Opinion
18-P-1525
04-09-2020
Thomas C. PAPPAS v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Thomas C. Pappas, appeals from a Land Court judge's order denying his motion for relief from judgment. Pappas raises a jurisdictional challenge to the foreclosure of his home. We affirm.
Background. Pappas purchased the property known as 10 Foretop Road in Bourne (property) in 2000. The land is registered. In 2007, Pappas took out a loan secured by a mortgage on the property, which named Mortgage Electronic Registration Systems Inc. (MERS) as the mortgagee. In November 2010, MERS assigned the mortgage to the defendant, Deutsche Bank National Trust Company as trustee (Deutsche Bank) of the IndyMac INDX Mortgage Loan Trust 2007-FLX5 under the pooling and servicing agreement dated June 1, 2007 (trust).
In August 2012, the Legislature approved an amendment to G. L. c. 244, § 14, which included the following language: "in the event a mortgagee holds a mortgage pursuant to an assignment, no notice under this section shall be valid unless ... (ii) the recording information for all recorded assignments is referenced in the notice of sale required in this section." See G. L. c. 244, § 14, as inserted by St. 2012, c. 194, § 1. This change to § 14 was made effective as of November 1, 2012. See St. 2012, c. 194, § 9.
In preparation for foreclosure on Pappas's interest in the property, Deutsche Bank published three identical notices of sale in the Bourne Enterprise on October 25, 2012, November 1, 2012, and November 8, 2012. None of those three notices included the recording information for the assignment from MERS to Deutsche Bank.
Deutsche Bank foreclosed by sale on Pappas's interest in the property on December 19, 2012, ultimately conveying the property from the trust to itself. Deutsche Bank thereafter presented the foreclosure deed for registration at the Barnstable registry of deeds (registry). Deutsche Bank's affidavit of sale was attached to the deed and was filed in the registry along with the deed. The notice of sale published in the Bourne Enterprise was attached to the affidavit; accordingly, it was also filed in the Land Court department of the registry. On January 10, 2014, the Land Court department issued a certificate of title to Deutsche Bank.
On March 4, 2014, Pappas filed a subsequent or "S" petition in the Land Court, claiming that he remains the rightful owner of the property and seeking to expunge the trust's certificate of title from the Land Court's records. Deutsche Bank moved to dismiss the S petition; in response, Pappas argued that the assignment from MERS to Deutsche Bank was invalid because it did not comply with the terms of the pooling and servicing agreement by which the trust had been formed. A Land Court judge allowed Deutsche Bank's motion and entered judgment dismissing the S petition on May 2, 2016.
On appeal, Pappas abandoned his claim about the pooling and servicing agreement and pursued, for the first time, a new theory as to why the foreclosure sale was void -- i.e., that Deutsche Bank's published notices of sale did not comply with the revised version of § 14 because they omitted the required recording information. In a memorandum and order entered pursuant to our rule 1:28, a panel of this court refused to consider Pappas's new argument, stating, "This is a wholly new theory to support his claim that the foreclosure was void. The notice issue was neither raised in the complaint or in the opposition to the motion to dismiss, nor was leave sought below to amend the complaint to add the claim below." Pappas v. Deutsche Bank Nat'l Trust Co., 92 Mass. App. Ct. 1126 (2018). In its decision, dated February 8, 2018, the panel affirmed the motion judge's dismissal of the case. Id.
Pappas unsuccessfully sought rehearing of his appeal in this court and further appellate review in the Supreme Judicial Court. See Pappas v. Deutsche Bank Nat'l Trust Co., 479 Mass. 1107 (2018). On August 29, 2018 -- more than five and one-half years after the foreclosure auction -- Pappas filed in the Land Court a motion for relief from judgment pursuant to Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974), and for leave to file an amended complaint raising the issue concerning compliance with the revised § 14. The following day, Pappas's motion was denied.
