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Bevilacqua v. Rodriguez; Massachusetts Supreme Judicial Court October 18, 2011

Bevilacqua v. Rodriguez; Massachusetts Supreme Judicial Court October 18, 2011

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Published by Richard Vetstein
The Massachusetts Supreme Judicial Court ruled today in much anticipated Bevilacqua v. Rodriguez case. (Text of case is embedded below). The final edict is mix of bad and good news for owners of property whose titles have been rendered defective due to improper foreclosures stemming from the landmark U.S. Bank v. Ibanez ruling last January. The Court held that owners cannot bring a court action to clear their titles under the "try title" procedure in the Massachusetts Land Court. Left open, however, was whether owners could attempt to put their chains of title back together (like Humpty-Dumpty) and conduct new foreclosure sales to clear their titles.
The Massachusetts Supreme Judicial Court ruled today in much anticipated Bevilacqua v. Rodriguez case. (Text of case is embedded below). The final edict is mix of bad and good news for owners of property whose titles have been rendered defective due to improper foreclosures stemming from the landmark U.S. Bank v. Ibanez ruling last January. The Court held that owners cannot bring a court action to clear their titles under the "try title" procedure in the Massachusetts Land Court. Left open, however, was whether owners could attempt to put their chains of title back together (like Humpty-Dumpty) and conduct new foreclosure sales to clear their titles.

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Published by: Richard Vetstein on Oct 18, 2011
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NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision andare superseded by the advance sheets and bound volumes of the Official Reports. Thispreliminary material will be removed from the Web site once the advance sheets of the OfficialReports are published. If you find a typographical error or other formal error, please notify theReporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square,Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.usFrancis J. BEVILACQUA, Third
vs.
Pablo RODRIGUEZ.SJC-10880.May 2, 2011. - October 18, 2011.
 Jurisdiction,
Land Court.
 Land Court,
Jurisdiction.
Practice, Civil,
Parties, Standing, Dismissal.
 Real Property,
Ownership, Record title, Mortgage, Bona fide purchaser.
 Mortgage,
Real estate,Foreclosure, Assignment, Equity of redemption.CIVIL ACTION commenced in the Land Court Department on April 12, 2010.The case was heard by
Keith C. Long,
J.The Supreme Judicial Court granted an application for direct appellate review.
 Jeffrey B. Loeb
(
 David Glod 
with him) for the plaintiff.
 Richard A. Oetheimer 
(
 Natalie F. Langlois
with him) for Mortgage Bankers Association.
 Max Weinstein
for WilmerHale Legal Services Center of Harvard Law School.
 John M. Stephan & Amber Anderson Villa,
Assistant Attorneys General, for the Commonwealth.The following submitted briefs for amici curiae:
 Mark B. Johnson
for American Land Title Association.
 Adam J. Levitin,
of the District of Columbia,
Christopher L. Peterson,
of Utah,
 John A.E.Pottow,
of Michigan,
& Katherine Porter,
pro se.
 Edward Rainen, Carrie B. Rainen, & Ward P. Graham
for Massachusetts Association of Bank Counsel, Inc.Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ.SPINA, J.In this case we must determine whether a plaintiff has standing to maintain a try title actionunder G.L. c. 240, §§ 1-5, where he is in physical possession of real property but his chain of 
 
title rests on a foreclosure sale conducted by someone other than "the mortgagee or hisexecutors, administrators, successors or assigns." G.L. c. 183, § 21 (statutory power of sale). SeeG.L. c. 244, § 14 (procedure for foreclosure under power of sale). On his own motion, a LandCourt judge determined that the plaintiff, Francis J. Bevilacqua, III, "holds no title to theproperty at 126-128 Summer Street in Haverhill," and thus lacks standing to bring a try titleaction. The judge dismissed the complaint with prejudice and Bevilacqua appealed. We grantedBevilacqua's application for direct appellate review and now affirm the dismissal of hiscomplaint but conclude that such dismissal should have been entered without prejudice. [FN1]1.
Procedural background.
This case comes before us on a highly unusual procedural footing.The respondent, Pablo Rodriguez, has not been located and accordingly has not entered anappearance. As a result, it fell to the Land Court judge to raise the issue of Bevilacqua's standingunder G.L. c. 240, § 1. See Mass. R. Civ. P. 12(h)(3), 365 Mass. 754 (1974) ("Whenever itappears by suggestion of a party or otherwise that the court lacks jurisdiction of the subjectmatter, the court shall dismiss the action");
 Maxwell v. AIG Domestic Claims, Inc., ante
91, 99-100 (2011);
Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court,
448 Mass. 15, 21(2006);
 Litton Business Sys., Inc.
v.
Commissioner of Revenue,
383 Mass. 619, 622 (1981). Theprocedures applicable to such a sua sponte motion in a try title action are unclear and the judgedid not specify the rule under which the dismissal was ordered. We have received no briefing onthe issue from Bevilacqua, and those amici addressing the point note that the absence of precedent leads them to "presume[ ]" the applicable standard.In considering the appropriate procedure, we note that a court's sua sponte motion to dismiss forlack of subject matter jurisdiction is analogous to a party's motion to dismiss under either Mass.R. Civ. P. 12(b)(1) or (6), 365 Mass. 754 (1974). Ordinarily, "[i]n reviewing a dismissal underrule 12(b)(1) or (6), we accept the factual allegations in the plaintiffs' complaint, as well as anyfavorable inferences reasonably drawn from them, as true."
Ginther v. Commissioner of Ins.,
427Mass. 319, 322 (1998). Cf.
 Iannacchino v. Ford Motor Co.,
451 Mass. 623, 636 (2008), quoting
 Bell Atl. Corp.
v.
Twombly,
550 U.S. 544, 557 (2007) (clarifying standards for dismissal underrule 12[b] [6] ). The unusual mechanics of G.L. c. 240, §§ 1-5, however, suggest that the analogymay not be perfect and that a different standard may be appropriate.
[FN2] We need not resolve the issue today, however, because we conclude thatBevilacqua's complaint must be dismissed even if we apply the most favorable of thepossible standards of review. See
Ginther v. Commissioner of Ins., supra
(standardsfor motion to dismiss for lack of subject matter jurisdiction). We thus "accept thefactual allegations in [Bevilacqua's petition], as well as any favorable inferencesreasonably drawn from them, as true."
Id.
Those facts are as follows.
 
