Conmontrealth of Massachusetis BRISTOL, SS: HOUSING COURT DEPARTMENT PLYMOUTH, SS SOUTHEASTERN DIVISION Docket No. 16-SP-03779 Lenders Commercial Finance LLC Plaintiff vs. Bruce Pestilli & all occupants Defendants {UDGMENT This action came on for trial/hearing before the Court, Chaplin, F.J. presiding, and the issues having been duly tried/heard and findings having been duly rendered, it is ORDERED and ADJUDGED under Rule 10 of the Uniform Rules of Summary Process that: Judgment DISMISSING the Plaintiff's complaint without prejudice and without costs. Accordingly, judgment enters at 10:00 a.m. this 3" day of February 2017. Pursuant to Massachusetts General Laws Chapter 239, Section 5, an aggrieved party must file a notice of appeal with the Court within ten (10) days after the entry of the judgment. Pld te ffx MARK R. JEFFRIES CLERK MAGISTRATECOMMONWEALTH OF MASSACHUSETTS, THE TRIAL COURT BRISTOL, SS HOUSING COURT DEPARTMENT PLYMOUTH, SS SOUTHEASTERN DIVISION Docket No. 16-SP-03779 Lenders Commercial Finance LLC PLAINTIFF < Bruce Pestilli & all occupants! DEFENDANTS MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. INTI (ON The plaintiff, Lenders Commercial Finance LLC, has moved for the entry of summary judgment in its favor against the defendant, Bruce Pestilli, on the Summary Process Summons and Complaint in this action. As grounds for this Motion, the plaintiff contends that there are no genuine issues of material fact in dispute and that it is entitled to summary judgment in its favor as a matter of law. The defendant has opposed the entry of summary judgment in the plaintiff's favor, A Motion for Summary Judgment should be allowed if, viewed in the light most favorable to the non-moving party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any "There is no evidence that anyone other than the named defendant occupies the premises. Accordingly, the remainder of this decision is limited to the named defendant only.‘material fact and that the moving party is entitled to a judgment as a matter of law.” MR.CivP. 56(c). Route One Liquors, Inc. v. Secretary of Administration and Finanee, 439 Mass. 111, 115 (2003); Community National Bank v, Dawes, 369 Mass. 550, 553-556 (1976). “Summary judgment, when appropriate, may be rendered against the moving party.” M.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating these elements. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1980). “[TJhe opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” Lalonde v. Eissner, 405 Mass. 207, 209 (1989). Rather, the non-moving party must “show with admissible evidence the existence of a dispute as to material facts.” Godbout v. Cousens, 396 Mass. 254, 261 (1985), The plaintiff filed several exhibits, the Affidavit of Jonathan Goldman, Esq, and the Affidavit of Richard D. Vetstein, Esq. in support of its Motion. The defendant filed a written Opposition and several exhibits in opposition to the plaintiff's Motion, EACTS ‘The Court finds that the following facts are undisputed: The plaintiff, Lenders Commercial Finance LLC, is the record owner of 726 South Ave., Whitman, MA (“the premises”). The plaintifi’s Quitclaim Deed was recorded in the Plymouth County Registry of Deeds at Book 47025, Page 230 on June 8, 2016. (Affidavit of Jonathan Goldman, Esq. [*Goldman Affidavit”] Ex. B), On November 3, 2005, Bruce E. Pestilli granted a mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Dynamic Capital Mortgage, Inc, using the premises as collateral. This mortgage was recorded in the Plymouth County Registry of Deeds at 2Book 31688, Page 262 on November 8, 2005. (Goldman Affidavit Ex. B). On December 15, 2008, MERS assigned the mortgage to Bank of America, N.A., with an effective date of November 13, 2008. This Assignment of Mortgage was recorded in the Plymouth County Registry of Deeds at Book 36660, Page 282 on January 5, 2009. (Goldman Affidavit Ex. B). Joseph E. Brooks, Esq. of Harmon Law Offices, PC as attorneys for Bank of America, NA,, executed a mortgagee’s affidavit on April 7, 2011. The affidavit states that Bank of America, N.A. sent the statutory foreclosure sale notice to the defendant by certified mail, retum receipt requested, that the