condition
precedent to the power of sale. “[BJecause of that defect, the notice of default failed to comply
5strictly with J 22 and the subsequent foreclosure w[ill be] void.” Emigrant, 2022 U.S. Dist. LEXIS
at *4. The February 6, 2023 nonjudicial foreclosure must be void and halted.
c) Since the Loan Was Accelerated, No Future Paragraph 22 Notice Could Be Compliant
With the Mortgage’s Condition Precedent in Paragraph 22
No future paragraph 22 notice sent by Wilmington and MFRA 2015 or any other entity
could comply with the mortgage’s condition precedent to the power of sale that the paragraph 22
notice be sent “prior to acceleration” because the loan was already accelerated (and Judgment
entered). Restated, the defective Paragraph 22 Notice cannot be cured because it is not possible to
send a compliant PP 22 notice after this loan had been accelerated.
The September 4, 2019 Paragraph 22 Notice failed to strictly comply with the condition
precedent to the power of sale in paragraph 22 of the Mortgage because it was sent after
acceleration of the loan’s note. Each future paragraph 22 notice will also fail to strictly comply.
B. Neither Wilmington Nor MFRA 2015 Own the Loan
Planet Home Lending’s (“PHL”) October 17, 2019 letter states MFA 2018-NPL1, LLC
owns the loan. Exhibit C, October 17, 2019 Letter (On April 19, 2018, the Najdas requested the
name of the note holder. On October 17, 2019, the servicer responded). Wilmington and MFRA
2015’s privy in the Judicial Foreclosure did not dispute or challenge the authenticity and accuracy
of the letter during that action. Wilmington and MFRA 2015 are estopped from challenging the
letter.
MFRA 2015’s purchase predated the October 17, 2019 notice by about two years; thus,
MFRA 2015’s interest predated MFA 2018-NPL1, LLC’s interest. Complaint PP 30, Referencing
December 26, 2017 Sale Notice (PennyMac, Corp. to MFRA 2015). Hence, neither Wilmington
nor MFRA 2015 currently owns the loan. The nonjudicial foreclosure by non-owner Wilmington
and MFRA 2015 should be enjoined.C. The Factors for a TRO to Halt the February 6, 2023 Foreclosure Sale Are Met
The Najdas satisfy the elements for a TRO to halt the February 6, 2023 10:00 am
foreclosure sale.
1. Success on the Merits Is Likely
The February 6, 2023 nonjudicial foreclosure sale, scheduled by Wilmington and MFRA
2015, fails to strictly comply with Mass. Gen. Laws ch. 244, § 14 because the January 13, 2023
Notice of Sale was not sent “30 days prior to the date of sale”. The foreclosure sale fails to strictly
comply with the Mortgage’s conditions precedent to the exercise of the statutory power of sale
because the September 4, 2019 Paragraph 22 Notice was not sent to the Najdas “prior to
acceleration” as paragraph 22 required.
Both the failure of the Notice of Sale and failure of the Paragraph 22 Notice are each
independently sufficient for the TRO to issue as no valid title could pass at the sale given the
insufficiency of the Notice of Sale and insufficiency of the Paragraph 22 Notice. The February 6,
2023 10:00 am foreclosure sale by will be void as a matter of law. The Najdas are likely to succeed
on the merits of these claims.
2. The Illegal Nonjudicial Foreclosure Would Irreparably Injure the Najdas Absent a
TRO
Wilmington and MFRA 2015 will hold the nonjudicial foreclosure sale on February 6,
2023 and refused to cancel the sale. Exhibit A, Notice of Sale; Exhibit F, Email. Absent a TRO,
then, the Najdas will permanently lose the Property. “[TJhe loss of the Debtor’s home would
constitute an irreparable harm”. Strayton v. Champion Mortg. (In re Strayton), 360 B.R. 8, 11
(Bankr. D. Mass. 2007); Derry v. TD Bank N.A., No. 4:22-40025-TSH, 2022 U.S. Dist. LEXIS
51810, at *5 n.3 (D. Mass. Mar. 23, 2022) (“foreclose on her property, which would constitute
irreparable injury”); Shammas v. Merchs. Nat’l Bank, C.A. No. 90-12217N, 1990 U.S. Dist.
