Opinion
11-P-701
03-01-2012
AURORA LOAN SERVICES, LLC v. DAVID F. KIAH.
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
Defendant David F. Kiah, proceeding pro se, concedes he is not a servicemember entitled to the protections of the Servicemembers Civil Relief Act (Servicemembers Act or Servicemembers action), but nonetheless has filed this appeal claiming that the Land Court judge erred in concluding that the plaintiff, Aurora Loan Services, LLC (Aurora), had standing to bring a Servicemembers action against him. 'As implemented in Massachusetts, a mortgage holder is required to go to court and obtain a judgment declaring that the mortgagor is not a beneficiary of the Servicemembers Act before proceeding to foreclosure. St. 1943, c. 57, as amended through St. 1998, c. 142.' U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 642 n.13 (2011). Although Aurora was the assignee of Kiah's mortgage when it commenced the instant Servicemembers action against him on January 20, 2010, Aurora was not an assignee of the mortgage when it issued to Kiah a ninety-day default notice on October 6, 2009. Kiah claims, therefore, that the judge erred in finding that Aurora had standing to bring the Servicemembers action, and the judgment entered should be voided. Compare id. at 651 (holding foreclosure sales invalid where foreclosing party was not holder of mortgage at time of notice of foreclosure and foreclosure sale).
Pro se litigants are held to the same standard as those represented by counsel. See Mains v. Commonwealth, 433 Mass. 30, 35-36 (2000), and cases cited. Kiah has failed to include the judgment appealed from, the notice of appeal, the original complaint, and other materials from the record that would have facilitated review of his appeal. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). We comment briefly on the merits of the appeal as we discern them from the limited record provided.
Acting on Kiah's motion to dismiss, which he failed to include in the record appendix, the judge concluded that even accepting that the ninety-day default notice may have been flawed, the argument is one of 'many meritorious issues pertaining to the mortgagee's ultimate right to foreclose . . . which may not properly be raised in a Servicemembers Action such as this.' We agree.
Servicemembers actions 'are not in themselves mortgage foreclosure proceedings in any ordinary sense. Rather, they occur independently of the actual foreclosure itself and of any judicial proceedings determinative of the general validity of the foreclosure.' Beaton v. Land Ct., 367 Mass. 385, 390 (1975). See Ibanez, 458 Mass. at 645-646. Foreclosure defenses such as no breach of the mortgage or a prior pending action to redeem and discharge the mortgage have no place in proceedings under the Servicemembers Act where the only issue is whether a mortgagor is entitled to the Act's protections. Beaton, supra at 391. The judge was satisfied and Kiah concedes that Aurora was the assignee of the mortgage when it commenced the instant Servicemembers action. We cannot fairly say the judge erred in concluding Aurora had standing to bring the action. If Kiah believed the ninety-day default notice was defective and rendered ineffective any effort to foreclose, an issue we need not decide, he could have filed an action to enjoin the foreclosure. Indeed, although his reply brief suggests that he does not seek to challenge the validity of the foreclosure, the record reflects that he has filed multiple actions pursuing his legal theories. The Servicemembers action is not the appropriate forum, however, to challenge the ninety-day default notice.
Deciding as we do, we need not discuss the propriety of the multiple motions Kiah filed in this court, including a motion to modify the record, and a motion 'for investigation of possible fraud on the court.' Nor do we need to act upon Aurora's motion to strike Kiah's brief.
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Judgment affirmed.
By the Court (Green, Brown & Agnes, JJ.),