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
24-P-1099
N.G. LORING, INC., & another1
vs.
MARY ANNE ANDREY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Mary Anne and Gaston Andrey2 took title to three parcels of
land in Millis, Massachusetts (the property) in 1968. In 1999,
the Andreys sought to divide one parcel, containing their
primary residence, and sell the newly created parcel.3 To convey
the new parcel, which had an existing structure, the Andreys
needed to install a septic system. They engaged N.G. Loring,
Inc. (NGL) for the installation but immediately fell into a
1 Nationstar Mortgage, LLC.
2Because Mary Anne and Gaston Andrey share a surname, we refer to them by their first names.
3Before dividing the parcel, Gaston conveyed his interest in it to Mary Anne so that she owned it individually. Gaston subsequently died. dispute that resulted in NGL's abandoning the installation
project and later suing the Andreys. This lawsuit resulted in a
settlement agreement and agreement for judgment that included
the issuance of an execution. When the Andreys did not pay
according to the agreement, NGL levied on the execution, and
ultimately obtained title to the property at a sheriff's sale in
2012. After the sheriff's sale, Mary Anne sought to undo the
sale or reach a settlement with NGL but could not. Mary Anne
then filed a civil action in the Norfolk Superior Court
challenging the sale. A judge of the Superior Court granted
summary judgment for NGL.
Meanwhile, in 2005, the Andreys had refinanced their
mortgage on the property. The new mortgage contained a
scrivener's error. It encumbered two unimproved smaller parcels
but did not include the larger parcel on which the Andreys'
house and other structures sit. Nationstar Mortgage, LLC
(Nationstar) is currently the mortgagee.
This appeal arises from a miscellaneous action that NGL
originally filed in the Land Court seeking a declaration that it
has the right to take possession of the property because of the
sheriff's sale. Mary Anne opposed the action on the grounds
that the sheriff's sale was invalid and title should be returned
to her. In 2019, after NGL filed the action, NGL reached an
agreement with Nationstar and conveyed its interest in the
2 property and the action to Nationstar. After a trial, a judge
of the Land Court (trial judge) found that NGL, and thus
Nationstar, had title to the property. The trial judge
concluded that the decision in the Norfolk Superior Court case
bars Mary Anne's defenses by claim and issue preclusion and, in
any event, the sheriff's sale was valid. Because Nationstar had
title to the property, the trial judge found that the claim to
reform the mortgage was moot. Mary Anne appealed. We affirm.
Background. The parties are well acquainted with the facts
and procedural history, as detailed in the trial judge's
thorough decisions and the parties' stipulated facts. We
describe here only those aspects of the record that are
necessary to our ruling.
1. Procedural history. Briefly, NGL filed this action in
the Land Court on December 6, 2017, naming Mary Anne as
defendant.4 On January 7, 2020, the trial judge allowed
Nationstar to be substituted as plaintiff. After a trial, the
4 A related subsequent action was originally filed as MERS as Nominee for America's Wholesale Lender, 12 SBQ 02069 02 – 001 (S-case). The original petition in the S-case was filed February 22, 2012. It named NGL as an interested party and sought to register a mortgage on the property. On June 29, 2016, Nationstar filed an amended S-petition, substituting itself as petitioner. Because we affirm the trial judge's ruling that Nationstar has title to the property, rendering the S-case moot, we do not address the original or amended S- petition further.
3 trial judge found that NGL, and thus Nationstar, held title to
the property.
2. Facts. When NGL abandoned the septic system project,
it left gravel at the job site. It then sued the Andreys,
seeking to be made whole for it's partial performance of the
contract. On September 26, 2007, the Andreys and NGL reached a
settlement agreement which provided in relevant part that the
parties would immediately execute an agreement for judgment of
$17,803.58 without further interest and without costs, with
execution to issue forthwith. The settlement agreement provided
further that if, on or before March 26, 2008, the Andreys paid
NGL $12,000 plus interest at the rate of 6% per annum from
September 26, 2007, NGL would endorse the execution "Satisfied
in Full" and deliver it to the Andreys. The same day, the
Andreys and NGL executed the agreement for judgment,
memorializing the settlement agreement.
