Bigelow v. Reem Property, LLC

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21-P-1167                                            Appeals Court

             JAMES B. BIGELOW   vs.   REEM PROPERTY, LLC.


                            No. 21-P-1167.

            Suffolk.      January 17, 2023. – May 12, 2023.

               Present:   Massing, Sacks, & Walsh, JJ.


Mortgage, Foreclosure. Real Property, Foreclosure of tax title,
     Record title. Practice, Civil, Standing, Relief from
     judgment, Summary process. Summary Process. Judgment,
     Preclusive effect. Res Judicata. Forgery.



     Civil action commenced in the Land Court Department on July
9, 2019.

     The case was heard by Michael D. Vhay, J., on a motion for
summary judgment; a motion for reconsideration was considered by
him; and a motion for relief from judgment, filed on August 16,
2021, also was considered by him.”


    James B. Bigelow, pro se.
    David B. Summer for the defendant.
    Grace C. Ross, pro se, amicus curiae, submitted a brief.


    SACKS, J.     After the plaintiff James B. Bigelow's home

mortgage was foreclosed upon, and the purchaser at the

foreclosure auction -- the defendant Reem Property, LLC (Reem)
                                                                     2


-- obtained a summary process judgment for possession against

Bigelow, he filed this try title action in the Land Court,

contending that the foreclosure was void.     A Land Court judge

ordered summary judgment for Reem, concluding that the

preclusive effect of the summary process judgment made it

impossible for Bigelow to establish standing to assert his try

title claim.   Bigelow now appeals, arguing that the judge erred

by giving the summary process judgment preclusive effect, that

the summary process judgment was in any event void and thus

entitled to no preclusive effect, and that summary judgment was

an impermissible procedure through which to determine Bigelow's

standing.   We affirm.1

    Background.    For present purposes this matter had its

genesis in 2015 when Wells Fargo Bank, N.A., foreclosed on its

mortgage securing Bigelow's real property in Oxford.     Reem was

the high bidder at auction, recorded its foreclosure deed, and

then served Bigelow with a notice to quit.     Bigelow did not

vacate and so, in 2016, Reem commenced a summary process action

in the Housing Court.     Bigelow defended on the ground, asserted

in his answer and counterclaim for declaratory relief, that

Reem's title was invalid and the foreclosure deed was void




    1   We acknowledge the amicus brief submitted by Grace C.
Ross.
                                                                     3


because of "defects in the foreclosure process and foreclosure

sale," including that "certain assignments . . . were

fraudulent."     A Housing Court judge disagreed and ordered

summary judgment awarding possession to Reem.2    A panel of this

court affirmed.     See Reem Property, LLC v. Bigelow, 94 Mass.

App. Ct. 1122 (2019) (Bigelow I).     The Supreme Judicial Court

denied further appellate review.     See 482 Mass. 1102 (2019).

     Soon after the Bigelow I rescript issued, Bigelow filed in

the Housing Court a motion for relief from judgment under Mass.

R. Civ. P. 60 (b) (4) and (6), 365 Mass. 828 (1974).     In that

motion, Bigelow argued that Reem's title rested on a foreclosure

deed and a related power of attorney that were forged, that the

forgeries meant Reem lacked standing, that the Housing Court

thus lacked subject matter jurisdiction, and that the summary

process judgment was therefore void.     A Housing Court judge

denied the motion.     Bigelow did not appeal.

     Instead, in 2019, Bigelow filed this try title action in

the Land Court, see G. L. c. 240, §§ 1-5, asserting that Reem's

foreclosure deed and the related power of attorney were forged

and thus that Bigelow's title was superior to whatever interest

Reem held.     On Reem's motion for summary judgment, a Land Court


     2 We take judicial notice of Bigelow's answer and
counterclaim and other documents filed in the summary process
case. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002).
                                                                     4


judge dismissed the action for lack of standing.    The judge

reasoned that the summary process judgment precluded Bigelow

from showing -- as he had to in order to establish his record

title and thus standing -- that the foreclosure was invalid.

The judge denied Bigelow's motion for reconsideration, and

Bigelow appealed.   The judge also denied Bigelow's subsequent

motion for relief from judgment, Bigelow appealed that order,

and the two appeals were consolidated here.

    Discussion.     The burden was on Bigelow to show his standing

to bring the try title action, including that he had record

title to the property.   See G. L. c. 240, § 1; Abate v. Fremont

Inv. & Loan, 470 Mass. 821, 827, 830 (2015) (standing to assert

try title claim requires record title to and possession of

property in question; burden is on plaintiff to show standing).

