Opinion
19-P-319
04-06-2020
U.S. BANK, NATIONAL ASSOCIATION, trustee, v. Marc A. BIANCO & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants and plaintiffs-in-counterclaim, Marc Bianco and Valerie Bianco (collectively, the Bianco defendants), are owners of a residential property located at 7 Holly Tree Lane in Wareham (the property) as tenants by the entirety. They principally appeal from a second amended judgment issued by a Superior Court judge that reformed a mortgage, held by U.S. Bank, National Association, as trustee for J.P. Morgan Alternative Loan Trust 2006-S4 (U.S. Bank), on the ground of mistake, namely, that although the mortgage was signed by Marc Bianco, it was the intent of the parties to include Marc's wife, Valerie Bianco, as a signer and borrower. On appeal, the Bianco defendants challenge the allowance of an unopposed motion for summary judgment in favor of U.S. Bank and the denial of two subsequent motions to reconsider that decision. For the reasons that follow, we affirm the second amended judgment.
As is discussed infra, the Bianco defendants have filed four notices of appeal that seek appellate review of: (1) a judgment dated November 29, 2016; (2) an amended judgment dated November 28, 2018; (3) a second amended judgment dated December 6, 2018; (4) an order dated January 17, 2018, denying motion, pursuant to Mass. R. Civ. P. 54 (b), to reconsider interlocutory grant of summary judgment; and (5) a decision and order dated November 26, 2018, denying motion for clarification of summary judgment decision.
1. Background. We summarize the facts stated in U.S. Bank's unopposed statement of undisputed material facts, reserving certain details for discussion of the issues. In 2005, both Marc Bianco and Valerie Bianco's interests in the property were encumbered by first and second mortgages (2005 mortgages) totaling $424,000, held by a different lender. In 2006, in connection with a refinancing, Marc Bianco, but not Valerie Bianco, granted a first mortgage (2006 mortgage) to Mortgage Electronic Registration Systems, Inc., as nominee for PHH Mortgage Corp. (PHH), in exchange for $468,975.86. This money was used to discharge the 2005 mortgages. Because Valerie Bianco retained an ownership interest in the property but did not join Marc Bianco in mortgaging her interest in 2006, PHH's 2006 mortgage did not encumber the entire property. In 2011, PHH assigned the 2006 mortgage to U.S. Bank, which brought the present action.
2. Procedural history. As the procedural history is relevant to our decision, we recite it in detail. U.S. Bank brought the underlying action in 2013, alleging that PHH and the Bianco defendants intended that the 2006 mortgage would encumber the entire property but that through error or other mistake Valerie Bianco did not sign the 2006 mortgage and her name was crossed out in various places on the 2006 mortgage. The verified complaint sought, among other relief, reformation of the mortgage to include Valerie Bianco as a signer and borrower. U.S. Bank also named as a defendant Navy Federal Credit Union (NFCU), which held a separate mortgage interest in the property. Marc Bianco and Valerie Bianco filed counterclaims alleging unjust enrichment, malicious prosecution, intentional infliction of emotional distress, and seeking discharge of lis pendens. U.S. Bank filed a third-party complaint against Mark Petti, PHH's closing attorney for the 2006 refinancing, for negligence, indemnity, and contribution.
On May 19, 2016, U.S. Bank filed a motion for summary judgment that was accompanied by a statement of undisputed facts as required by Superior Court Rule 9A (b) (5) (i). The defendants did not oppose the motion for summary judgment. Following hearing on that motion at a May 23, 2016 pretrial conference, the motion was allowed by endorsement on May 27, 2016. Both parties then submitted competing proposed judgments. A judgment issued on August 1, 2016, declaring that the 2006 mortgage was a valid encumbrance against the interests of both Marc Bianco and Valerie Bianco. On September 12, 2016, the Bianco defendants filed a motion to amend that judgment, pursuant to Mass. R. Civ. P. 52 (b), as amended, 423 Mass. 1402 (1996), and Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), in which they argued as follows:
"[T]he judgment should be altered or amended to reflect that it was the intention of the parties that [d]efendant Valerie Bianco execute a deed granting title to the [d]efendants' primary residence to [d]efendant Marc Bianco, and, as such, the [j]udgment should be further altered or amended to provide relief in the form of reformation of the deed to [d]efendants' property by removing [d]efendant Valerie Bianco."
