Opinion
09-P-2309
08-15-2011
SHANKAR L. GARG & another v. ARA ERESIAN, JR., & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Shankar L. Garg and Tony B. Bahnan, brought a Superior Court action seeking declaratory and injunctive relief from attempts by the defendants, Ara Eresian, Jr. and John Wilson, to foreclose upon certain real property located in Worcester. The plaintiffs moved for summary judgment, and a judge allowed the motion. The defendants appeal the judgment. We affirm.
Although Wilson filed a notice of appeal in Superior Court, he failed to pursue his appeal before this court.
This case arises from the defendants' third action in Superior Court attempting to collect on a promissory note. A Superior Court judge dismissed the first two actions with prejudice. This first action became final without appeal, and this court affirmed the judgment dismissing the second action in a summary disposition. See Wilson v. Bahnan, 58 Mass. App. Ct. 1101 (2003).
Having failed to collect on the note, the defendants in their third action attempted to foreclose on the associated mortgage. In response, the plaintiffs filed this action seeking temporary and permanent injunctions against the foreclosure and a declaratory judgment that both the promissory note and mortgage were void and unenforceable. Due to the defendants failing to file responsive pleadings, default entered on June 10, 2004, against them pursuant to Mass.R.Civ.P. 55(a), 365 Mass. 823 (1974). In addition, the judge ordered the plaintiffs to move for assessment of damages and final judgment by July 10, 2004.
Instead, the plaintiffs moved for summary judgment on June 14, 2004. The defendants attempted to remove this action to the United States District Court for the District of Massachusetts the following day, and the plaintiffs opposed the removal. Despite the pending removal, the judge held a hearing on the plaintiffs' motion for summary judgment on June 21, 2004. In light of the pending removal, the judge, on July 20, 2004, allowed the plaintiffs' motion to stay action on the default order retroactive to July 10, 2004.
A Federal judge remanded the case to Superior Court on September 15, 2004. On October 21, 2004, the plaintiffs moved for further consideration of their motion for summary judgment, and the judge scheduled an additional hearing for January 14, 2005. The defendants, by letter, declined to participate in this hearing, which went forward as scheduled. The judge allowed the plaintiffs' motion for summary judgment and judgment entered on January 28, 2005. This appeal followed.
The defendants appealed the remand, but a judge of the United States Court of Appeals for the First Circuit ordered the defendants to move for voluntary dismissal or to show cause why the appeal should not be dismissed. See 28 U.S.C. § 1447(d) (2006). The record discloses no response from the defendants. We assume the defendants never showed cause and that their appeal was dismissed.
On appeal, Eresian argues that (1) the judge's failure to require the plaintiffs to comply with the June 10, 2004, default order or to hold a hearing pursuant to Mass.R.Civ.P. 55(b)(2), as amended, 423 Mass. 1402 (1996), renders the judgment void, and (2) the court lacked subject matter jurisdiction because the plaintiffs failed to name a necessary party. Both arguments fail.
The 2008 and 2009 amendments to rule 55(b)(2) do not apply. See 450 Mass. 1402 (2007); 454 Mass. 1401 (2009).
On February 8, 2011, a suggestion of bankruptcy was filed in this court by Joseph S. DiMare asserting that DiMare, who is not a party to this appeal or the lower court case, had listed the real property, in which the mortgage at issue granted a security interest, as an asset on the bankruptcy schedules he submitted along with his Chapter 7 bankruptcy petition to the United States Bankruptcy Court for the District of Massachusetts (Bankruptcy Court). A judge of the Bankruptcy Court dismissed the petition and the order entered on June 3, 2011. We have concurrent jurisdiction with the Bankruptcy Court to determine the applicability of the automatic stay provision of the United States Bankruptcy Code, 11 U.S.C. § 362(a) (2006), see Lombardo v. Gerard, 32 Mass. App. Ct. 589, 593-594 (1992), and we conclude that the automatic stay is no longer in place.
Moreover, to the extent that the automatic stay does remain in place as to DiMare and his property, we conclude that affirming the Superior Court judgment does not violate the automatic stay provision. See 11 U.S.C. § 362(a). Because DiMare is not a defendant or party in these proceedings, this matter is not a 'judicial . . . action or proceeding against [DiMare] . . . or to recover a claim against [DiMare]' (emphasis added). Id. at § 362(a)(1). Nor does affirming the judgment constitute 'enforcement, against [DiMare] or against property of [DiMare's] estate, of a judgment,' id. at § 362(a)(2); an act to obtain possession or control of property of DiMare's estate, id. at § 362(a)(3); an act to create, perfect, or enforce a lien against property of DiMare's estate, id. at § 362(a)(4) and (5); an act to collect, assess, or recover a claim against DiMare, id. at § 362(a)(6); the setoff of any debt owing to DiMare against any claim against DiMare, id. at § 362(a)(7); or a proceeding before the United States Tax Court concerning DiMare's tax liability, id. at 362(a)(8). The automatic stay therefore never precluded our resolution of this appeal.
As to Eresian's first argument, judgment entered against the defendants after the judge held a hearing, in which the defendants refused to participate, and allowed the plaintiffs' summary judgment motion. Even assuming that there were procedural defects related to the entry of default, any defect is wholly irrelevant. By electing not to appear for the January 14, 2005, hearing, the defendants have waived any challenges to the judge's decision to allow summary judgment and any assertion that they were deprived of their due process rights.
In addition, the defendants have waived the argument that the entry of default was defective by failing to seek the remedies in Mass.R.Civ.P. 55(c), 365 Mass. 823 (1974), and Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).
As to Eresian's second argument, the defendants raised no argument below about the plaintiffs' purported failure to join a necessary party. Despite Eresian's attempt to cast this claim as one of subject matter jurisdiction, the argument is waived. See Amrhein v. Amrhein, 29 Mass. App. Ct. 336, 339 (1990).
Judgment affirmed.
By the Court (Mills, Green & Vuono, JJ.),