MARK R. THOMPSON; BETH A. THOMPSON, Plaintiffs, Appellants,
JPMORGAN CHASE BANK, N.A., Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge]
S. Dion on brief for appellants.
S. Lopez, Jeffrey D. Adams, and Parker Ibrahim & Berg LLP
on brief for appellee.
Thompson, Boudin, and Kayatta, Circuit Judges.
Boudin, Circuit Judge.
and Beth Thompson sued JPMorgan Chase Bank
("Chase") for breach of contract and violating the
statutory power of sale Massachusetts affords mortgagees.
Mass. Gen. Laws ch. 183, § 21. The Thompsons alleged
Chase failed to comply with the notice requirements in their
mortgage before foreclosing on their property. The district
court granted Chase's motion to dismiss for failure to
state a claim.
13, 2006, the Thompsons granted a mortgage to Washington
Mutual Bank on their house to secure a loan in the amount of
$322, 500. The mortgage included two paragraphs, both
standard mortgage provisions in Massachusetts, relevant to
paragraph 22 required that prior to accelerating payment by
the Thompsons, Washington Mutual had to provide the Thompsons
(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
addition, paragraph 22 required Washington Mutual to inform
the Thompsons of "the right to reinstate after
acceleration and the right to bring a court action to assert
the non-existence of a default or any other defense of
Borrower to acceleration and sale."
paragraph 19 described the Thompsons' right to reinstate
after acceleration, including the conditions and time
limitations related to that right.
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 the 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. Those conditions are that
Borrower: (a) pays Lender all sums which then would be due
under this Security Instrument and the Note as if no
acceleration had occurred; (b) cures any default of any other
covenants or agreements; (c) pays all expenses incurred in
enforcing this Security Instrument, including, but not
limited to, reasonable attorneys' fees, property
inspection and valuation fees, and other fees incurred for
the purpose of protecting Lender's interest in the
Property and rights under this Security Instrument; and (d)
takes such action as Lender may reasonably require to assure
that Lender's interest in the Property and rights under
this Security Instrument, and Borrower's obligation to
pay the sums secured by this Security Instrument, shall
2008, after the United States Office of Thrift Supervision
seized Washington Mutual Bank and placed it in receivership
with the Federal Deposit Insurance Corporation
("FDIC"), FDIC sold the banking subsidiaries to
Chase, which became the mortgagee on the Thompsons'
August 12, 2016, Chase sent default and acceleration notices
to the Thompsons. The notices informed the Thompsons that (1)
their mortgage loan was in default; (2) tendering the
past-due amount of $200, 056.60 would cure the default; (3)
the default must be cured by November 10, 2016; and (4) if
the Thompsons failed "to cure the default on or before
11/10/2016, Chase [could] accelerate the maturity of the
Loan, . . . declare all sums secured ...