Opinion
20-P-1279
12-15-2021
SANTANDER BANK, N.A. [1] v. ERIC DOKU & others. [2]
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
Representing herself, defendant Ruth Adjartey appeals from a Housing Court judgment for possession in this post-foreclosure summary process action. In 2015, after Adjartey had defaulted on her mortgage, a predecessor of the plaintiff, Santander Bank, N.A. (Santander), foreclosed on the property and acquired a foreclosure deed to it. Santander's predecessor then filed a summary process action against Adjartey and various other persons. After Adjartey failed to file an opposition to the predecessor's motion for summary judgment and failed to appear at the hearing, a judgment awarding possession entered against Adjartey. Adjartey's appeal of that judgment was dismissed for failure to post an appeals bond.
For various reasons, including the parties' unsuccessful efforts to settle the matter, Santander delayed executing on the 2015 judgment, and Adjartey remained in possession. As a result, Santander's original execution and various subsequent executions expired. See G. L. c. 235, § 23. In 2018, Santander commenced a new summary process action, which is the matter at issue here. Santander again filed a summary judgment motion, and Adjartey again did not file an opposition or appear at the hearing. By order dated May 16, 2019, a Housing Court judge allowed Santander's summary judgment motion.
The record reflects that Adjartey came to the court house on the date of the hearing but refused to enter the court room for the hearing despite multiple entreaties by court personnel that she do so.
A month later, now represented by counsel under a "limited assistance representation," Adjartey filed a motion seeking to reopen the summary judgment proceedings. In short, counsel sought time to investigate whether his client could claim that the underlying mortgage was the result of predatory lending practices and whether a foreclosure sale actually had taken place. In considering the motion, the judge suggested that she had some sympathy for the fact that Adjartey previously had not been represented. However, she ultimately decided that Adjartey was not entitled to what amounted to a "third bite at the apple." Relying on principles of claim preclusion, the judge denied Adjartey's motion to reopen the summary judgment proceedings. A judgment for possession in the current summary process action entered on August 9, 2019.
The judge also denied a motion to dismiss that Adjartey filed pro se.
To the extent that Adjartey argues that by allowing the executions on the earlier judgment to lapse, Santander somehow is forever precluded from pursuing foreclosure, we discern no merit in such an argument. We similarly discern no merit in Adjartey's arguments that the judge erred in applying the principles of claim preclusion to bar Adjartey's claimed defenses to the summary process action, particularly where she filed no opposition to the motion for summary judgment. Nor has Adjartey demonstrated that the judge abused her discretion in declining to reopen the summary judgment proceedings.
Adjartey is not helped by trying to recast her various substantive arguments with respect to the underlying merits as ones claiming that Santander lacks "standing."
We note that Adjartey does not genuinely appear to address her failure to appear or file an opposition to the motion for summary judgment.
Judgment affirmed.
The panelists are listed in order of seniority.
Formerly known as Santander Bank and Sovereign Bank.