Here, this required Bigelow to show that the foreclosure deed,

which conveyed record title to Reem, was invalid.    See Abate,

supra at 833 (because mortgagor could not "negate the validity

of the foreclosure," he "failed to demonstrate the record title

required to maintain the action").    The Land Court judge ruled

that, under the doctrine of claim preclusion, the summary

process judgment barred Bigelow from asserting in the Land Court

that the foreclosure was invalid, and, therefore, Bigelow could

not establish his standing.   We affirm the resulting judgment of

dismissal, although we base our decision not on claim preclusion
                                                                   5


but on the closely related doctrine of issue preclusion.3    See

Rasheed v. Commissioner of Correction, 446 Mass. 463, 478 (2006)

("Where we find an adequate alternative ground on which to

affirm summary judgment, we may proceed to do so").

     1.   Issue preclusion.   "The doctrine of issue preclusion

provides that when an issue has been actually litigated and

determined by a valid and final judgment, and the determination

is essential to the judgment, the determination is conclusive in

a subsequent action between the parties whether on the same or

different claim" (quotation and citation omitted).    Jarosz v.

Palmer, 436 Mass. 526, 530-531 (2002).

     Here, the issue of the foreclosure's invalidity was

actually and necessarily litigated in the summary process action




     3 Because issue preclusion applies, we need not address
Bigelow's argument that G. L. c. 239, § 7, barred the judge from
relying on claim preclusion. As we recently recognized, that
statute does not limit issue preclusion. See Duross v. Scudder
Bay Capital, LLC, 96 Mass. App. Ct. 833, 839-840 (2020). We
further note the statute's provision that a summary process
judgment "shall not be a bar to any action thereafter brought by
either party to recover the land or tenements in question"
(emphases added). G. L. c. 239, § 7. It is unclear that a try
title action qualifies, where a plaintiff must have possession
in order to bring a try title action in the first place. See
Abate, 470 Mass. at 827. See also Santos v. U.S. Bank Nat'l
Ass'n, 89 Mass. App. Ct. 687, 690, 692 (2016) (giving claim
preclusive effect to summary process judgment in subsequent
action claiming violations of Home Affordable Modification
Program guidelines and of G. L. c. 244, § 35A [a]). Cf. G. L.
c. 237, § 5 (in action for writ of entry, successful plaintiff
may "recover the land").
                                                                   6


between Bigelow and Reem,4 where Bigelow asserted the

foreclosure's invalidity both as a defense to Reem's claim for

possession and in his counterclaim for declaratory relief.   As

the Housing Court judge's summary judgment decision

acknowledged, Bigelow pressed the issue in opposition to Reem's

motion for summary judgment.   The Housing Court judge, by

ordering judgment for Reem for possession, necessarily ruled

that Bigelow had not shown the foreclosure to be invalid.5

Bigelow pressed the issue on appeal in Bigelow I, and a panel of


     4 Bigelow errs in arguing that Reem made "offensive"
preclusive use of the summary process judgment. "[T]he
offensive use of [issue preclusion] is a generally accepted
practice in American courts, . . . and occurs when a plaintiff
seeks to prevent a defendant from litigating issues which the
defendant has previously litigated unsuccessfully in an action
against another party" (quotation omitted; emphases added). Bar
Counsel v. Board of Bar Overseers, 420 Mass. 6, 9 (1995). See
Pierce v. Morrison Mahoney LLP, 452 Mass. 718, 730 (2008).
Here, it is the defendant Reem, not the plaintiff Bigelow, that
raises issue preclusion, and the parties to the two actions are
identical.

     5 That the judgment did not expressly declare the
foreclosure to have been valid is not dispositive. "[T]he
judgment in favor of [the plaintiff in the summary process
action] could not have been given unless that issue had been
found in its favor. It could not otherwise have been found
. . . that the [plaintiff there] was entitled to possession."
Edwards v. Columbia Amusement Co., 215 Mass. 125, 127 (1913)
(according issue preclusive effect to summary process judgment).
Cf. Klimowicz v. Deutsche Bank Nat'l Trust Co., 264 F. Supp. 3d
309, 317 (D. Mass. 2017), aff'd, 907 F.3d 61 (1st Cir. 2018)
(according issue preclusive effect to summary process judgment,
where defendant in that action sought to litigate validity of
mortgage assignment but motion to amend counterclaim for that
purpose was denied).
                                                                     7


this court affirmed the judgment.    Moreover, Bigelow later moved

for relief from that judgment under Mass. R. Civ. P. 60 (b)

(rule 60 [b]), but he did not appeal from the adverse ruling on

that motion.   The summary process judgment's determination of

the issue was conclusive on Bigelow in the Land Court try title

action between the same parties.    See Jarosz, 436 Mass. at 530-

531.

