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.
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.
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.
550 U.S. 544, 557 (2007) (clarifying standards for dismissal underrule 12[b]  ). 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."
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,