NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-727
MARGALY PHILIPPE
vs.
WELLS FARGO BANK, N.A., trustee. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal is the most recent chapter in an ongoing effort
by the plaintiff, Margaly Philippe, to retain her former home
after a Housing Court judgment entered awarding possession of
the home to the defendant, a foreclosing bank. The Housing
Court judgment was affirmed on appeal, see Wells Fargo Bank,
N.A. v. Philippe, 98 Mass. App. Ct. 1117 (2020) (Philippe I).
Further appellate review was denied. See Wells Fargo Bank, N.A.
v. Philippe, 486 Mass. 1113 (2021). An execution on the
judgment issued, and Philippe's requests for relief from that
execution were denied in the Housing Court.
Philippe then filed a "petition" in the Superior Court
seeking relief from the Housing Court judgment, in equity and
1 For Option One Mortgage Loan Trust 2007-FXD1. pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974).
On October 25, 2021, a judge of the Superior Court denied
Philippe's petition by entering an order on the docket, and on
November 16, 2021, also by docket order, the judge allowed a
motion by the bank to close the case. Later, in a written
memorandum, the judge allowed the bank's motions to strike a
return of service of the petition and permanently close the
case. On April 21, 2022, a judgment of dismissal entered
pursuant to Mass. R. Civ. P. 54, as amended, 382 Mass. 829
(1981), and Mass. R. Civ. P. 58, as amended, 371 Mass. 908
(1977). The judge cited two reasons: (1) failure of service of
the petition, and (2) the Housing Court judgment could not be
collaterally attacked in the Superior Court.
Within ten days, Philippe filed a motion for relief from
the judgment citing Mass. R. Civ. P. 60 (b) (1) (rule 60 [b]
motion), in which she argued that the judge made a mistake when
he struck the return of service. The rule 60 (b) motion was
denied on June 30, 2022, and Philippe appealed. 2
2 In addition to the April 21, 2022 judgment of dismissal and June 30, 2022 order denying the rule 60 (b) motion, Philippe's renewed and combined notice of appeal identified the orders dated October 25 and November 16, 2021, but those were not "judgments" within the meaning of our procedural rules and are not separately appealable. See Jones v. Boykan, 74 Mass. App. Ct. 213, 218 & n.9 (2009).
2 In the appeal, Philippe requested a stay of levy on the
Housing Court execution pursuant to Mass. R. A. P. 6 (a), as
appearing in 481 Mass. 1608 (2019). On September 22, 2022,
Philippe's request was denied by a single justice of this court.
Philippe again appealed, and her appeals were consolidated for
our consideration.
We have carefully considered Philippe's submissions, the
April 21, 2022 judgment of dismissal, the June 30, 2022 order
denying the rule 60 (b) motion, and the September 22, 2022
single justice order denying the motion to stay. We affirm.
Discussion. Philippe filed her Superior Court petition on
October 8, 2021. According to a return of service filed in
February 2022, the bank's designated agent was served with a
summons and copy of the petition on November 29, 2021. This was
after the judge denied the petition (on October 25, 2021) and
allowed the bank's motion to close the case (on November 16,
2021), but within the ninety-day window for serving a summons
and complaint. See Mass. R. Civ. P. 4 (j), as appearing in 402
Mass. 1401 (1988). The bank maintained that the petition was
not a "complaint" within the meaning of Mass. R. Civ. P. 4, as
amended, 402 Mass. 1401 (1988) (rule 4), therefore, the return
of service was a nullity and should be struck. The judge agreed
that "this Court never accepted the Petition," and he struck the
3 return both for that reason and because the "summons is not
accompanied by any complaint as required by [rule] 4."
The challenge for Philippe here, as the Superior Court
judge explained, is that she "cannot prevail in her quest to
collaterally attack the final judgment of the Housing Court."
Because the Housing Court judgment cannot be undone by the
Superior Court or by us for reasons we will explain, we need not
decide whether the judge mistakenly focused on the title of
Philippe's pleading rather than its substance as she contends.
Nor must we determine whether her service sufficed under rule 4
even though a return was not filed until February 2022. See
Mass. R. Civ. P. 4 (f), 365 Mass. 733 (1974) ("Failure to make
proof of service does not affect the validity of the service").
"It is well established as a general matter that denial of
a motion under rule 60 (b) will be set aside only on a clear
showing of an abuse of discretion." Wang v. Niakaros, 67 Mass.
App. Ct. 166, 169 (2006). Applying that standard, we conclude
that the judge properly rejected Philippe's contentions that
title challenges are outside the jurisdiction of the Housing
Court in a summary process proceeding and that only the Superior
Court has jurisdiction over equal protection claims under G. L.
c. 93, §§ 102 (b), 103 (b).
