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
23-P-800
MTGLQ INVESTORS, LP
vs.
JOHN M. MCGILLEN & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is a post-foreclosure summary process action brought
by the plaintiff, MTGLQ Investors, LP, against the pro se
defendants, John, Amy, Abigail, and Katy McGillen, to recover
possession of a residence located in Harwich, Massachusetts (the
premises). After a bench trial, a judge of the Housing Court
found in favor of the plaintiff on its claim of possession. On
appeal, the defendants make several claims of error,2 including
1Abigail E. McGillen, Amy J. McGillen, and Katy K. McGillen. Abigail E. McGillen is now named Abigail Phaup, but as is our custom, we spell the defendant's name as it was spelled in the complaint.
2One of the defendants' arguments is that the trial judge lacked professionalism and integrity. In part they rely on a recent public reprimand of the judge by the Supreme Judicial that the trial judge did not consider certain evidence they
claim proves that the foreclosure auction was fraudulent, which
they argue would void the foreclosure sale. Because the judge
appears to have not considered evidence that the defendants had
submitted to the court in support of their motion to dismiss and
subsequently relied on at trial regarding the deficiencies in
the foreclosure auction, we vacate the judgment in favor of the
plaintiff and remand the case for a new trial.
Background. In 2007, facing financial difficulty with
unsecured debts, John and Amy McGillen sought to execute a
mortgage and promissory note.3 They claim that when they arrived
at the closing and learned that their monthly payments were more
than what they were led to believe and more than they could
afford, they walked out of the closing without signing the loan
documents. However, on that same day, a promissory note was
created, and the mortgage on the premises was recorded. About
two months after the closing, John and Amy McGillen began
receiving mortgage statements seeking monthly payments for the
Court. See Matter of a Judge, Supreme Judicial Court, No. OE- 150 (Dec. 22, 2022). Neither the facts described in the text of this opinion, nor that reprimand, singly or together, require reversal of the judgment.
3 The allegations that form the basis of the defendants' primary defense in the summary process action surrounding the mortgage can be found in John and Amy McGillen's first amended complaint in McGillen vs. JP Morgan Chase Bank, N.A., U.S. Dist. Ct., No. 19-11917 (D. Mass. Jan. 31, 2020).
2 2007 loan. They claim they later learned that Amy McGillen's
signature was forged on the mortgage application, and they
attempted to contact various agencies including the original
bank but were unsuccessful in their attempts to resolve the
issue. The plaintiff sent a notice of default in April of 2008.
In 2020, the plaintiff acquired title to the premises by
foreclosure deed following a foreclosure sale at auction of the
mortgaged premises. On May 11, 2022, after sending notice to
the defendants to vacate the premises, the plaintiff filed this
summary process action in the Housing Court seeking possession.4
The parties were notified that their first court appearance
would be on June 16, 2022, for court-ordered mediation. The
defendants did not file an answer but appeared in court on
numerous occasions, and both the plaintiff and the defendants
met with a housing specialist for court-ordered mediation. On
September 7, 2022, the defendants filed a written motion to
dismiss the summary process action and attached to their motion
a thumb drive containing proposed exhibits that purportedly
included video footage of the foreclosure sale.5
4 The summary process action was docketed on May 17, 2022.
5 A docket entry confirmed that the defendants filed a motion to dismiss "with exhibits and thumb drive."
3 On November 28, 2022, after several unsuccessful attempts
to resolve the matter by way of mediation, the parties appeared
for the summary process trial. At the beginning of the summary
process trial, the judge first heard arguments on the
defendants' motion to dismiss. The defendants first argued that
the 2020 foreclosure auction was conducted fraudulently. The
defendants then contended that in 2007 Amy McGillen's signature
was forged on the original mortgage application and that
dismissal was warranted because the original mortgage was
fraudulently obtained. After hearing argument, the judge noted
that the issue of the forged mortgage instruments was raised by
the defendants in a Federal court action that was later
dismissed with prejudice. The judge denied the defendants'
motion to dismiss based on principles of res judicata.6 The
judge did not address the defendants' claim that the 2020
foreclosure auction was fraudulent, thereby potentially
invalidating the deed.
The case then proceeded to trial. The plaintiff did not
call any witnesses but called to the judge's attention proposed
exhibits filed with the clerk's office including certified
copies of the underlying mortgage, various assignments, the
6 The outcome of that motion is not argued on appeal.
4 order of notice, affidavits and the certificate of entry, and a
certified copy of the foreclosure deed. The plaintiff then
argued that these documents established a prima facie case of
possession and asserted that because the defendants had failed
to file an answer to the complaint, there were no defenses.