7LEXIS 19334, at *15 (D. Mass. Nov. 9, 1990) (“sale of ... home would constitute irreparable
harm”).
The Najdas have demonstrated that, absent a TRO preventing the February 6, 2023
foreclosure sale from taking place, they will suffer irreparable harm.
3. The Risk of Irreparable Harm to the Najdas Outweighs Any Risk to the Opposing
Parties
Harm to the Najdas of sale under the invalid Notice of Sale and failure to comply with
paragraph 22 would be irreparable, and outweighs harm to Wilmington and MFRA 2015, who
caused both the Notice of Sale and Paragraph 22 Notice to be improperly given. Wilmington and
MFRA 2015 cannot be prejudiced if the February 6, 2023 nonjudicial foreclosure, which if held
would be void, is enjoined. Nor should there be any condition of payment by the Najdas on a TRO
because the February 6, 2023 sale will be void and Wilmington and MFRA 2015 cannot foreclose
nonjudicially in the future.
The loan’s prior acceleration and Judgment having entered in the Judicial Foreclosure,
mean Wilmington and MFRA 2015 cannot re-issue a paragraph 22 notice that complies with the
mortgage’s condition precedent to the exercise of the statutory power of sale (that the paragraph
22 notice be sent “prior to acceleration”). Exhibit D, Mortgage P 22. Wilmington and MFRA 2015
are stuck with attempting to use the Judgment, which incorporates a power of sale under the
supervision of the Federal District Court, to enforce their alleged rights.
Restated, Wilmington and MFRA 2015 cannot foreclose nonjudicially because their privy
had accelerated the loan and obtained a Judgment in the Judicial Foreclosure. Since nonjudicial
foreclosures are unavailable to Wilmington and MFRA 2015, but they can attempt to use the
Judgment, there is not harm to Wilmington and MFRA 2015 if this Court enjoins their ability to
foreclose nonjudicially.Further, Wilmington and MFRA 2015 do not own the loan because ownership passed on
to MFA 2018-NPL1, LLC. A342, October 17, 2019 Letter. Hence, the TRO cannot harm
Wilmington and MFRA 2015 as they have no right or interest in the loan.
While “[the Najdas’] interest comprises preventing foreclosure and sale of [their] home”,
an irreparable harm, “[The owner of the loan’s] harm would not be irreparable. [The owner of the
loan], if successful, will have its [Judgment it can attempt to enforce in the Federal Court forum].”
Shammas v. Merchs. Nat'l Bank, C.A. No. 90-12217N, 1990 U.S. Dist. LEXIS 19334, at *15 (D.
Mass. Nov. 9, 1990).
4. The Public Interest Aligns With a TRO
The Massachusetts Supreme Judicial Court issuing opinions that the law requires strict
compliance with the power of sale, notice provisions, and conditions precedent of a mortgage is
clearly to proscribe improper foreclosure practices repugnant to public policy. Ibanez, 458 Mass.
at 646; Pinti, 472 Mass. at 233-34. Thus, the void February 6, 2023 nonjudicial foreclosure not in
strict compliance is repugnant to public policy. When Wilmington and MFRA 2015 scheduled the
nonjudicial foreclosure sale they failed to strictly comply, conduct the law expressly proscribes.
“For [the Najdas] to lose [their] home in addition would exacerbate the [] injustice.” Shammas,
1990 U.S. Dist. LEXIS 19334, at *16. The Najdas satisfy the parts of the test for a TRO; this Court
should grant the TRO.
Ill. CONCLUSION
The February 6, 2023 nonjudicial foreclosure sale, scheduled by Wilmington and MFRA
2015, fails to strictly comply with Mass. Gen. Laws ch. 244, § 14 because the Notice of Sale was
not sent “30 days prior to the date of sale”. The foreclosure sale fails to strictly comply with the
Mortgage’s conditions precedent to the exercise of the statutory power of sale because the
9Paragraph 22 Notice was not sent to the Najdas “prior to acceleration” as paragraph 22 required.