After the filing of this motion, the judgment dated August 1, 2016, was vacated due to clerical error, and the parties were directed to appear for a status conference. Following this status conference, a new judgment issued on November 29, 2016, which reformed the 2006 mortgage to include Valerie Bianco as signer and borrower. The Bianco defendants filed a notice of appeal from this judgment.
On December 5, 2017, over one year later and with new counsel, the defendants filed an "emergency motion to reconsider, pursuant to Mass. R. Civ. P. 54 (b), interlocutory grant of summary judgment" (2017 motion for reconsideration). This motion alerted the court that the judgment dated November 29, 2016, was interlocutory as the Bianco defendants still had pending counterclaims, leave of court had not been obtained to dismiss third-party claims against Petti, a default judgment had not entered against NFCU, and the judgment had not been entered as a separate and final one under Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). This motion also raised, for the first time, substantive arguments that the motion for summary judgment should not have been allowed on the grounds of (1) the undisputed fact that Valerie Bianco did not sign the mortgage or note and other refinancing documents, (2) the statute of frauds, (3) the statute of limitations, (4) laches, and (5) the inapplicability of the doctrine of equitable subrogation. This motion was summarily denied on January 17, 2018. The Bianco defendants filed a notice of appeal from this order. Over protest, the Superior Court assembled the record and an appeal was entered in this court.
By motion in this court, the Bianco defendants renewed their argument that the case was not ripe for appeal and sought to remand the case or for permission for piecemeal appellate review. This court entered an order (remand order) that granted the parties "leave to file, and the trial court leave to consider, a motion for entry of final judgment, motion for clarification of the summary judgment order entered, or both." On June 29, 2018, the defendants filed a motion, captioned as a motion for clarification of summary judgment (2018 motion for clarification), but in effect sought a second reconsideration of summary judgment raising similar arguments that were rejected in the denial of the 2017 motion for reconsideration. After a hearing, the judge entered a written memorandum of decision and order denying the motion for clarification both on the merits and because the arguments had not been made prior to the allowance of summary judgment. The decision and order directed entry of a judgment consistent with the judgment dated November 29, 2016, and "that, pursuant to Mass. R. Civ. P. 54 (b), this judgment shall enter as a separate and final judgment in U.S. Bank's favor on all claims and issues between U.S. Bank and Marc A. Bianco and Valerie Bianco." An amended judgment issued on November 28, 2018, and was followed by a second amended judgment issued on December 6, 2018. The Bianco defendants filed a notice of appeal from these judgments as well as the decision and order on the 2018 motion for clarification.
Agreeing that there was no final appealable judgment or separate and final judgment, U.S. Bank assented to remand.
The second amended judgment dated December 6, 2018, is identical to the amended judgment dated November 28, 2018, with the exception of correcting one typographical error.
