Opinion
20-P-28
05-07-2021
WELLS FARGO BANK, NATIONAL ASSOCIATION v. Scott M. TROCKI & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this postforeclosure summary process action, the defendant Scott M. Trocki, a former coowner (with Denise M. Trocki) of the property located at 188 Wareham Street in Middleboro (property), appeals from summary judgment ordered by a judge of the Housing Court in favor of the plaintiff, Wells Fargo Bank, National Association, as trustee of Option One Mortgage Loan Trust 2004-2, Asset-Backed Certificates, Series 2004-2 (Wells Fargo), and against Scott M. Trocki, Denise M. Trocki, Danielle R. Trocki, Lindsey L. Trocki, Travis Trocki, and Zachary C. Trocki (collectively, the defendants). We affirm summary judgment in favor of Wells Fargo on all claims and counterclaims, except for Scott's and Denise's foreclosure-related counterclaims alleged under G. L. c. 93A. As to those counterclaims, we reverse the judgment and remand the matter to the Housing Court for further proceedings consistent with this decision.
Because the defendants share the same last name we refer to the parties by their first name for ease of reference.
Scott is the only defendant to file a notice of appeal and brief in this action.
Background. We summarize the undisputed facts drawn from the summary judgment record. Scott and Denise purchased the property in 1991. On March 10, 2004, Scott and Denise executed a promissory note in the amount of $232,000 (note) to Option One Mortgage Corporation (Option One), secured by a mortgage on the property (mortgage). The mortgage was duly recorded on March 15, 2004, with the Plymouth County Registry of Deeds.
On March 9, 2011, Option One, then operating as Sand Canyon Corporation, assigned the mortgage to Wells Fargo, and the assignment was recorded. Option One assigned (by way of two separate allonges) the note, which was subsequently made payable to Wells Fargo.
By December 2015, Scott and Denise had fallen behind in their mortgage payments. In November 2016, Wells Fargo advised them of its intent to foreclose by issuing the preforeclosure notices required under the terms of the note, mortgage, and relevant statutes, and then scheduled and noticed a foreclosure sale of the property for December 22, 2016. See G. L. c. 244, §§ 14, 15. Wells Fargo was the high bidder at the auction sale, following which it received and duly recorded a foreclosure deed for the property. An affidavit of sale, see G. L. c. 244, § 15, as well as affidavits confirming that Wells Fargo held the note at the times relevant to the foreclosure, and had complied with G. L. c. 244, §§ 35B and 35C, were recorded with the Registry of Deeds.
The affidavit of sale tracked the model statutory form of an affidavit of sale under a mortgage found at form twelve of the Appendix to G. L. c. 183, and was thus "sufficient" to satisfy the requirements of G. L. c. 244, § 15. See Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 568-569 (2012).
Neither Scott nor Denise vacated the property after the foreclosure or the March 23, 2017 notice to quit sent by Wells Fargo. On May 30, 2017, Wells Fargo filed a summary process complaint against Scott and Denise in the Housing Court. They answered the complaint, challenging "the landlord[’s]" superior right of possession in the property and raising counterclaims and defenses for discrimination based on an unspecified disability; defective conditions at the property; utility payments made in the absence of a written agreement with "the landlord"; and "foreclosure-related" G. L. c. 93A violations regarding unfair treatment in Wells Fargo's handling of Scott's and Denise's attempts at loan modifications, its issuance of preforeclosure notices, and its predatory loan practices.
That complaint was subsequently consolidated with a later complaint filed against the remaining defendants, who also were residing at the property.
There is no indication in this record that the remaining defendants (those other than Scott and Denise) filed an answer or counterclaim to Wells Fargo's summary process complaint.
The defendants also stated as counterclaims "[f]orced [i]nsurance, improper crediting, no statements, escrow management and [d]iscovery."
Wells Fargo moved for summary judgment against the defendants on its complaints for possession, and on the majority of Scott's and Denise's counterclaims; the motion did not, however, address Scott's and Denise's foreclosure-related G. L. c. 93A counterclaims. None of the defendants filed an opposition to Wells Fargo's motion. All of the defendants other than Zachary Trocki attended the hearing on the motion; Scott argued on their behalf. After the hearing, in a detailed written memorandum of decision, the judge allowed Wells Fargo's motion, and summary judgment entered for Wells Fargo on all claims and counterclaims. Only Scott appealed.
Although, as Scott contends, Wells Fargo failed to include Scott on the certificate of service for the motion, Scott does not dispute his actual notice of the motion or the subsequent hearing. See Rule 6 of the Uniform Summary Process Rules (1993) (requiring service of pretrial motions on opposing counsel or party).
His presentation did not include any substantive information relating to the claims, defenses, or counterclaims raised by the summary judgment motion.
Discussion. 1. Standard of review. We review a grant of summary judgment de novo, relying on the record before the motion judge. See Lynch v. Crawford, 483 Mass. 631, 641 (2019). Where the party moving for summary judgment bears the burden of proof at trial, as was the case here with respect to Wells Fargo's claims against the defendants, "[t]he standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Where the party opposing summary judgment bears the burden of proof at trial, as Scott and Denise did on their counterclaims, the moving party may prevail "if he [or she] demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), [as amended, 436 Mass. 1404 (2002),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "In deciding a motion for summary judgment the court may consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits." Niles v. Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18 (2017).
