Federal National Mortgage Association v. Rego

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SJC-11927

FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. EDWARD M. REGO &
another.1

Essex. November 3, 2015. - May 24, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Summary Process, Appeal. Mortgage, Foreclosure. Real Property,
Mortgage. Practice, Civil, Summary process, Counterclaim
and cross-claim. Consumer Protection Act, Unfair act or
practice. Housing Court, Jurisdiction. Jurisdiction,
Housing Court.

Summary Process. Complaint filed in the Northeast Division
of the Housing Court Department on August 31, 2012.

Motions for partial summary judgment were heard by Timothy
F. Sullivan, J., and a motion to dismiss counterclaims was also
heard by him.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Michael Weinhold for the defendants.
Richard E. Briansky for the plaintiff.
Thomas J. Santolucito & Danielle C. Gaudreau, for Real
Estate Bar Association for Massachusetts, Inc., & another, amici
curiae, submitted a brief.

1
Emanuela R. Rego.
 2

Daniel Bahls & Amanda Winalski, for Community Legal Aid,
amicus curiae, submitted a brief.

DUFFLY, J. The plaintiff, Federal National Mortgage

Association (Fannie Mae), filed a complaint for summary process

in the Housing Court to establish its right to possession of a

house that had been owned by Edward M. Rego and Emanuela R. Rego

(Regos) that Fannie Mae purchased at a foreclosure sale. In

response, the Regos argued that the foreclosure sale conducted

by the bank that held the mortgage on the property, GMAC

Mortgage, LLC (GMAC), was void because GMAC's attorneys had not

been authorized by a prior writing to undertake the actions set

forth in G. L. c. 244, § 14 (§ 14). The Regos also asserted an

equitable defense and counterclaims pursuant to G. L. c. 93A. A

Housing Court judge allowed Fannie Mae's motion for summary

judgment "as to possession only," and scheduled a bench trial on

the Regos' counterclaims under G. L. c. 93A. Thereafter, Fannie

Mae moved to dismiss the counterclaims for lack of subject

matter jurisdiction; that motion was allowed. Final judgment

for possession entered in favor of Fannie Mae, and the Regos

appealed. We transferred the case to this court on our own

motion.

We are confronted with two issues in this appeal.2 First,

2
We reject as without merit the Regos' claim that the
affidavit of sale submitted by Fannie Mae to establish its prima
 3

we consider the meaning of the language in § 14, authorizing

"the attorney duly authorized by a writing under seal" to

perform acts required by the statutory power of sale. We

conclude that the expression is a term of art that refers to a

person authorized by a power of attorney to act in the place of

the person granting that power. At the time the provision was

enacted by amendment in 1906, the phrase "power of attorney" had

the same meaning as a "power under seal." Here, because no

person purported to act under a power of attorney, but only as

legal counsel acting on behalf of a client, the statutory

language on which the Regos rely to challenge the validity of

the foreclosure is inapplicable. We conclude also that legal

counsel may perform the acts at issue in this case without

written authorization, as the "person acting in the name of such

mortgagee." G. L. c. 244, § 14. The foreclosure therefore

suffers no defect on the asserted ground that GMAC failed to

provide such authorization to its attorneys.

Second, we consider whether, in a postforeclosure summary

facie case of possession did not comply with the requirement of
G. L. c. 244, § 15, that "the attorney" must be "duly authorized
by a writing" to sign and record the affidavit. Assuming
without deciding that § 15 requires such written authorization,
the record on appeal reflects that on November 28, 2011, GMAC
provided written authorization to its attorney, who then was
properly authorized to sign the affidavit of sale on April 24,
2012, and record it on May 9, 2012. See Federal Nat'l Mtge.
Ass'n v. Hendricks, 463 Mass. 635, 642 (2012) ("where the
affidavit of sale . . . meets the particular requirements of
§ 15, a plaintiff has made a prima facie case").
 4

process action, the Housing Court may consider defenses and

counterclaims seeking relief pursuant to G. L. c. 93A, and

conclude that the Housing Court has limited authorization to

entertain such claims. To the extent that the Regos appear to

assert an equitable defense to the foreclosure sale and seek, in

addition to damages, the relief of voiding the sale, the judge

properly could have addressed those claims in the summary

process action. It is not apparent from the judge's decision

that he considered these claims when deciding the parties' cross

motions for summary judgment. We therefore vacate the judgment

and remand for further proceedings consistent with this opinion.

