Opinion
15-P-367
04-15-2016
RONALD R. GEORGES v. BOSTON POLICE BADGE NO. 2239 & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Ronald R. Georges, appeals from the dismissal of his complaint seeking to quiet title. Georges argues that a so-called "deed of trust," executed by the mortgagor, Steven Hankins, two months after a foreclosure sale, entitles Georges to quiet title and to possession of 3 Abbotsford Street in the Dorchester section of Boston (the property).
The property purportedly was conveyed to Georges by the deed of trust on April 7, 2012. The record indicates that the instrument was not recorded. The deed of trust states in relevant part:
"I, Steven Hankins, affirm all rights, interest and titles for the property of 3 Abbotsford street in Dorchester, Massachusetts 02121 to new owner Ronald R. Georges, so as no bank, or corporate entity (M.E.R.S, Bank of America,) acting as 'lender' would trample on his rights as owner of said property at 3 Abbotsford street in Dorchester, Massachusetts 02121."
Discussion. We review a dismissal for lack of standing using the same standards for dismissal under Mass.R.Civ.P. 12(b)(1) and (6), 365 Mass. 754 (1974). See Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998); Bevilacqua v. Rodriguez, 460 Mass. 762, 764 (2011). A dismissal under Mass.R.Civ.P. 12(b)(1) and (6) requires a de novo standard of review. Housman v. LBM Financial, LLC, 80 Mass. App. Ct. 213, 216 (2011). "In reviewing a dismissal under rule 12(b)(1) or (6), we accept the factual allegations in the plaintiff['s] complaint, as well as any favorable inferences reasonably drawn from them, as true." Ginther, supra.
The complaint was properly dismissed by the Superior Court judge because Georges lacks standing as to all of the claims and potential claims asserted in the complaint. He had no interest in the mortgage, the first assignment, the second assignment, or the property prior to the February 8, 2012, foreclosure sale to the Federal National Mortgage Association. At the time the deed of trust was executed, a foreclosure sale on the property had already taken place. Hankins held no interest in the property after the foreclosure. Therefore, Hankins could not convey any interest to Georges on April 7, 2012, because the deed of trust was completed after Hankins's interest in the property was extinguished. See Bongaards v. Millen, 440 Mass. 10, 15 (2003) ("Where, as here, the grantor had nothing to convey, a mutual intent to convey and receive title to the property is beside the point. The purported conveyance is a nullity, notwithstanding the parties' intent"). As a result, the deed of trust is a nullity and Georges lacks standing to bring any claim related to his alleged interest in the property.
The foreclosure deed was executed as a sealed instrument on February 8, 2012, and recorded in the Suffolk County registry of deeds at book number 49064, page number 344.
Even if one whose property has been foreclosed upon can transfer to a third party his right to challenge that foreclosure, Georges has not persuaded us that a deed of trust is an effective means of doing so.
Mortgages and assignments of mortgages are contracts in Massachusetts. See Spellman v. Shawmut Woodworking & Supply, Inc., 445 Mass. 675, 681 (2006); JPMorgan Chase & Co. v. Casarano, 81 Mass. App. Ct. 353, 355-356 (2012). Accordingly, a plaintiff must either be a party to the contract at issue or an intended third-party beneficiary of it to prosecute an action based on that contract. Monahan v. Methuen, 408 Mass. 381, 391 (1990). Georges is neither a named party nor an intended beneficiary in any of contractual transactions between the mortgagor and mortgagee (e.g., the mortgage, the first assignment, or the second assignment).
Judgment affirmed.
By the Court (Trainor, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 15, 2016.