NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-899
FANNIE MAE1 & another2
vs.
ANTHONY MICHAEL BRANCH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant homeowner, Anthony Michael Branch, appeals
from a final judgment entered by a Housing Court judge granting
Fannie Mae, also known as Federal National Mortgage Association
(FNMA), possession and dismissing the homeowner's counterclaims
against FNMA.3 We conclude that FNMA's judgment for possession
is moot because it no longer has a possessory interest in the
property and that the homeowner's appeal of the allowance of
Roberto Pina Cardoso's motion to intervene is moot because
Cardoso never obtained judgment for possession. We further
conclude that, on the homeowner's counterclaims, he failed to
raise a genuine issue of material fact concerning whether
1 Also known as Federal National Mortgage Association.
2 Roberto Pina Cardoso, intervener-appellee.
3 FNMA was also awarded damages.
Pentagon Federal Credit Union (bank) agreed not to foreclose on
the property. Accordingly, we vacate FNMA's judgment for
possession as moot and remand the matter for entry of a new
judgment dismissing the plaintiff's complaint and the
homeowner's counterclaims.
1. Background. In April 2009, the homeowner obtained a
mortgage loan from the bank in the amount of $103,050 on a home
in Brockton (the property). In mid-2012, the homeowner
defaulted. Between February 2013 and June 2014, the bank sent
the homeowner three separate notices informing him that he was
in default and had a right to cure the default.4 After the
homeowner failed to cure the default, the bank proceeded to
schedule a foreclosure sale.
On January 7, 2016, the homeowner filed for bankruptcy
under Chapter 7 of the Federal Bankruptcy Code, causing the bank
to cancel its already scheduled foreclosure sale. In May 2016,
the bankruptcy trustee agreed to abandon the property so that
the homeowner could sell it to avoid foreclosure. When the
homeowner failed promptly to retain a broker to sell or list the
property (apparently because of a pending divorce), the bank
sent the homeowner a letter notifying him of the bank's intent
to foreclose by sale on September 14, 2016.
4 The parties dispute whether these notices complied with the
mortgage and State law requirements.
2
On September 2, 2016, the homeowner requested that the bank
postpone the scheduled foreclosure sale so that he could attempt
to sell the property. The bank denied the request because it
"came in less than 15 days prior to the scheduled sale date." A
week before the scheduled foreclosure sale, the homeowner
informed the bank that he had received an offer to purchase the
property for $150,000. The bank, however, quickly rejected the
offer because it was "less than the payoff amount required to
release the lien." At the foreclosure sale, the bank was the
highest bidder and purchased the property for $155,918.59.
On October 12, 2016, the bank assigned its bid to FNMA. On
June 5, 2017, FNMA served the homeowner with a summary process
summons and complaint. The homeowner answered raising several
counterclaims. On November 24, 2017, FNMA moved for partial
summary judgment on its claim for possession and on the
homeowner's counterclaims. In response, the homeowner filed an
opposition and a supporting affidavit, as well as an affidavit
requesting additional discovery pursuant to Mass. R. Civ. P.
56 (f), 365 Mass. 824 (1974). After a judge (first judge)
denied the homeowner's request to reopen discovery on the basis
that it was untimely, the judge granted FNMA's motion for
partial summary judgment on its claim for possession and
dismissed the homeowner's counterclaims. The homeowner filed a
3
timely notice of appeal both at this point and after final
judgment entered.
After final judgment entered, Cardoso purchased the
property from FNMA. Shortly thereafter, he filed a summary
process complaint.
On September 21, 2020, a panel of this court granted
Cardoso leave to file a motion to intervene or to be substituted
as the plaintiff in the underlying summary process action. On
November 3, 2020, Cardoso filed a motion requesting that he be
allowed "to intervene as a party Plaintiff in this action,
substitute him as Plaintiff on the claim for possession,
permitting him to proceed as Plaintiff in this matter going
forward." That same day, he also filed a motion requesting use
and occupancy payments during the pendency of the appeal.
While these motions were pending in the Housing Court and
before there was any determination as to who had a superior
possessory interest in the property as between Cardoso and the
homeowner, Cardoso moved to dismiss his summary process
complaint. A second judge allowed the motion, dismissed the
complaint without prejudice, and transferred the homeowner's
counterclaims to the civil docket.