Background. The Regos purchased a house on Green Street in

Billerica in 1976. In 1995, they refinanced the home mortgage

loan by borrowing $122,000 from Empire of America Realty Credit

Corporation, and executed a promissory note and mortgage in its

favor. Empire of America Realty Credit Corporation assigned the

mortgage to Wells Fargo Bank, and the following year, Wells

Fargo Bank assigned the mortgage to GMAC Mortgage Corporation.

Eventually, GMAC Mortgage Corporation assigned the mortgage to a

related entity, GMAC, which ultimately foreclosed on the

property.

In 2008, GMAC notified the Regos by mail that they were in

default under the terms of the mortgage loan because they had

missed one monthly payment in the amount of $1,723.12, and that,
 5

in addition, they owed $77.52 in late charges and $11.25 in

fees. In April, 2010, GMAC notified the Regos that they were

eligible for the Federal Home Affordable Modification Program,

12 U.S.C. § 5219 (HAMP), and offered modified terms of payment.3

The Regos rejected the offer, explaining that they could not

afford the modified terms and requesting a more affordable

modification. The next month, GMAC sent a second HAMP

modification offer, proposing terms similar to the first offer,

which the Regos also apparently rejected. On March 15, 2011,

GMAC notified the Regos that GMAC was now due a total of

$35,803, including mortgage loan payments, late charges, and

fees, and informed them that they had thirty days in which to

cure the default.

On May 4, 2011, the law firm of Orlans Moran, on behalf of

its client, GMAC, sent the Regos a "Notice of Intention to

Foreclose." The notice was in letter form, on Orlans Moran

letterhead, and was signed, "GMAC Mortgage, LLC, By its

Attorneys, Orlans Moran PLLC." Orlans Moran attached to the

letter a copy of the mortgagee's notice of sale of real estate,

which it published in the Billerica Minuteman on May 5, 12, and

19, 2011. The notice identified the property and contained

information concerning a public auction to be held on May 27,

3
The proposed monthly payment amount in the modification
offer was $1,240.84.
 6

2011. The following information was set forth at the end of the

notice of sale: "GMAC Mortgage, LLC, Present Holder of said

Mortgage, By its Attorneys, Orlans Moran PLLC."

On May 23, 2011, the Regos sent GMAC a facsimile

transmission requesting a "negotiated pay-off" to avoid the

pending foreclosure, scheduled for May 27, 2011. The Regos

explained that they were attempting to obtain a reverse mortgage

loan, but that the new loan amount would still leave them

$10,000 short of the pay-off amount. They asked GMAC for

"compassion" in negotiating a pay-off agreement to help them

stay in their home. On May 25, 2011, GMAC acknowledged the

Regos' request, informed them that the request was being

processed, and stated that GMAC would not "conduct a foreclosure

sale" while the request was under review. The next day, GMAC

denied the loan modification request. GMAC proceeded with the

foreclosure auction the following day, where it was the highest

bidder. GMAC eventually assigned its bid to Fannie Mae, and

executed a foreclosure deed.4

Fannie Mae served the Regos with a notice to quit and

subsequently filed a summary process complaint for possession.

This litigation followed.

Discussion. We review a decision on a motion for summary

4
The foreclosure deed, assignment of bid, and affidavit of
sale were recorded in the Middlesex North registry of deeds on
May 9, 2012.
 7

judgment de novo. Pinti v. Emigrant Mtge. Co., 472 Mass. 226,

231 (2015). Summary judgment is appropriate where there are no

material facts in dispute and the moving party is entitled to

judgment as a matter of law. Id.

1. Whether GMAC's attorneys had authority to act under

G. L. c. 244, § 14. General Laws c. 244, § 14, is one of the

principal statutory provisions regulating foreclosures conducted

under the statutory power of sale.5 See U.S Bank Nat'l Ass'n v.

Ibanez, 458 Mass. 637, 647-648 (2011). That section provides in

part:

"The mortgagee or person having estate in the land
mortgaged, or a person authorized by the power of sale, or
the attorney duly authorized by a writing under seal or the
legal guardian or conservator of such mortgagee or person
acting in the name of such mortgagee or person, may, upon
breach of condition and without action, perform all acts
authorized or required by the power of sale . . ."
(emphasis added).