The February 6, 2023 10:00 am foreclosure sale by will be void.
The failure of the Notice of Sale is fatal and independently sufficient for the TRO to issue
as no valid title could pass at the sale given the insufficiency of the Notice of Sale. The failure of
the Paragraph 22 Notice is also fatal and independently sufficient for the TRO to issue as no valid
title could pass at the sale given insufficiency of the Paragraph 22 Notice.
Moreover, Wilmington and MFRA 2015 could not resolve the deficiencies. The Najdas are
likely to succeed on the merits of these claims. The status quo should be preserved. This Court
should issue the TRO to halt the February 6, 2023 foreclosure sale that would result in a void
foreclosure.
The Najdas respectfully request this Court enter a temporary restraining order to halt the
February 6, 2023 10:00 am foreclosure sale and stay the exercise of the power of sale, and granting
such other and further relief to which this Court finds the Najdas are otherwise entitled.
Respectfully submitted,
xxxxxx xxxxx and xxxxx xxxxx,
/s/ xxxxxx xxxxx
and
/s/ xxxxx xxxxx
xxxxx.xxxxxx@gmail.com
71 Flint Road,
Date: February 3, 2023 Concord, MA 01742
10
Preview
% oo COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT e Plaintiffs, v. CYYIYRCTIONNO! N | . WILMINGTON TRUST NATIONAL . 3 . ASSOCIATION, MFRA TRUST 2015-1, PLANET HOME LENDING, LLC, et al., . d . : 2 Defendants. 4 . x 4 a ¢ f | xxxxx xxxxx, xxxxxx xxxxx . y —s DEFENDANTS’ -RGENCY EX PARTE MOTION FOR A TEMPORARY 'RAININ ER TO ENJOIN THE NONJUDICIAL FORECLOSURE SALE ( ~ IL INTRODUCTION P. 65, respectfully move this Court to grant a temporary restraining order (“TRO”) to enjoin the nonjudicial foreclosure sale Wilmington Trust National Association (“Wilmington”) and MFRA * Trust 2015-1 (“MFRA 2015”) scheduled for February 6, 2023 at 10:00 am on the Property. Exhibit A, Notice of Sale. Wilmington and MFRA 2015 failed to comply with the requirements of the | Plaintiffs xxxxx and xxxxxx xxxxx (collectively, the “Najdas”), pursuant to Mass. R. Civ, ; Sey statutory power of sale by failing, pursuant to Mass. Gen. Laws ch. 244, § 14, to send the Notice ( ~perurr 2itlaz © [30h 8 4 8 of Sale “30 days prior to the date of sale” to the owner of the equity of redemption (i.e. mortgagor). x cy Wilmington and MFRA 2015 failed to comply with the condition precedent to the Mortgage’s the Najdas “prior to acceleration”. Exhibit D, Mortgage P 22; ee > Roragraph 22 Notice. aaa Y ii i q ‘ YW TUS HEU 8 e488 rolored, thin 80 dog Ptbrcarmngr L045. hhooire ark duld cn § | i ih a y Fe : power of sale by failing to send the notice required by paragraph 22 (“Paragraph 22 Notice”) to 2The failure of the Notice of Sale is fatal and independently sufficient for the TRO to issue as no valid title could pass at the sale given the insufficiency of the Notice of Sale. The failure of the Paragraph 22 Notice is also fatal and independently sufficient for the TRO to issue as no valid title could pass at the sale given insufficiency of the Paragraph 22 Notice. Moreover, Wilmington and MFRA 2015 could not resolve the deficiencies. The Najdas are likely to succeed on the merits of these claims. This Court should issue the TRO to halt the February 6, 2023 foreclosure sale. I. ARGUMENT A. The February 6, 2023 Nonjudicial Foreclosure Sale Will Be Void Because It Does Not Strictly Comply With the Statutory Power of Sale, Notice Requirements, and Conditions Precedent in the Mortgage 1. Strict Compliance With the Notice Requirements and Conditions Precedent of the Statutory Power of Sale Is Required “[T]he mortgagee, to effect a valid foreclosure sale, must strictly comply not only with the terms of the actual power of sale in the mortgage, but also with any conditions precedent to the exercise of the power that the mortgage