PATRICIA FENNELLY v. NEW REZ LLC & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-76

PATRICIA FENNELLY

vs.

NEW REZ LLC & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from the entry of judgment for the

defendants in the Superior Court on her complaint alleging,

among other things, that the mortgage foreclosure on her home by

defendant New Rez LLC (New Rez), as the lender/mortgagee, was

invalid because it failed to comply with a Federal regulation

requiring a reasonable effort to arrange a meeting with the

mortgagor prior to foreclosure. Determining that there exist no

genuine issues of material fact in dispute, and that the

1Francisco Eliezer Paulino. In filings and in its brief,
defendant New Rez LLC has spelled its name "NewRez, LLC." As is
our custom, we spell the defendant's name as it was spelled in
the complaint.
defendants are entitled to summary judgment as a matter of law,

we affirm.

Background. In May 2017, the plaintiff obtained a loan

from HomeBridge Financial Services, Inc. (HomeBridge), and

executed a promissory note that was secured by a mortgage on her

home. The mortgage provided that the debt could be accelerated,

requiring immediate payment of the full amount owed, should the

plaintiff fail to make her monthly payments. The right of the

lender/mortgagee to foreclose on the mortgage, however, was

limited by regulations of the United States Department of

Housing and Urban Development.

In particular, 24 C.F.R. § 203.604 (2017)2 provided that,

prior to any foreclosure on payment default, the mortgagee was

required to "have a face-to-face interview" with the mortgagor

or at least "make a reasonable effort to arrange such a

meeting." 24 C.F.R. § 203.604(b). The regulation further

provided that a reasonable effort to arrange a face-to-face

meeting

"shall consist at a minimum of one letter sent to the
mortgagor certified by the Postal Service as having been
dispatched. Such a reasonable effort to arrange a face-to-
face meeting shall also include at least one trip to see
the mortgagor at the mortgaged property . . . ."

24 C.F.R. § 203.604(d).

2 We refer to the regulation in effect at the relevant time,
prior to the amendment that took effect on January 1, 2025.

2
Within the year, the plaintiff defaulted by failing to make

required payments. A year later, in March 2019, HomeBridge

assigned the mortgage and note to New Rez. More than two and

one-half years later, the plaintiff remained in default. In

October 2021, New Rez foreclosed on the property.3 The following

month, the plaintiff filed a complaint challenging the

foreclosure, specifically alleging violation of 24 C.F.R.

§ 203.604(b) due to the alleged failure of New Rez to have a

face-to-face interview with her or to make a reasonable effort

to arrange such a meeting.

At summary judgment, the parties agreed that no face-to-

face interview took place. The issue was whether New Rez had

made a reasonable effort to arrange such a meeting. The judge

determined that New Rez could meet the reasonable effort

requirement in either of two ways -- by sending a certified

letter or by making a trip to see the plaintiff at the property.

Although the judge found that there was a genuine issue of

material fact in dispute whether New Rez had sent a letter to

the plaintiff by certified mail, he found that the undisputed

facts established that New Rez did in fact make a trip to visit

the plaintiff at the property, leaving a copy of the letter

taped to the door of the plaintiff's house. The judge ruled

3 Subsequently, New Rez sold the property to defendant
Francisco Eliezer Paulino.

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that, since New Rez met one of the two alternative methods of

compliance, the plaintiff had no reasonable expectation of

proving noncompliance with 24 C.F.R. § 203.604(b) and granted

summary judgment to the defendants.

The plaintiff appealed, contending that the judge committed

a clear error of law in determining that 24 C.F.R. § 203.604(d)

provided alternative methods of compliance. The plaintiff

argues that the regulation required New Rez both to send a

letter and to make a trip to the property. She maintains that,

since genuine issues of material fact existed whether New Rez

complied with notice by the letter method, summary judgment

should not have been granted.4

New Rez cross-appealed. Although it agrees with the

plaintiff that the regulation required both a letter and a trip

to the property, it argues that the judge erred in determining

that genuine issues of material fact existed whether it had

complied with the requirement of sending a certified letter.

Therefore, New Rez contends, despite the error in interpreting

the regulation as providing alternative methods of compliance,

summary judgment was properly entered in any event.

4 The plaintiff does not challenge on appeal the judge's
determination that New Rez complied with the requirement of
making a trip to the property.

4
Discussion. "We review a grant of summary judgment de novo

to determine whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to a judgment as a

matter of law" (citation omitted). Fannie Mae v. Branch, 494

Mass. 343, 352 (2024).