On April 21, 2021, the same second judge allowed Cardoso to
"be joined as a plaintiff in this case" (emphasis added). The
judge did not substitute Cardoso for FNMA or amend the judgment
4
to award Cardoso possession. Rather, the judge specifically
stated that the homeowner "would not be precluded from
challenging the validity of the Plaintiff's title by foreclosure
and consequently, Cardoso's subsequent title by conveyance from
the Plaintiff." The judge further ordered the homeowner to make
use and occupancy payments to Cardoso. The homeowner's appeal
of the judgment granting FNMA possession and dismissing his
counterclaims and his appeal of the order allowing Cardoso to
intervene are now before us.
2. Mootness. "It is a 'general rule that courts decide
only actual controversies . . . and normally do not decide moot
cases.'" Branch v. Commonwealth Employment Relations Bd., 481
Mass. 810, 816 (2019), cert. denied, 140 S. Ct. 858 (2020),
quoting Boston Herald, Inc. v. Superior Court Dep't of the Trial
Court, 421 Mass. 502, 504 (1995). Litigation is moot "where a
court can order 'no further effective relief.'" Troila v.
Department of Correction, 490 Mass. 1013, 1014 (2022), quoting
Lynn v. Murrell, 489 Mass. 579, 582 (2022). "[W]here a case
becomes moot on appeal, we vacate the [judgment] appealed from
with a notation that the decision is not on the merits, and
remand the case to the [lower court] with directions to dismiss
the [complaint]." Aquacultural Research Corp. v. Austin, 88
Mass. App. Ct. 631, 634-635 (2015), quoting Building Comm'r of
5
Cambridge v. Building Code Appeals Bd., 34 Mass. App. Ct. 696,
700 (1993).
a. FNMA's judgment for possession. The homeowner argues
that the first judge erred in allowing FNMA's motion for partial
summary judgment on its claim for possession because there was a
genuine dispute of material fact as to whether it was entitled
to the property. On appeal, the homeowner seeks to reverse,
whereas Cardoso seeks to affirm, FNMA's judgment for possession.
Here, "the application of the mootness doctrine is
warranted" because FNMA no longer has any possessory interest in
the property.5 Robinson v. Contributory Retirement Appeal Bd.,
62 Mass. App. Ct. 935, 936 (2005) (plaintiff's claim for medical
eligibility was moot because "even if [the plaintiff] could
prove the essential elements of a [G. L. c. 32,] § 7 [1] claim,
he would not be entitled to collect the benefits"). After the
final judgment for possession, FNMA transferred the property to
Cardoso. See Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329,
330 (2016) ("judge allowed Fannie Mae's motion for summary
judgment 'as to possession only'"). Given that FNMA no longer
has a superior possessory interest to the homeowner, FNMA's
judgment for possession is moot. See Gutierrez v. Board of
5 Both before us and the Housing Court, FNMA expressed its intent
to abandon the monetary judgment for use and occupancy and the
judgment for possession.
6
Managers of Flagship Wharf Condominium, 100 Mass. App. Ct. 678,
689 (2022) (vacating judgment in part "not on the merits, but
because the claims therein have become moot").
b. Motion to intervene. Given that Cardoso failed to
obtain judgment for possession, the appeal of the allowance of
his motion to intervene is moot. Cf. Reilly v. Hopedale, 102
Mass. App. Ct. 367, 382-383 (2023) ("[plaintiffs'] motion to
intervene was not moot [where they] . . . sought to intervene in
the Land Court suit to effectuate the Superior Court judgment").
The second judge implicitly denied Cardoso's request to be
substituted as the plaintiff in the summary process action and
rather merely added him as a plaintiff, specifically reserving
the right of the homeowner to challenge the validity of
Cardoso's title. As the judgment of possession for FNMA does
not allow Cardoso to take possession and, in any event, is being
vacated and dismissed, it no longer matters whether Cardoso was
properly allowed to intervene.6 Accordingly, the appeal of the
order allowing intervention is moot.
6 We acknowledge that the intervention also allowed Cardoso to
obtain use and occupancy payments while this appeal was pending.
Those orders, however, were affirmed by a single justice of this
court and are not before us. Those use and occupancy payments
will cease with the end of this appeal. We recognize that,
under certain circumstances, a judge may order use and occupancy
payments during the pendency of a summary process action. See
Davis v. Comerford, 483 Mass. 164, 177-178 (2019). Any such
request for use and occupancy payments, however, will be made in
a new summary process action initiated by Cardoso and will not
7
3. Dismissal of the homeowner's counterclaims. a.
Standard of review. "We review a grant of summary judgment de
novo to determine whether, viewing the evidence in the light
most favorable to the nonmoving party, all material facts have
been established and the moving party is entitled to a judgment
as a matter of law." LaRace v. Wells Fargo Bank, N.A., 99 Mass.