might contain.” Pinti v. Emigrant Mortg. Co., Inc., 472 Mass. 226, 233-34 (Mass. 2015). “The manner in which the notice of the proposed sale shall be given is one of the important terms of the power, and a strict compliance with it is essential to the valid exercise of the power.” U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 647-648 (Mass. 2011) (quoting Moore v. Dick, 187 Mass. 207, 212 (Mass. 1905)). “A related statutory requirement that must be strictly adhered to in a foreclosure by power of sale is the notice requirement articulated in G. L. c. 244, § 14.” Ibanez, 458 Mass. at 647. “G.L. c. 244, § 14 is thus, broadly speaking, a consumer protection statute and, as the courts have repeatedly made clear, one that requires ‘strict compliance’ with its notice provisions. Bottomly v. Kabachnick, 13 Mass. App. Ct. 480, 484 (1982) and cases cited therein.” SunTrustMortg. Inc. v. Forsberg, No. MISC 11-449295, 2013 BL 326972, at *7 (Mass. Land Ct. Oct. 28, 2013). 2. A Foreclosure Sale Not in Strict Compliance With the Power of Sale, Notice Requirements, and Conditions Precedent Is Void “{O]ne who sells under a power [of sale] must follow strictly its terms. If he fails to do so there is no valid execution of the power, and the sale is wholly void.” Ibanez, 458 Mass. at 646 (quoting Moore, 187 Mass. at 211). 3. Wilmington and MFRA 2015 Failed to Strictly Comply Because the Notice of Sale Was Not Mailed to Ms. xxxxx, the Owner of the Equity of Redemption, 30 Days Before the Sale a) M.G.L. c. 244, § 14 Required the Notice of Sale Be Sent 30 Days Before the Sale to Mortgagor Ms. xxxxx Mass. Gen. Laws c. 244, § 14 requires that the “notice of the sale has been sent by registered mail to the owner or owners of record of the equity of redemption as of 30 days prior to the date of sale”. “[T]he mortgagor is the owner of the equity of redemption.” Kirtz v. Wells Fargo Bank N.A., Civil Action No. 12-10690-DJC, 2012 U.S. Dist. LEXIS 170357, at *28 (D. Mass. Nov. 29, 2012). As the mortgagor, Ms. xxxxx is the owner of the equity of redemption to whom the Notice of Sale had to be sent “30 days prior to the date of sale”. M.G.L. c. 244, § 14; Exhibit D, Mortgage at 14. b) Wilmington and MFRA 2015’s Predecessor Privy Admitted the Notice of Sale Was Sent to Mortgagor Ms. xxxxx on January 13, 2023, Less Than 30 Days Before the Sale Wilmington and MFRA 2015 failed to strictly comply with Mass. Gen. Laws ch. 244, § 14 because they sent the Notice of Sale to the Najdas on January 13, 2023, only 24 days before the February 6, 2023 foreclosure sale. Exhibit A, Notice of Sale (dated January 13, 2023); Exhibit E Notice of Sale Tracking (mailed January 13, 2023). Not at least “30 days prior to the date of sale”as M.G.L. ch. 244, § 14 requires. In the United States District Court for the District of Massachusetts (“Federal District Court”), Citibank No. 2!, Wilmington and MFRA 2015’s predecessor and privy, admitted Wilmington and MFRA 2015 sent the “Notice of Sale” on “January 13, 2023”, which is a “binding, [] judicial admission”. Citibank, N.A. v. xxxxx, No. 14- 13593-GAO (D. Mass.), Nos. 19-1434, 20-1057 (1st Cir.) (collectively, the “Judicial Foreclosure”) D. E. No. 478 at 9; Harrington v. City of Nashua, 610 F.3d 24, 31 (1st Cir. 2010). c) The Massachusetts Appeals Court Held Sending the Notice of Sale to the Mortgagor 30 Days Before the Sale Is a Necessary Antecedent to the Exercise of the Statutory Power of Sale “Section 14 provides, in relevant part, that a ‘mortgagee . .. may, upon breach of condition and without action, do all the acts authorized or required by the power [of sale]; but no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been published . . . and notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale...” G. L. c. 244, § 14, as amended