Opinion
14-P-1456
12-09-2015
U.S. BANK NATIONAL ASSOCIATION, trustee, v. JOHN SCHUMACHER.
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 defendant appeals from an order denying his motion made pursuant to Mass.R.Civ.P. 60(b)(4) & (6), 365 Mass. 828 (1974). On appeal, he raises a number of arguments that can be broadly placed into two categories. The first is that because the plaintiff lacked standing to foreclose (for various reasons), the Housing Court lacked subject matter jurisdiction and, accordingly, the underlying judgment is void. Second, he raises a number of arguments (which we have set forth in the margin) as to why the plaintiff's foreclosure was invalid. By way of background, we note that on the defendant's appeal from the judgment, which challenged the validity of the foreclosure, the Supreme Judicial Court affirmed the plaintiff's possession of the property. U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421 (2014).
The defendant also appeals the order allowing the plaintiff's motion for issuance of execution.
The defendant argues that the assignment from Union Federal Bank of Indianapolis was invalid because it was not properly executed, that the evidence did not satisfy the requirements of U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637 (2011), that the mortgage was not assigned in accordance with the pooling services agreement, that the judge erred in accepting the evidence of the plaintiff's purchase at auction, and that the G. L. c. 244, § 15, affidavit was deficient.
The defendant's brief makes no argument concerning rule 60(b)(6). Any issue concerning that aspect of the judge's decision is waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Rule 60(b)(4) permits a judge to relieve a party from a final judgment that is void. However, where, as here, "a court has rendered judgment, and opportunities for appeal have been exhausted, a subsequent showing that the plaintiff did not, in fact, have standing does not mean that the judgment is void and must be vacated; the judgment is immune from postjudgment attack unless the court's exercise of jurisdiction constituted a 'clear usurpation of power.'" Southwick v. Planning Bd. of Plymouth, 72 Mass. App. Ct. 266, 268 (2008), quoting from Sarin v. Ochsner, 48 Mass. App. Ct. 421, 424 (2000). No such showing has been made here. The Housing Court had subject matter jurisdiction over the summary process action, see G. L. c. 185C, § 3, and there is no challenge to its personal jurisdiction over the parties, nor any allegation that the court deprived the defendant of due process, see Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527, 532 (1997). See also O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 455 (1991) ("In the interest of finality, the concept of void judgments is narrowly construed"); Reporter's Notes to Rule 60(b)(4), Mass. Ann. Laws Court Rules, Rules of Civil Procedure, at 1150 (LexisNexis 2015-2016) ("An erroneous judgment is not a void judgment. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or where it acted in a manner inconsistent with due process of law").
There being no error in the judge's conclusion that the underlying judgment was not void, and therefore not susceptible to relief under rule 60(b)(4), we need go no further. Accordingly, we do not reach the defendant's other arguments.
The plaintiff's request for attorney's fees and double costs is denied.
Order denying rule 60(b) motion affirmed.
Order allowing motion for issuance of execution affirmed.
By the Court (Cohen, Grainger & Wolohojian, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 9, 2015.