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United States Court of Appeals: For The First Circuit
United States Court of Appeals: For The First Circuit
No. 20-1321
Plaintiffs, Appellants,
v.
Defendants, Appellees.
Before
I.
Wilmington Savings was assigned both the note and the mortgage as
sale if the Aubees default. But that same paragraph also imposes
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On April 3, 2017, Selene Finance, acting on behalf of
reproduction:
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The added language in the second through fourth lines
provides the object of the parties' dispute.2 The reason for that
aver that they "drafted the Notice to create a letter whose content
default.
2 The Aubees do not claim that the added language in the last
line rendered the notice non-compliant.
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mortgage contract by foreclosing and conducting a sale without
II.
A.
In re Celexa & Lexapro Mktg. & Sales Pracs. Litig., 779 F.3d 34,
Id.
Tompkins, 304 U.S. 64, 78 (1938); Fithian v. Reed, 204 F.3d 306,
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and applying the rules of substantive law enunciated by the state's
81 F.3d 1148, 1151 (1st Cir. 1996). In the latter scenario, "our
task is to ascertain the rule the state court would most likely
B.
this appeal was pending, the Supreme Court of Rhode Island decided
Woel v. Christiana Trust, 228 A.3d 339 (R.I. 2020). The Rhode
Island high court held that, "[a]s a matter of contract law, strict
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In adopting the strict compliance standard, the Supreme
id. at 344 n.9. But it viewed the case as addressing "a matter of
Id. at 344, 348. Because of "[t]he potential impact this new rule
opted to give its new rule only prospective effect. Id. at 348.
Superior Court in which this specific issue has been, or may be,
raised." Id.
rulings. See Great N. Ry. Co. v. Sunburst Oil & Refin. Co., 287
U.S. 358, 364–65 (1932); Butler v. Deutsche Bank Tr. Co. Ams., 748
statement that its holding shall apply "to the case at bar and to
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of the holding to this case merely because this case is pending in
the pending cases to which Woel would apply, namely "the case at
Rhode Island Supreme Court at the time Woel was decided, and
to Woel itself and to all cases then pending in the Rhode Island
Superior Court in which the issue has been or could be raised, the
because there were no such cases in the Rhode Island court system.
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no good reason why the court would have wanted to exempt cases
"in the manner best suited to serve the interests of justice and
410 A.2d 1340, 1347 (R.I. 1980)). It would not serve the interests
to be the case that set forth the rule. See, e.g., Fed. Nat'l
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Massachusetts high court held that strict compliance with notice
Id. at 1214, 1226. In Pinti, like in Woel, the court stated that
its decision would apply prospectively and to the case at bar due
But it expressly did not reach the question whether its holding
where the issue was timely and fairly asserted in the trial court
compliance standard for Rhode Island. Woel, 228 A.3d at 346. And
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cases pending on appeal, while at the same time following
alleged that the notice they received failed to satisfy the strict
compliance standard.
C.
The problem, say the Aubees, is that the notice informed them of
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The first question is easily answered. Interpreting the
note the possible difference between the two concepts -- and the
982 F.3d 809, 812 (1st Cir. 2020). And the Massachusetts Supreme
Chase Bank, N.A., 158 N.E.3d 35, 41 (Mass. 2020). In Pinti, for
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for Rhode Island's adoption of the strict compliance standard was
Woel, 228 A.3d at 346. And, in adopting that standard, the court
See William Strunk Jr. & E.B. White, The Elements of Style 40 (3d
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damages a sentence and often leads to confusion or ambiguity").
the Aubees do, to mean that they can choose to assert their
own court action. And the use of the word "the" preceding
would elect to skip the hassle of bringing a court action and opt
This would work out fine for the borrowers whose mortgagees decide
learn that they cannot in fact assert defenses "in the foreclosure
action that they brought themselves. For these reasons, the notice
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towards foreclosure." They point to language farther up in the
does not explain any of this. All the notice says is that "[y]ou
makes clear that the right to assert defenses "in the foreclosure
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judicial foreclosure and non-judicial foreclosure does not inform
346.
notice informs borrowers that they do not have the right to assert
But this same logic would apply to the right to bring a court
Modern English Usage 29, (Sir Ernest Growers ed., 2d ed. 1965)
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trouble of writing x or y or both of them"). Borrowers who read
the notice this way would understand that there may be some
have the right to bring a court action -- not that they might have
"you may have the right to bring a court action to assert the non-
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III.
ground that Selene Finance was not a party to the mortgage contract
and therefore was not bound by its notice provisions. The Aubees
IV.
Savings.
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