G. L. c. 244, § 14. The statute further provides "that no sale

under such power shall be effectual to foreclose a mortgage,

unless, previous to such sale, notice of the sale has been

published once in each of [three] successive weeks . . . and

5
The requirements for a "statutory power of sale," set
forth in G. L. c. 183, § 21, provide that "if a mortgage
provides for a power of sale, the mortgagee, in exercising the
power, may foreclose without obtaining prior judicial
authorization 'upon any default in the performance or
observance' of the mortgage, . . . including, of course,
nonpayment of the underlying mortgage note." See Eaton v.
Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 579-580 (2012),
quoting G. L. c. 183, § 21.
 8

notice of the sale has been sent by registered mail." Id.

These requirements, establishing those who are entitled to

foreclose and the notices that must be given, "must be strictly

adhered to." U.S Bank Nat'l Ass'n v. Ibanez, supra at 647.

The Regos argue that the provision requires prior written

authorization from a mortgagee before its attorney may perform

the statutory acts necessary to conduct a foreclosure sale. In

their view, the foreclosure conducted by GMAC was defective

because GMAC had not provided the requisite written

authorization before its attorneys published and mailed the

notices required by § 14.6

Whether § 14 requires a mortgagee to provide written

authorization to its attorney to perform the acts required by

the statute is a question of statutory interpretation. When the

meaning of a statute is not clear from its plain language, well-

established principles of statutory construction guide our

interpretation. See DiFiore v. American Airlines, Inc., 454

Mass. 486, 490 (2009). We seek to "ascertain the intent of a

statute from all its parts and from the subject matter to which

6
Neither party claims that written authorization must be
"under seal" as required by the statute, G. L. c. 244, § 14.
This is likely a consequence of the Legislature's nullification
of the seal requirement for all instruments relating to an
interest in land. See G. L. c. 183, § 1A, inserted by St. 1977,
c. 152. As we explain, infra, the statutory language requiring
a "writing under seal," G. L. c. 244, § 14, remains relevant to
our interpretation of the statutory language used by the
Legislature at the time the provision was enacted.
 9

it relates, and must interpret the statute so as to render the

legislation effective, consonant with sound reason and common

sense." Seideman v. Newton, 452 Mass. 472, 477 (2008).

"Statutes are to be interpreted, not alone according to their

simple, literal or strict verbal meaning, but in connection with

their development, their progression through the legislative

body, the history of the times, [and] prior legislation . . . .

General expressions may be restrained by relevant circumstances

showing a legislative intent that they be narrowed and used in a

particular sense" (citation omitted). Sullivan v. Chief Justice

for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 24 (2006).

We bear in mind that "[w]ords that are not defined in a statute

should be given their usual and accepted meanings," Seideman,

supra at 477-478, which we derive "from sources presumably known

to the statute's enactors, such as their use in other legal

contexts and dictionary definitions." Seideman, supra at 478,

quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369

(1977).

The statutory language providing that "the attorney duly

authorized by a writing under seal" may perform the acts

authorized by the power of sale was added by amendment in 1906.

See St. 1906, c. 219, § 1. Thus, we first must determine the

usual and accepted meaning of the statutory language from

sources that likely were known to the Legislature at that time.
 10

See Seideman v. Newton, supra at 477-478.

The word "attorney" is not defined anywhere in G. L.

c. 244, the chapter of the General Laws governing the

foreclosure and redemption of mortgages. The first edition of

Black's Law Dictionary defines an attorney as follows: "In the

most general sense this term denotes an agent or substitute, or

one who is appointed and authorized to act in the place of

another. . . . Attorneys in the modern use, are of two sorts,

attorneys at law and attorneys in fact . . . ." Black's Law

Dictionary 104 (1891). Describing the "two sorts" of attorneys,

the first and second editions of Black's Law Dictionary state

that an "attorney at law" is an "advocate, counsel, official

agent employed in preparing, managing, and trying cases in the

courts," and an "officer in a court of justice, who is employed

by a party in a cause to manage the same for him." See id.;

Black's Law Dictionary 104 (2d ed. 1910). By contrast, an

"attorney in fact" is defined as a "private attorney authorized

by another to act in his place and stead, either for some

particular purpose, as to do a particular act, or for the

transaction of business in general, not of a legal character.