On February 21, 2008, the Andreys having paid nothing
toward the judgment, NGL obtained an execution (execution) from
the Wrentham District Court against the Andreys for $18,077.50,
representing judgment of $17,803.58, no court-calculated pre- or
post-judgment interest, and costs of $273.92. The Andreys never
paid NGL.
On May 2, 2008, a Norfolk County deputy sheriff levied and
seized all of Mary Anne’s right, title, and interest in the
4 property and registered the execution with the Land Court. The
same day, the deputy sheriff attempted to serve the Andreys
notice of the levies and the demand for payment. The execution
stated erroneously that the Andreys resided at 357 Orchard
Street. Copies of the demand and notice were left at that
address and mailed to the Andreys there as well. In fact, the
Andreys resided at 359 Orchard Street and did not receive the
notice.
More than four years later, on July 24, 2012, a Norfolk
County deputy sheriff prepared a written notice of sale
indicating that a sale of the property was scheduled for
September 20, 2012. On July 30, 2012, a copy of the notice of
sale was hand delivered to the Andreys and signed for by Gaston.
On September 20, 2012, the sheriff held an auction of the
property. Mary Anne's son, Roger, placed a bid of $30,874.91,
which the sheriff accepted as the highest bid. But Roger then
refused to tender payment. A deputy sheriff then offered the
property to NGL, as the next highest bidder, and NGL tendered
payment. On December 14, 2012, the Sheriff's office registered
a deed with the registry, stating that the property was sold to
the high bidder, NGL, for $30,784.91 (sheriff’s deed).
Mary Anne filed a complaint in the Norfolk Superior Court
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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
24-P-1099
N.G. LORING, INC., & another1
vs.
MARY ANNE ANDREY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Mary Anne and Gaston Andrey2 took title to three parcels of
land in Millis, Massachusetts (the property) in 1968. In 1999,
the Andreys sought to divide one parcel, containing their
primary residence, and sell the newly created parcel.3 To convey
the new parcel, which had an existing structure, the Andreys
needed to install a septic system. They engaged N.G. Loring,
Inc. (NGL) for the installation but immediately fell into a
1 Nationstar Mortgage, LLC.
2Because Mary Anne and Gaston Andrey share a surname, we refer to them by their first names.
3Before dividing the parcel, Gaston conveyed his interest in it to Mary Anne so that she owned it individually. Gaston subsequently died. dispute that resulted in NGL's abandoning the installation
project and later suing the Andreys. This lawsuit resulted in a
settlement agreement and agreement for judgment that included
the issuance of an execution. When the Andreys did not pay
according to the agreement, NGL levied on the execution, and
ultimately obtained title to the property at a sheriff's sale in
2012. After the sheriff's sale, Mary Anne sought to undo the
sale or reach a settlement with NGL but could not. Mary Anne
then filed a civil action in the Norfolk Superior Court
challenging the sale. A judge of the Superior Court granted
summary judgment for NGL.
Meanwhile, in 2005, the Andreys had refinanced their
mortgage on the property. The new mortgage contained a
scrivener's error. It encumbered two unimproved smaller parcels
but did not include the larger parcel on which the Andreys'
house and other structures sit. Nationstar Mortgage, LLC
(Nationstar) is currently the mortgagee.
This appeal arises from a miscellaneous action that NGL
originally filed in the Land Court seeking a declaration that it
has the right to take possession of the property because of the
sheriff's sale. Mary Anne opposed the action on the grounds
that the sheriff's sale was invalid and title should be returned
to her. In 2019, after NGL filed the action, NGL reached an
agreement with Nationstar and conveyed its interest in the
2 property and the action to Nationstar. After a trial, a judge
of the Land Court (trial judge) found that NGL, and thus
Nationstar, had title to the property. The trial judge
concluded that the decision in the Norfolk Superior Court case
bars Mary Anne's defenses by claim and issue preclusion and, in
any event, the sheriff's sale was valid. Because Nationstar had
title to the property, the trial judge found that the claim to
reform the mortgage was moot. Mary Anne appealed. We affirm.
