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-1440
WELLS FARGO BANK, N.A., trustee,1
vs.
MARY EARLE & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, Mary Earle and Joseph M. O'Hare, appeal
from a Housing Court judge's grant of summary judgment for the
plaintiff, Wells Fargo Bank, N.A., in this summary process
action. On appeal, the defendants assert, inter alia, that
because the Housing Court lacked subject matter jurisdiction
over actions affecting title to registered land, the judge had
no authority to decide this matter. We affirm.
1For the benefit of Certificateholders of Asset Backed Securities Corporation Home Equity Loan Trust, Series OOMC 2005- HE6.
2 Joseph M. O'Hare. Background. We summarize the facts in the summary judgment
record in the light most favorable to the defendants, the
nonmoving parties. In April of 2005, the defendants executed
and delivered a mortgage to Option One Mortgage Corporation
(Option One), secured by property located in Sandwich
(property). The mortgage was registered in the Barnstable
County registry district of the Land Court and recorded in the
Barnstable County registry of deeds.
In June of 2007, Option One assigned the mortgage to the
plaintiff in trust for the benefit of Certificateholders of
Asset Backed Securities Corporation Home Equity Loan Trust,
Series OOMC 2005-HE6, and the assignment was also registered in
the Land Court and recorded in the registry of deeds.
Thereafter, the defendants defaulted on the mortgage. In
February of 2021, an officer of the PHH Mortgage Corporation
(PHH), as loan servicer for the plaintiff, executed affidavits
of compliance with G. L. c. 244, § 35B, concerning good faith
efforts to avoid foreclosure; and with G. L. c. 244, § 35C,
concerning authorization to act on behalf of the note holder.3
3 As an authorized agent of the loan servicer PHH, the officer was a proper party to submit the affidavits of compliance with §§ 35B and 35C, both of which include mortgage servicer, its agents, and its employees in the definition of creditor. See G. L. c. 24, § 35B (a), fifth par.; § 35C (a), third par.
2 On three dates in 2022, the plaintiff published a notice of a
foreclosure sale, and at the public auction the property was
sold to the plaintiff. The foreclosure deed was then registered
and noted in the Land Court, and a new certificate of title was
issued and then recorded in the registry of deeds.
On September 11, 2023, the plaintiff served the defendants
with a notice to quit. Also in September of 2023, the plaintiff
served the defendants with a summary process summons and
complaint for possession of the premises, and on January 26,
2024, the plaintiff moved for summary judgment. Earle, who had
submitted a written answer to the plaintiff's complaint,
appeared at the motion hearing and also submitted exhibits in
opposition to the motion. O'Hare did not appear at the hearing
on the plaintiff's motion for summary judgment and was
defaulted.
On May 9, 2024, a Housing Court judge granted summary
judgment in favor of the plaintiff. The defendants appeal.4
Discussion. 1. Summary judgment standard. On appeal,
Earle contends that the judge, in allowing the plaintiff's
4 O'Hare filed a motion to remove the default judgment, which was denied. Because O'Hare may not appeal from the summary process judgment, see Rule 12 of the Uniform Summary Process Rules (2004); Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 856 (2019), and makes no argument that his motion to remove the default was erroneously denied, we affirm the judgment as to him.
3 motion for summary judgment, applied "an incorrect standard" to
her as the nonmoving party under Mass. R. Civ. P. 56, 365 Mass.
824 (1974). We review the judge's grant of summary judgment de
novo. See Galenski v. Erving, 471 Mass. 305, 307-308 (2015).
While we view the evidence in the light most favorable to the
opposing party, "the opposing party cannot rest on his or her
pleadings and mere assertions of disputed facts to defeat the
motion for summary judgment." LaLonde v. Eissner, 405 Mass.
207, 209 (1989), citing Community Nat'l Bank v. Dawes, 369 Mass.
550, 554 (1976).
In a postforeclosure summary process case, a plaintiff "may
make a prima facie showing of its right to possession by
producing an attested copy of the recorded foreclosure deed and
affidavit of sale under G. L. c. 244, § 15." Federal Nat'l
Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012) (Hendricks).
Moreover, where, as here, the mortgage contained a power of
sale, "[l]egal title is established in summary process by proof
that the title was acquired strictly according to the power of
sale provided in the mortgage; and that alone is subject to
challenge." Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011)
(Bailey), quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775
(1966).
Earle correctly states that, as the nonmoving party, she
was not "required" to introduce any materials in opposition to
4 the plaintiff's motion. See Reporter's Notes to Mass.
