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-569
WELLS FARGO BANK, NATIONAL ASSOCIATION, trustee,1
vs.
ESTHER W. NGOTHO.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
An assignee of a mortgage filed a complaint in the Land
Court seeking to remove a cloud on title to mortgaged property.
A Land Court judge dismissed counterclaims of the mortgagor, and
another judge allowed the assignee's motion for summary
judgment, dismissed additional counterclaims, and denied other
motions of the mortgagor. We affirm.3
Background. On May 25, 2004, the defendant mortgagor,
Esther Ngotho signed an adjustable rate, interest-only note for
$470,000, secured by a mortgage, to finance her purchase of a
home in Beverly. The note had a maturity date of June 1, 2034.
1 For ABFC 2004-OPT5 Trust, ABFC Asset-Backed Certificates, Series 2004-OPT5. 2 Also known as Esther Waigumo Ngotho. 3 We acknowledge the amicus briefs submitted by Dawn Thomson, pro
se; Registrar of Southern Essex County John L. O'Brien, pro se; Gary Yard, pro se; and Jay Lively, pro se. The mortgage did not state a maturity date but referred on its
face to that of the note. Ngotho soon defaulted on payments and
obtained a Chapter 7 bankruptcy discharge on April 12, 2006.
In November 2006, the note and mortgage originator, Option
One Mortgage Corporation (Option One), sent Ngotho a "right to
cure" letter pursuant to G. L. c. 244, § 35A. The letter
informed Ngotho of her default and instructed her that the
default could be cured with a payment of $7,639.76 (amount of
missed payments plus late charges). The next month, Option One
sent a letter notifying Ngotho of the following: "[T]he note is
hereby accelerated and the entire balance [of $482,160.19] is
due and payable forthwith and without further notice." The
letter also indicated that Ngotho could reinstate the loan by
bringing it current, that she was not personally liable due to
the bankruptcy, and that Option One may proceed to foreclose if
the default was not cured. Ngotho did not cure the default.
Ten years later the plaintiff, Wells Fargo Bank, National
Association (Wells Fargo), as trustee under a pooling and
servicing agreement (PSA), took possession of the note and
recorded an assignment of the mortgage by Option One (which by
then had changed names). Wells Fargo published a notice of
foreclosure sale, see G. L. c. 244, § 14, but four days before
the sale, Ngotho recorded an affidavit purportedly "clarifying
the chain of title." G. L. c. 183, § 5B (§ 5B). The § 5B
2 affidavit asserted that Ngotho's mortgage was also accelerated
in 2006, and therefore became unenforceable either (1) in 2011
by operation of the obsolete mortgage statute, G. L. c. 260,
§ 33, or (2) in 2012 by operation of the statute of limitations,
G. L. c. 106, § 3-118. The affidavit also claimed that Ngotho
held title free and clear of any encumbrance.
Wells Fargo filed a complaint in the Land Court seeking a
declaration that the § 5B affidavit was void and not a cloud on
title. Ngotho answered and asserted five counterclaims, three
of which -- claiming discharge of the mortgage and damages for
predatory lending, violation of G. L. c. 93A, and discrimination
–- a judge dismissed pursuant to Mass. R. Civ. P. 12 (h) (3),
365 Mass. 754 (1974). Wells Fargo then moved for summary
judgment on the complaint and remaining counterclaims, in which
Ngotho sought declarations (1) that Wells Fargo lacked standing
to foreclose, and (2) quieting title. Ngotho responded by
filing two motions to dismiss the complaint and a cross motion
for summary judgment, all citing Wells Fargo's alleged lack of
standing.
A different judge denied Ngotho's motions, denied an
emergency motion to intervene that was filed by the Registrar
for Southern Essex County, and allowed Wells Fargo's motion for
summary judgment. A judgment entered declaring the § 5B
affidavit of no force and effect. Ngotho filed unsuccessful
3 motions for reconsideration, to vacate the judgment pursuant to
Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974), and for
transfer of her counterclaims to a court with jurisdiction.
Ngotho now appeals, and we affirm.
Discussion. 1. Standards of review. We review the
rulings on the motions to dismiss de novo. Lanier v. President
& Fellows of Harvard College, 490 Mass. 37, 43 (2022). We also
review de novo the rulings on the motions for summary judgment,
HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326 (2022), and to
vacate. Dumas v. Tenacity Constr. Inc., 95 Mass. App. Ct. 111,
114 (2019). The denial of the motions for reconsideration and
transfer are reviewed for an abuse of discretion. See Audubon
Hill S. Condominium Ass'n v. Community Ass'n Underwriters of
Am., 82 Mass. App. Ct. 461, 470 (2012) (reconsideration);
Worcester v. Sigel, 37 Mass. App. Ct. 764, 766-767 (1994)
(interdepartmental transfer exercised on "ad hoc, case specific"
basis). An abuse of discretion is an error in weighing the
factors relevant to the decision, such that the decision falls
outside the range of reasonable alternatives. L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
2. § 5B Affidavit and Limitation of Action. Affidavits
may be recorded under § 5B "to explain a set of existing facts
relevant to the chain of title where the facts had not been
stated explicitly in the property record." Bank of Am., N.A. v.