through St. 1998, c. 142. The notice requirements prescribed by statute are necessary antecedents to the exercise of the power of sale”. Housman v. LBM Fin., LLC, 80 Mass. App. Ct. 213, 220-21 (Mass. App. Ct. 2011). d) The February 6, 2023 Nonjudicial Foreclosure Sale Will Be Void as a Matter of Law Wilmington and MFRA 2015 failed to strictly comply with M.G.L. ch. 244, § 14. Since Wilmington and MFRA 2015 sent the Notice of Sale to the mortgagor Ms. xxxxx less than 30 days ' Citibank, N.A. not in its individual capacity, but solely as separate trustee for PMT NPL Financing 2015-1 (“Citibank No. 2”). The third plaintiff of the Judicial Foreclosure after two substitutions. 4before the day of the sale, the February 6, 2023 nonjudicial foreclosure sale will be void as a matter of law. The void salé should be enjoined. 4. Wilmington and MFRA 2015 Failed to Strictly Comply With the Conditions Precedent in the Mortgage to the Power of Sale a) Wilmington and MFRA 2015 Did Not Send the Paragraph 22 Notice Before Acceleration as the Mortgage’s Conditions Precedent to the Exercise of the Power of Sale Required On September 4, 2019, Wilmington and MFRA 2015, sent the purported Paragraph 22 Notice, a combined notice of default and right to cure, to the Najdas after the loan had been accelerated on October 21, 2010 (Complaint P 19) and after the March 30, 2018 judgment (“Judgment”) had entered in the Judicial Foreclosure. Exhibit B, Paragraph 22 Notice; Citibank, N.A. v. xxxxx, No. 14-13593-GAO, 2018 U.S. Dist. LEXIS 55476 (D. Mass. Mar. 30, 2018) (March 30, 2018 Judgment). Not “prior to acceleration” as the condition precedent to the power of sale in paragraph 22 required. Exhibit D, Mortgage P 22. Wilmington and MFRA 2015 then used the void 2019 notice to file Wilmington Trust v. xxxxx, No. 19 SM 006105 (Mass. Land Ct.), falsely presenting the notice as compliant. No paragraph 22 notice after acceleration and after entry of the Judgment in the judicial foreclosure could be compliant with the condition precent to the statutory power of sale. Emigrant Mortg. Co. v. Bourke, Civil Action No. 21-11133-NMG, 2022 U.S. Dist. LEXIS 147913, at *4 (D. Mass. Aug. 18, 2022) (“rejected Emigrant’s contention that a second [paragraph 22] notice, containing compliant language, cured the defect because that notice had been sent after acceleration”) (citing Pinti, 472 Mass. at 237-238) (emphasis added). b) The February 6, 2023 Nonjudicial Foreclosure Sale Will Be Void as a Matter of Law Wilmington and MFRA 2015 failed to strictly comply with the mortgage’s condition precedent to the power of sale. “[BJecause of that defect, the notice of default failed to comply 5strictly with J 22 and the subsequent foreclosure w[ill be] void.” Emigrant, 2022 U.S. Dist. LEXIS at *4. The February 6, 2023 nonjudicial foreclosure must be void and halted. c) Since the Loan Was Accelerated, No Future Paragraph 22 Notice Could Be Compliant With the Mortgage’s Condition Precedent in Paragraph 22 No future paragraph 22 notice sent by Wilmington and MFRA 2015 or any other entity could comply with the mortgage’s condition precedent to the power of sale that the paragraph 22 notice be sent “prior to acceleration” because the loan was already accelerated (and Judgment entered). Restated, the defective Paragraph 22 Notice cannot be cured because it is not possible to send a compliant PP 22 notice after this loan had been accelerated. The September 4, 2019 Paragraph 22 Notice failed to strictly comply with the condition precedent to the power of sale in paragraph 22 of the Mortgage because it was sent after acceleration of the loan’s note. Each future paragraph 22 notice will also fail to strictly comply. B. Neither Wilmington Nor MFRA 2015 Own the Loan Planet Home Lending’s (“PHL”) October 17, 2019 letter