       It makes no difference that Bigelow's evidence and

arguments on this issue in the Housing Court were not strictly

identical to what he advanced in the Land Court.    In the Housing

Court, Bigelow asserted defects in the foreclosure process and

foreclosure sale, including that certain assignments were

fraudulent, whereas in the Land Court, Bigelow asserted that the

foreclosure deed and a power of attorney had been forged.    In

both cases, however, what Bigelow ultimately sought to establish

was that the foreclosure was invalid.6

       That a second action involves arguments or evidence

differing from the previous action does not warrant an exception

to issue preclusion.    See Commonwealth v. Watkins (No.1), 486

Mass. 801, 806-808 (2021) (issue preclusion barred relitigation



       The documents that Bigelow now claims were forged were
       6

available to him before judgment entered in the summary process
proceedings. We recognize his assertion that he "did not
notice" the alleged forgeries "until New Year's Eve of
2018/2019," shortly before oral argument on his appeal from the
summary process judgment.
                                                                   8


of sufficiency of evidence supporting conviction, even though

defendant's theory of insufficiency differed slightly from those

rejected in earlier proceedings); Miles v. Aetna Cas. & Sur.

Co., 412 Mass. 424, 428–429 (1992) (issue preclusion barred

redetermination of damages amount, despite assertion that newly

discovered evidence showed additional damages); LaRace v. Wells

Fargo Bank, N.A., 99 Mass. App. Ct. 316, 323 (2021).   More

generally, "even if there is a lack of total identity between

the issues involved in two adjudications, the overlap may be so

substantial that preclusion is plainly appropriate."

Commissioner of the Dep't of Employment & Training v. Dugan, 428

Mass. 138, 143 (1998), citing Restatement (Second) of Judgments

§ 27 comment c (1982); Martinez v. Waldstein, 89 Mass. App. Ct.

341, 348-349 (2016) (same).7




     7 Comment c to the Restatement (Second) of Judgments § 27
provides in pertinent as follows:
     "An issue on which relitigation is foreclosed may be one of
     evidentiary fact, of 'ultimate fact' (i.e., the application
     of law to fact), or of law. . . . Thus, for example, if
     the party against whom preclusion is sought did in fact
     litigate an issue of ultimate fact and suffered an adverse
     determination, new evidentiary facts may not be brought
     forward to obtain a different determination of that
     ultimate fact. . . . And similarly if the issue was one of
     law, new arguments may not be presented to obtain a
     different determination of that issue."
                                                                    9


    Accordingly, the issue preclusive effect of the summary

process judgment barred Bigelow from establishing the invalidity

of the foreclosure.   And because he could not "negate the

validity of the foreclosure," he "failed to demonstrate the

record title required to maintain the action" to try title.

Abate, 470 Mass. at 833.   The judge's dismissal of the try title

action was therefore appropriate.

    2.   Whether summary process judgment is void.   Bigelow

nevertheless argues that even if a summary process judgment may

ordinarily have preclusive effect, the summary process judgment

here does not, because it is void.   More specifically, Bigelow

argues that if the foreclosure deed is void, then Reem lacked

standing to bring the summary process action, meaning that the

Housing Court judgment is void for lack of subject matter

jurisdiction and thus has no preclusive effect.   Bigelow further

asserts that he should be permitted to attack the Housing

Court's jurisdiction on this basis in the Land Court.   He

invokes the principle that "the jurisdiction of any court

exercising authority over a subject may be inquired into in

every other court, when the proceedings in the former are relied

upon, and brought before the latter, by a party claiming the

benefit of such proceedings."   Williamson v. Berry, 49 U.S. 495,

540 (1850).
                                                                    10


    It is doubtful, to say the least, that the Housing Court

judgment is "void," a concept that is "narrowly construed."

Harris v. Sannella, 400 Mass. 392, 395 (1987), quoting Lubben v.

Selective Serv. Sys., 453 F.2d 645, 649 (1st Cir. 1972).     "A

court has the power to determine its own jurisdiction, and an

error in that determination will not render the judgment void.