4 Casey, 474 Mass. 556, 565 n.19 (2016) (Casey). The "affidavit
must be limited to facts that explain what actually occurred,
and are not inconsistent with the substantive facts contained in
the original document." Id. at 565. The affidavit here
concluded that action on the mortgage was time-barred.
The affidavit did not comport with the governing statute
and improperly clouded title to the mortgaged property.
Contrary to the conclusory allegations in the affidavit, the
note and mortgage show that Ngotho signed a thirty-year loan in
2004, secured by a mortgage that she used to buy a home.4 In
2006, the note was accelerated. As a matter of law that
acceleration did not affect the maturity date of the mortgage,
however, because the two instruments have "separate viability
and enforceability." Nims v. Bank of N.Y. Mellon, 97 Mass. App.
Ct. 123, 127 (2020). See LaRace v. Wells Fargo Bank, N.A., 99
Mass. App. Ct. 316, 329 (2021). We need not decide whether the
note became unenforceable when discharged in bankruptcy, Nims,
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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-569
WELLS FARGO BANK, NATIONAL ASSOCIATION, trustee,1
vs.
ESTHER W. NGOTHO.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
An assignee of a mortgage filed a complaint in the Land
Court seeking to remove a cloud on title to mortgaged property.
A Land Court judge dismissed counterclaims of the mortgagor, and
another judge allowed the assignee's motion for summary
judgment, dismissed additional counterclaims, and denied other
motions of the mortgagor. We affirm.3
Background. On May 25, 2004, the defendant mortgagor,
Esther Ngotho signed an adjustable rate, interest-only note for
$470,000, secured by a mortgage, to finance her purchase of a
home in Beverly. The note had a maturity date of June 1, 2034.
1 For ABFC 2004-OPT5 Trust, ABFC Asset-Backed Certificates, Series 2004-OPT5. 2 Also known as Esther Waigumo Ngotho. 3 We acknowledge the amicus briefs submitted by Dawn Thomson, pro
se; Registrar of Southern Essex County John L. O'Brien, pro se; Gary Yard, pro se; and Jay Lively, pro se. The mortgage did not state a maturity date but referred on its
face to that of the note. Ngotho soon defaulted on payments and
obtained a Chapter 7 bankruptcy discharge on April 12, 2006.
In November 2006, the note and mortgage originator, Option
One Mortgage Corporation (Option One), sent Ngotho a "right to
cure" letter pursuant to G. L. c. 244, § 35A. The letter
informed Ngotho of her default and instructed her that the
default could be cured with a payment of $7,639.76 (amount of
missed payments plus late charges). The next month, Option One
sent a letter notifying Ngotho of the following: "[T]he note is
hereby accelerated and the entire balance [of $482,160.19] is
due and payable forthwith and without further notice." The
letter also indicated that Ngotho could reinstate the loan by
bringing it current, that she was not personally liable due to
the bankruptcy, and that Option One may proceed to foreclose if
the default was not cured. Ngotho did not cure the default.
Ten years later the plaintiff, Wells Fargo Bank, National
Association (Wells Fargo), as trustee under a pooling and
servicing agreement (PSA), took possession of the note and
recorded an assignment of the mortgage by Option One (which by
then had changed names). Wells Fargo published a notice of
foreclosure sale, see G. L. c. 244, § 14, but four days before
the sale, Ngotho recorded an affidavit purportedly "clarifying
the chain of title." G. L. c. 183, § 5B (§ 5B). The § 5B
2 affidavit asserted that Ngotho's mortgage was also accelerated
in 2006, and therefore became unenforceable either (1) in 2011
by operation of the obsolete mortgage statute, G. L. c. 260,
§ 33, or (2) in 2012 by operation of the statute of limitations,
G. L. c. 106, § 3-118. The affidavit also claimed that Ngotho
held title free and clear of any encumbrance.