Both title challenges in a summary process action --
including those based on predatory lending and discrimination --
4 and "housing problems" that give rise to an equal rights
violation fall squarely within the jurisdiction of the Housing
Court. G. L. c. 185C, § 3. See G. L. c. 151B, § 9; G. L.
c. 183C, § 18 (a)-(b). See also Bank of Am., N.A. v. Rosa, 466
Mass. 613, 625-626 (2013) (Housing Court has jurisdiction in
summary process proceeding to consider all equitable challenges
to title, including those that previously had to be raised by
independent Superior Court action). Philippe raised claims for
both predatory lending and discrimination before the Housing
Court judge. The Housing Court judge rejected the claims
because Philippe "was unable to articulate how her mortgage loan
fell within any of the four indices of predation" and she
admitted she could not afford her modified loan. After
reviewing the evidence and arguments afresh, a panel of this
court concluded that the Housing Court judge was correct.
Philippe I. Philippe then sought further review of those
decisions and it was denied.
Philippe's new action in the Superior Court (the one
currently before us) was between the same parties, arose out of
the same foreclosure, and asserted the same claims as those
raised in the Housing Court (along with new claims that could or
should have been raised before).
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-727
MARGALY PHILIPPE
vs.
WELLS FARGO BANK, N.A., trustee. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal is the most recent chapter in an ongoing effort
by the plaintiff, Margaly Philippe, to retain her former home
after a Housing Court judgment entered awarding possession of
the home to the defendant, a foreclosing bank. The Housing
Court judgment was affirmed on appeal, see Wells Fargo Bank,
N.A. v. Philippe, 98 Mass. App. Ct. 1117 (2020) (Philippe I).
Further appellate review was denied. See Wells Fargo Bank, N.A.
v. Philippe, 486 Mass. 1113 (2021). An execution on the
judgment issued, and Philippe's requests for relief from that
execution were denied in the Housing Court.
Philippe then filed a "petition" in the Superior Court
seeking relief from the Housing Court judgment, in equity and
1 For Option One Mortgage Loan Trust 2007-FXD1. pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974).
On October 25, 2021, a judge of the Superior Court denied
Philippe's petition by entering an order on the docket, and on
November 16, 2021, also by docket order, the judge allowed a
motion by the bank to close the case. Later, in a written
memorandum, the judge allowed the bank's motions to strike a
return of service of the petition and permanently close the
case. On April 21, 2022, a judgment of dismissal entered
pursuant to Mass. R. Civ. P. 54, as amended, 382 Mass. 829
(1981), and Mass. R. Civ. P. 58, as amended, 371 Mass. 908
(1977). The judge cited two reasons: (1) failure of service of
the petition, and (2) the Housing Court judgment could not be
collaterally attacked in the Superior Court.
Within ten days, Philippe filed a motion for relief from
the judgment citing Mass. R. Civ. P. 60 (b) (1) (rule 60 [b]
motion), in which she argued that the judge made a mistake when
he struck the return of service. The rule 60 (b) motion was
denied on June 30, 2022, and Philippe appealed. 2
2 In addition to the April 21, 2022 judgment of dismissal and June 30, 2022 order denying the rule 60 (b) motion, Philippe's renewed and combined notice of appeal identified the orders dated October 25 and November 16, 2021, but those were not "judgments" within the meaning of our procedural rules and are not separately appealable. See Jones v. Boykan, 74 Mass. App. Ct. 213, 218 & n.9 (2009).
2 In the appeal, Philippe requested a stay of levy on the
Housing Court execution pursuant to Mass. R. A. P. 6 (a), as
appearing in 481 Mass. 1608 (2019). On September 22, 2022,
Philippe's request was denied by a single justice of this court.
Philippe again appealed, and her appeals were consolidated for
our consideration.
We have carefully considered Philippe's submissions, the
April 21, 2022 judgment of dismissal, the June 30, 2022 order
denying the rule 60 (b) motion, and the September 22, 2022
single justice order denying the motion to stay. We affirm.
Discussion. Philippe filed her Superior Court petition on
October 8, 2021. According to a return of service filed in
February 2022, the bank's designated agent was served with a
summons and copy of the petition on November 29, 2021. This was
after the judge denied the petition (on October 25, 2021) and
allowed the bank's motion to close the case (on November 16,
2021), but within the ninety-day window for serving a summons
and complaint. See Mass. R. Civ. P. 4 (j), as appearing in 402
Mass. 1401 (1988). The bank maintained that the petition was
not a "complaint" within the meaning of Mass. R. Civ. P. 4, as
amended, 402 Mass. 1401 (1988) (rule 4), therefore, the return
of service was a nullity and should be struck. The judge agreed
that "this Court never accepted the Petition," and he struck the
3 return both for that reason and because the "summons is not
accompanied by any complaint as required by [rule] 4."