Only in the rare instance of a clear usurpation of power will a

judgment be rendered void."   Harris, supra, quoting Lubben,

supra.   The Housing Court's adjudication of the summary process

action was in no way a "clear usurpation of power," Harris,

supra; that court has jurisdiction of summary process claims

generally, see G. L. c. 185C, § 3, and Reem's summary process

complaint alleged that it owned the property by virtue of a

foreclosure on Bigelow's mortgage.   The action thus appeared to

be a typical postforeclosure summary process action of the sort

regularly adjudicated by the Housing Court.    See Cambridge St.

Realty, LLC v. Stewart, 481 Mass. 121, 127-130 (2018) (Housing

Court has jurisdiction of summary process actions generally; not

every element that summary process plaintiff must prove goes to

plaintiff's standing or court's jurisdiction).

    Moreover, although "subject matter jurisdictional issues

are nonwaivable and can be raised at any time, . . . that does

not mean that subject matter jurisdictional issues can always be

raised in every context and in every forum."     Brown v. Federal
                                                                    11


Nat'l Mtge. Ass'n, 481 Mass. 1036, 1037 (2019).    Even if a

nonparty might later question a judgment as rendered without

subject matter jurisdiction, it remains the case that, "in

accordance with principles which also form the basis for the

familiar doctrine of res judicata[,] the judgment may, after it

becomes final, be binding upon the parties to the suit although

not upon others, and the rights of parties may therefore be

limited to appeal, writ of error, petition to vacate, or other

methods of direct attack" (citation omitted).     Harker v.

Holyoke, 390 Mass. 555, 559-560 (1983), citing, inter alia,

Restatement (Second) of Judgments § 12 (1982).8    In Harker, the

court held that because the Housing Court's exercise of

jurisdiction in the previous action was at least "fairly

debatable," and not "a clear and serious disregard of a

statutory allocation of power between courts," the judgment had

preclusive effect, "regardless of whether the Housing Court had


     8 Section 12 of the Restatement provides in pertinent part
as follows:

     "When a court has rendered a judgment in a contested
     action, the judgment precludes the parties from litigating
     the question of the court's subject matter jurisdiction in
     subsequent litigation except if:

     "(1) The subject matter of the action was so plainly beyond
     the court's jurisdiction that its entertaining the action
     was a manifest abuse of authority."

See Cohen v. Cohen, 470 Mass. 708, 717 (2015).
                                                                  12


subject matter jurisdiction of their controversy."   Harker,

supra at 559, 561.   See Madden v. Madden, 359 Mass. 356, 361-

362, cert. denied, 404 U.S. 854 (1971).   Here, likewise -- where

Bigelow was a party to the summary process action, raised his

forgery claim there in his rule 60 (b) motion there, and did not

appeal from the order denying that motion -- we see no reason

why the judgment should not bind him in the Land Court,

notwithstanding his claim that the Housing Court lacked

jurisdiction to render that judgment.

     The place to seek relief from a judgment as void for want

of subject matter jurisdiction, see Mass. R. Civ. P. 60 (b) (4),9

is the issuing court.   See Air Purchases, Inc. v. Mechanical

Coordinators Corp., 21 Mass. App. Ct. 632, 633 (1986) ("where

rule 60[b] relief is sought, even if by way of an independent

action, the appropriate court is that where the judgment was

rendered").   Bigelow, in fact, availed himself of this remedy.

If the Housing Court judge abused her discretion in denying

Bigelow's rule 60 (b) motion, Bigelow's remedy was a direct

appeal to this court, not a collateral attack on the summary




     9 Rule 60 (b) is fully applicable in summary process actions
in the Housing Court and Superior Court. See Rule 11 (b) of the
Uniform Summary Process Rules (1980). Rule 60 (b) has more
limited application in summary process actions in the District
Court and Boston Municipal Court. See Rule 11 (a) of the
Uniform Summary Process Rules.
                                                                    13


process judgment in the Land Court.    See Tompkins v. Tompkins,

65 Mass. App. Ct. 487, 492-493 (2006).

       3.   Procedure for determining standing.   We are unpersuaded

by Bigelow's argument that the judge should not have determined

his standing at the first step of the try title action.

Ordinarily, a try title action involves two steps.     In the first

step, "[a] petitioner must establish three jurisdictional

elements . . . :     (1) that he holds 'record title' to the

property; (2) that he is a person 'in possession'; and (3) the

existence of an actual or possible 'adverse claim' clouding the

plaintiff's record title" (citations omitted).      Abate, 470 Mass.

at 827.     "If these requirements are satisfied, the second step

requires the adverse claimant either to disclaim the relevant

interest in the property or to bring an action to assert the

claim in question" (quotation and citation omitted).      Id. at

828.