states MFA 2018-NPL1, LLC owns the loan. Exhibit C, October 17, 2019 Letter (On April 19, 2018, the Najdas requested the name of the note holder. On October 17, 2019, the servicer responded). Wilmington and MFRA 2015’s privy in the Judicial Foreclosure did not dispute or challenge the authenticity and accuracy of the letter during that action. Wilmington and MFRA 2015 are estopped from challenging the letter. MFRA 2015’s purchase predated the October 17, 2019 notice by about two years; thus, MFRA 2015’s interest predated MFA 2018-NPL1, LLC’s interest. Complaint PP 30, Referencing December 26, 2017 Sale Notice (PennyMac, Corp. to MFRA 2015). Hence, neither Wilmington nor MFRA 2015 currently owns the loan. The nonjudicial foreclosure by non-owner Wilmington and MFRA 2015 should be enjoined.C. The Factors for a TRO to Halt the February 6, 2023 Foreclosure Sale Are Met The Najdas satisfy the elements for a TRO to halt the February 6, 2023 10:00 am foreclosure sale. 1. Success on the Merits Is Likely The February 6, 2023 nonjudicial foreclosure sale, scheduled by Wilmington and MFRA 2015, fails to strictly comply with Mass. Gen. Laws ch. 244, § 14 because the January 13, 2023 Notice of Sale was not sent “30 days prior to the date of sale”. The foreclosure sale fails to strictly comply with the Mortgage’s conditions precedent to the exercise of the statutory power of sale because the September 4, 2019 Paragraph 22 Notice was not sent to the Najdas “prior to acceleration” as paragraph 22 required. Both the failure of the Notice of Sale and failure of the Paragraph 22 Notice are each independently sufficient for the TRO to issue as no valid title could pass at the sale given the insufficiency of the Notice of Sale and insufficiency of the Paragraph 22 Notice. The February 6, 2023 10:00 am foreclosure sale by will be void as a matter of law. The Najdas are likely to succeed on the merits of these claims. 2. The Illegal Nonjudicial Foreclosure Would Irreparably Injure the Najdas Absent a TRO Wilmington and MFRA 2015 will hold the nonjudicial foreclosure sale on February 6, 2023 and refused to cancel the sale. Exhibit A, Notice of Sale; Exhibit F, Email. Absent a TRO, then, the Najdas will permanently lose the Property. “[TJhe loss of the Debtor’s home would constitute an irreparable harm”. Strayton v. Champion Mortg. (In re Strayton), 360 B.R. 8, 11 (Bankr. D. Mass. 2007); Derry v. TD Bank N.A., No. 4:22-40025-TSH, 2022 U.S. Dist. LEXIS 51810, at *5 n.3 (D. Mass. Mar. 23, 2022) (“foreclose on her property, which would constitute irreparable injury”); Shammas v. Merchs. Nat’l Bank, C.A. No. 90-12217N, 1990 U.S. Dist. 7LEXIS 19334, at *15 (D. Mass. Nov. 9, 1990) (“sale of ... home would constitute irreparable harm”). The Najdas have demonstrated that, absent a TRO preventing the February 6, 2023 foreclosure sale from taking place, they will suffer irreparable harm. 3. The Risk of Irreparable Harm to the Najdas Outweighs Any Risk to the Opposing Parties Harm to the Najdas of sale under the invalid Notice of Sale and failure to comply with paragraph 22 would be irreparable, and outweighs harm to Wilmington and MFRA 2015, who caused both the Notice of Sale and Paragraph 22 Notice to be improperly given. Wilmington and MFRA 2015 cannot be prejudiced if the February 6, 2023 nonjudicial foreclosure, which if held would be void, is enjoined. Nor should there be any condition of payment by the Najdas on a TRO because the February 6, 2023 sale will be void and Wilmington and MFRA 2015 cannot foreclose nonjudicially in the future. The loan’s prior acceleration and Judgment having entered in the Judicial Foreclosure, mean Wilmington and MFRA 2015 cannot re-issue a paragraph 22 notice that complies with the mortgage’s condition precedent to the exercise of the statutory power