Background. The parties are well acquainted with the facts
and procedural history, as detailed in the trial judge's
thorough decisions and the parties' stipulated facts. We
describe here only those aspects of the record that are
necessary to our ruling.
1. Procedural history. Briefly, NGL filed this action in
the Land Court on December 6, 2017, naming Mary Anne as
defendant.4 On January 7, 2020, the trial judge allowed
Nationstar to be substituted as plaintiff. After a trial, the
4 A related subsequent action was originally filed as MERS as Nominee for America's Wholesale Lender, 12 SBQ 02069 02 – 001 (S-case). The original petition in the S-case was filed February 22, 2012. It named NGL as an interested party and sought to register a mortgage on the property. On June 29, 2016, Nationstar filed an amended S-petition, substituting itself as petitioner. Because we affirm the trial judge's ruling that Nationstar has title to the property, rendering the S-case moot, we do not address the original or amended S- petition further.
3 trial judge found that NGL, and thus Nationstar, held title to
the property.
2. Facts. When NGL abandoned the septic system project,
it left gravel at the job site. It then sued the Andreys,
seeking to be made whole for it's partial performance of the
contract. On September 26, 2007, the Andreys and NGL reached a
settlement agreement which provided in relevant part that the
parties would immediately execute an agreement for judgment of
$17,803.58 without further interest and without costs, with
execution to issue forthwith. The settlement agreement provided
further that if, on or before March 26, 2008, the Andreys paid
NGL $12,000 plus interest at the rate of 6% per annum from
September 26, 2007, NGL would endorse the execution "Satisfied
in Full" and deliver it to the Andreys. The same day, the
Andreys and NGL executed the agreement for judgment,
memorializing the settlement agreement.
On February 21, 2008, the Andreys having paid nothing
toward the judgment, NGL obtained an execution (execution) from
the Wrentham District Court against the Andreys for $18,077.50,
representing judgment of $17,803.58, no court-calculated pre- or
post-judgment interest, and costs of $273.92. The Andreys never
paid NGL.
On May 2, 2008, a Norfolk County deputy sheriff levied and
seized all of Mary Anne’s right, title, and interest in the
4 property and registered the execution with the Land Court. The
same day, the deputy sheriff attempted to serve the Andreys
notice of the levies and the demand for payment. The execution
stated erroneously that the Andreys resided at 357 Orchard
Street. Copies of the demand and notice were left at that
address and mailed to the Andreys there as well. In fact, the
Andreys resided at 359 Orchard Street and did not receive the
notice.
More than four years later, on July 24, 2012, a Norfolk
County deputy sheriff prepared a written notice of sale
indicating that a sale of the property was scheduled for
September 20, 2012. On July 30, 2012, a copy of the notice of
sale was hand delivered to the Andreys and signed for by Gaston.
On September 20, 2012, the sheriff held an auction of the
property. Mary Anne's son, Roger, placed a bid of $30,874.91,
which the sheriff accepted as the highest bid. But Roger then
refused to tender payment. A deputy sheriff then offered the
property to NGL, as the next highest bidder, and NGL tendered
payment. On December 14, 2012, the Sheriff's office registered
a deed with the registry, stating that the property was sold to
the high bidder, NGL, for $30,784.91 (sheriff’s deed).
Mary Anne filed a complaint in the Norfolk Superior Court
on March 19, 2014 (Norfolk Superior Court action), seeking a
declaratory judgment that the sheriff’s sale and sheriff’s deed
5 were null and void and ordering NGL to convey the property back
to Mary Anne. A judge of the Superior Court granted NGL's
motion for summary judgment on June 10, 2016.5
On October 23, 2019, NGL and Nationstar executed a
confidential settlement agreement and release (Nationstar
settlement). Under the Nationstar settlement, NGL conveyed its
interest in the property to Nationstar by quitclaim deed dated
October 23, 2019 (2019 deed).