The judge then turned to the defendants. The defendants
did not call any witnesses or introduce any exhibits. Instead,
they presented a host of reasons why they believed they should
not be evicted, including that the plaintiff should have offered
a loan modification; the public auction was riddled with fraud;
the plaintiff refused to allow them to repurchase the home and
in doing so discriminated against them; and they had filed an
action with the Massachusetts Commission Against Discrimination
(MCAD). Abigail McGillen detailed her observations of the
foreclosure auction and noted that a video of the foreclosure
auction had been submitted. The judge explained to the
defendants that the issue of the MCAD action or the propriety of
the originating loan was not before him, and reminded the
defendants that the narrow issue to be decided at the trial was
who had superior right of possession of the premises. The
defendants then focused their arguments on their claim that the
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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
23-P-800
MTGLQ INVESTORS, LP
vs.
JOHN M. MCGILLEN & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is a post-foreclosure summary process action brought
by the plaintiff, MTGLQ Investors, LP, against the pro se
defendants, John, Amy, Abigail, and Katy McGillen, to recover
possession of a residence located in Harwich, Massachusetts (the
premises). After a bench trial, a judge of the Housing Court
found in favor of the plaintiff on its claim of possession. On
appeal, the defendants make several claims of error,2 including
1Abigail E. McGillen, Amy J. McGillen, and Katy K. McGillen. Abigail E. McGillen is now named Abigail Phaup, but as is our custom, we spell the defendant's name as it was spelled in the complaint.
2One of the defendants' arguments is that the trial judge lacked professionalism and integrity. In part they rely on a recent public reprimand of the judge by the Supreme Judicial that the trial judge did not consider certain evidence they
claim proves that the foreclosure auction was fraudulent, which
they argue would void the foreclosure sale. Because the judge
appears to have not considered evidence that the defendants had
submitted to the court in support of their motion to dismiss and
subsequently relied on at trial regarding the deficiencies in
the foreclosure auction, we vacate the judgment in favor of the
plaintiff and remand the case for a new trial.
Background. In 2007, facing financial difficulty with
unsecured debts, John and Amy McGillen sought to execute a
mortgage and promissory note.3 They claim that when they arrived
at the closing and learned that their monthly payments were more
than what they were led to believe and more than they could
afford, they walked out of the closing without signing the loan
documents. However, on that same day, a promissory note was
created, and the mortgage on the premises was recorded. About
two months after the closing, John and Amy McGillen began
receiving mortgage statements seeking monthly payments for the
Court. See Matter of a Judge, Supreme Judicial Court, No. OE- 150 (Dec. 22, 2022). Neither the facts described in the text of this opinion, nor that reprimand, singly or together, require reversal of the judgment.
3 The allegations that form the basis of the defendants' primary defense in the summary process action surrounding the mortgage can be found in John and Amy McGillen's first amended complaint in McGillen vs. JP Morgan Chase Bank, N.A., U.S. Dist. Ct., No. 19-11917 (D. Mass. Jan. 31, 2020).
2 2007 loan. They claim they later learned that Amy McGillen's
signature was forged on the mortgage application, and they
attempted to contact various agencies including the original
bank but were unsuccessful in their attempts to resolve the
issue. The plaintiff sent a notice of default in April of 2008.
In 2020, the plaintiff acquired title to the premises by
foreclosure deed following a foreclosure sale at auction of the
mortgaged premises. On May 11, 2022, after sending notice to
the defendants to vacate the premises, the plaintiff filed this
summary process action in the Housing Court seeking possession.4
The parties were notified that their first court appearance
would be on June 16, 2022, for court-ordered mediation. The
defendants did not file an answer but appeared in court on
numerous occasions, and both the plaintiff and the defendants
met with a housing specialist for court-ordered mediation. On
September 7, 2022, the defendants filed a written motion to
dismiss the summary process action and attached to their motion
a thumb drive containing proposed exhibits that purportedly
included video footage of the foreclosure sale.5
4 The summary process action was docketed on May 17, 2022.
5 A docket entry confirmed that the defendants filed a motion to dismiss "with exhibits and thumb drive."
3 On November 28, 2022, after several unsuccessful attempts
to resolve the matter by way of mediation, the parties appeared
for the summary process trial. At the beginning of the summary
process trial, the judge first heard arguments on the
defendants' motion to dismiss. The defendants first argued that
the 2020 foreclosure auction was conducted fraudulently. The
defendants then contended that in 2007 Amy McGillen's signature
was forged on the original mortgage application and that
dismissal was warranted because the original mortgage was
fraudulently obtained. After hearing argument, the judge noted
that the issue of the forged mortgage instruments was raised by
the defendants in a Federal court action that was later
dismissed with prejudice. The judge denied the defendants'
motion to dismiss based on principles of res judicata.6 The
judge did not address the defendants' claim that the 2020
foreclosure auction was fraudulent, thereby potentially
invalidating the deed.