This authority is conferred by an instrument in writing, called

a 'letter of attorney,' or more commonly a 'power of attorney.'"

Black's Law Dictionary 105 (1891). Black's Law Dictionary 103

(2d ed. 1910). Cases from this era also draw a distinction
 11

between the two types of attorneys. See, e.g., Smith v. Abbott,

221 Mass. 326, 329-330 (1915) (discussing differing roles of

individual retained as "counsel" to bring ejectment action, and

another individual authorized by "power of attorney under seal"

to "manage and convey property").7

Whether § 14 refers to an attorney in fact or to an

attorney at law requires that we consider the remaining words in

the statutory provision. The provision makes specific reference

not merely to an attorney, but to "the attorney duly authorized

by a writing under seal." Legal treatises from the period

support the view that, at the turn of the Twentieth Century, the

phrase "duly authorized by a writing under seal" referred to a

person authorized to act by a power of attorney. As one

commentator stated, "[t]he expression 'power of attorney,' in a

strict sense, implies a power under seal." Crocker's Notes on

Common Forms 417 (5th ed. 1913), citing Cutler v. Haven, 8 Pick.

490 (1829). See J. Story, Commentaries on the Law of Agency 77

(8th ed. 1874) ("In regard to both a general and to a special

express authority [conferred on an agent], it may be conferred

by a formal instrument, as by a letter under seal . . ."). In

light of the above, we conclude that to the legislators enacting

7
A commentator from this era also stated that the class of
attorneys "is divisible into two kinds, differing very widely in
their rights, duties, obligations, and responsibilities: (1.)
Attorneys in law; (2.) Attorneys in fact." J. Story,
Commentaries on Agency Law 20 (8th ed. 1874).
 12

the 1906 amendment, the phrase "the attorney duly authorized by

a writing under seal" meant the person authorized by a power of

attorney, also known as an attorney in fact; it is not a

reference to legal counsel (the attorney at law).

The remaining language that was also added to § 14 as part

of the 1906 amendment confirms this understanding. Prior to the

amendment, the statute authorized three categories of persons to

perform the acts required by the power of sale, including the

mortgagee.8 St. 1906, c. 219, § 1. In 1906, the Legislature

added four additional categories of potential actors: an

"attorney duly authorized by a writing under seal," the "legal

guardian [of such mortgagee]," the "conservator of such

mortgagee," and a "person acting in the name of such mortgagee

or person." Id. Like an attorney in fact, both a legal

guardian and a conservator9 occupy a formal status conferred by

law that permits each to act in the name of a principal, without

8
The other two categories were "the person who has his
estate in the land mortgaged" and "a person authorized by the
power of sale." See St. 1906, c. 219, § 1.
9
In 1891, Black's Law Dictionary defined a guardian as

"a person lawfully invested with the power, and charged
with the duty, of taking care of the person and managing
the property and rights of another person, who, for some
peculiarity of status, or defect in age, understanding, or
self-control, is considered incapable of ministering his
own affairs."

Black's Law Dictionary 551 (1891). A conservator was defined as
"a guardian, protector, or preserver." Id. at 255.
 13

seeking authorization from the principal. See, e.g., Johnson v.

Kindred Healthcare, Inc., 466 Mass. 779, 785-787 (2014)

(analyzing current statutory scheme granting "broad[] decision-

making authority" to "attorneys in fact, guardians, and

conservators").

The similar status afforded an attorney in fact, a legal

guardian, and a conservator supports our determination that "the

attorney duly authorized by a writing under seal" means an

attorney in fact. See Yates v. United States, 135 S. Ct. 1074,

1085 (2015) ("we rely on the principle of nosciutur a sociis --

a word is known by the company it keeps"). We conclude that, by

adding this statutory language, the Legislature intended to

authorize an attorney in fact to perform the acts of providing

notice of a foreclosure sale required by § 14, and did not

intend to require the mortgagee to issue written authorization

to its legal counsel before counsel may perform such acts on the

mortgagee's behalf.