R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002) ("[a
nonmovant] may decline to introduce his [or her] own materials
and may instead fight the motion on entirely legal [as opposed
to factual] grounds"). However, where, as here, the plaintiff
made a prima facie case of its right to possession, the burden
shifted to Earle to factually contest the plaintiff's compliance
with G. L. c. 244, § 14. "If a plaintiff makes a prima facie
case, it is then incumbent on a defendant to counter with his
[or her] own affidavit or acceptable alternative demonstrating
at least the existence of a genuine issue of material fact to
avoid summary judgment. . . ." Hendricks, 463 Mass. at 642.
"If a defendant fails to show the existence of a genuine issue
of material fact . . . by contesting factually a prima facie
case of compliance with G. L. c. 244, § 14, such failure
generally should result in judgment for the plaintiff."
Hendricks, supra.
Here, the plaintiff properly presented a prima facie case
of its right to possession by providing an attested copy of its
recorded and registered foreclosure deed and the statutory
affidavit of sale. See Hendricks, 463 Mass. at 637.
Additionally, the plaintiff submitted a detailed affidavit of
continuing note holder status and strict compliance with the
mortgage terms. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226,
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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-1440
WELLS FARGO BANK, N.A., trustee,1
vs.
MARY EARLE & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, Mary Earle and Joseph M. O'Hare, appeal
from a Housing Court judge's grant of summary judgment for the
plaintiff, Wells Fargo Bank, N.A., in this summary process
action. On appeal, the defendants assert, inter alia, that
because the Housing Court lacked subject matter jurisdiction
over actions affecting title to registered land, the judge had
no authority to decide this matter. We affirm.
1For the benefit of Certificateholders of Asset Backed Securities Corporation Home Equity Loan Trust, Series OOMC 2005- HE6.
2 Joseph M. O'Hare. Background. We summarize the facts in the summary judgment
record in the light most favorable to the defendants, the
nonmoving parties. In April of 2005, the defendants executed
and delivered a mortgage to Option One Mortgage Corporation
(Option One), secured by property located in Sandwich
(property). The mortgage was registered in the Barnstable
County registry district of the Land Court and recorded in the
Barnstable County registry of deeds.
In June of 2007, Option One assigned the mortgage to the
plaintiff in trust for the benefit of Certificateholders of
Asset Backed Securities Corporation Home Equity Loan Trust,
Series OOMC 2005-HE6, and the assignment was also registered in
the Land Court and recorded in the registry of deeds.
Thereafter, the defendants defaulted on the mortgage. In
February of 2021, an officer of the PHH Mortgage Corporation
(PHH), as loan servicer for the plaintiff, executed affidavits
of compliance with G. L. c. 244, § 35B, concerning good faith
efforts to avoid foreclosure; and with G. L. c. 244, § 35C,
concerning authorization to act on behalf of the note holder.3
3 As an authorized agent of the loan servicer PHH, the officer was a proper party to submit the affidavits of compliance with §§ 35B and 35C, both of which include mortgage servicer, its agents, and its employees in the definition of creditor. See G. L. c. 24, § 35B (a), fifth par.; § 35C (a), third par.
2 On three dates in 2022, the plaintiff published a notice of a
foreclosure sale, and at the public auction the property was
sold to the plaintiff. The foreclosure deed was then registered
and noted in the Land Court, and a new certificate of title was
issued and then recorded in the registry of deeds.
On September 11, 2023, the plaintiff served the defendants
with a notice to quit. Also in September of 2023, the plaintiff
served the defendants with a summary process summons and
complaint for possession of the premises, and on January 26,
2024, the plaintiff moved for summary judgment. Earle, who had
submitted a written answer to the plaintiff's complaint,
appeared at the motion hearing and also submitted exhibits in
opposition to the motion. O'Hare did not appear at the hearing
on the plaintiff's motion for summary judgment and was
defaulted.
On May 9, 2024, a Housing Court judge granted summary
judgment in favor of the plaintiff. The defendants appeal.4
Discussion. 1. Summary judgment standard. On appeal,
Earle contends that the judge, in allowing the plaintiff's
4 O'Hare filed a motion to remove the default judgment, which was denied. Because O'Hare may not appeal from the summary process judgment, see Rule 12 of the Uniform Summary Process Rules (2004); Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 856 (2019), and makes no argument that his motion to remove the default was erroneously denied, we affirm the judgment as to him.
3 motion for summary judgment, applied "an incorrect standard" to
her as the nonmoving party under Mass. R. Civ. P. 56, 365 Mass.
