Weeresinghe et al v. Select Portfolio Servicing et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION 25-10309-RGS
ANTHONY M. WEERESINGHE
CINDY T. WEERESINGHE
v.
SELECT PORTFOLIO SERVICING;
WILMINGTON SAVINGS FUND SOCIETY,
FSB, NOT IN ITS INDIVIDUAL CAPACITY
BUT SOLELY AS TRUSTEE OF STARWOOD
MORTGAGE RESIDENTIAL TRUST 2021-3
ORDER ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
December 7, 2025
STEARNS, D.J.
Plaintiffs 	Anthony 	M. 	Weeresinghe 	and 	Cindy 	T. 	Weeresinghe
(Borrowers), brought this lawsuit in Middlesex Superior Court to prevent a
foreclosure on their home located at 90 Suffolk Road, Chestnut Hill,
Massachusetts. The Weeresinghes claim that defendants’ notices of default
dated May 28, 2024, and the acceleration notice dated December 9, 2024,
breach the parties’ mortgage contract and are in violation of Mass. Gen. Laws
ch. 183, § 21. 	Defendants removed the case to the federal district court
asserting diversity jurisdiction and now move for 	summary judgment
Case 1:25-cv-10309-RGS Document 19 Filed 12/04/25 Page 1 of 7

2
claiming that the notices strictly comply with the terms of the mortgage and
Massachusetts Supreme Judicial Court precedent.
BACKGROUND
On or about March 5, 2021, Anthony M. Weeresinghe executed a
Fixed/Adjustable Rate Note payable to Luxury Mortgage Corp. in the
original principal amount of $2,170,000.00. Compl. ¶ 12; Affidavit of Select
Portfolio Servicing, Inc. (SPS Aff.) ¶ 8 & Ex. 2. 	To secure the obligations
under the Note, Anthony Weeresinghe and Cindy Weeresinghe granted a
mortgage dated March 5, 2021, in favor of Mortgage Electronic Registration
Systems, Inc. as nominee for Luxury Mortgage Corp. and its successors and
assigns. The Mortgage was recorded with the Middlesex South Registry of
Deeds on March 11, 2021, in Book 77194, Page 470. Compl. ¶ 12; SPS Aff. ¶
9 & Ex. 3; Declaration of Megan E. Ryan, Esq. (Ryan Decl.) ¶ 4(a) & Ex. 1.
Because plaintiffs have failed to oppose the dispositive motion, the
court adopts defendants’ Statement of Material Facts. See Fed. R. Civ. P. 56
(e). Paragraph 12 of the Mortgage states:
12. Borrower Not Released; Forbearance By 	Lender Not 	a
Waiver.
Extension 	of 	the 	time 	for 	payment 	or 	modification 	of
amortization of the sums secured by this Security Instruments
granted by Lender to Borrower or any Successor in Interest of
Borrower shall not operate to release the liability of Borrower or
any Successors in Interest of Borrower. Lender shall not be
required to commence proceedings against any Successor in
Case 1:25-cv-10309-RGS Document 19 Filed 12/04/25 Page 2 of 7

3
Interest of Borrower or to refuse to extend time for payment or
otherwise modify amortization of the sums secured by this
Security Instrument by reason of any demand made by the
original Borrower or any Successors in Interest of Borrower. Any
forbearance by 	Lender 	in 	exercising any 	right 	or 	remedy
including, without limitation, Lender’s acceptance of payment s
from third person, entities or Successors in Interest of Borrower
or in amounts less than the amount then due, shall not be a
waiver of or preclude the exercise of any right or remedy.
SPS Aff. ¶ 9 & Ex. 3; Ryan Decl. ¶ 4(a) & Ex. 1.
Paragraph 19 of the Mortgage states in relevant part:
19. Borrower’s Right to Reinstate After Acceleration. If Borrower
meets certain conditions, Borrower shall have the right to have
enforcement of this Security Instrument discontinued at any
time prior to the earliest of: (a) five days before sale of the
Property pursuant to any power of sale contained in this Security
Instrument; (b) such other period as Applicable Law might
specify for the termination of Borrower’s right to reinstate; or (c)
entry of judgment enforcing this Security Instrument.
Compl. ¶ 19; SPS Aff. ¶ 9 & Ex. 3; Ryan Decl. ¶ 4(a) & Ex. 1.
Paragraph 22 of the Mortgage states in relevant part:
22. Acceleration; Remedies. 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 17 unless Applicable Law provides
otherwise). The notice shall specify: (a) the default; (b) the action
required to cure the default; (c) a date, not 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
Case 1:25-cv-10309-RGS Document 19 Filed 12/04/25 Page 3 of 7

