Opinion
14-P-807
01-29-2016
U.S. BANK NATIONAL ASSOCIATION, trustee, v. JOSEPH BOYER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant former homeowner purports to appeal from the order denying his motion for relief from judgment and from the order denying his motion to reconsider the allowance of trustee U.S. Bank National Association's (the bank's) motion to amend the execution. We affirm.
This case has been to this court before on the defendant's appeal from the summary judgment (in a summary process action) in favor of the bank. See U.S. Bank Natl. Assn. v. Boyer, 82 Mass. App. Ct. 1102 (2012) (affirming summary judgment challenged on basis of failure to comply with G. L. c. 244, § 14, notice requirements). The defendant's application for further appellate review was denied. 463 Mass. 1109 (2012). After the rescript issued in October, 2012, the defendant moved to stay the execution. That motion appears to have been denied in early 2013. On February 26, 2013, the defendant moved to recall the execution, and an order entered on that same day, presumably denying the motion to recall, but delaying the execution, as another motion to stay execution was then filed on April 29, 2013. An order issued that day, but nothing further appears to have happened until October 15, 2013, when the bank filed a motion to issue the execution for the first-floor unit of the three-family home. An execution issued for that unit on October 24, 2013.
In earlier proceedings, Nancy Boyer was a second defendant, but she did not enter an appeal.
Two orders appear on the docket, one on January 10, 2013, and one on February 14, 2013. After the second order, a judgment and execution issued on February 19, 2013. The defendant's appendix contains none of these motions or orders.
On November 1, 2013, the defendant filed the first motion from which he purports to appeal: an emergency, ex parte, motion "for a temporary restraining order staying execution to permit the proper filing and arguing of a motion for relief from judgment for voidness under rule 60(b)(4)." The motion sought a stay of ten days to permit the filing of a motion under rule 60(b)(4), 365 Mass. 828 (1974), and included an affidavit of counsel containing vague allegations that the assignment of the mortgage may have been invalid and therefore the foreclosure would have been void, because the foreclosing entity lacked standing. On November 4, 2013, the judge allowed a ten-day stay, but otherwise denied the motion, indicating that any further motions should be brought to his attention.
When that ten-day stay was about to expire, the defendant filed a motion to reconsider the November 4, 2013, order essentially asking for a further stay "to allow sufficient time for the Defendants to present an important issue of law supported by proper briefing" concerning alleged unspecified insufficiencies in the assignment of the defendants' mortgage, and "an undisputed noncompliant MGL c. 244 § 35A right to cure notice[,] . . . a fraudulent robo-signed Land Court mortgagee's affidavit[,] and fraudulent M.G.L. c. 244 § 15 Affidavit." The motion was denied on November 14, 2013, and the defendant filed a notice of appeal on November 15, 2013, from both the original order and the order denying his motion to reconsider.
The bank then discovered, in its attempt to levy on the execution, that the defendant had moved from the first-floor unit, identified in the execution, to a different vacant unit, one on the second floor. The bank then filed a motion to amend the execution to secure the defendant's eviction from any of the three units in the property. That motion was allowed on December 19, 2013. No appeal was taken from this order. The defendant then filed a motion to reconsider on December 30, 2013, and the defendant, only, appealed from the denial of that motion on December 31, 2013.
If, as argued by the bank, only the appeal from the order denying the motion to reconsider is before us, we need not consider it, as it raised nothing new that could not have been known (and raised) at the time the original motions were filed. See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 808 (2002) ("Clamp-All, therefore, failed to offer any reasonable excuse for its failure to submit the materials included with its motion for reconsideration earlier. In such circumstances, the judge was not required even to consider the motion for reconsideration, let alone to allow it. See Phoenix Home Life Mut. Ins. Co. v. Brown, 49 Mass. App. Ct. 657, 661 [2000] ['there is no duty to reconsider an issue or a question of fact or law, once decided']. Otherwise, a party could submit nothing at all in support of a motion and then, when the motion is properly denied, endlessly move for reconsideration based on materials that were readily available to it at the time it submitted the motion").