App. Ct. 316, 321 (2021), quoting Pinti v. Emigrant Mtge. Co.,
472 Mass. 226, 231 (2015). "In deciding a motion for summary
judgment the court may consider the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits."
Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019),
quoting Niles v. Huntington Controls, Inc., 92 Mass. App. Ct.
15, 18 (2017).
In his opposition to FNMA's motion for partial summary
judgment the homeowner raised two different counterclaims, under
the theories of promissory estoppel and negligent
misrepresentation, based on the bank's alleged agreement to
allow the homeowner to sell the property to avoid foreclosure.7
be impacted by the propriety of the intervention order in FNMA's
action.
7 In his answer, the homeowner counterclaimed that FNMA brought
the summary process action to retaliate against him for
complaining of deceptive and unfair business practices during
the collection and foreclosure process and that FNMA's rejection
of the third-party offer to purchase the property violated G. L.
c. 244, § 35C. Because he failed to raise these counterclaims
in his opposition to FNMA's motion for partial summary judgment,
these claims are waived. See Weiner v. Commerce Ins. Co., 78
8
The bank provided an affidavit stating that "[the homeowner] and
his counsel agreed to immediately sell the property to avoid
foreclosure." The homeowner attested that his attorney advised
him that he could sell the property "once the judgment nisi was
handed down" and that he "did not get [his] divorce Judgment
until July 2016." The homeowner, however, provided no evidence
that the bank agreed to wait later than September 2016 to
foreclose on the property or that it agreed to accept "less than
the full payoff" on the mortgage. See Abdulky v. Lubin & Meyer,
P.C., 102 Mass. App. Ct. 441, 451 (2023), quoting Mass. R. Civ.
P. 56 (e) (in opposing motion for summary judgment, "'an adverse
party may not rest upon the mere allegations or denials of his
pleading'; instead, the adverse party must -— 'by affidavits or
as otherwise provided' under rule 56 -— 'set forth specific
facts showing that there is a genuine issue for trial'").
Accordingly, the counterclaims were properly dismissed on
summary judgment.8
Mass. App. Ct. 563, 568 (2011) (issues not raised in trial court
are waived). Additionally, the homeowner's counterclaims based
on G. L. c. 93A violations, although raised in his opposition,
were not briefed. Accordingly, these claims are not before us.
See Malden Police Patrolman's Ass'n v. Malden, 92 Mass. App. Ct.
53, 62 n.11 (2017).
8 The homeowner also claims that he was entitled to additional
discovery pursuant to Mass. R. Civ. P. 56 (f). See Caira v.
Zurich Am. Ins. Co., 91 Mass. App. Ct. 374, 384 (2017) ("Rule
56 [f] . . . permits a judge to grant a continuance where a
nonmoving party needs to conduct discovery or to take
depositions for the purpose of presenting facts in opposition to
9
4. Conclusion. So much of the final judgment as grants
FNMA possession and damages is vacated, not on the merits but
because it is moot, and the matter is remanded to the Housing
Court for entry of a judgment dismissing FNMA's complaint. So
much of the final judgment as dismisses the defendant's
counterclaims is affirmed. The appeal of the allowance of the
motion to intervene is dismissed as moot.
So ordered.
By the Court (Ditkoff, Hand &
D'Angelo, JJ.9),
Clerk
Entered: May 23, 2023.
the summary judgment motion"); Coastal Orthopaedic Inst., P.C.
v. Bongiorno, 61 Mass. App. Ct. 55, 61 n.8 (2004) (party can
request continuance for additional discovery by "fil[ing] an
affidavit as required by Mass. R. Civ. P. 56 [f]"). The
homeowner's affidavit was based on the proposition that FNMA's
discovery responses were incomplete. The homeowner, however,
does not provide any argument as to why the first judge abused
his discretion in determining that it was too late to raise this
issue in his opposition to the motion for summary judgment,
rather than in a motion to compel at the time that the homeowner
received the allegedly incomplete discovery responses. See
Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 107 (2008)
(request for additional discovery reviewed for abuse of
discretion).
9 The panelists are listed in order of seniority.
10