4
to assert the nonexistence of a default or any other defense of
Borrower to acceleration and sale.
Compl. ¶ 13; SPS Aff. ¶ 9 & Ex. 3; Ryan Decl. ¶ 4(a) & Ex. 1.
The Trust is the mortgagee of record of the Mortgage. Compl. ¶ 15;
Ryan Decl. ¶ 4(b) & Ex. 2. SPS is the current Loan servicer for the Trust. SPS
Aff. ¶ 11. Plaintiffs defaulted on the Loan on or about January 1, 2022. SPS
Aff. ¶ 12 & Ex. 5. On November 18, 2022, SPS sent the Borrowers a 90-Day
Right to Cure Your Mortgage Default. Compl. ¶ 16; SPS Aff. ¶ 12 & Ex. 5. The
Borrowers cured the default on or about February 27, 2024. (Compl. ¶ 18;
SPS Aff. ¶ 13 & Ex. 6.
The Borrowers again defaulted on the Loan on April 1, 2024. See SPS
Aff. ¶ ¶14- 15 & Ex. 7. On May 28, 2024, SPS sent the Borrowers a 90-Day
Right to Cure Your Mortgage Default (Hybrid Notice). SPS Aff. ¶ 15 & Ex. 7.
The Hybrid Notice includes the following disclosures:
The mortgage on your property is in default as a result of your
failure to make payments as required by the Note and Deed of
Trust or Mortgage (Security Instrument).
* * 	*
You must pay the past due amount of $25,327.06 on or
before August 29, 2024, which is 90 days from the date of this
notice. *** Possible Consequences of Default If we do not receive
the past due amount by the date listed in the notice, or some loss
mitigation alternative to foreclosure has not started, SPS may
initiate foreclosure and require the immediate payment in full of
the entire outstanding unpaid amount on the account. In other
Case 1:25-cv-10309-RGS Document 19 Filed 12/04/25 Page 4 of 7

5
words, failure to cure the default on or before August 29, 2024
may result in acceleration of sums secured by the Security
Instrument and sale of the Property.
***
Possible Consequences of Default
If we do not receive the past due amount by the date listed in the
notice, or some loss mitigation alternative to foreclosure has not
started, SPS may initiate foreclosure and require the immediate
payment in full of the entire outstanding unpaid amount on the
account. In other words, failure to cure the default on or before
August 29, 2024 may result in acceleration of sums secured by
the Security Instrument and sale of the Property.
***
Your Rights
You have the right to reinstate after acceleration of your loan. If
you reinstate, the Security Instrument shall remain fully effective
as if no acceleration had occurred. You have the right to bring a
court action to assert the non-existence of a default or any other
defense you may have to acceleration and sale.
***
The account’s Security Instrument may contain information
related to your right to reinstate the account. Please note that if
the Security Instrument contains limitations with respect to
when you can reinstate the account prior to a foreclosure sale,
SPS is waiving those limitations and the provisions related to
reinstatement contained in the Right to Cure Your Mortgage
Default will control and SPS will allow reinstatement any time
before the foreclosure sale, notwithstanding any such limitations
in the Security Instrument.
SPS Aff. ¶ 15 & Ex. 7. The Loan remained due and owing from the April 1,
2024 payment and all subsequently owed payments.
Case 1:25-cv-10309-RGS Document 19 Filed 12/04/25 Page 5 of 7

6
DISCUSSION
Summary judgment is appropriate when, based upon the pleadings,
affidavits, and depositions, “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “To succeed, the moving party must show that there is an absence
of evidence to support the nonmoving party’s position.” Rogers v. Fair, 902
F.2d 140, 143 (1st Cir. 1990). “‘[T]he mere existence of a scintilla of evidence’
is 	insufficient 	to 	defeat 	a 	properly 	supported 	motion 	for 	summary
judgment.” 	Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 18 (1st
Cir. 2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986).
The Weeresinghes claim that the Hybrid Notice is defective because it
discloses “90 days” to cure default but provides a cure date that is 93 days
from the date of the Hybrid Notice. This claim fails because the Hybrid
Notice unequivocally discloses the Borrowers’ right to cure default “not less
than 30 days” from the date of the Hybrid Notice, in strict compliance with
paragraph 22 of the Mortgage.
The Weeresinghes also assert that the Hybrid Notice’s disclosure that
they may reinstate “any time before the foreclosure takes place,” rather than
“five days before sale,” is potentially misleading and deceptive where
Case 1:25-cv-10309-RGS Document 19 Filed 12/04/25 Page 6 of 7

7
Borrowers are not eligible for the more generous reinstatement period under
Mass. Gen. Laws ch. 244, § 35A following their second default in less than
five years. 	This claim runs contrary to Massachusetts Supreme Judicial
Court precedent, which holds that “the language of the mortgage itself gives
notice to the [borrowers] that the five-day limitation of paragraph 19 could
be extended by [] the discretion of the mortgagee.” Thompson v. JPMorgan
Chase Bank, N.A., 486 Mass. 286, 293-294 (2020).
ORDER
For these reasons, the motion for summary judgment is ALLOWED.
The Clerk may enter judgment in favor of defendants and close this case.
SO ORDERED.
/s/ Richard G. Stearns___________
UNITED STATES DISTRICT JUDGE
Case 1:25-cv-10309-RGS Document 19 Filed 12/04/25 Page 7 of 7