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SJC-12042

 ELNEDIS A. MORONTA   vs.   NATIONSTAR MORTGAGE, LLC, & another.1


                       December 22, 2016.


            Consumer Protection Act, Demand letter.


     Elnedis A. Moronta commenced this action in the Superior
Court, alleging that the defendants, Nationstar Mortgage, LLC
(Nationstar), and Fremont Investment and Loan, among other
things, violated his rights under G. L. c. 93A. Summary
judgment was entered against Moronta on all his claims. On
Moronta's appeal, the Appeals Court concluded that there was a
genuine issue of material fact as to Moronta's c. 93A claim and
reversed the grant of summary judgment. Moronta v. Nationstar
Mortgage, LLC, 88 Mass. App. Ct. 621, 622 (2015). In doing so,
the Appeals Court rejected the defendants' argument that
Moronta's c. 93A claim was barred due to his failure to serve a
demand letter, on the ground that no demand letter is required
under G. L. c. 93A, § 9 (3), where "the prospective respondent
does not maintain a place of business . . . within the
commonwealth," regardless of whether it "keep[s] assets" here.
Moronta, supra at 626 n.11. We granted Nationstar's application
for further appellate review, and we subsequently limited the
scope of review to issues concerning the demand letter.2

    1
       Signature Group Holdings, Inc., successor to Fremont
Investment & Loan. After the case was entered in this court, a
stipulation of dismissal was filed as to this defendant.
    2
       Our initial order allowing further appellate review was
unlimited as to the scope of review, meaning that all issues
that were properly before the Appeals Court were before us anew.
See Bradford v. Baystate Med. Ctr., 415 Mass. 202, 204 (1993)
("Our general rule is that we shall review all issues that were
                                                                   2



     The underlying facts of the case are set forth in the
Appeals Court's opinion and need not be repeated here. Moronta,
88 Mass. App. Ct. at 622-625. Before us is a purely legal
question concerning the correct interpretation of G. L. c. 93A,
§ 9 (3). The question is whether, as Moronta argues, a
plaintiff is excused from serving a demand letter if the
defendant lacks either a place of business or assets in the
Commonwealth, or whether, as Nationstar argues, a plaintiff must
serve a demand letter unless the defendant has neither a place
of business nor assets in the Commonwealth. Put another way,
the question is this: if the defendant keeps assets in the
Commonwealth, but does not maintain a place of business here,
must the plaintiff serve a demand letter? We conclude, as did
the Appeals Court, that the plaintiff need not do so.

     We begin with the "general and familiar rule . . . that a
statute must be interpreted according to the intent of the
Legislature ascertained from all its words construed by the
ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished." Meikle v. Nurse, 474 Mass. 207, 209-210 (2016),
quoting Lowery v. Klemm, 446 Mass. 572, 576-577 (2006). In
relevant part, § 9 (3) provides, "The demand requirements of
this paragraph shall not apply . . . if the prospective
respondent does not maintain a place of business or does not
keep assets within the commonwealth . . ." (emphasis added).
The use of the word "or" to separate the prongs of a statute
indicates that the prongs are alternatives, that is, that either
one would be sufficient on its own and that it is not necessary
to establish both. See, e.g., Bleich v. Maimonides Sch., 447
Mass. 38, 46-47 (2006), citing Eastern Mass. St. Ry. v.
Massachusetts Bay Transp. Auth., 350 Mass. 340, 343 (1966)
(where statute used "or" to specify criteria for religious


before the Appeals Court [and not limit our review just to those
issues urged as grounds for further appellate review], unless
our order allowing further review indicates otherwise").
However, the parties subsequently filed new briefs in this court
that addressed only the demand letter issue, thereby effectively
waiving all other issues. See 81 Spooner Rd., LLC v. Zoning Bd.
of Appeals of Brookline, 461 Mass. 692, 693 n.3 (2012). See
also 1 Appellate Practice in Massachusetts § 3.3.3 (Mass. Cont.
Legal Educ. 4th ed. 2016). Because it appeared that the parties
otherwise accepted the decision of the Appeals Court, we issued
an amended order formally limiting the scope of review.
                                                                  3


exemption from State unemployment taxation, one criterion --
that school was "principally supported" by religious
organizations -- sufficed). If the Legislature had intended to
excuse the plaintiff from the demand requirement only where both
prongs are satisfied, it could have made this clear by using the
word "and."

     The grammatical structure of this provision further
supports our interpretation. In the dependent clause, "if the
prospective respondent does not maintain a place of business or
does not keep assets within the commonwealth," each of the
phrases, "does not maintain a place of business" and "does not
keep assets," is a predicate of "the prospective respondent."
These two phrases are elements of a parallel series, indicating
that they are functional matches of each other and that they
serve the same grammatical function in the clause. See The
Chicago Manual of Style § 5.212, at 259 (16th ed. 2010). The
clause can be rephrased to provide that the demand requirements
do not apply "if the prospective respondent does not maintain a
place of business within the commonwealth or if the prospective
respondent does not keep assets within the commonwealth."3 So
rephrased, the provision clearly excuses the plaintiff from
serving a demand letter if the prospective respondent either
lacks a place of business in Massachusetts or does not keep
assets in Massachusetts.

     Our interpretation is further supported by the purposes of
c. 93A generally and of the demand letter requirement in
particular. "General Laws c. 93A is a 'broad remedial'
statute," intended "to deter misconduct" and "to 'encourage
vindicative lawsuits.'" Auto Flat Car Crushers, Inc. v. Hanover
Ins. Co., 469 Mass. 813, 825 (2014), and cases cited. It
protects consumers from unfair conduct and provides them with a
remedy. The demand letter requirement is intended to encourage
settlement of disputes and to limit damages, not to place an
arbitrary obstacle in the consumer's path. Moreover, it is
difficult for us to imagine that the Legislature intended, in
1969 when § 9 was added to the statute to provide a private
cause of action, that a consumer undertake the formidable task
of verifying that a respondent have no assets in Massachusetts
before being relieved of having to send a demand letter.
Ordinary consumers simply did not have such information
available at their fingertips in 1969, and the Legislature
surely did not predict that it might become easier to obtain

     3
       There is no dispute that the territorial limitation,
"within the commonwealth," applies to both prongs.
                                                                  4


such information years in the future. In light of these
important considerations, we interpret the statute to enable
consumers' access to the remedies provided by G. L. c. 93A, not
to frustrate it.

     Our decision today does not put respondents who are not
entitled to receive a demand letter in an appreciably worse
position than those who are so entitled. When any of the
exceptions to the demand letter requirement applies, the
"respondent may otherwise employ the provisions of this section
by making a written offer of relief and paying the rejected
tender into court as soon as practicable after receiving notice
of an action commenced under this section." G. L. c. 93A,
§ 9 (3). This permits a respondent to limit its damages even if
it is not entitled to receive a demand letter because it
maintains no place of business in Massachusetts.

     For the foregoing reasons and those stated by the Appeals
Court, the judgment of the Superior Court is reversed.

                                   So ordered.


    Irene H. Bagdoian for the plaintiff.
    Matthew A. Gens for the defendant.