Finally, we reject the Regos' argument that, by enacting

the 1906 amendment, the Legislature sought to overrule Cranston

v. Crane, 97 Mass. 459, 464 (1867) (Cranston), which held that a

mortgagee may authorize another to perform acts required by the

power of sale without granting "authority under seal," otherwise

known as the power of attorney. The Regos contend that the

Legislature intended to require an attorney to obtain prior
 14

written authorization in order to abrogate our holding in

Cranston. The Regos' interpretation of the statute simply

cannot be squared with the meaning of the words employed by the

Legislature when the amendment was enacted, and there is no

other basis on which to conclude that the Legislature sought to

overrule Cranston forty years later by requiring a mortgagee to

provide written authorization to permit its legal counsel to act

on its behalf.

The argument advanced by the Regos also ignores the fourth

category of persons authorized to act by the 1906 amendment, the

"person acting in the name of such mortgagee." See

G. L. c. 244, § 14. The inclusion of this provision in the 1906

amendment likely reflects the Legislature's intent to preserve

the long-standing practice that a mortgagee may delegate its

authority to perform the acts required by the power of sale.

See Fairhaven Sav. Bank v. Callahan, 391 Mass. 1011, 1012

(1984); Brown v. Wentworth, 181 Mass. 49, 52 (1902) (relying on

Cranston, supra at 464, for proposition that mortgagee "put the

foreclosure into professional hands, and relied upon those whom

he employed to see that all the proper steps were taken").

Therefore, just as the mortgagee may direct its agent to perform

the acts required by the power of sale, the mortgagee may

instruct its legal counsel to undertake such acts "in the name

of [the] mortgagee." See G. L. c. 244, § 14. Because the
 15

attorneys at Orlans Moran, acting on behalf of GMAC, published

and mailed the notices at the direction of GMAC, the foreclosure

suffers no defect on this ground.

2. Housing Court's jurisdiction to resolve G. L. c. 93A

counterclaims. The Regos asserted an equitable defense in

answer to Fannie Mae's complaint, and filed counterclaims for

violations of G. L. c. 93A. In addition to claims based on

asserted violations related to the statutory power of sale, the

Regos claimed that GMAC engaged in unfair or deceptive practices

when it charged them excessive late fees on multiple occasions

during a single month, in violation of the terms of the mortgage

note, and when it sent them deceptive notices concerning their

eligibility for loan modification in the days leading up to the

foreclosure.10

As stated, after granting summary judgment in favor of

Fannie Mae "as to possession only," the judge scheduled trial on

the Regos' counterclaims. Fannie Mae then moved to dismiss the

counterclaims for lack of "subject matter jurisdiction."11 At

the first of two hearings on this motion, Fannie Mae contended

10
The Regos also asserted in their answer that GMAC
committed a breach of the implied covenant of good faith and
fair dealing in the mortgage note.
11
Fannie Mae's motion to dismiss for lack of jurisdiction
was also, in the alternative, a request for clarification
regarding "which components of the Defendants' [G. L.] c. 93A
Claim remain at issue in this action."
 16

that, because the counterclaims sought only damages under G. L.

c. 93A related to loss of possession, and GMAC had prevailed on

the question of possession, the Housing Court "no longer had

jurisdiction" to hear the G. L. c. 93A claim. The Regos argued

that, based on Bank of Am., N.A. v. Rosa, 466 Mass. 613, 615

(2013) (Rosa), their claims of wrongful or deceptive conduct

established an equitable challenge to the foreclosure sale that

would entitle them to postforeclosure relief of setting aside

the foreclosure sale if they prevailed. The judge dismissed the

counterclaims without setting forth the basis of his ruling. He

then scheduled a second hearing on the question whether he could

proceed to trial on the counterclaims under G. L. c. 93A,

inviting the parties to further discuss the impact of our

decision in Rosa. Fannie Mae argued that, under Rosa, the

Housing Court had "limited jurisdiction" and could not entertain

the claim under G. L. c. 93A where the judge had ruled that it

was entitled to possession. The judge allowed Fannie Mae's

motion to dismiss, and final judgment entered in favor of Fannie

Mae on its claim for possession.

We observe first that, as a jurisdictional matter, the

Housing Court has broad authority to resolve civil claims and

counterclaims that relate "directly or indirectly" to "the

health, safety, or welfare, of any occupant of any place

used . . . as a place of human habitation," as well as the
 17

authority to resolve all "housing problems, including all

contract and tort actions which affect the health, safety and

welfare of the occupants or owners" of such housing.

