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15-P-835                                               Appeals Court

             TOMAS JOSE      vs.   WELLS FARGO BANK, N.A.


                              No. 15-P-835.

            Essex.          May 6, 2016. - July 22, 2016.

                 Present:   Cohen, Green, & Hanlon, JJ.


Mortgage, Foreclosure. Real Property, Mortgage. Administrative
     Law, Agency's interpretation of regulation.



     Civil action commenced in the Superior Court Department on
March 5, 2012.

     The case was heard by Thomas Drechsler, J., on a motion for
summary judgment.


     Thomas J. Gleason for the plaintiff.
     David Fialkow for the defendant.


     GREEN, J.    Regulations promulgated by the Federal

Department of Housing and Urban Development (HUD) require a

mortgage lender to conduct a face-to-face meeting with

defaulting borrowers before foreclosing on certain federally

insured mortgages.    The defendant, Wells Fargo Bank, N.A.,

(Wells Fargo), acknowledges that failure to comply with those
                                                                      2


regulations may serve as a basis to invalidate its foreclosure

of the mortgage it held on the plaintiff's property, but asserts

that it qualifies for an exemption.    We conclude that Wells

Fargo does not qualify for the exemption from the face-to-face

meeting requirement, and reverse so much of the judgment as

dismissed that part of the plaintiff's complaint.

     Background.    On March 28, 2005, the plaintiff, Tomas Jose,

executed a promissory note in the amount of $440,002 to

refinance a prior mortgage loan on 499 Boston Street in Lynn

(property).    To secure the note, Jose granted a mortgage

(mortgage) to Mortgage Electronic Registration Systems, Inc.

(MERS), solely as nominee for the lender and the lender's

successors and assigns.    The mortgage was insured by the Federal

Housing Administration, and incorporated applicable HUD

regulations by reference.    More specifically, under par. 9(d) of

the mortgage, acceleration or foreclosure of the mortgage is not

authorized "if not permitted by regulations of the [HUD]

Secretary."    On February 4, 2009, MERS assigned the mortgage to

Wells Fargo.    At all relevant times, Wells Fargo serviced Jose's

mortgage loan.     Wells Fargo does not maintain a servicing branch

within 200 miles of the property.    However, Wells Fargo does

maintain deposit and home loan origination branch offices within

200 miles of the property.    Wells Fargo never scheduled or
                                                                     3


conducted a face-to-face meeting with Jose to discuss an

alternative to foreclosure.

     Despite the absence of a face-to-face meeting, however,

Wells Fargo and Jose entered into several forbearance agreements

and three permanent modifications.    Jose breached each of those

agreements.   Additionally, while in default, Jose twice filed

for bankruptcy to avoid foreclosure.    Wells Fargo eventually

obtained relief from the bankruptcy court's automatic stay so

that it could foreclose on the property. 1

     On February 28, 2012, shortly before a scheduled

foreclosure sale, Jose called Wells Fargo to request a fourth

loan modification.    Wells Fargo told Jose that because the

foreclosure sale was scheduled a few days later, he should

submit an application and supporting documents for his requested

modification "ASAP."    Jose submitted the application and

supporting documents that same day.    Wells Fargo did not approve

a further loan modification and, on March 5, 2012, Wells Fargo

conducted a foreclosure sale.    Wells Fargo was the high bidder

at the foreclosure.

     Jose commenced this action by complaint filed on March 5,

2012, the day of the foreclosure.    After Wells Fargo filed its


     1
       On March 7, 2012, Jose received a discharge pursuant to
Chapter 7 of the United States Bankruptcy Code, thereby
discharging his personal obligation under the mortgage loan.
                                                                    4


answer to that complaint, Jose moved successfully to file an

amended complaint.   In his amended complaint, Jose alleged

breach of the covenant of good faith and fair dealing (count 1),

breach of contract (count 2), and violation of G. L. c. 93A

(count 3).   Count 2 and the portion of count 3 relying on count

2 center on Jose's contention that Wells Fargo's failure to

conduct a face-to-face meeting with him prior to the foreclosure

rendered its foreclosure of the mortgage invalid.   Wells Fargo

moved for summary judgment and, after a hearing, a judge of the

Superior Court allowed the motion.   Judgment entered thereafter,

dismissing the complaint.   Jose appeals. 2

     Discussion.   Though Wells Fargo argued in the Superior

Court that noncompliance with applicable HUD regulations would

not invalidate a foreclosure unless the nature of the

noncompliance rendered the foreclosure fundamentally unfair, it

has abandoned that argument on appeal in light of Pinti v.