Wells Fargo filed a complaint in the Land Court seeking a
declaration that the § 5B affidavit was void and not a cloud on
title. Ngotho answered and asserted five counterclaims, three
of which -- claiming discharge of the mortgage and damages for
predatory lending, violation of G. L. c. 93A, and discrimination
–- a judge dismissed pursuant to Mass. R. Civ. P. 12 (h) (3),
365 Mass. 754 (1974). Wells Fargo then moved for summary
judgment on the complaint and remaining counterclaims, in which
Ngotho sought declarations (1) that Wells Fargo lacked standing
to foreclose, and (2) quieting title. Ngotho responded by
filing two motions to dismiss the complaint and a cross motion
for summary judgment, all citing Wells Fargo's alleged lack of
standing.
A different judge denied Ngotho's motions, denied an
emergency motion to intervene that was filed by the Registrar
for Southern Essex County, and allowed Wells Fargo's motion for
summary judgment. A judgment entered declaring the § 5B
affidavit of no force and effect. Ngotho filed unsuccessful
3 motions for reconsideration, to vacate the judgment pursuant to
Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974), and for
transfer of her counterclaims to a court with jurisdiction.
Ngotho now appeals, and we affirm.
Discussion. 1. Standards of review. We review the
rulings on the motions to dismiss de novo. Lanier v. President
& Fellows of Harvard College, 490 Mass. 37, 43 (2022). We also
review de novo the rulings on the motions for summary judgment,
HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326 (2022), and to
vacate. Dumas v. Tenacity Constr. Inc., 95 Mass. App. Ct. 111,
114 (2019). The denial of the motions for reconsideration and
transfer are reviewed for an abuse of discretion. See Audubon
Hill S. Condominium Ass'n v. Community Ass'n Underwriters of
Am., 82 Mass. App. Ct. 461, 470 (2012) (reconsideration);
Worcester v. Sigel, 37 Mass. App. Ct. 764, 766-767 (1994)
(interdepartmental transfer exercised on "ad hoc, case specific"
basis). An abuse of discretion is an error in weighing the
factors relevant to the decision, such that the decision falls
outside the range of reasonable alternatives. L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
2. § 5B Affidavit and Limitation of Action. Affidavits
may be recorded under § 5B "to explain a set of existing facts
relevant to the chain of title where the facts had not been
stated explicitly in the property record." Bank of Am., N.A. v.
4 Casey, 474 Mass. 556, 565 n.19 (2016) (Casey). The "affidavit
must be limited to facts that explain what actually occurred,
and are not inconsistent with the substantive facts contained in
the original document." Id. at 565. The affidavit here
concluded that action on the mortgage was time-barred.
The affidavit did not comport with the governing statute
and improperly clouded title to the mortgaged property.
Contrary to the conclusory allegations in the affidavit, the
note and mortgage show that Ngotho signed a thirty-year loan in
2004, secured by a mortgage that she used to buy a home.4 In
2006, the note was accelerated. As a matter of law that
acceleration did not affect the maturity date of the mortgage,
however, because the two instruments have "separate viability
and enforceability." Nims v. Bank of N.Y. Mellon, 97 Mass. App.
Ct. 123, 127 (2020). See LaRace v. Wells Fargo Bank, N.A., 99
Mass. App. Ct. 316, 329 (2021). We need not decide whether the
note became unenforceable when discharged in bankruptcy, Nims,
4 The second judge correctly "assumed a legal debt existed" where this information appeared in the § 5B affidavit, counterclaims, and summary judgment materials. "[A] wet ink note" was not required to prove the debt, and no credibility determinations were involved. Though the second judge did use the words "find" and "findings," we are not persuaded that she misapplied the summary judgment standard as Ngotho alleges. Later, in her decision to deny reconsideration or relief under rule 60 (b) (4), the judge clarified that the initial "[d]ecision was based on the undisputed documentary record and the court's application of the governing law to those documents."
5 supra at 129, or when Ngotho asked to see it, as Ngotho argues
in the brief, because enforceability of the mortgage did not
depend on Ngotho's continuing liability on the note. Id. See
Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 575-576
(2012), and cases cited (mortgage is transfer of title to secure
note or obligation; title defeasible when debt is paid). Never
modified, the mortgage will mature on June 1, 2034. Thus, the
obsolete mortgage statute and statute of limitations simply have
"no bearing on Wells Fargo's ability to enforce the mortgage."
LaRace, supra at 329. The second judge neither ignored nor
misunderstand the law when she concluded that "the statements
set forth in the 5B Affidavit regarding the obsolete mortgage
statute [and statute of limitations] are incorrect as a matter
of law, act to cloud title, and are of no force and effect."
See Bevilacqua v. Rodriguez, 460 Mass. 762, 771 (2011) ("there
is nothing magical in the act of recording an instrument with
the registry that invests an otherwise meaningless document with
legal effect").
3. Standing of Wells Fargo. Wells Fargo had standing to
file its complaint. Having recorded "a single assignment from
the recordholder of the mortgage,” U.S. Bank Nat'l Ass'n v.