824 (1974). We review the judge's grant of summary judgment de
novo. See Galenski v. Erving, 471 Mass. 305, 307-308 (2015).
While we view the evidence in the light most favorable to the
opposing party, "the opposing party cannot rest on his or her
pleadings and mere assertions of disputed facts to defeat the
motion for summary judgment." LaLonde v. Eissner, 405 Mass.
207, 209 (1989), citing Community Nat'l Bank v. Dawes, 369 Mass.
550, 554 (1976).
In a postforeclosure summary process case, a plaintiff "may
make a prima facie showing of its right to possession by
producing an attested copy of the recorded foreclosure deed and
affidavit of sale under G. L. c. 244, § 15." Federal Nat'l
Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012) (Hendricks).
Moreover, where, as here, the mortgage contained a power of
sale, "[l]egal title is established in summary process by proof
that the title was acquired strictly according to the power of
sale provided in the mortgage; and that alone is subject to
challenge." Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011)
(Bailey), quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775
(1966).
Earle correctly states that, as the nonmoving party, she
was not "required" to introduce any materials in opposition to
4 the plaintiff's motion. See Reporter's Notes to Mass.
R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002) ("[a
nonmovant] may decline to introduce his [or her] own materials
and may instead fight the motion on entirely legal [as opposed
to factual] grounds"). However, where, as here, the plaintiff
made a prima facie case of its right to possession, the burden
shifted to Earle to factually contest the plaintiff's compliance
with G. L. c. 244, § 14. "If a plaintiff makes a prima facie
case, it is then incumbent on a defendant to counter with his
[or her] own affidavit or acceptable alternative demonstrating
at least the existence of a genuine issue of material fact to
avoid summary judgment. . . ." Hendricks, 463 Mass. at 642.
"If a defendant fails to show the existence of a genuine issue
of material fact . . . by contesting factually a prima facie
case of compliance with G. L. c. 244, § 14, such failure
generally should result in judgment for the plaintiff."
Hendricks, supra.
Here, the plaintiff properly presented a prima facie case
of its right to possession by providing an attested copy of its
recorded and registered foreclosure deed and the statutory
affidavit of sale. See Hendricks, 463 Mass. at 637.
Additionally, the plaintiff submitted a detailed affidavit of
continuing note holder status and strict compliance with the
mortgage terms. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226,
5 240 (2015) (foreclosing party must strictly comply with
mortgage's power of sale provisions). Thus, the burden shifted
to Earle to show a genuine issue of material fact regarding the
plaintiff's right to possession. See Hendricks, supra at 642.
Although Earle submitted an answer with exhibits in response to
the plaintiff's prima facie case, the judge stated, and we
agree, that the "allegations in her affirmative defenses [were]
conclusory and unsupported by any admissible evidence." The
judge then properly concluded that "there [were] no genuine
issues of material fact in dispute on the issue of possession of
the premises," and thus, "the plaintiff [was] entitled to the
entry of summary judgment in its favor as a matter of law."
Based on our independent review of the summary judgment record,
we agree that the plaintiff was entitled to summary judgment.
2. Subject matter jurisdiction. Earle contends that the
Housing Court lacked subject matter jurisdiction to "opine on
issues of 'title' in defense to a summary process complaint
regarding [r]egistered [l]and," and that the judge should have
dismissed the plaintiff's complaint sua sponte on that basis.
Earle primarily relies on G. L. c. 185, § 1 (a 1/2), which
grants the Land Court "exclusive original jurisdiction" over
"[c]omplaints affecting title to registered land" (emphasis
added), and Bailey, and argues that because the judge
"necessarily had to make [a] finding that [the p]laintiff
6 possessed superior title" in granting the motion for summary
judgment, the Housing Court lacked jurisdiction.
However, the Supreme Judicial Court stated in Bailey, 460
Mass. at 333, "There is nothing in th[e] jurisdictional scheme
that supports a conclusion that the Legislature intended to give
the Housing Court concurrent jurisdiction over summary process
actions, yet preclude its consideration of the long-recognized
validity of title defense to summary process." While Earle
recognizes that Bailey "definitively held . . . that a defendant
in a summary process matter may raise issue(s) of superior title
in defense of an eviction action," she nonetheless argues that
the court "was remiss in its failure to discuss the obvious
remaining issue of how this finding would affect future cases
involving title to Registered Land." However, nothing in Bailey
suggests that the Housing Court would not have subject matter
jurisdiction over a summary process action involving registered
land even if a defendant challenges the plaintiff's standing by
claiming a defective foreclosure. Instead, Bailey suggests that
a defendant would be entitled to raise the question of the
plaintiff's standing by challenging the propriety of the sale or
the plaintiff's legal title to the foreclosed property. See
Bailey, supra. We note that the Land Court does not have
jurisdiction over summary process actions. See Commentary to
Rule 1 of the Uniform Summary Process Rules (1980) ("Four
7 Departments of the Massachusetts Trial Court have jurisdiction
over summary process actions [Superior Court, District Court,
Boston Municipal Court, and Housing Court]"). Earle has not
provided contrary authority.