Emigrant Mort. Co., 472 Mass. 226 (2015), and Wells Fargo Bank,




     2
       Jose has waived appeal from the dismissal of count 1 and
so much of the c. 93A claim as rests upon count 1. Although
Wells Fargo does not argue the point, we note that Jose's
appeal, filed after the judge's order entered on the docket, but
before judgment entered, was technically premature. See
Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999). However,
as no motion was brought pursuant to the second par. of rule
4(a), Jose's misstep does not bar his appeal. See Hodge v.
Klug, 33 Mass. App. Ct. 746, 750-751 (1992).
                                                                     5


N.A. v. Cook, 87 Mass. App. Ct. 382 (2015). 3   Instead, it presses

its argument that the requirement for a face-to-face meeting is

inapplicable in the present case, by reason of an exemption.

     Pursuant to 24 C.F.R. § 203.604(b) (2015), a "mortgagee

must have a face-to-face interview with the mortgagor, or make a

reasonable effort to arrange such a meeting, before three full

monthly installments due on the mortgage are unpaid.    If default

occurs in a repayment plan arranged other than during a personal

interview, the mortgagee must have a face-to-face meeting with

the mortgagor, or make a reasonable attempt to arrange such a

meeting within 30 days after such default and at least 30 days

before foreclosure is commenced . . . ."   However, "[a] face-to-

face meeting is not required if . . . [t]he mortgaged property

is not within 200 miles of the mortgagee, its servicer, or a

branch office of either."   24 C.F.R. § 203.604(c) (2015).

     In arguing that it qualifies for the exemption from the

face-to-face meeting requirement, Wells Fargo points to a

document which, it claims, appeared at the time of the

foreclosure in a section of HUD's Web site providing answers to


     3
       Pinti held that terms of the mortgage relating to the
mortgagee's exercise of the power of sale must be strictly
complied with. See 472 Mass. at 240. Cook in turn held that
the terms of the mortgage include terms of regulations
incorporated by reference into the mortgage (specifically
including the HUD regulatory requirement for a face-to-face
meeting). 87 Mass. App. Ct. at 386.
                                                                   6


"frequently asked questions" (FAQ). 4   In it, HUD responded to the

following question:   "Please clarify HUD's requirement to

conduct a face-to-face meeting with a delinquent mortgagor.

This is often impossible as many mortgagees maintain only one

centralized servicing office."   HUD replied:

     "The Department is aware that many Mortgagees maintain
     'branch offices' that deal only with loan origination and
     some of these offices may only be staffed part-time. For
     the most part, individuals that staff an origination office
     are not familiar with servicing issues and are not trained
     in debt collection or HUD's Loss Mitigation Program.

     "The Department has always considered that the face-to-face
     meeting must be conducted by staff that is adequately
     trained to discuss the delinquency and the appropriate loss
     mitigation options with the mortgagor. Therefore, for the
     purpose of this discussion, the face-to-face meeting
     requirement referenced in 24 C.F.R. 203.604 relates only to
     those mortgagors living within a 200-mile radius of a
     servicing office."

     Observing that courts should defer to an agency's

interpretation of its own regulation when the regulation is

unclear and the agency's interpretation is reasonable, see

Christensen v. Harris County, 529 U.S. 576, 588 (2000), Wells


     4
       The document, which is undated and lacks a Web address,
appears in the summary judgment record as an exhibit to an
affidavit of counsel for Wells Fargo attesting that it was
copied from the HUD FAQ Web site. However, the record does not
establish when it was posted, or for how long. Because the
plaintiff does not contest the provenance of the document or its
existence at the time of the foreclosure, we nevertheless
consider it. We note that a reference to the identical FAQ, and
response, appears in Mathews v. PHH Mort. Corp., 283 Va. 723,
737 (2012), with a notation that it was last visited Mar. 12,
2012.
                                                                   7


Fargo argues (and the motion judge agreed) that it is exempt

from the face-to-face meeting requirement because it maintains

no servicing offices within 200 miles of the property.

     We are unaware of any Massachusetts appellate authority on

the question of regulatory interpretation presented in the

present case, and the parties have directed us to none.

