COMMONWEALTH OF MASSACHUSETTS ESSEX, SS HOUSING COURT DEPT. DOCKET NO. 18H77SP001925 a ~) JASON SCADUTO, ) ) Plaintiff, ) 2 v. , ? ROBERT MALONSON, and ) LINDA MALONSON ) ) Defendants. ) a) PLAINTIFF'S MOTION TO STRIKI THE “AFFIDAVIT AND TESTIMONY” OF MARIE MCDONNELL, The Plaintiff Jason Scaduto (“Plaintiff” or “Mr. Scaduto”) respectfully requests that this Court issue an Order striking the “Affidavit and Testimony of Marie McDonnell, CFE in Support of Defendants’ Motion for Summary Judgment” (the “McDonnell Affidavit”) SUMMARY fore. [plas In support of their Motion for Summary Judgment, the Defendants offer the McDonnell i Affidavit. Pursuant to Mass. R.Civ.P. 56 any affidavit must be based on admissible facts and personal knowledge. Instead, the McDonnell Affidavit consists of opinion, speculation, irrelevant material, inadmissible hearsay, and legal conclusions. Therefore, the McDonnell Affidavit, and the exhibits cited to therein, should be struck and not be considered by the Court in ruling on the Defendants’ summary judgment motion.COMMONWEALTH OF MASSACHUSETTS ESSEX, ss HOUSING COURT DEPARTMENT OF THE TRIAL COURT NORTHEASTERN DIVISION DOCKET No. 16H77SP001925 JASON SCADUTO, Plaintiff, ROBERT P. MALONSON, and LINDA MALONSON, Defendants. d ) ) ) vs, ) ) ) > ) This is a summary process action brought for possession of the subject premises after foreclosure of a mortgage. Defendants reside at the subject property located at 52 Saville Road in Saugus, Massachusetts (“Premises”). Plaintiff is a bona fide purchaser of the Premises and the current owner. Defendants seek entry of summary judgment for the reasons that (1) they allege that the default notice they received per paragraph 22 of their mortgage did not strictly comply with the terms of that paragraph in that it contained an incorrect monetary amount to cure; and (2) that the entity conducting the foreclosure proceedings was not the holder of the underlying note, or the holder's authorized agent. See Eaton v. Federal National Mortgage Ass'n, 462 Mass. 569, 586 (2012). [heard Defendants’ Motion for Summary Judgment in the Lynn Session of this Court on September 18, 2018. After considering the parties’ argument and the papers and affidavits filed in favor of, and in opposition to, Defendants’ Motion for Summary Tudgment, I rule as follows:1. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56(c). “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Mass. R. Civ. P. 56(e). 2. Defendants’ two defenses that form the basis for their Motion for Summary Judgment were not asserted in their Answer. These defenses were raised in an amended Answer attached to a Motion to Amend Pleadings. The docket sheet does not indicate that that Motion ‘was ever allowed by the Court. Where a party seeks to amend a pleading to which no responsive pleading is permitted, he/she may do so by right within 20 days after it is served, otherwise the party may amend the pleading only by leave of court or by written consent of the adverse party. Mass. R. Civ. P. 15(a). I will allow Defendant's Motion to Amend Pleadings presently, since Plaintiff has not raised the issue and has stated a substantive opposition to the merits of those defenses. 3. Whether the amount stated in the default notice was inaccurate is a genuine issue of material fact that must be determined at trial. I do agree, however, that an incorrect monetary amount (if proven) stated in a mortgage paragraph 22 default notice is incompatible with the