The Appeals Court upheld a post-foreclosure eviction of the former owners and a man who lived in one room of the house in exchange for work. The court rejected challenges to the right to cure notice and the bank’s auction deposit, and it agreed the room occupant was a licensee, not a tenant, so he was not owed a ninety-day termination notice. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The homeowner defaulted on her mortgage in 2016. In December 2017 the bank sent her a notice of her right to cure the default within ninety days. She did not cure, and at a July 2018 foreclosure auction the bank bought the property itself. A buyer purchased the house from the bank in May 2019, served a notice to quit, and filed a summary process case for possession and unpaid use and occupancy. The occupants said a third man had moved in during 2017 under a verbal deal to help maintain the property instead of paying rent. The Housing Court granted summary judgment against the former owners and, after a trial, ruled against the room occupant as well.
What the court decided
The Appeals Court affirmed the judgment and a later order for use and occupancy payments. Labonte v. Becker, No. 23-P-1499 (Mass. App. Ct. May 30, 2025) (Rule 23.0 decision).
The right to cure notice. Massachusetts law gives a homeowner a ninety-day right to cure a payment default, and bars acceleration or other enforcement of the mortgage for that default until at least ninety days after written notice. G.L. c. 244, § 35A. The occupants said they never got the notice and the bank had no proof of mailing, such as a postmarked form. The court disagreed. The loan servicer’s litigation manager gave an affidavit, based on his review of the servicer’s business records, that the notice was mailed with proper postage. A homeowner’s lack of memory of receiving it was not enough to create a real factual dispute. The court held the bank satisfied both the statute and paragraph 22 of the mortgage. See Thompson v. JPMorgan Chase Bank, N.A., 486 Mass. 286 (2020) (one notice can satisfy both).
The auction deposit. The occupants argued the bank could not bid because it did not pay the deposit listed in the terms of sale. The court held that a contract condition inserted for one party’s benefit can be waived by that party. DeFreitas v. Cote, 342 Mass. 474 (1961). The bank, as seller, put the deposit term in for its own protection, so as the high bidder it could waive it. That also defeated the claim that the notices to quit were void because the foreclosure was invalid.
Tenant or lodger. The room occupant argued he had an oral lease, with labor in place of rent. There was no written lease. The trial judge weighed the witnesses’ credibility and found he was a licensee of the former owners. The Appeals Court deferred to that credibility finding. It said he resembled a lodger, someone who gets only a right to occupy a room while the owner keeps legal possession. Boston Redev. Auth. v. Pham, 88 Mass. App. Ct. 713 (2015). As a licensee, he was not owed a ninety-day notice. The former owners could not borrow his argument as their own.
Use and occupancy. The occupants asked to get back payments above the owner’s actual carrying costs. The court said the right measure is the fair rental value of the premises, citing Davis v. Comerford, 483 Mass. 164 (2019), and the occupants never challenged the amounts as above fair rental value.
What this means for you
If you live in a home after foreclosure, your status matters. A true tenant can have extra protections, including a longer notice period. A person who only has permission to use a room, with no written lease and no clear rent deal, may be treated as a licensee and removed on shorter notice. Credibility at trial decides it, so proof counts.
If you are the former owner, saying you never received a right to cure letter will usually not be enough when the lender has an affidavit of mailing based on its records. And technical points about how the bank bid at its own auction may not undo the sale.
Finally, use and occupancy is measured by what the place would rent for, not by the owner’s costs.
What to do now
- Put any living arrangement in writing, including what you give in place of rent.
- Keep records of payments, work done and any messages with the owner about your stay.
- If you dispute a right to cure notice, look for specific evidence, not just a lack of memory.
- If a use and occupancy order seems too high, challenge the amount as above fair rental value, with evidence.
- Answer the eviction and attend every hearing.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