The case then proceeded to trial. The plaintiff did not
call any witnesses but called to the judge's attention proposed
exhibits filed with the clerk's office including certified
copies of the underlying mortgage, various assignments, the
6 The outcome of that motion is not argued on appeal.
4 order of notice, affidavits and the certificate of entry, and a
certified copy of the foreclosure deed. The plaintiff then
argued that these documents established a prima facie case of
possession and asserted that because the defendants had failed
to file an answer to the complaint, there were no defenses.
The judge then turned to the defendants. The defendants
did not call any witnesses or introduce any exhibits. Instead,
they presented a host of reasons why they believed they should
not be evicted, including that the plaintiff should have offered
a loan modification; the public auction was riddled with fraud;
the plaintiff refused to allow them to repurchase the home and
in doing so discriminated against them; and they had filed an
action with the Massachusetts Commission Against Discrimination
(MCAD). Abigail McGillen detailed her observations of the
foreclosure auction and noted that a video of the foreclosure
auction had been submitted. The judge explained to the
defendants that the issue of the MCAD action or the propriety of
the originating loan was not before him, and reminded the
defendants that the narrow issue to be decided at the trial was
who had superior right of possession of the premises. The
defendants then focused their arguments on their claim that the
plaintiff did not have superior title because they failed to
strictly comply with foreclosure requirements. The following
exchange between the judge and Abigail McGillen occurred:
5 THE JUDGE: "And that may have been really good information to provide to me in some type of a written form --" ABIGAIL MCGILLEN: "I'm sorry." THE JUDGE: "-- so that the Court could recognize that as a potential answer; but today you're introducing different items that, frankly, should have been presented to the plaintiff[] long before today in terms of their obligations to respond to that. So I will carefully review --" ABIGAIL MCGILLEN: "Okay." THE JUDGE: "-- the foreclosure documentation."
The judge then asked the defendants if they wanted to
present anything else, explaining that he had prior experience
in real estate, and was familiar with the documents, time
standards, and statutes that the defendants had referred to.
The defendants concluded their argument by stating that
"everything else" should be in the file. We view this comment
as referring to the exhibits that had been filed in support of
the motion to dismiss.
The judge took the matter under advisement and shortly
thereafter, issued his written decision. The judge found that
the plaintiff had established its right to possession of the
property and that, though recognizing that there appeared to be
"significant issues concerning the validity and legality of the
underlying [mortgage] documents," the defendants' defense that
the underlying mortgage was fraudulently procured was barred by
6 res judicata.7 The judge's memorandum of decision was silent
regarding the defendants' claim that the plaintiff's deed was
invalidated due to fraud in the public auction or consideration
of evidence related to that claim.
Discussion. Summary process cases are civil actions, and
the purpose of summary process is "to enable the holder of the
legal title to gain possession of premises wrongfully withheld."
Wells Fargo Bank, N.A. v. Cook, 87 Mass. App. Ct. 382, 385
(2015), quoting Bank of N.Y. v. Bailey, 460 Mass. 327, 333
(2011). See Bank of America, N.A. v. Rosa, 466 Mass. 613, 624
(2013). In Adjartey v. Central Div. of the Hous. Court Dep't,
481 Mass. 830, 834 (2019), the Supreme Judicial Court recognized
the unique nature of summary process matters, describing them as
"complex, fast-moving, and generally litigated by landlords who
are represented by attorneys and tenants who are not." While we
recognize that here the defendants were former homeowners and
not tenants, it remains true that the "challenges inherent in
navigating a complex and fast-moving process are compounded for
those individuals who face summary process eviction without the
aid and expertise of an attorney." Id. at 837.
7 As the defendants do not challenge the judge's ruling on appeal on this ground, we need not reach the issue whether res judicata applied.
7 Summary process matters are governed by the Uniform Summary
Process Rules and, when not in conflict, supplemented by the
Massachusetts Rules of Civil Procedure. Adjartey, 481 Mass. at
836-837. A former homeowner is permitted to "challenge the
title of the banks in these summary process actions, and . . .
can require the banks to establish that title was acquired
strictly according to the power of sale provided in the
mortgage." Rosa, 466 Mass. at 621. See Bailey, 460 Mass. at
333. A former homeowner can render a foreclosure sale void by
mounting a successful challenge to the validity of a bank's
title. See Cook, 87 Mass. App. Ct. at 385.
Here, while the judge considered one of the defendants'
affirmative defenses, there is no indication that the judge
considered the evidence relating to their claim of
irregularities in the 2020 foreclosure auction. In the
circumstances presented, this omission requires vacating the
8 judgment and remanding the case for a new trial.8 See Morse v.
Ortiz-Vazquez, 99 Mass. App. Ct. 474, 479-482 (2021).
So ordered.
By the Court (Vuono, Rubin & Walsh, JJ.9),
Clerk
Entered: September 6, 2024.
8 Should any issue about failure to file an answer arise on remand, the court and parties are directed to this court's recent decision in Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474, 481 (2021) ("the right to assert affirmative defenses is not waived when an answer is not filed").
9 The panelists are listed in order of seniority.