The challenge for Philippe here, as the Superior Court
judge explained, is that she "cannot prevail in her quest to
collaterally attack the final judgment of the Housing Court."
Because the Housing Court judgment cannot be undone by the
Superior Court or by us for reasons we will explain, we need not
decide whether the judge mistakenly focused on the title of
Philippe's pleading rather than its substance as she contends.
Nor must we determine whether her service sufficed under rule 4
even though a return was not filed until February 2022. See
Mass. R. Civ. P. 4 (f), 365 Mass. 733 (1974) ("Failure to make
proof of service does not affect the validity of the service").
"It is well established as a general matter that denial of
a motion under rule 60 (b) will be set aside only on a clear
showing of an abuse of discretion." Wang v. Niakaros, 67 Mass.
App. Ct. 166, 169 (2006). Applying that standard, we conclude
that the judge properly rejected Philippe's contentions that
title challenges are outside the jurisdiction of the Housing
Court in a summary process proceeding and that only the Superior
Court has jurisdiction over equal protection claims under G. L.
c. 93, §§ 102 (b), 103 (b).
Both title challenges in a summary process action --
including those based on predatory lending and discrimination --
4 and "housing problems" that give rise to an equal rights
violation fall squarely within the jurisdiction of the Housing
Court. G. L. c. 185C, § 3. See G. L. c. 151B, § 9; G. L.
c. 183C, § 18 (a)-(b). See also Bank of Am., N.A. v. Rosa, 466
Mass. 613, 625-626 (2013) (Housing Court has jurisdiction in
summary process proceeding to consider all equitable challenges
to title, including those that previously had to be raised by
independent Superior Court action). Philippe raised claims for
both predatory lending and discrimination before the Housing
Court judge. The Housing Court judge rejected the claims
because Philippe "was unable to articulate how her mortgage loan
fell within any of the four indices of predation" and she
admitted she could not afford her modified loan. After
reviewing the evidence and arguments afresh, a panel of this
court concluded that the Housing Court judge was correct.
Philippe I. Philippe then sought further review of those
decisions and it was denied.
Philippe's new action in the Superior Court (the one
currently before us) was between the same parties, arose out of
the same foreclosure, and asserted the same claims as those
raised in the Housing Court (along with new claims that could or
should have been raised before). The Superior Court judge
correctly decided that Philippe's new action was barred by claim
preclusion. That doctrine "makes a valid, final judgment
5 conclusive on the parties and their privies, and prevents
relitigation of all matters that were or could have been
adjudicated in the action," "based on the idea that the party to
be precluded has had the incentive and opportunity to litigate
the matter fully in the first lawsuit" (citations omitted).
Laramie v. Philip Morris USA Inc., 488 Mass. 399, 405 (2021).
In Philippe I, Philippe had every opportunity and incentive
to pursue all claims that would have called into question the
bank's title and therefore its right to possession, including
claims for equal rights violations and those based on the ruling
in Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass.
830 (2019). She did not pursue those claims. Considerations of
fairness and the requirements of efficient judicial
administration dictate that she not be given a second bite at
the apple. Laramie, 488 Mass. at 405.
For all these reasons, the single justice correctly
discerned that Philippe "failed to demonstrate any likelihood of
success on the merits that would result in the reversal of the
Housing Court's judgment for possession." Denial of the
requested stay was not an abuse of discretion. Cartledge v.
Evans, 67 Mass. App. Ct. 577, 578 (2006). This is especially
true where the appeal was from a judgment of the Superior Court,
while the execution Philippe asked the single justice to stay
was issued by the Housing Court. Litigants cannot avoid the
6 binding effect of a valid and final judgment rendered by a court
of competent jurisdiction "by seeking an alternative remedy or
by raising the claim from a different posture or in a different
procedural form." Wright Mach. Corp. v. Seaman-Andwall Corp.,
364 Mass. 683, 688 (1974). 3
April 21, 2022 judgment of dismissal affirmed.
June 30, 2022 order denying rule 60 (b) motion affirmed.
September 22, 2022 single justice order affirmed.
By the Court (Meade, Hershfang & D'Angelo, JJ. 4),
Assistant Clerk
Entered: January 3, 2024.
3 Other contentions by Philippe have not been overlooked; we find nothing in them that requires discussion. Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004). Philippe's motion to schedule oral argument is denied. 4 The panelists are listed in order of seniority.