Opinion
No. 11–P–941.
2012-11-20
CITIMORTGAGE, INC. v. Dennis A. BLANCHETTE & another.
By the Court (GRASSO, FECTEAU & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the judge's denial of the defendants' emergency motion to vacate judgment filed in connection with the Land Court's judgment issued on November 1, 2010, determining that the defendants were not entitled to the protection of the Servicemembers Civil Relief Act (Act).
.50 U.S.C.App. §§ 501 et seq.
Background. On March 2, 2010, the plaintiff, CitiMortgage, Inc. (CitiMortgage), filed an action with the Land Court pursuant to the Act seeking a judgment that the defendants, Dennis A. Blanchette and Elizabeth Blanchette, were not in active military service and not entitled to the protections of the Act. No other relief was sought. The defendants submitted an answer, but “[did] not assert that the [defendants] or any other concerned parties are entitled to the protection of the [Act].” See Beaton v. Land Court, 367 Mass. 385, 388 (1975). Instead, the defendants attempted to assert that the plaintiff was not the current mortgage holder and that the action should be dismissed because the plaintiff had no standing to bring an action under the Act. After a Land Court judge issued an order to show cause why a judgment of dismissal should not enter, the plaintiff responded by submitting a copy of the assignment of mortgage by Mortgage Electronic Registration Systems, Inc. (MERS) to CitiMortgage dated March 1, 2010. Accordingly, the judge determined that the plaintiff had standing to bring the action and denied the defendants' request to dismiss. The defendants then filed a motion to strike, remove, dissolve, and dismiss, which the judge treated as a motion for reconsideration and denied on October 25, 2010. On November 1, 2010, judgment for the plaintiff issued. On March 22, 2011, the defendants filed an emergency motion to vacate judgment, which the judge denied on March 24, 2011. Defendant Dennis A. Blanchette (Dennis) filed a timely appeal from that order.
The limited purpose of a Servicemembers action is to determine whether the mortgagor is in active military service and entitled to the protections of the Act, and to “make certain that there will be no cloud on the title following the foreclosure as a result of an interested party having been in, or just released from, military service.” Beaton, supra at 388, 390. Given the limited scope of a Servicemembers action, the filing of an answer that does not contain a claim that the defendants are entitled to the protection of the Act invites a motion for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 756 (1974), without the need to establish standing to bring a foreclosure proceeding.
We note that defendant Dennis A. Blanchette alone filed a notice of appeal and is therefore the only appellant, even though both defendants are listed on the brief.
On appeal, Dennis argues that the plaintiff lacked standing to bring the action under the Act because the assignment of the mortgage from MERS to CitiMortgage is invalid because MERS never established it was in possession of the note at the time of assignment, and CitiMortgage failed to comply with the Statue of Frauds, the statute of limitations, and memorandum of lis pendens. We affirm.
Discussion. 1. Untimeliness of the defendants' appeal of the Land Court's judgment. Because the defendants did not file a timely appeal from the judgment on the plaintiff's complaint, the sole issue before this court is whether the judge abused her discretion in denying the defendants' emergency motion to vacate judgment. See Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999). Deciding a motion to vacate judgment is within “the sound discretion of the trial judge.” Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 157–58 (1987). See Bird v. Ross, 393 Mass. 789, 791 (1985). A trial judge's decision will not be overturned absent an abuse of discretion. Ibid. Dennis has failed to show an abuse of discretion. The defendants' motion repeated arguments made in prior pleadings, which were considered and rejected by the judge. The defendants are not and do not claim to be members of the armed forces entitled to the protections of the Act, which was the only issue presented to the Land Court. Further, as the plaintiff proved it was the record holder of the mortgage when the action was brought, the judge did not err in determining that the plaintiff had standing to bring an action under the Act to determine whether the defendants were in active military service. Therefore, the judge acted within her discretion when she denied the defendants' emergency motion to vacate judgment.
In U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 638, 650–652 (2011), the court held that in order to bring a foreclosure proceeding, the party seeking to foreclose must be the mortgage holder at the time of the notice of sale and the foreclosure sale. Although here this is a Servicemembers action, and not an actual foreclosure proceeding, the plaintiff established that it was the mortgage holder at the time the Servicemembers action was brought.
2. Distinction between an action brought under the Act and other foreclosure proceedings. In Massachusetts, foreclosure on a mortgage containing a statutory power of sale does not require judicial approval. See U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 645–646 (2011), citing Beaton, 367 Mass. at 390–391, 393,G.L.c. 183, § 21, and G.L.c. 244, § 14. See also Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 579–580 (2012).
In Beaton at 393–394 n. 6, the court held that foreclosure by exercise of a power of sale and foreclosure by entry for breach of condition were “nonjudicial mortgage foreclosures ..., which follow private contractual provisions or the course of the common law.” The court found that foreclosure by action under G.L.c. 244, §§ 3, 4, is “a method rarely used” in Massachusetts, Beaton, 367 at 393, whereby the “mortgagee in an action for possession ... declare[s] ... his own seisin ... and if the court finds ... that the plaintiff is entitled to possession of the land for breach of condition, it ... award[s] a conditional judgment.” G.L.c. 244, § 3.
A Servicemembers action is not a mortgage enforcement proceeding, and “occur [s] independently of the actual foreclosure itself and of any judicial proceedings determinative of the general validity of the foreclosure.” Beaton, 367 Mass. at 390. Therefore, the defendant cannot use this appeal as a platform to challenge issues that were not before the judge below. See Milton v. Civil Serv. Commn., 365 Mass. 368, 379 (1974).
The Supreme Judicial Court has explained that although limiting the issues in a Servicemembers action may “prevent mortgagors from raising ... many meritorious issues pertaining to the mortgagee's ultimate right to foreclose ...,” there is no infringement of constitutional rights “since other adequate procedures are available to the mortgagor ... where these issues may be raised prior to the mortgagor's loss of his ... property.” Beaton, 367 Mass. at 391. Therefore, even in cases like the one here, where there is a dispute over the existence of a mortgage default and whether the party claiming to be the mortgage holder is the “true” mortgage holder, the Servicemembers action should proceed unhampered by these other issues. See Ibanez, supra at 646. See, e.g., Petti v. Putignano, 8 Mass.App.Ct. 293, 296 (1979)
Order denying emergency motion to vacate judgment affirmed.