Prior to assembly of the record of the defendant's appeals, the bank filed a motion to dismiss the appeals arguing that they were interlocutory matters which could only be brought before the single justice pursuant to G. L. c. 231, § 118. That motion was allowed on April 29, 2014. The defendant appealed from the dismissal on May 8, 2014. The records as to all three appeals were assembled the next day. Only the defendant entered his appeal with this court.
The notice of assembly transmitted by the Housing Court indicates the appeal is from the "Orders dated 11-4-13, 11-1413, 12-30-13, 4-29-14."
See note 2, supra.
Because the judge dismissed all of the defendant's prior appeals, the only appeal properly before us is the appeal from the order dismissing the appeals. However, the defendant fails to make any argument concerning that order. Accordingly, any argument concerning the propriety of the dismissal is waived, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and we offer no opinion regarding the propriety of the dismissal.
Although there appears to be nothing properly before us, in our discretion and in the interest of bringing finality to what appears to us to be frivolous continuing litigation, including this appeal, we accept, for purposes of argument alone, the defendant's incorrect assertion that the underlying motions were made pursuant rule 60(b)(4) and that the arguments made on appeal were raised in them.
In fact, no rule 60(b)(4) motion appears to have been timely filed below. The defendant filed two motions seeking a stay of execution to permit the later filing of a substantive rule 60(b)(4) motion. The judge allowed the first motion, which sought a ten-day period for that purpose, and denied the second one seeking additional time after failing to file the 60(b)(4) motion within the period requested. The defendant has neither argued, nor shown, that the judge abused his discretion with respect to either order.
The defendant's appellate arguments can be broadly placed into two categories. The first is that because the bank lacked standing to foreclose (for various reasons), the Housing Court lacked subject matter jurisdiction and, accordingly, the underlying judgment is void. Second, he raises a number of arguments (which we have set forth in the margin) as to why the bank's foreclosure was invalid. As we noted at the outset, on the defendant's appeal from the judgment, we affirmed the validity of the foreclosure, and the Supreme Judicial Court denied further appellate review.
As best we can discern from the defendant's pro se brief, he appears to argue that the bank did not satisfy the requirements of U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637 (2011); that the mortgage was not assigned in accordance with the pooling services agreement; that the notice to cure did not comply with G. L. c. 244, § 35A; that the foreclosure did not comply with the mortgage; that the mortgagee's affidavit was deficient because it was "robo-signed"; that the bank had no authorized agent to bid at the foreclosure auction; and that the judge erred in not "requiring strictest compliance in [a] buy back by a foreclosing entity." All of these issues could, and should, have been raised in the defendant's previous appeal and are, accordingly, waived.
Rule 60(b)(4) permits a judge to relieve a party from a final judgment that is void. However, where, as here, "a court has rendered judgment, and opportunities for appeal have been exhausted, a subsequent showing that the plaintiff did not, in fact, have standing does not mean that the judgment is void and must be vacated; the judgment is immune from postjudgment attack unless the court's exercise of jurisdiction constituted a 'clear usurpation of power.'" Southwick v. Planning Bd. of Plymouth, 72 Mass. App. Ct. 266, 268 (2008), quoting from Sarin v. Ochsner, 48 Mass. App. Ct. 421, 424 (2000). No such showing has been made here. The Housing Court had subject matter jurisdiction over the summary process action, see G. L. c. 185C, § 3, and there is no challenge to its personal jurisdiction over the parties, nor any allegation that the defendant was deprived of due process. See Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527, 532 (1997) (judgment is void if court from which it issues lacked jurisdiction over parties, lacked jurisdiction over subject matter, or "failed to provide due process of law"); Reporter's Notes to Rule 60(b)(4), Massachusetts Rules of Court, Rules of Civil Procedure, at 1150 (LexisNexis 2015) ("An erroneous judgment is not a void judgment. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or where it acted in a manner inconsistent with due process of law"). See also O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 455 (1991) ("In the interest of finality, the concept of void judgments is narrowly construed").
For these reasons, we affirm the postjudgment order dismissing the appeals.
So ordered.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 29, 2016.