2. Claims relating to possession. Moving for summary judgment on its claims for possession, Wells Fargo produced, among other things, an attested copy of its recorded foreclosure deed for the property, and an affidavit of sale under G. L. c. 244, § 15. In doing so, it made out its prima facie claim for possession of the property. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637–638 (2012), citing Lewis v. Jackson, 165 Mass. 481, 486–487 (1896). The burden then shifted to the defendants to rebut that showing by "submit[ting] evidence sufficient to create a triable issue of fact." Rosenfeld v. Zoning Bd. of Appeals of Mendon, 78 Mass. App. Ct. 677, 681 (2011). They did not do so, and thus, summary judgment properly entered against them. ,
As we note, supra, the defendants failed to oppose the motion for summary judgment. Scott and Denise simply having raised defenses to the plaintiff's claim in their answer was insufficient to defeat Wells Fargo's motion against them. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 648 (2002) ("adverse party may not manufacture disputes by conclusory factual assertions").
To the extent that in his record on appeal Scott included documents that, if presented to the judge, might have created a question of material fact (a point about which we are not optimistic), we do not consider the new materials for the first time on appeal. See Lynch, 483 Mass. at 641 ("We review an order granting or denying summary judgment de novo because the record before us is the same as the record before the motion judge, and the decision is a matter of law rather than of discretionary judgment" [emphasis added]); Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016), quoting LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012) (appellate review of grant of summary judgment made on "de novo examination of the evidence in the summary judgment record" [emphasis added]).
We likewise conclude that Wells Fargo was entitled to summary judgment for which it moved on Scott's and Denise's defense and counterclaims for disability discrimination and failure to make reasonable accommodation; violations of G. L. c. 239, § 8A, and the implied warranty of habitability; and breach of quiet enjoyment pursuant to G. L. c. 186, § 14, and G. L. c. 93A.
As the judge correctly noted, as holdover occupants after the foreclosure, the defendants were tenants at sufferance, and so, specifically, Scott and Denise were not entitled to assert defenses or counterclaims under G. L. c. 239, § 8A. See Bank of New York Mellon v. Morin, 96 Mass. App. Ct. 503, 514 (2019), citing Singh v. 207-211 Main St., LLC, 78 Mass. App. Ct. 901, 903 (2010) ("After an entry to foreclose, a mortgagor becomes a tenant at sufferance"); Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 572 (2012) (where defendants did not allege that premises were ever rented or leased, or that defendants were ever tenants, defendants not entitled to assert conditions defense under G. L. c. 239, § 8A ).
In the same vein, Scott provides no authority in his brief for the proposition that a tenant at sufferance is entitled to raise the record owner's failure to accommodate his or her disability as a defense to a postforeclosure eviction, and we are aware of none. See G. L. c. 151B, § 4 (6) (prohibiting discrimination by "refus[ing] to rent or lease or sell ... or otherwise to deny to or withhold from any person ... such accommodations because of ... any ... handicap"). Cf. Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306-307 (2005) (Fair Housing Act and G. L. c. 151B prohibit discrimination in housing); Moretalara v. Boston Hous. Auth., 99 Mass. App. Ct. 1, 8 (2020) (plaintiff's entitlement to reasonable accommodation requires showing of disability, causal link between disability and lease violation, reasonableness of accommodation, and that proposed plan reasonably likely to be effective).
Similarly, the protections of G. L. c. 186, § 14, which form the basis of Scott's and Denise's G. L. c. 93A counterclaim for improper billing for utilities, do not apply to holdover occupants after a foreclosure, at least in the absence of evidence of a tenancy relationship between them. Cf. G. L. c. 186, § 14 (prohibiting certain acts by "lessor or landlord").
3. Foreclosure-related G. L. c. 93A counterclaims. We disagree, however, that Wells Fargo was entitled to summary judgment on Scott's and Denise's counterclaims under G. L. c. 93A (which, according to Scott's brief, were based on Wells Fargo's handling of Scott's and Denise's efforts to modify the loan and to seek alternatives to foreclosure). Wells Fargo's motion for summary judgment did not address the viability of these counterclaims; Wells Fargo did not make any argument about them at the summary judgment hearing; the judge did not mention those counterclaims at the hearing; and as far as we can discern from the record, no party sought to address those issues or was invited to do so. Cf. Gamache v. Mayor of North Adams, 17 Mass. App. Ct. 291, 295-296 (1983) (assuming judge had power, sua sponte, to enter summary judgment on issues not raised by moving party, provided parties given sufficient notice of court's intention to do so). Under the circumstances, summary judgment should not have entered on these counterclaims.
On this record, we do not discern in Scott's and Denise's G. L. c. 93A counterclaims a challenge to Wells Fargo's title. Accordingly, there is no conflict in our affirming summary judgment for possession while vacating summary judgment on these counterclaims. See Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329, 339 (2016) ("where a judge determines that an occupant's defenses or counterclaims do not affect the right to possession, the judge may sever the counterclaims and proceed to determine possession in the summary process action").
Finally, to the extent that we discern additional arguments in Scott's brief, we conclude that they were not raised in response to Wells Fargo's motion for summary judgment, and thus were waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
4. Conclusion. We reverse the judgment on the foreclosure-related counterclaims alleged by defendants Scott and Denise pursuant to G. L. c. 93A, and remand the matter to the Housing Court for further proceedings consistent with this decision. The remainder of the judgment is affirmed.
So ordered.
Reversed in part and remanded; affirmed in part