Summary
reaffirming that if a mortgagor wants to challenge a foreclosure by entry, "it is incumbent on him to do so before the three-year period has elapsed."
Summary of this case from Sunningdale Ventures, Inc. v. MartinOpinion
13-P-1902
01-30-2015
U.S. NATIONAL ASSOCIATION v. WILLIAM M. MCDERMOTT.
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, William M. McDermott, appeals from summary judgment in favor of the plaintiff, U.S. National Association, as indenture trustee on behalf of the Noteholders of Aegis Asset backed Securities Trust 2005-3 Mortgage-Backed Notes (U.S. National), in U.S. National's summary process action. The Housing Court judge ruled that McDermott's challenge to U.S. National's foreclosure by entry was barred by the three-year redemption period provided in G. L. c. 244, §§ 1 & 2, and by principles of claim preclusion. We affirm.
For the procedural history and undisputed facts, we refer to U.S. National's brief at pages 3 to 9.
The judge correctly determined that McDermott waited too long to challenge alleged deficiencies in the foreclosure by entry. Under G. L. c. 244, §§ 1 & 2, McDermott's right of redemption was extinguished three years following U.S. National's entry and recording of the memorandum or certificate of entry. According to the record, entry occurred on September 17, 2008, and recording of the certificate of entry on October 20, 2008. U.S. National served McDermott with a summary process summons and complaint on May 8, 2012, and McDermott filed his answer on May 31, 2012. In Singh v. 207-211 Main St., LLC, 78 Mass. App. Ct. 901, 902 (2010), we stated that, "[i]f a mortgagor wants to challenge a foreclosure by entry, it is incumbent on him to do so before the three-year period has elapsed." We therefore reject McDermott's argument that c. 244, §§ 1 & 2, does not operate to bar his claims.
Section 1 of G. L. c. 244, as amended through St. 1991, c. 157, § 2, provides: "A mortgagee may, after breach of condition of a mortgage of land, recover possession of the land mortgaged by an open and peaceable entry thereon, if not opposed by the mortgagor or other person claiming it, or by action under this chapter; and possession so obtained, if continued peaceably for three years from the date of recording of the memorandum or certificate as provided in section two, shall forever foreclose the right of redemption."
The judge also correctly ruled that McDermott's defenses in the summary process action were barred by principles of claim preclusion. "A claim is the same for [claim preclusion] purposes if it is derived from the same transaction or series of connected transactions." TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass. App. Ct. 1, 8 (1999), quoting from Saint Louis v. Baystate Med. Center, Inc., 30 Mass. App. Ct. 393, 399 (1991). In defending against the summary process action, McDermott asserted that U.S. National did not have proper title to the property and that it failed to demonstrate strict compliance with the statutory foreclosure procedure. As relevant here, McDermott claimed in particular that U. S. National failed to conduct a peaceable entry onto the property, since McDermott had refused to permit the U.S. National's agent to enter the condominium building, and the foreclosure was conducted on the sidewalk.
There is no dispute, however, that the foreclosure by entry took place while McDermott's first action, seeking rescission of the mortgage, was pending. Indeed, McDermott amended his complaint in the first action and specifically added the fact that the foreclosure had occurred. Plainly, the facts that form the basis of his defense in the summary process action were known to him while the first action was ongoing. See, e.g., Fassas v. First Bank & Trust Co. of Chelmsford, 353 Mass. 628, 629 (1968) (res judicata applied where all facts relating to validity of foreclosures were known to plaintiffs during their prior action alleging fraud and duress in issuance of note and mortgages). Yet McDermott failed to raise his claim concerning alleged defects in the foreclosure until U.S. National filed the instant summary process action seeking possession.
Claim preclusion "bars further litigation of all matters that were or should have been adjudicated" in the earlier action. Bagley v. Moxley, 407 Mass. 633, 637-638 (1990) (gravamen of plaintiffs' complaint in both actions was claimed ownership of disputed land). A judgment in the first action "extinguishes . . . all rights of a plaintiff to remedies against the defendant with respect to all or any part of the transactions . . . out of which the action arose." Massaro v. Walsh, 71 Mass. App. Ct. 562, 565 (2008), quoting from Restatement (Second) of Judgments § 61(1) (Tent. Draft No. 5, 1978). McDermott's claims in both actions involved the parties' respective rights and obligations under the mortgage. As such, we view them as transactionally related, and the present claim attacking the foreclosure should have been brought during the pendency of the earlier litigation. See, e.g., Kucharski v. Tribeca Lending Corp., 620 F. Supp. 2d 147, 150-151 (D. Mass. 2009) (suit challenging foreclosure and subsequent suit challenging refinancing disclosures arose from same loan transaction and implicated parties' rights in relation to loan and mortgaged premises).
McDermott counters that U.S. National, for its part, could have brought its summary process claim as a counterclaim in the first action, and that if McDermott's claim is now precluded, so too is U.S. National's claim. There is no indication in the record that McDermott raised that argument in the summary judgment proceedings, nor does he provide authority for the proposition, and we do not consider it. See, e.g., Department of Rev. v. Estate of Shea, 71 Mass. App. Ct. 696, 701 (2008) (argument not raised in opposing summary judgment cannot be raised on appeal for first time). See also Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Morgan v. Laboratory Corp. of America, 65 Mass. App. Ct. 816, 821 n.6 (2006) ("[M]ere assertion of a proposition without citation does not constitute appellate argument"). We find his reliance on the doctrine of judicial estoppel similarly unavailing.
Based on the foregoing, the judge properly entered summary judgment in U.S. National's favor.
Judgment affirmed.
By the Court (Graham, Brown & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 30, 2015.