Professional Documents
Culture Documents
No. 13-2316
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Plaintiffs-Appellants
v.
Defendants –Appellees
1
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Pursuant to this Court’s July 15, 2014 Order to stay the instant
appeal before this Court, pending the decision of the Abate v. Fremont
Investment & Loan, SJC No. 11638, which was pending in the
file their Third Status Report. As of the date of the Appellants’ Third
ruling Abate v. Fremont Investment & Loan yesterday, March 09, 2015,
Respectfully Submitted,
Mark A. LaRace and Tammy L. LaRace
By their Attorney
3
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CERTIFICATE OF SERVICE
EXHIBIT
A
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SJC-11638
1
Mortgage Electronic Registration Systems, Inc. (MERS);
Deutsche Bank National Trust Company, as trustee for Carrington
Mortgage Loan Trust, Series 2005-FRE1, Asset Backed Pass-Through
Certificates (Deutsche Bank); and Carrington Mortgage Services,
LLC (Carrington).
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issue arises because the try title statute, in keeping with its
the "first step" requires that the petitioner must satisfy the
2
The petitioner must satisfy these three jurisdictional
elements: (1) that he holds "record title" to the property; (2)
that he is a person ''in possession''; and (3) the existence of an
actual or possible ''adverse claim'' clouding his record title.
Blanchard v. Lowell, 177 Mass. 501, 504-505 (1901). Standing
encompasses the first two elements: "record title" and
''possession." Bevilacqua v. Rodriguez, 460 Mass. 762, 766-767 &
n.5 (2011).
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3
Fremont Investment & Loan (Fremont) did not file a motion
to dismiss; the claims against Fremont were dismissed without
prejudice by stipulation of the parties on January 9, 2013. For
purposes of this decision, reference to the respondents only
includes MERS, Deutsche Bank, and Carrington unless otherwise
noted.
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4
Although the respondents filed their motions to dismiss
under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), as
explained below, the argument advanced in the motion was in
essence a challenge to Thomas C. Abate's standing, a requirement
of subject matter jurisdiction which may be considered under
either rule 12 (b) (1) or 12 (b) (6).
5
The record before the judge included the petition and
other materials from court filings and the Middlesex County
registry of deeds. Although the judge did not explicitly cite
rule 12 (b) (1), we consider his disposition of this case to be
a better fit under rule 12 (b) (1) than under rule 12 (b) (6).
The judge was properly allowed to review materials outside of
the petition in deciding subject matter jurisdiction. ''A judge,
and logically a reviewing court, may consider documents and
other materials outside the pleadings when ruling on a rule 12
(b) (1) motion." Audoire v. Clients' Sec. Ed., 450 Mass. 388,
390 n. 4 (2008).
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6
property. On December 9, 2010, the bankruptcy court ordered
October 5, 2012. 8
6
Abate's Chapter 7 individual debtor's statement of
intention showed the creditor for the property as Carrington and
that Abate intended to surrender the property.
7
Deutsche Bank recorded a certificate of entry on October
5, 2012, pursuant to the statute governing foreclosure by entry
and possession, G. L. c. 244, §§ 1-2, asserting that Deutsche
Bank, through its agent, had made an open, peaceable, and
unopposed entry on the property on March 28, 2012.
8
At a September, 2012, hearing on the motion to dismiss
filed by Deutsche Bank and Carrington, Deutsche Bank explained
that the foreclosure deed had not been previously recorded
because the high bidder at the auction, a third party, did not
proceed when the contract expired because of this try title
action.
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lender, and MERS, as the mortgagee, and that MERS had purported
Abate did not acknowledge in his petition that Deutsche Bank had
9
In a supplemental memorandum in support of their motion to
dismiss, Deutsche Bank and Carrington also argued that Abate is
judicially estopped from proceeding with the try title action
because of the "contrary" assertion made in Abate's bankruptcy
case, where Abate indicated that he intended to surrender the
property. Like the Land Court judge, we decline to resolve this
claim because the petition against the defendants was properly
dismissed on other grounds.
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motion to dismiss.
moot and further asserting that MERS does not have a present
against Deutsche Bank and Carrington also apply to MERS and that
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8
(5), and (6), 365 Mass. 828 (1974), arguing that the judge erred
11
the judgment inequitable. The judge denied Abate's motion,
10
Earlier in the litigation, MERS and Deutsche Bank were
defaulted pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 828
(1974). The judge did not abuse his "sound discretion'' in
removing the defaults. Burger Chef Sys., Inc. v. Servfast of
Brockton, Inc., 393 Mass. 287, 289 (1984), quoting Silkey v. New
England Tel. & Tel. Co., 9 Mass. App. Ct. 816, 816 (1980).