G. L. c. 185C, § 3. See LeBlanc v. Sherwin Williams Co., 406

Mass. 888, 894 (1990). See also Rosa, supra at 621-625

(discussing historical development resulting in expanded

jurisdiction of Housing Court). Therefore, under G. L. c. 185C,

§ 3, the Housing Court has jurisdiction to adjudicate a claim

brought under G. L. c. 93A alleging, for instance, an unfair or

deceptive act or practice related to the sale or rental of

housing, and may award equitable or monetary relief.

The Housing Court also has jurisdiction to hear summary

process complaints, in which the owner of a housing unit seeks

to evict the occupant of that unit and recover possession. See

G. L. c. 185C, § 3; G. L. c. 239, § 1. In summary process

cases, the occupant facing eviction may bring a defense or

counterclaim that the owner of the property has committed a

breach of warranty, a breach of any material provision of the

rental agreement, or a "violation of any other law." G. L.

c. 239, § 8A. When the summary process action follows a

foreclosure on the property, the foreclosed occupant facing

eviction may assert that the power of sale was not strictly

complied with and that the foreclosure is therefore void,

entitling the occupant to possession. See Bank of N.Y. v.
 18

Bailey, 460 Mass. 327, 334 (2011). The occupant also may assert

other affirmative defenses or counterclaims, such as those based

on violations of G. L. c. 93A or G. L. c. 151B, and may seek

possession, monetary damages, or other equitable relief. See

Rosa, supra at 625 (counterclaim for unlawful discrimination may

be decided in postforeclosure summary process action where it

"could vitiate the title, or possession"). Where the

affirmative defenses or counterclaims challenge the right to

possession, the judge must resolve those claims as part of the

summary process action. Id. at 624-625.

But it is also the case that where a judge determines that

an occupant's defenses or counterclaims do not affect the right

to possession, the judge may sever the counterclaims and proceed

to determine possession in the summary process action. See

Commentary to Rule 5 of the Uniform Summary Process Rules, Mass.

Ann. Laws Court Rules, at 801 (LexisNexis 2015-2016) ("the court

retains discretion to sever a counterclaim which cannot

appropriately be heard as part of the summary process action").

Thereafter, pursuant to the Housing Court's general jurisdiction

under G. L. c. 185C, § 3, the judge may in a separate proceeding

determine whether the occupant is entitled to monetary damages,

other forms of equitable relief, or attorney's fees.12 This

12
If, on the other hand, a judge determines that the
Housing Court lacks jurisdiction over a counterclaim under G. L.
 19

approach conserves judicial resources because the Housing Court

judge already will be familiar with the issues presented; it

also reduces further expenditure of resources by a summary

process defendant, who otherwise would be required to file a

separate action in another court, thereby "promot[ing] the

legislative goal of 'just, speedy, and inexpensive' resolution

of summary process cases." See Bank of N.Y. v. Bailey, supra

at 334, quoting Rule 1 of the Uniform Rules of Summary Process.

Here, the Regos followed the correct procedure in asserting

their equitable defense and G. L. c. 93A counterclaims in their

answer to Fannie Mae's complaint. Contrast U.S. Bank Nat'l

Ass'n v. Schumacher, 467 Mass. 421, 422 n.4 (2014). But we are

unable to ascertain on this record whether, in the context of

the summary process action, the judge determined that the Regos=

G. L. c. 93A counterclaims and defenses did not entitle them to

equitable relief affecting the right to possession, or whether

he intended to consider that form of equitable relief, along

with all other potential forms of equitable and monetary relief,

in the separate proceeding but erroneously concluded that he

lacked jurisdiction to do so.

c. 185C, § 3, the judge may dismiss the counterclaim or,
alternatively, ask the Chief Justice of the Trial Court Ato
transfer the case, or the judge, or both, to the appropriate
department of the Trial Court." Konstantopoulos v. Whately, 384
Mass. 123, 129 (1981). See Skawski v. Greenfield Investors
Prop. Dev. LLC, 473 Mass. 580, 592 (2016).
 20

Conclusion. The order dismissing the defendants'

counterclaims is reversed, and the decision allowing the

plaintiff's motion for summary judgment is vacated. The matter

is remanded to the Housing Court for further proceedings

consistent with this opinion.

So ordered.