foreclosure sale was scheduled for March 8, 2010 at 12:00 p.m., and that Bank of America, N.A. published a notice of sale in the Whitman Express on February 11, 2010, February 18, 2010 and February 25, 2010. (Goldman Affidavit Ex. B). The Affidavit states that, on March 8, 2010 at 12:00 p.m., the foreclosure sale was postponed by public proclamation (o April 23, 2010 at 12:00 p.m., that, on April 23, 2010 at 12:00 p.m., the foreclosure sale was postponed by public proclamation to May 28, 2010 at 12:00 p.m., that, on May 28, 2010 at 12:00 p.m,, the foreclosure sale was postponed by public proclamation to July 2, 2010 at 12:00 p.m., and that, on July 2, 2010 at 12:00 p.m., the foreclosure sale was postponed by public proclamation to August 3, 2010 at 12:00 p.m. On August 3, 2010, Bank of America, N.A. conducted a public foreclosure auction, at which it was the highest bidder. The Affidavit of Sale was recorded in the Plymouth County Registry of Deeds at Book 39839, Page 3 on April 13, 2011. (Goldman Affidavit Ex. B). On March 30, 2011, Bank of America, N.A. executed an Assignment of Bid to Federal Home Loan Mortgage Corporation. This Assignment of Bid was recorded in the PlymouthCounty Registry of Deeds at Book 39839, Page 6 on April 13, 2011. (Goldman Affidavit Ex. B). On March 30, 2011, Bank of America, N.A. executed a Massachusetts Foreclosure Deed By Corporation to Federal Home Loan Mortgage Corporation, This Deed was recorded in the Plymouth County Registry of Deeds at Book 39839, Page 1 on April 13, 2011 (Goldman Affidavit Ex. B) On April 29, 2015, Federal Home Loan Mortgage Corporation executed a Quitelaim Deed to New Penn Financial LLC. This Deed was recorded in the Plymouth County Registry of Deeds at Book 45500, Page 17 on May 1, 2015. (Goldman Affidavit Ex. B) On April 7, 2016, New Penn Financial LLC executed Quitclaim Deed to Bank of America, N.A. This Deed was recorded in the Plymouth County Registry of Deeds at Book 47025, Page 227 on June 8, 2016. (Goldman Affidavit Ex. B). On April 27, 2016, Bank of America, N.A. executed a Quitclaim Deed to Lenders Commercial Finance, LLC. This Deed was recorded in the Plymouth County Registry of Deeds at Book 47025, Page 230 on June 8, 2016. (Goldman Affidavit Ex. B) On June 22, 2016, the plaintiff served the defendant with a 30 Day Notice to Vacate. (Affidavit of Richard D. Vetstein, Esq. [“Vetstein Affidavit”] Ex. A). The defendant continues to occupy the premises. (Complaint). DISCUSSION ‘The plaintiff contends that itis entitled to summary judgment in its favor against the defendant on its Summary Process Summons and Complaint for possession of the premises on ‘he grounds that there are no genuine issues of material fact in dispute with respect to its superior 4"ight to possession of the premises, The defendant contends that the plaintiff is not entitled to summary judgment in its favor as a matter of law. GL. c. 186, §12 provides, in pertinent part: “Estates at will may be determined by either Party by three months’ notice in writing for that purpose given to the other party; and, ifthe rent reserved is payable at periods of less than three months, the time of such notice shall be sufficient 1 iCis equal to the interval between the days of payment or thirty days, whichever is longer...” The Court finds that there is no evidence in this action that there was ever any agreement between the partis for the defendant to pay any rent to the plaintiff, or for any definite rental Period. Accordingly, the Court finds that G.L. c. 186, §12 requires that the plaintiff terminate the defendant's tenancy at will by service of a 90 Day Notice To Quit for possession. Since the plaintiff served the defendant with a 30 Day Notice to Vacate, the Court finds that this Notice to Vacate is legally insufficient to terminate the defendant's tenancy as a matter of law. Accordingly, the Court finds that the Summary Process Complaint must be dismissed without prejudice and without costs CONCLUSION For the above-stated reasons, the Court rules as follows: 1, The Complaint is dismissed without prejudice and without costs. ANNE KE! CHAPLI FIRST JUSTICE Date: February 3 ,2017 cc: Richard D. Vetstein, Esq. F, Steven Treffletti, Esq.