of sale (that the paragraph 22 notice be sent “prior to acceleration”). Exhibit D, Mortgage P 22. Wilmington and MFRA 2015 are stuck with attempting to use the Judgment, which incorporates a power of sale under the supervision of the Federal District Court, to enforce their alleged rights. Restated, Wilmington and MFRA 2015 cannot foreclose nonjudicially because their privy had accelerated the loan and obtained a Judgment in the Judicial Foreclosure. Since nonjudicial foreclosures are unavailable to Wilmington and MFRA 2015, but they can attempt to use the Judgment, there is not harm to Wilmington and MFRA 2015 if this Court enjoins their ability to foreclose nonjudicially.Further, Wilmington and MFRA 2015 do not own the loan because ownership passed on to MFA 2018-NPL1, LLC. A342, October 17, 2019 Letter. Hence, the TRO cannot harm Wilmington and MFRA 2015 as they have no right or interest in the loan. While “[the Najdas’] interest comprises preventing foreclosure and sale of [their] home”, an irreparable harm, “[The owner of the loan’s] harm would not be irreparable. [The owner of the loan], if successful, will have its [Judgment it can attempt to enforce in the Federal Court forum].” Shammas v. Merchs. Nat'l Bank, C.A. No. 90-12217N, 1990 U.S. Dist. LEXIS 19334, at *15 (D. Mass. Nov. 9, 1990). 4. The Public Interest Aligns With a TRO The Massachusetts Supreme Judicial Court issuing opinions that the law requires strict compliance with the power of sale, notice provisions, and conditions precedent of a mortgage is clearly to proscribe improper foreclosure practices repugnant to public policy. Ibanez, 458 Mass. at 646; Pinti, 472 Mass. at 233-34. Thus, the void February 6, 2023 nonjudicial foreclosure not in strict compliance is repugnant to public policy. When Wilmington and MFRA 2015 scheduled the nonjudicial foreclosure sale they failed to strictly comply, conduct the law expressly proscribes. “For [the Najdas] to lose [their] home in addition would exacerbate the [] injustice.” Shammas, 1990 U.S. Dist. LEXIS 19334, at *16. The Najdas satisfy the parts of the test for a TRO; this Court should grant the TRO. Ill. CONCLUSION The February 6, 2023 nonjudicial foreclosure sale, scheduled by Wilmington and MFRA 2015, fails to strictly comply with Mass. Gen. Laws ch. 244, § 14 because the Notice of Sale was not sent “30 days prior to the date of sale”. The foreclosure sale fails to strictly comply with the Mortgage’s conditions precedent to the exercise of the statutory power of sale because the 9Paragraph 22 Notice was not sent to the Najdas “prior to acceleration” as paragraph 22 required. The February 6, 2023 10:00 am foreclosure sale by will be void. The failure of the Notice of Sale is fatal and independently sufficient for the TRO to issue as no valid title could pass at the sale given the insufficiency of the Notice of Sale. The failure of the Paragraph 22 Notice is also fatal and independently sufficient for the TRO to issue as no valid title could pass at the sale given insufficiency of the Paragraph 22 Notice. Moreover, Wilmington and MFRA 2015 could not resolve the deficiencies. The Najdas are likely to succeed on the merits of these claims. The status quo should be preserved. This Court should issue the TRO to halt the February 6, 2023 foreclosure sale that would result in a void foreclosure. The Najdas respectfully request this Court enter a temporary restraining order to halt the February 6, 2023 10:00 am foreclosure sale and stay the exercise of the power of sale, and granting such other and further relief to which this Court finds the Najdas are otherwise entitled. Respectfully submitted, xxxxxx xxxxx and xxxxx xxxxx, /s/ xxxxxx xxxxx and /s/ xxxxx xxxxx xxxxx.xxxxxx@gmail.com 71 Flint Road, Date: February 3, 2023 Concord, MA 01742 10