MARK R. THOMPSON; BETH A. THOMPSON, Plaintiffs, Appellants,
JP MORGAN CHASE, N.A., Defendant, Appellee.
Thompson, Boudin, and Kayatta, Circuit Judges.
ORDER OF COURT AND CERTIFICATION OF QUESTION TO THE
MASSACHUSETTS SUPREME JUDICIAL COURT
earlier decision in this case, see Thompson
v. JP Morgan Chase Bank, N.A., 915 F.3d 801
(1st Cir. 2019), the panel concluded that JP Morgan Chase,
holder of a mortgage on the Thompsons' home, could not
properly foreclose the mortgage based on the Thompsons'
failure to pay their required monthly installments. The
reason was that the foreclosure notice inaccurately specified
that the Thompsons could avoid foreclosure if, but only if,
the Thompsons paid the balance due on or before the specified
panel found this warning defective because under the terms of
the mortgage the Thompsons were required to pay the amount
due at least five days before the foreclosure date
in order to escape foreclosure. At no time did the Thompsons
argue that they had been misled by the inaccuracy or had in
any way been prejudiced by it; but under binding state
precedent it is enough that some hypothetical mortgagor could
have been misled by the inaccurate pre-foreclosure notice.
Pinti v. Emigrant Mortg. Co., 472
Mass. 226, 233-34 (2015); U.S. Bank Nat'l
Ass'n v. Ibanez, 458 Mass. 637,
647 (2011); Moore v. Dick, 187
Mass. 207, 211 (1905).
Massachusetts is a state that strives to protect consumers,
see, e.g., Feeney v. Dell
Inc., 454 Mass. 192, 201 (2009); In re M3 Power
Razor Sys. Mktg. & Sales Practice Litig., 270 F.R.D.
45, 60 (D. Mass. 2010), Massachusetts is not alone in
demanding strict compliance in cases of extrajudicial
foreclosure, see, e.g., Shupe v.
Nationstar Mortg. LLC, 231 F.Supp.3d 597, 604 (E.D.
Cal. 2017); Ex Parte Turner, 254 So.3d 207, 212
(Ala. 2017); Ruiz v. 1st Fidelity Loan
Servicing, LLC, 829 N.W.2d 53, 58 (Minn. 2013). See
also Martin Robson, A History of the Royal Navy: The
Seven Years War (2016) (Admiral Byng executed for
"failure to do his utmost" in the Battle of
Minorca); Voltaire, Candide, ch. 23
(1759)("pour encourager les autres").
then filed a petition for panel rehearing or rehearing en
banc, claiming for the first time that a state banking
regulation, 209 C.M.R. § 56.04, required Chase to use
the precise language it had used in its notice to the
Thompsons. This is a debatable position: the form notice that
follows in section 56.04 also includes language apprising
homeowners that "[e]nclosed with this notice, there may
be additional important disclosures related to applicable
laws and requirements that you should carefully review."
received wide support from the banking community and
predictions of disaster were numerous and detailed in various
amicus briefs filed in tandem with Chase's rehearing
petition. Chase took issue with the panel's reading of
Pinti and other SJC precedents, and suggested as an
alternative to reconsideration on the merits that this court
certify the matter to the Massachusetts Supreme Judicial
Court. This court in a diversity action cannot properly
overturn governing state precedent, but the SJC on
certification is not thus limited.
may fault the Thompsons for their counsel's failure to
uncover this obscure regulation but Chase itself also failed
to note its existence, even though it likely had greater
familiarity with banking law and every incentive to raise the
issue. But if the case involved only one bank and one
mortgage, one might let this court's decision stand; a
competent lawyer may miss an obscure point but the miss may
be fatal in the case at hand, even though the issue may be
revisited in a later case.
Chase urges serious harms that might prompt the SJC to
reexamine its precedents. Certification is not lightly
ventured by this court because it imposes delay and
additional legal costs for the parties, see Bruce
Selya, Certified Madness: Ask a Silly Question...,
29 Suffolk U. L. Rev. 677 (1996), but if real harm is
threatened, the SJC can address it; if not, a definitive
statement by the SJC can dispel the concerns.
the panel withdraws our earlier opinion in this case, vacates
the judgment, and certifies to the Massachusetts Supreme
Judicial Court the following question:
Did the statement in the August 12, 2016, default and
acceleration notice that "you can still avoid
foreclosure by paying the total past-due amount before a
foreclosure sale takes place" render the notice
inaccurate or deceptive in a manner that renders the
subsequent foreclosure sale void under Massachusetts law?
court would welcome any additional observations about
relevant Massachusetts law that the SJC may deem helpful.
Clerk is directed to forward to the Massachusetts Supreme
Judicial Court, under the official seal of this court, a copy
of this Order along with copies of the briefs and appendices,
as well as the petition for rehearing materials, filed by the
parties and amici curiae. This court retains jurisdiction
over this appeal pending resolution of this certified