The one-year time limit for certain motions brought under rule 60 (b) does not apply to motions brought on the ground that a judgment is void. See Mass. R. Civ. P. 60 (b). See also Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 31 (1983).
Discussion. 1. Void judgment. As a threshold matter, Pappas has not shown that the original judgment entered in his S petition case was void. Thus, relief does not lie in these circumstances under Mass. R. Civ. P. 60 (b) (4). A judgment is void in the following limited circumstances: where "the court from which it issues lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law." Harris v. Sannella, 400 Mass. 392, 395 (1987). See Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 32 (1983). None of those circumstances exists here. Pappas makes no argument that the Land Court lacked jurisdiction over any party in ruling on his S petition, and the Land Court plainly had jurisdiction over Pappas's petition to remove an erroneously issued certificate of title from the registered land record. See G. L. c. 185, § 114. See also Field v. Massachusetts Gen. Hosp., 393 Mass. 117, 119 (1984). Nor does Pappas make any showing that due process was lacking. See Harris, supra.
2. Catch all relief and G. L. c. 185, § 114 . This conclusion does not, however, end our inquiry. Although Pappas's motion for relief explicitly cited rule 60 (b) (4), it is most generously construed as having been brought under the "catch all" provision of rule 60 (b) (6), which allows relief from a judgment to be granted for "any other reason" justifying the same, with the "other reason" being, in this instance, that the Commonwealth's land registration statute requires the result Pappas seeks.
A motion brought pursuant to Mass. R. Civ. P. 60 (b) must be brought within a "reasonable time." Mass. R. Civ. P. 60 (b). Compare Santagate v. Tower, 64 Mass. App. Ct. 324, 327 (2005). Here, where Pappas's motion for relief from judgment was filed within four months of the Supreme Judicial Court's order denying his petition for further appellate review, we believe the motion was brought within a reasonable time for purposes of the procedural rule. Whether Pappas's motion was properly barred on the separate ground of laches, is, however, a different question that we answer infra.
"To secure relief under rule 60 (b) (6) requires a showing of ‘extraordinary’ circumstances." Bowers, 16 Mass. App. Ct. at 33, quoting Ackermann v. United States, 340 U.S. 193, 202 (1950). Normally, "[w]e will not reverse a judge's denial of a rule 60(b)(6) motion unless we find a clear abuse of discretion." Santagate v. Tower, 64 Mass. App. Ct. 324, 326 (2005). See Mt. Ivy Press, L.P. v. Defonseca, 85 Mass. App. Ct. 241, 245 (2014).
"[R]elief from a judgment may be sought by or on behalf of a person only if the judgment is or purports to be binding on him under the rules of res judicata." Bowers, 16 Mass. App. Ct. at 33-34, quoting Restatement (Second) of Judgments § 64 (1982). For this reason, Pappas's motion for relief from judgment could only have been proper if the prior judgment had preclusive effect; and thus, Deutsche Bank's argument that the motion was precluded on res judicata grounds is circular and unavailing.
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We turn to the relevant statute for guidance. Section 114 of G. L. c. 185 states: "A registered owner or other person in interest may apply by motion to the court upon the ground that, ... any error or omission was made in entering a certificate or any memorandum thereon; ... or upon any other reasonable ground."
"The underlying purpose of title registration is to protect the transferee of a registered title." Doyle v. Commonwealth, 444 Mass. 686, 690 (2005), quoting Wild v. Constantini, 415 Mass. 663, 668 (1993). See Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 527 (2008). The statute's purpose is "not defeated by permitting the court to exercise discretion in crafting equitable relief allowing the transferee to maintain possession of a certificate of title where the transferor ratified the deed or where the transferor was guilty of laches." Id.
Here, where Pappas's motion for relief from judgment was brought more than five and one-half years after the foreclosure date, the motion judge's decision is readily sustainable as within her discretion under G. L. c. 185, § 114, on the ground of laches.
Order denying motion for relief from judgment affirmed.