11
Unlike the respondents in this case, the respondents in
Varian vs. Bank of N.Y. Mellon, Mass. Land Court, No. 12-MISC-
462971 (Aug. 23, 2013), did not attack the merits of the
petitioners' arguments claiming that the assignment of their
mortgage was invalid and thus the judge in that case did not
consider the motion to dismiss on that ground.
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after foreclosure, and in any event, the decision would not have
(6), the judge vitiated his right under the statute to compel
claim that the assignment was invalid because the issue was
10
12
Compare Varian vs. Bank of N.Y. Mellon, Mass. Land Court,
No. 12-MISC-462971 (Aug. 23, 2013) (''uncertainty as to the
holder of a mortgage'' provides required adversity for mortgagor
to bring try title action prior to foreclosure), with Abate vs.
Freemont Inv. & Loan, Mass. Land Court, No. 12-MISC-464855 (Dec.
10, 2012) (''try title act may be used to challenge a party's
claim to hold a mortgage only after that party has foreclosed,
because it is only after foreclosure that the mortgagee has a
claim of superior title''). See Mitchell vs. United States Bank
Nat'l Ass'n, Mass. Land Court, No. 12-MISC-473427 (Mar. 21,
2014) (following Abate decision analysis); Stephens-Martin vs.
Bank of N.Y. Mellon Trust Co., N.A., Mass. Land Court, No. 12-
MISC-465277 (Oct. l, 2013) (following Abate decision analysis)
Federal court decisions addressing the try title statute have
noted the disparity in our Land Court decisions. See, e.g.,
Lemelson v. U.S. Bank Nat'l Ass'n, 721 F.3d 18, 23-24 (1st Cir.
2013) (citing Abate decision favorably, ''efforts to foreclose"
prior to foreclosure not ''adverse claim'' sufficient to
demonstrate subject matter jurisdiction over try title action);
Jepson v. Deutsche Bank Nat'l Trust Co., 969 F. Supp. 2d 202,
207 (D. Mass. 2013) (dismissing preforeclosure try title action
in accordance with Lemelson, while noting as persuasive
conflicting conclusion reached in Varian decision) .
13
As note d 1n
. Bev1. l acqua, 460 Mass. at 766 n.3, the ''try
title statute may now be something of an anachronism'' when
considered in light of modern statutes that allow a landowner to
bring various actions to determine title. The statute is still
in effect, however, and we therefore analyze the contours of a
try title action in light of the subsequently enacted
Massachusetts Rules of Civil Procedure.
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11
Bevilacqua, 460 Mass. at 766, 767 n.5. The Land Court has
14
In comparison, an action to quiet title, G. L. c. 240,
§ 10, is an in rem action brought under the court's equity
jurisdiction. See Bevilacqua, 460 Mass. at 767 n.5, citing
G. L. c. 185, § 1 (~). See also First Baptist Church of Sharon
v. Harper, 191 Mass. 196, 209 (1906). The try title action, in
contrast, is based in law instead of equity and allows a
petitioner to defeat a potentially adverse claim through default
or by showing title that is merely superior to that of the
respondent. Bevilacqua, supra. A try title action, where the
petitioner sets forth a sufficient petition, places the burden
on the respondent either to bring an action to try title or to
disclaim his interest in the property. G. L. c. 240, § 3.
15
The relevant portion of G. L. c. 240, § 1, is as follows:
12
explaining the two steps of a try title action and noting that
the question who "has a better title . . does not arise, and
16
Abate's argument that only the first two elements are
required for jurisdiction is unavailing in light of the language
of the try title statute and our prior case law that also
requires an "adverse claim.'' See G. L. c. 240, § 1 (action may
be brought "[i]f the record title of land is clouded by an
adverse claim"); Blanchard, 177 Mass. at 504-505.
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13
rule 12 (b) (1) at any time. See Mass. R. Civ. P. 12 (h) (3),
17
To the extent that Abate argues that the rules of civil
procedure do not apply to a try title action, we decline to
adopt that view. A try title action, like any other civil
action, is subject to the rules of civil procedure. See Mass.
R. Civ. P. 1, as amended, 450 Mass. 1403 (2008) (rules of civil
procedure apply to proceedings in Land Court); Mass. R. Civ. P.