3. Good faith and reasonable diligence. Next, Earle
asserts that, in foreclosing on the property, the plaintiff
failed to protect her interests. See U.S. Bank Nat'l Ass'n v.
Ibanez, 458 Mass. 637, 647 n.16 (2011), citing Williams v.
Resolution GGF OY, 417 Mass. 377, 382-383 (1994) (recognizing
mortgage holder's responsibility to "act in good faith and . . .
use reasonable diligence to protect the interests of the
mortgagor" is "more exacting" where holder becomes buyer at
foreclosure sale). Earle alleges on appeal that upon the
defendants' default in 2007, they were "wrongfully[,] forcibly
removed" from the property, and then, upon learning of the
eviction's invalidity in 2012, the defendants returned to the
property to find it abandoned and neglected. Despite these
allegations, Earle produced no evidence in the record to
establish these events; we are thus unable to assess this aspect
of Earle's appeal. See Mass. R. A. P. 18 (a) (1) (A), as
appearing in 481 Mass. 1637 (2019). To the extent that Earle
contends that a prior invalid attempt to foreclose on the
property precluded the plaintiff from foreclosing at a later
date, she has failed to provide any legal support for her
8 position. Thus, we conclude that Earle failed to raise a
genuine issue of material fact related to the plaintiff's good
faith or reasonable diligence.
4. Constitutional challenges. Lastly, Earle raises
arguments aimed at challenging the constitutionality of the
statutory scheme underlying this summary process action. First,
she argues that G. L. c. 239 and G. L. c. 185C, § 3, as applied,
create an unconstitutional disparity between "the same class of
property owners" based on whether the owner challenges the
validity of the foreclosing party's title in the Housing Court -
- where an appeal is conditioned on posting an appeal bond5 -- or
in the Superior Court, where a party is entitled to an appeal as
of right. We discern no such disparity; General Laws c. 239,
§§ 5 and 6, condition an appeal from a judgment of either the
Superior Court or the Housing Court for possession of land after
foreclosure on the appellant's posting of a bond.
Even if that were not the case, however, we would not reach
the question. This is because as a general matter, "[w]e do not
decide constitutional questions unless they must necessarily be
reached" (citation omitted), Dinkins v. Massachusetts Parole
Bd., 486 Mass. 605, 616 (2021), and "constitutional question[s]
should be addressed as applied to the facts in the instant case,
5 See Rule 12 of the Uniform Summary Process Rules.
9 and not as an abstract question of law." Frechette v. D'Andrea,
494 Mass. 167, 178 (2024).6 Here, the judge waived the appeal
bond, finding that Earle was indigent and had raised a
nonfrivolous defense on appeal. Earle was, therefore, on equal
footing with the "class of property owners" in the Superior
Court, and we need not address her constitutional claim.
Second, Earle asserts that the plaintiff's reliance on a
G. L. c. 244, § 35C, affidavit to satisfy its burden to show
that it "physically possessed the borrower's note" at the time
of notice of sale, in compliance with G. L. c. 244, § 14, was
unconstitutional, as it violated her procedural due process
rights. We are not persuaded. Earle had the opportunity to
place facts in dispute concerning the note at the time of the
foreclosure, see Khalsa v. Sovereign Bank, N.A., 88 Mass. App.
Ct. 824, 830-831 (2016), but did not. Thus, where the plaintiff
submitted a recorded and registered affidavit, executed by an
authorized agent, that states that the plaintiff was "the holder
of the promissory note secured by the above mortgage," its
showing was sufficient. See Eaton v. Federal Nat'l Mtge. Ass'n,
462 Mass. 569, 584-586 (2012) (foreclosing mortgagee not
6 To the extent Earle also argues that these statutes are facially unconstitutional, that argument is similarly without merit.
10 required to "have physical possession of the mortgage note in
order to effect a valid foreclosure").
Judgment affirmed.
By the Court (Massing, Hand & Allen, JJ.7),
Clerk
Entered: April 28, 2026.
7 The panelists are listed in order of seniority.