Ibanez, 458 Mass. 637, 651 (2011), Wells Fargo held title to the
property until the mortgage was satisfied or foreclosed, Abate
v. Fremont Inv. & Loan, 470 Mass. 821, 832 (2015), and cases
6 cited, at which point title would pass either to Ngotho, as
mortgagor, or to a purchaser following a sale. Wells Fargo had
"a definite interest" in whether it can pass clear title
following a sale. Bonan v. Boston, 398 Mass. 315, 320 (1986).
The "actual controversy" presented by Ngotho's recording of the
§ 5B affidavit, therefore, is what gave Wells Fargo standing to
bring this suit. G. L. c. 231A, § 1. Ngotho's myriad arguments
to the contrary "obliterate[] the distinction between" the
concept of standing and the merits of her title challenges,
Abate, supra at 826, and were properly rejected by both judges.
4. Jurisdiction. The first judge aptly discerned that
questions of predatory lending, violation of G. L. c. 93A, and
discrimination were outside the "strictly limited jurisdiction"
of the Land Court on this preforeclosure request for a
declaration under G. L. c. 231A.5 Riverbank Improvement Co. v.
Chapman, 224 Mass. 424, 425 (1916). See U.S. Bank Nat'l Ass'n
v. Schumacher, 467 Mass. 421, 429 (2014) (discussing
preforeclosure action in Superior Court). Even after
foreclosure, such claims are limited to the Superior, Housing,
Probate and Family, or Supreme Judicial Courts, see G. L.
c. 93A, § 9 (1); G. L. c. 151B, § 9; G. L. c. 183C, § 18 (a),
(b), (d); Bank of Am., N.A. v. Rosa, 466 Mass. 613, 623-624
5 There was no request for equitable relief, contrary to Ngotho's assertion in the brief.
7 (2013), or in the Land Court in an action to try title, Abate,
470 Mass. at 826, but the Legislature's exclusion of the Land
Court from the jurisdictional statutes we have just listed, and
the exclusion of Ngotho's counterclaims from the grant of G. L.
c. 185, § 1, means that the Land Court had no authority to
adjudicate the claims before foreclosure. Skawski v. Greenfield
Investors Prop. Dev. LLC, 473 Mass. 580, 587-588 (2016); Bagley
v. Illyrian Gardens, Inc., 401 Mass. 822, 824-825 (1998).
Dismissal of the counterclaims pursuant to rule 12 (h) (3) was
appropriate, see HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 199
(2013), and the second judge was not "ignoring her obligation as
a Court of Equity to give complete justice" when she declined to
consider them.
5. Standing of Ngotho. As the second judge explained,
Ngotho has no standing to raise claims that the assignment
violated the PSA or that Wells Fargo violated the PSA and laws
governing trusts. See LaRace, 99 Mass. App. Ct. at 327 n.13.
Thus, that judge did not err by "ignoring" those documents.
To the extent Ngotho seeks to challenge the denial of the
Registrar's motion to intervene, the argument has not been
properly briefed and is waived. Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019). Even if we considered
the claim, Ngotho has no standing as the Registrar's motion was
8 not hers and only the party "aggrieved by" an adverse ruling
"may appeal therefrom." G. L. c. 231, § 113.
At bottom, the question before the Land Court was whether
the § 5B affidavit was effective to cloud title. Because the
statements in the affidavit were inconsistent with the
substantive facts in the original note and mortgage, the second
judge correctly declared the affidavit null and void. Casey,
474 Mass. at 565. This determination quieted Wells Fargo's
title and disposed of Ngotho's second counterclaim. As the
second judge faced no "serious jurisdictional issue" when Ngotho
finally asked for a transfer, Konstantopoulos v. Whately, 384
Mass. 123, 129 (1981), she did not abuse her discretion in her
denial of Ngotho's belated motion seeking that relief. See
Joseph's Polish Nat'l Catholic Church v. Lawn Care Assocs., 414
Mass. 1003, 1004 (1993) ("Such requests should be promptly
made"). The second judge also did not abuse her discretion in
denying the motions for reconsideration and to vacate. The
judgment was not void for all the reasons we have explained.
9 To the extent that Ngotho makes additional arguments, "they
'have not been overlooked. We find nothing in them that
requires discussion.'" Commonwealth v. Sosa, 493 Mass. 104, 124
n.12 (2023), quoting Commonwealth v. Domanski, 332 Mass. 66, 78
(1954).
Judgment affirmed.
Orders denying motions for transfer, reconsideration, or to vacate the judgment affirmed.
By the Court (Desmond, Hand & Hodgens, JJ.6),
Assistant Clerk
Entered: March 26, 2024.
6 The panelists are listed in order of seniority.