However, the question has been considered by appellate courts in

several other jurisdictions, and in each instance those courts

have rejected the interpretation pressed by Wells Fargo.   See,

e.g., Lacy-McKinney v. Taylor, Bean & Whitaker Mort. Corp., 937

N.E.2d 853, 866 (Ind. Ct. App. 2010); Wells Fargo v. Phillabaum,

192 Ohio App. 3d 712, 716 (2011); Mathews v. PHH Mort. Corp.,

283 Va. 723, 738-739 (2012). 5

     A reading of the plain language of the regulation reveals

both that it is not ambiguous and that the quoted HUD response

to the FAQ is inconsistent with the regulation.   As the

exemption states, it applies where the property "is not within

200 miles of the mortgagee, its servicer, or a branch office of

either" (emphasis added).   24 C.F.R. § 203.604(c).   By

recognizing the mortgagee and its servicer as separate and

     5
       In RBS Citizens, NA v. Sharp, 2015-Ohio-5438, at ¶¶ 16-17
(Ct. App. 2015), the court (citing opinions from three other
Ohio appellate districts) described as "the established law in
Ohio" the determination that the term "branch office" as used in
the exemption refers to any branch office of the mortgagee, and
not just a servicing branch.
                                                                     8


distinct, and then referring to branch offices of either in the

disjunctive, the regulation makes plain that a branch office,

for purposes of determining whether the exemption applies,

includes a branch office of the mortgagee, and not simply that

of its servicer.    It also contains no language of limitation

regarding the type of branch office of the mortgagee.    Moreover,

the FAQ itself acknowledges that "[t]he Department is aware that

many Mortgagees maintain 'branch offices' that deal only with

loan origination," thereby recognizing that the term "branch

office" includes offices of the mortgagee other than servicing

offices. 6

     While Wells Fargo is correct that we should defer to an

agency's interpretation of its own regulation when the

regulation is unclear, "Auer[7] deference is warranted only when

the language is ambiguous."    Christensen v. Harris County, 529

U.S. at 588.    "To defer to an agency's interpretation when the

regulation itself is unambiguous 'would be to permit the agency,

under the guise of interpreting a regulation, to create de facto



     6
       The National Bank Act defines a banking "branch" as "any
branch bank, branch office, branch agency, additional office, or
any branch place of business located in any State or Territory
of the United States or in the District of Columbia at which
deposits are received, or checks paid, or money lent." 12
U.S.C. § 36(j) (2012).
     7
         See Auer v. Robbins, 519 U.S. 452 (1997).
                                                                    9


a new regulation.'"   Mathews v. PHH Mort. Corp., 283 Va. at 739,

quoting from Christensen, supra. 8,9


     8
       In its brief, Wells Fargo acknowledges that "some other
courts have declined to defer to HUD's interpretation of 'branch
office,'" but suggests that the decisions "that have deferred to
HUD are better reasoned and correctly decided." Examination of
the cases Wells Fargo cites suggests otherwise. In Nationstar
Mort. LLC v. Covert, 2015-Ohio-3757, at ¶ 40 (Ct. App. 2015),
the opinion observes, without analysis, that the lender's
witness testified that it did not have a servicing branch
located within 200 miles of the property, and that no evidence
was presented in opposition. The question whether a branch
office other than a servicing branch would render the exemption
inapplicable does not appear to have been engaged. As we have
observed, see note 5, supra, a case decided by another Ohio
appellate court later that year described as "established law in
Ohio" that the term refers to any branch office of the
mortgagee. In Montalvo v. Bank of America Corp., 864 F. Supp.
2d 567, 593 (W.D. Tex. 2012), a Federal magistrate judge
observed, without further analysis, that "[t]he defendants
presented summary-judgment evidence that the lender 'did not
operate a servicing center within a 200-mile radius [of the
mortgaged property] that was staffed with employees familiar
with servicing issues....' This evidence shows the exception
applies." Finally, in Mitchell vs. Chase Home Fin. LLC, U.S.
Dist. Ct., No. 3:06-CV-2099-K, slip op. at 7-8 (N.D. Tex. Mar.
4, 2008), an unpublished decision, the opinion simply observes
(again without analysis) that "[o]n its website, HUD states that
a mortgagee must have a face-to-face meeting with a delinquent
mortgagor, or make a reasonable effort to arrange such a
meeting, before three monthly installments due on the mortgage
are unpaid. According to HUD, such a meeting must be conducted
by personnel who are adequately trained to discuss the
delinquency and appropriate loss mitigation options with the
mortgagor. Recognizing that not all of a lender's branch
offices are staffed with such personnel, HUD states that this
requirement does not apply where the mortgagor does not live
within a 200 mile radius of a servicing office." While Wells
Fargo's belief that the cases it cites were correctly decided is
perhaps understandable (because they may be read to endorse the
position it advocates), by no means can they fairly be described
as "better reasoned" when compared to the opinions that reach
the contrary conclusion.
                                                                  10