As a preliminary matter, we agree with the parties that a

plain reading of 24 C.F.R. § 203.604(d) required New Rez both to

send a letter to the mortgagor and to make a trip to the

mortgaged property. See Ingalls v. Board of Registration in

Med., 445 Mass. 291, 294 (2005) (when interpreting regulation,

words are to be given plain and ordinary meaning). The

regulation provided that a "reasonable effort to arrange a face-

to-face meeting with the mortgagor shall consist at a minimum of

one letter . . . . Such a reasonable effort to arrange a face-

to-face meeting shall also include at least one trip . . ."

(emphasis added). 24 C.F.R. § 203.604(d). Use of the words

"shall" in the first sentence and "shall also" in the second

sentence shows that both a letter and trip were required. See

Garcia v. Executive Office of Hous. & Livable Communities, 495

Mass. 86, 91-92 (2024) (use of word "shall" reflects mandatory

nondiscretionary obligation). See also Donahue v. Federal Nat'l

Mtge. Ass'n, 980 F.3d 204, 208 (1st Cir. 2020) (construing 24

C.F.R. § 203.604[d] as imposing dual requirements).

5
We move on to consider the remaining question: whether the

record reflects a genuine issue of material fact that New Rez

sent to the plaintiff a letter "certified by the Postal Service

as having been dispatched." 24 C.F.R. § 203.604(d).

At summary judgment, New Rez presented an affidavit of an

employee of the servicing agent for HomeBridge, who stated that

a letter notifying the plaintiff that her loan was overdue and

that she may request a face-to-face interview was generated on

April 10, 2018; a copy of the letter, addressed to the plaintiff

at her home, was attached to the affidavit. The affiant went on

to relate that the regular business practice of the servicing

agent was to mail such letters to the address provided in the

letter and to record the mailing activity on a certificate of

mailing manifest; a copy of the manifest, showing a redacted

United States Postal Service tracking number associated with the

plaintiff's name and address, postage, and a $3.45 additional

fee, consistent with the fee for certified mail, was attached to

the affidavit. The affidavit further stated that the servicing

agent's business records reflect that the letter was included in

a bulk mailing through the United States Postal Service; a

United States Postal Service certificate of bulk mailing was

attached to the affidavit.

In response, the plaintiff submitted an affidavit stating

that New Rez never had a face-to-face meeting with her, nor did

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it make any effort to arrange such a meeting. She specifically

denied receiving a letter from HomeBridge or New Rez.

On appeal, the plaintiff contends that her denial of

receipt of a letter presents a question of fact whether New Rez

sent a letter. But the issue here is not whether the plaintiff

actually received the letter. See Donahue, 980 F.3d at 209 n.5

(homeowner's claim of nonreceipt of letter pursuant to 24 C.F.R.

§ 203.604[d] did not create genuine issue of material fact where

issue was whether lender complied with mailing requirements).

Cf. Liberty Mut. Ins. Co., petitioner, 298 Mass. 75, 76 (1937)

(affidavit of nonreceipt sufficient to raise question of fact

where issue was receipt of notice). Rather, the question is

whether New Rez complied with its obligation to make a

reasonable effort to arrange a face-to-face meeting with the

plaintiff by sending her a letter, "certified by the Postal

Service as having been dispatched." 24 C.F.R. § 203.604(b).

Here, New Rez presented evidence that it sent to the plaintiff a

letter that was assigned a United States Postal Service tracking

number, and that there was a fee, corresponding with the

certified mail fee, associated with the letter. This was

sufficient to establish that the Postal Service certified the

letter as having been dispatched.5 See Donahue, supra at 208

5 Although the affiant from the service agent did not
explicitly state that the business practice was to send such

7
(letter bearing United States Postal Service tracking number, in

addition to affidavits regarding business practice of mailing,

supported fact that Postal Service certified letter was

dispatched).

By this showing, New Rez carried its burden. To defeat

summary judgment, "the party opposing the motion must respond

and allege specific facts establishing the existence of a

genuine issue of material fact." French King Realty Inc. v.

Interstate Fire & Cas. Co., 79 Mass. App. Ct. 653, 659-660

(2011). The plaintiff failed to do so here. Summary judgment

properly entered in favor of the defendants.

Judgment affirmed.

By the Court (Vuono, Singh &
Hershfang, JJ.6),

Clerk

Entered: June 10, 2025.

letters by certified mail, the exhibits in support of the
affidavit bear this out.

6 The panelists are listed in order of seniority.

8