       The Abate court recognized, however, that "[w]here . . .

the determination of standing, and ultimately jurisdiction,

necessarily reaches and effectively negates the merits of a

petitioner's claim, the two-step procedure is not abrogated

. . . [and] dismissal of a try title petition for lack of

standing on a motion to dismiss is a procedural disposition we

[have] expressly approved."     Abate, 470 Mass. at 828, citing

Bevilacqua v. Rodriguez, 460 Mass. 762, 763-764 (2011).      That
                                                                    14


was essentially the case here.     Bigelow's claim of record title,

and thus his standing, was entirely dependent on his assertion

that the foreclosure was invalid.     Because the summary process

judgment precluded Bigelow from relitigating that issue, he

could not show standing here, requiring dismissal of his claim.

    The judge also proceeded properly by resolving the dispute

over Bigelow's record title, and thus his standing, through a

motion for summary judgment.     We recognize the statement in

Abate that in a try title action, "to the extent that subject

matter jurisdiction generally, or standing in particular, is

raised by a respondent, the judge may consider the issue by way

of a motion to dismiss under either rule 12 (b) (1) or rule

12 (b) (6)."   Abate, 470 Mass. at 829, citing Mass. R. Civ. P.

12 (b) (1), (6), 365 Mass. 754 (1974).     But nothing in Abate

purports to limit a judge to those procedural devices.

    Indeed, the Abate court recognized not only that "[t]he

jurisdictional facts required for standing . . . are subject to

challenge through the introduction of other evidence negating

the petitioner's claim" but also that "there is no impediment to

a judge holding a hearing to determine the accuracy of alleged

jurisdictional facts in the first step of a try title action."

Abate, 470 Mass. at 830-831.     Because a judge may hold an

evidentiary hearing to resolve factual disputes that determine a

try title petitioner's standing (and thus the court's subject
                                                                  15


matter jurisdiction), we see no reason why a judge may not also

use the summary judgment procedure to resolve whether standing

(and thus jurisdiction) may be determined without holding such

an evidentiary hearing.10     Cf. Bank of N.Y. Mellon Corp. v. Wain,

85 Mass. App. Ct. 498, 506 (2014) (approving use of summary

judgment procedure to resolve try title action without requiring

respondent to assert claim of title).

     4.   Remaining issues.    Bigelow's remaining arguments may be

resolved summarily.    First, that Reem did not file a

counterclaim in the try title action, or initiate an independent

action to establish its claim to title, did not require that

Reem be defaulted.    Because Bigelow could not show standing, and

thus could not succeed at the "first step" of the try title

action, the case never proceeded to the "second step," and so

Reem was never called upon either to prove its title or disclaim

its interest.   Abate, 470 Mass. at 822.




     10Bigelow is mistaken in asserting that the judge, by
ordering Reem to file a summary judgment motion making its claim
preclusion argument, implicitly denied Reem's earlier motion to
dismiss, which had made the same argument. We view the judge's
order as recognizing that, in the circumstances, it was
desirable to resolve the claim preclusion argument (and thus
Bigelow's standing) based on a fuller record than that available
for the rule 12 (b) (6) motion. Moreover, even an express
denial of the motion to dismiss would not have barred allowance
of the motion for summary judgment. Cf. Winchester Gables, Inc.
v. Host Marriott Corp., 70 Mass. App. Ct. 585, 593 (2007)
(discussing limits of "law of the case" doctrine).
                                                                   16


     Second, contrary to Bigelow's argument, the Land Court

judge did not rule that Reem's foreclosure deed was forged or

invalid.   Instead, the judge, for the limited purpose of ruling

on Reem's summary judgment motion, merely accepted Bigelow's

"contention" that the deed was forged.   The judge then made

clear that the contention was beside the point, because the

proper place to pursue it was in an appeal from the Housing

Court's denial of Bigelow's rule 60 (b) motion.   The contention,

even if true, did not permit the judge to ignore the summary

process judgment's preclusive effect.

     Bigelow has made no argument specifically addressing the

Land Court judge's orders denying his motions to reconsider or

for relief from judgment; any such arguments are thus waived.

See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.

1628 (2019).

     Conclusion.   We affirm the judgment, the September 24, 2020

order denying Bigelow's motion for reconsideration, and the

September 21, 2021 order denying Bigelow's motion for relief

from judgment.11

                                    So ordered.




     11We deny Reem's request for an award of its appellate
attorney's fees and double costs.