Shall we cultivate our garden?

We are in the summer doldrums in terms of issuance of decisions, but an interesting Order came down dated yesterday and appearing today on the First Circuit’s website – Thompson v. JP Morgan Chase, NA, No. 18-1559 (1st Circ., July 29, 2019).

The Order certifies a question to the Massachusetts SJC on an issue of state mortgage law. The matter was initially heard before Judges Thompson, Boudin and Kayatta (query why they are listed in that order in the Order when Judge Boudin is a senior judge). In that decision, the panel ruled in favor of the plaintiffs and said the bank could not foreclose, based on a purportedly inaccurate foreclosure notice. The bank filed a petition for rehearing and rehearing en banc “claiming for the first time” (oops!) that a state banking regulation required it to use the precise language in the notice. The Order characterizes this position as “debatable” and that normally it would let the decision stand, but other banks apparently predicted disaster in a pile of amici briefs filed with the petition, so off it goes to the SJC.

Ok, Cathy, you are saying to yourself, kind of interesting, but this is Massachusetts law, not Maine, so why remark upon this order which seems pretty sui generis (aside from reflecting the increasing importance of amici briefs at the Circuit level)?

Ah, mes amis, I cite this Order because of the following language contained therein:

“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”)”

Yes! They cited Candide! It makes the heart of this French major so long ago and far away go pitter-pat – and wonder who was the author of this Order? (simply issued “By the Court”).

For you literary aficionados, here’s more on the famous phrase and its origins.