On March 18, 2005, Pablo Rodriguez granted a mortgage on the property to MortgageElectronic Registration Systems, Inc. (MERS), as nominee for Finance America, LLC. Themortgage was recorded at the Southern Essex registry of deeds (registry). As of June 29,2006, MERS had not assigned the mortgage to U.S. Bank National Association (U.S.Bank)but, on that date, U.S. Bank executed a foreclosure deed referencing the mortgage andpurporting to transfer the property pursuant to a foreclosure sale from U.S. Bank (astrustee under a trust that is not further described) to U.S. Bank "as Trustee under thesecuritization Servicing Agreement dated as of July 1, 2005 Structured Asset SecuritiesCorporation Structure Asset Investment Loan Trust Mortgage Pass Through Certificates,
 
Series 2005-HEI." Nearly one month later, on July 21, 2006, MERS assigned the mortgageto U.S. Bank in an assignment of mortgage recorded at the registry. A "confirmatoryforeclosure deed" was then granted on October 9, 2006, by U.S. Bank to U.S. Bank astrustee under the servicing agreement. Eight days later, on October 17, 2006, U.S. Bank "asTrustee" granted a quitclaim deed to Bevilacqua.On April 12, 2010, Bevilacqua filed a petition to compel Rodriguez to try title to theproperty. In his complaint Bevilacqua claimed to reside at the property and to hold recordtitle. Because of the fact that MERS had not assigned the mortgage to U.S. Bank at the timeof the foreclosure, Bevilacqua alleged that there is a cloud on his title in the form of "thepossibility of an adverse claim by Rodriguez against Bevilacqua's title to the [p]roperty."2.
Statutory background.
Bevilacqua seeks an order that either compels Rodriguez to bringan action to try his title or forever bars him from enforcing his adverse claims to theproperty. Try title actions under G.L. c. 240, §§ 1-5, are within the exclusive original jurisdiction of the Land Court. G.L. c. 185, § 1 (
). If Bevilacqua cannot satisfy the jurisdictional requirements of the statute, then the Land Court is without subject matter jurisdiction and the petition must be dismissed. See
Boston Edison Co.
v.
BostonRedevelopment Auth.,
374 Mass. 37, 46 (1977);
Riverbank Improvement Co.
v.
Chapman,
 224 Mass. 424, 425 (1916) ("The Land Court is a statutory court, not of general but of strictly limited jurisdiction").The statute states, in relevant part:"If the record title of land is clouded by an adverse claim, or by the possibility thereof, aperson in possession of such land claiming an estate of freehold therein ... may file apetition in the land court stating his interest, describing the land, the claims and thepossible adverse claimants so far as known to him, and praying that such claimants may besummoned to show cause why they should not bring an action to try such claim."G.L. c. 240, § 1. There are thus two steps to a try title action: the first, which requires theplaintiff to establish jurisdictional facts such that the adverse claimant might be "summonedto show cause why [he] should not bring an action to try [his] claim," and the second,which requires the adverse claimant either to disclaim the relevant interest in the propertyor to bring an action to assert the claim in question. [FN3]
Id.
See
Blanchard v. Lowell,
177Mass. 501, 504-505 (1901). The establishment of jurisdictional facts, although essential inall cases, is thus a matter of particular salience in the initial stage of a try title action.There appear to be two jurisdictional facts that must be shown to establish standing underG.L. c. 240, § 1. First, it is clear on the face of the statute that only "a person in possession"of the disputed property may maintain a try title action.
Id.
Second, although less obviouslyclear, a plaintiff must hold a "record title" to the land in question.
Blanchard v. Lowell, supra
 at 504.
 Arnold v. Reed,
162 Mass. 438, 440-441 (1894). Here, Bevilacqua has alleged thathe resides on the property, a factual assertion that we accept as true and from which wedraw the favorable inference that he is "a person in possession" as required by G.L. c. 240,§ 1. [FN4] Bevilacqua also claims to hold record title to the property as required to supportstanding. See
Blanchard v. Lowell, supra.
In dismissing the petition the judge concludedthat the facts alleged by Bevilacqua did not support his claim of record title and that, as aresult, Bevilacqua lacked standing. This is the controversy presented on appeal.Before analyzing whether Bevilacqua has demonstrated the existence of record title, and inlight of the fact that it has been more than a century since this court last examined standingunder G.L. c. 240, §§ 1-5, we first consider the history and purposes of the statute. [FN5]

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