Not without evidence. In an October 2026 decision, the Appeals Court affirmed summary judgment giving a mortgage company possession of a home after foreclosure, because the occupant’s claims about a mishandled loan modification were not backed up by proof in the record. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
After a foreclosure of a home in Westfield, the mortgage company filed a summary process case in the Housing Court to get possession. The homeowner answered with defenses and counterclaims, including a claim under G.L. c. 93A that he was treated unfairly in the loan modification process. The mortgage company moved for summary judgment. The judge granted it, found the mortgage company had a superior right to possession, and dismissed the homeowner’s claims without prejudice. The homeowner appealed.
What the court decided
In Nationstar Mortgage LLC v. Roberts, No. 24-P-1360 (Mass. App. Ct. October 7, 2026) (Rule 23.0 decision), the Appeals Court affirmed the judgment.
The plaintiff’s starting proof. In a post-foreclosure eviction, the plaintiff can make a prima facie case for possession by producing the recorded foreclosure deed and the affidavit of sale under G.L. c. 244, § 15. The occupant must then answer with an affidavit or other acceptable evidence showing a genuine factual dispute. Federal Nat’l Mtge. Ass’n v. Hendricks, 463 Mass. 635, 637, 642 (2012). Here the mortgage company produced the foreclosure deed, the assignment and the affidavit of sale, so the burden shifted to the homeowner.
No evidence to back the claims. The homeowner argued the mortgage company delayed his paperwork, assigned multiple loan specialists, sent an outdated form, and did not act in good faith. The mortgage company, however, produced letters telling him which documents were still needed to evaluate his applications. The homeowner said he had sent those documents and they were rejected or overlooked, but nothing in the record showed that. A party opposing summary judgment cannot rely on pleadings and bare assertions. LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
Pre-foreclosure steps were documented. The mortgage company also submitted default and right to cure letters, notices of the right to request a modified loan, letters advising of the right to a face to face meeting, foreclosure sale notices, and an affidavit that it had taken reasonable steps and made a good faith effort to avoid foreclosure under G.L. c. 244, § 35B. Nothing in the record disputed those documents.
Good faith has limits. The implied covenant of good faith, and a lender’s duties in foreclosure, do not reach loan modification processing when the mortgage documents do not provide for modification. Santos v. U.S. Bank Nat’l Ass’n, 89 Mass. App. Ct. 687, 701 (2016). That covenant cannot create duties the contract does not contain. Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004). The homeowner offered no evidence that his loan documents created such a duty.
The court also noted that neither side put the summary judgment papers in the appeal record, but it chose to decide the case on the merits anyway.
What this means for you
This was a loss for the homeowner, and the lesson is about proof. Once the plaintiff shows a foreclosure deed and a proper affidavit of sale, you must answer with evidence, not just your account in your answer or brief. If you say you sent documents, you need copies, fax confirmations, emails, certified mail receipts or upload records.
The decision also shows the limits of a good faith argument about a loan modification. Unless your loan documents provide for modification, the implied covenant may not reach how the lender handled your application. Statutory notice and foreclosure-avoidance requirements, such as those in G.L. c. 244, § 35B, may still matter, but you need evidence that they were not followed.
Note that the homeowner’s claims were dismissed without prejudice, which generally means they were not decided on the merits in this eviction case.
What to do now
- Keep a complete file of every loan modification submission: copies, dates, and proof of delivery.
- Save every letter from your lender, including default, right to cure, modification and sale notices.
- If you are served with an eviction after foreclosure, respond to any summary judgment motion with a sworn affidavit and documents.
- Ask a lawyer to review whether the foreclosure notices and affidavits were proper and timely.
- Do not wait. Post-foreclosure eviction cases move fast in the Housing Court.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