Discussion. On review of a judgment, we accept the trial
judge's findings of fact unless clearly erroneous and review the
rulings of law de novo. See South Boston Elderly Residences,
Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462 (2017). We review
discretionary decisions for an abuse of discretion. That occurs
only if "the judge made a clear error of judgment in weighing
the factors relevant to the decision, such that the decision
falls outside the range of reasonable alternatives" (quotation
and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014).
The trial judge found that the judgment in the Norfolk
Superior Court action barred Mary Anne's claims to title to the
property pursuant to the doctrine of res judicata. We agree.
5 Mary Anne filed a notice of appeal from this judgment, but we dismissed the appeal for lack of prosecution.
6 Res judicata is a term that includes both claim preclusion
and issue preclusion. See Santos v. U.S. Bank Nat'l Ass'n, 89
Mass. App. Ct. 687, 692 (2016). "[I]ssue preclusion 'prevents
relitigation of an issue determined in an earlier action where
the same issue arises in a later action, based on a different
claim, between the same parties or their privies'" (citation
omitted). Petrillo v. Zoning Bd. Of Appeals of Cohasset, 65
Mass. App. Ct. 453, 457 (2006). Before precluding the party
from relitigating an issue, a court must determine that
"(1) there was a final judgment on the merits in the prior
adjudication; (2) the party against whom preclusion is asserted
was a party (or in privity with a party) to the prior
adjudication; and (3) the issue in the prior adjudication was
identical to the issue in the current adjudication" (citation
omitted). Id. "Additionally, the issue decided in the prior
adjudication must have been essential to the earlier judgment[,
and i]ssue preclusion can be used only to prevent relitigation
of issues actually litigated in the prior action" (citation
omitted). Id. at 458. Applying those factors here, we conclude
that the trial judge correctly ruled that Mary Anne was
precluded from relitigating the validity of the sheriff's sale
because that same issue was determined in the Norfolk Superior
Court action.
7 First, the summary judgment decision in the Norfolk
Superior Court action was a final judgment on the merits of Mary
Anne's claim that the sheriff's sale was invalid because the
sheriff sought an excessive payment to satisfy the execution and
that title was not vested in NGL. The Superior Court judge
found that Mary Anne (1) knew the amount the sheriff sought to
avoid a sale of the property, (2) knew she could seek redemption
of the property within one year after the sale to NGL, pursuant
to G. L. c. 236, § 33, including her right to challenge the
amount due on redemption at a hearing before a panel of three
justices of the peace, G. L. c. 236, § 34, and (3) was aware of
the right under G. L. c. 236, § 39, to bring a civil action for
redemption, but had failed to do so. Accordingly, the Superior
Court judge granted summary judgment for NGL, finding that the
sheriff's sale was valid. Mary Anne did not appeal that
decision. See note 5 supra.
Second, Mary Anne was a party to the prior action, as was
NGL. Although NGL was dismissed as a party from this action in
2019, NGL conveyed its interest in the property to Nationstar by
the 2019 deed. That conveyance and the settlement agreement
between NGL and Nationstar assigned all of NGL's rights against
the Andreys and its rights in the property to Nationstar.
Third, the issue here is identical to the issue in the
Norfolk Superior Court action: whether the sheriff's sale was
8 valid. Mary Anne asserted in the prior action that the sale was
invalid because the debt she owed on the Judgment from the
Wrentham District Court was $18,077.50 "without interest and
costs" and the sheriff had demanded more than that to satisfy
the execution. Mary Anne raised the same claim in this case.
Finally, the validity of the sheriff's sale was essential
to the resolution of both the Norfolk Superior Court action and
the Land Court action. Accordingly, the trial judge correctly
concluded that relitigation of the issue in the Land Court was
precluded by the decision and judgment in the Norfolk Superior
Court action.6
Judgment affirmed.
By the Court (Singh, Hershfang & Wood, JJ.7),
Clerk
Entered: March 19, 2026.
6 Because issue preclusion applies here, we do not address the trial judge's alternative reliance on claim preclusion or his independent determination that the sheriff's sale was valid.
7 The panelists are listed in order of seniority.