81 (a) (1), as amended, 450 Mass. 1405 (2008) (rules applicable
to all proceedings not specifically excluded). See also G. L.
c. 185M, § 1 (Q) (granting exclusive jurisdiction of try title
actions to Land Court) . Although the try title action predates
the rules of civil procedure, we have never recognized an
exception for try title actions. Nor have we encountered a case
where a party claims such an exception.
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14
365 Mass. 754 (1974); Maxwell v. AIG Domestic Claims, Inc., 460
by the Land Court judge even though not expressly cited by the
(b) (1) or rule 12 (b) (6) to try title actions. We noted, for
received notice of the action may "be forever barred from having
18
The preponderance of the evidence standard is used in
other jurisdictional challenges. See Miller v. Miller, 448
Mass. 320, 328 (2007) ("in deciding motion to dismiss for lack
of personal jurisdiction, court has discretion to determine
personal jurisdiction by preponderance of evidence without
waiting for trial on merits''). See also McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (preponderance
of evidence standard appropriate for contested facts in subject
matter jurisdiction) .
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16
try title claim: (1) record title, (2) possession, and (3) an
before a court.
the first step of a try title action. See Arnold v. Reed, 162
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17
18
under rule 12 (b) (6), the issue before the judge was
standing.
19
Requiring the petitioner to establish record title and
possession by a preponderance of the evidence satisfies the
"Brooklyn Bridge" problem identified in Bevilacqua, 460 Mass. at
770-771.
20
The respondents do not dispute that Abate is in fact in
possession of the property. There is therefore no dispute that
he satisfies the second requirement of standing to maintain a
try title action, i.e., that he be a ''person in possession.''
G. L. c. 240, § 1.
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19
Abate filing his try title action. 21 The judge concluded that
21
Although the foreclosure deed was not recorded before
Abate filed his try title action, it was recorded before the
judge issued the order dismissing Abate's complaint. The
foreclosure deed was not produced as part of the record, but we
may take judicial notice of the deed where Abate did not contest
the occurrence of the foreclosure auction. See Mass. G. Evict.
§ 201 (b) (2) (2014). Judicial notice may be taken by a trial
court or an appellate court. Commonwealth v. Grinkley, 44 Mass.
App. Ct. 62, 69 n.9 (1997). The foreclosure deed was not a
necessary requirement to finding the absence of record title,
but its presence on record prior to disposition of this case
further supports the conclusion that Abate lacked record title.
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20
order to show that the foreclosure was invalid and, thus, that
22
A petitioner may hold record title without having good
title or may have good title without record title. See Arnold
v. Reed, 162 Mass. 438, 440 (1894) (noting that forged deed
creates record title but not good title and that adverse
possession and deed executed through unrecorded power of
attorney create good title, but not record title).
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21
23
Abate pleaded the following allegations in support of his
claim that the assignment was void or invalid: ( 1) the
assignment "fails to identify the principal that MERS was
purportedly acting for"; (2) MERS had no lawful authority from
Fremont to assign the mortgage; (3) lack of consideration; (4)
noncompliance with G. L. c. 183, § 6D, because the mortgage
broker and originator were not listed; ( 5) lack of MERS' s
corporate seal; (6) the assignment violated the terms of the
Carrington trust; (7) the assignment was not lawfully executed
because the signatory allegedly did not sign in the presence of
the notary; (8) the signatory was not "duly authorized'' to
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22
withstand review under rule 12 (b) (1) and negate the validity
Apart from his contention that the judge could not test the
sufficiency of his claims under rule 12 (b) (6), Abate does not
23
776, where we held that ''a necessary element of [a] try title
24
See note 12, supra.
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24
25
Although the judge insisted that Abate demonstrate "a
claim of superior title,'' we do not interpret the statute to
require such a showing. A property owner need only show record
title to establish standing under the try title statute. As
discussed supra, however, in certain actions between a mortgagor
and purported mortgagee, a showing of record title may require a
determination of superior title.
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25
explained by the fact that the petitioner's claim did not arise
26
We do not think that the facts in the Varian case, see
note 12, supra, meet this test inasmuch as the existence of the
mortgage was not in dispute. The petitioners argued only that
the respondents did not hold the mortgage.
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26
27
We are cognizant of the concerns expressed by the court
in Jepson, 969 F. Supp. 2d at 207. However, as we have already
said, a petitioner challenging a mortgage foreclosure may seek
the available and adequate remedies available in other
procedures.
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27
affirmed.
So ordered.