3. Discussion. a. Motion for summary judgment. We review the allowance of a motion for summary judgment de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). The Bianco defendants argue that in granting summary judgment to U.S. Bank, the judge erred in finding, as a matter of law, full, clear, and decisive proof of a mutual mistake to support reformation of the 2006 mortgage. See NationsBanc Mtge. Corp. v. Eisenhauer, 49 Mass. App. Ct. 727, 730 (2000). We disagree. The Bianco defendants did not oppose summary judgment. Under Superior Court Rule 9A (b) (5) (iii), the effect of the Bianco defendants' failure to controvert U.S. Bank's statement of undisputed material facts was that those facts were deemed admitted. From these facts and the materials in the summary judgment record, it was undisputed that there was a mistake, i.e., that it was contemplated by the parties that Valerie Bianco would (but ultimately did not) execute a deed relinquishing her interest in the property to Marc Bianco thus perfecting PHH's security interest in the property. While the statement of undisputed material facts is explicit that this was PHH's intent, the Bianco defendants' intent is evidenced by their use of the money received from PHH to discharge the 2005 mortgages on which Valerie Bianco was a borrower, and from the fact that following the closing, Valerie Bianco traveled to the closing attorney's office and signed a release of homestead rights but not the deed conveying her interest to her husband. Further, it is significant that prior to the entry of the judgment dated November 29, 2016, the Bianco defendants took the position in their September 12, 2016 motion under Mass. R. Civ. P. 52 (b) and 59 (e) that it was the parties' intent (not solely PHH's intent) that Valerie Bianco would execute the deed to Marc Bianco. As the motion for summary judgment was unopposed, the judge was not required to independently review the entire summary judgment record himself to find disputed material facts. See Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 401 (2002) ("The judge acted within her discretion in taking as admitted those facts asserted by the moving party ... that were not disputed by the party opposing the motion for summary judgment"). See also Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct. 824, 831 n.9 (2016) (declining to consider effect of affidavit in summary judgment record where it was not brought to judge's attention). On the basis of the mistake, the judge properly granted summary judgment to U.S. Bank.
b. 2017 motion for reconsideration. Similarly, the judge did not err in summarily denying the 2017 motion for reconsideration. We review the judge's denial of a motion for reconsideration for abuse of discretion. See Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am., 82 Mass. App. Ct. 461, 470 (2012). Where the 2017 motion for reconsideration was brought more than a year after the allowance of summary judgment, introduced new legal theories for the first time, and raised facts that could have been brought to the court's attention prior to the allowance of the motion for summary judgment, the judge was warranted in summarily denying the motion. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 312 (2009). See also Merchants Ins. Group v. Spicer, 88 Mass. App. Ct. 262, 271 (2015), quoting Commonwealth v. Gilday, 409 Mass. 45, 46 n.3 (1991) ("A motion for reconsideration is not the ‘appropriate place to raise new arguments inspired by a loss before the motion judge in the first instance’ ").
Similar to the order at issue in Comcast Corp., 453 Mass. at 313, the order at issue here, while technically interlocutory and subject to reconsideration any time, was " ‘interlocutory’ only in the sense that it was not appealable until final judgment entered. The order, however, was a ruling on the only relief sought in the [the plaintiff's] complaint." Id. A party should not expect reconsideration to be undertaken lightly in this circumstance. See Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949, 949-950 (1983) ("Summary judgment is not a casual procedure. It is a proceeding that bids fair to be dispositive of the case and casual or supine reaction to a moving party's affidavits is not a minor error").
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c. 2018 motion for clarification. Although the judge, when denying the 2018 motion for clarification, considered the merits of the Bianco defendants' arguments in favor of reconsidering summary judgment, their appeal from the judge's decision and order on this motion is not properly before us. By the time the 2018 motion for clarification was filed, the Bianco defendants' appeal had already entered in this court, which divested the Superior Court of jurisdiction to reconsider the judgment. See Commonwealth v. Cronk, 396 Mass. 194, 197 (1985) (lower court is divested of jurisdiction once appeal has entered). Although this court remanded the case to the Superior Court, it did so only for the limited purpose of granting leave to consider a motion for clarification of the summary judgment order entered or entry of final judgment. The ensuing motion, although captioned as one for clarification, was wholly unrelated to the reason remand was sought by the Bianco defendants and granted by this court. To the extent the Superior Court judge addressed the merits of the reconsideration arguments in denying the motion, the judge was without jurisdiction to do so and the appeal from that order is not properly before us.
Second amended judgment dated December 6, 2018, affirmed.