`No. 18-1559
`
`
`United States Court of Appeals
`For the First Circuit
`
`
`
`MARK R. THOMPSON; BETH A. THOMPSON,
`
`Plaintiffs, Appellants,
`
`v.
`
`JP MORGAN CHASE, N.A.,
`
`Defendant, Appellee.
`
`
`
`Before
`Thompson, Boudin, and Kayatta,
`Circuit Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ORDER OF COURT AND CERTIFICATION OF QUESTION TO THE
`MASSACHUSETTS SUPREME JUDICIAL COURT
`
`Entered: July 29, 2019
`
`In our 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 foreclosure date.
`
`The 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).
`
`
`Although 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").
`
`Chase 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." Id.
`
`Chase 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.
`
`Chase 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.
`
`Here, 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.
`
`
`Accordingly, 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?
`
`
`
`This court would welcome any additional observations about relevant Massachusetts law
`that the SJC may deem helpful.
`
`The 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
`
` 
`
`- 2 -
`
`

`

`jurisdiction over this appeal pending resolution of this certified question.
`
`It is so ordered.
` 
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By the Court:
`
`Maria R. Hamilton, Clerk
`
`cc:
`Hon. Rya W. Zobel
`Robert Farrell, Clerk, United States District Court for the District of Massachusetts
`Francis V. Kenneally, Clerk, Massachusetts Supreme Judicial Court
`Todd Steven Dion
`Jeffrey D. Adams
`Alan Evan Schoenfeld
`Juan S. Lopez
`Francis J. Nolan
`Richard A. Oetheimer
`Keith A. Mitchell
`David S. Kantrowitz
`Michael R. Hagopian
`Donald W. Seeley Jr.
`Erika J. Hoover
`Gregory N. Blase
`Andrew C. Glass
`Marissa I. Delinks
`Samuel Craig Bodurtha
` 
`
`
`
` 
`
`- 3 -
`
`