Byline: Correy E. Stephenson
The inclusion of extra language in a default notice sent to homeowners was not a misleading deviation from strict compliance with Paragraph 22 of a mortgage contract, a federal magistrate judge found in rejecting the homeowners' argument that the foreclosure sale was rendered void.
Judge Patricia A. Sullivan found that the addition of the phrase "the right to assert in the foreclosure proceeding the non-existence of a default and/or the right to bring a court action to assert the non-existence of a default" did not affect or undermine Wilmington Savings and Selene Finance's contractual duty.
Judicial foreclosure proceedings are permitted in Rhode Island, so the language was accurate to advise Kevin and Carrie Aubee that defenses could be raised in a court action or in a judicial foreclosure proceeding, if one were initiated, Sullivan said.
"[T]he genesis of the extra words in the Aubees' Notice is crystal clear it is drafted to create a letter whose content conforms to the version of Paragraph 22 used in both non-judicial foreclosure states and judicial foreclosure states, with 'and/or' conjoining the two advisories," Sullivan wrote. "Indeed, in a state like Rhode Island, where judicial foreclosure is also possible, it appears to afford a more accurate description of the venues potentially available to a mortgagor with defenses to raise."
Boston attorney Lauren M. Bucci, counsel for the defendants, did not respond to a request for comment.
"We have to read the [notice of default] from the perspective of a layperson and not an attorney, which is why the standard of strict compliance [with Paragraph 22] is so important."
Todd S. Dion, Cranston
Todd S. Dion of Cranston, who represented the Aubees, said he plans to file an objection to Sullivan's report and recommendation.
The notice of default "wrongfully implies that the homeowner should wait for a foreclosure proceeding that's never going to happen," he said. "We have to read the letter from the perspective of a layperson and not an attorney, which is why the standard of strict compliance [with Paragraph 22] is so important."
Regardless of which party prevails, the outcome of the case will help homeowners and attorneys know what types of deviations or additions in language from the mortgage will be tolerated in a Paragraph 22 notice, Dion added.
In 2005, the Aubees borrowed $359,650, secured by a mortgage on their home in...