     We likewise reject Wells Fargo's alternative contention

that interpreting the exemption as limiting its reference to a

"branch office" of the mortgagee to servicing branches only is

necessary to avoid an absurd result.   See, e.g., United States

v. Turkette, 452 U.S. 576, 580 (1981).   In support of its

argument, Wells Fargo cites our opinion in Wells Fargo Bank,

N.A. v. Cook, 87 Mass. App. Ct. at 388, quoting from HUD

Handbook No. 4330.1 REV-5, Administration of Insured Home

Mortgages (1994), par. 7-7(C)(3) ("representatives conducting

the face-to-face interview must 'have the authority to propose

and accept reasonable repayment plans . . . [because] [t]he

interview has little value if the mortgagee's representative

must take proposals back to a superior for a decision'").    Since

only servicing branches are staffed by personnel with training


     9
       In declining to accept the FAQ response cited by Wells
Fargo, we are also mindful that HUD itself appears no longer (at
least as of January 7, 2016) to hold its former position. See
HUD's "General Servicing Frequently Asked Questions" (FAQ 2) at
http://www.lb5.uscourts.gov/OpinionsCitingWeb/Files/14-40931/14-
40931(1).pdf [https://perma.cc/PD9V-4CUC]. We note that, like
the FAQ cited by Wells Fargo (see note 4, supra), it is
impossible to determine when FAQ 2 appeared on the HUD Web site.
However, we also note that FAQ 2 itself references other
documents from as late as 2014. We therefore infer that FAQ 2
postdates the FAQ cited by Wells Fargo. FAQ 2 recites the
language of the regulation, and simply states that the exemption
applies when "[t]here is no office or branch office of the
mortgagee or servicer within 200 miles of the mortgaged
property." So far as we are able to ascertain, no FAQ page
addressing the same or similar topics currently appears on the
HUD Web site.
                                                                 11


and authority to conduct such face-to-face meetings, Wells Fargo

reasons, it would be absurd and at odds with the regulatory

purpose to conclude that the exemption does not apply if its

only branches within 200 miles of the property are staffed for

loan origination and not for servicing.   The argument is

circular, as it is of course open to Wells Fargo to send trained

modification personnel to branches (or other locations) in

markets in which it conducts loan origination business. 10

Indeed, in Wells Fargo Bank, N.A. v. Cook, supra, one of the

factual disputes centered on Wells Fargo's contention that the

representative it sent to discuss loan modification with the

plaintiffs in Massachusetts was qualified and authorized to do

so.   87 Mass. App. Ct. at 388-389.

      In sum, we conclude that because Wells Fargo maintains loan

origination branches within 200 miles of the property at issue

in the present case, the exemption to the face-to-face meeting

requirement created by 24 C.F.R. § 203.604(c) is inapplicable to

the present case.   It follows that the motion judge erred in




      10
       We express no view on the question whether a
videoconference would satisfy the regulatory requirement for a
face-to-face meeting. See Mathews v. PHH Mort. Corp., 283 Va.
at 740-741.
                                                                  12


allowing Wells Fargo's motion for summary judgment on count 2

and so much of count 3 as rested on count 2. 11

     Conclusion.   So much of the judgment as dismisses count 1

and the portion of count 3 resting on count 1 of the complaint

is affirmed.   In all other respects, the judgment is reversed,

and the matter is remanded to the Superior Court for further

proceedings consistent with this opinion. 12

                                    So ordered.




     11
       Because the motion judge partly rested his order allowing
summary judgment on the plaintiff's claim under G. L. c. 93A on
his conclusion that Wells Fargo was not required to hold a face-
to-face meeting before conducting its foreclosure, that portion
of the order was likewise in error.
     12
       Among other questions to be addressed in further
proceedings is whether the failure to conduct a face-to-face
meeting caused any prejudice and, if so, what remedy should
follow. See Wells Fargo Bank, N.A. v. Cook, 87 Mass. App. Ct.
at 387 & n.10.
