Deutsche Bank Nat'l Trust Co.
v.
Andersen

Not overruled or negatively treated on appealinfoCoverage
Appeals Court of Massachusetts.Apr 4, 2017
83 N.E.3d 197 (Mass. App. Ct. 2017)

16-P-663

04-04-2017

DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee, v. Lee ANDERSEN.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order of the Land Court dismissing his counterclaims for fraudulent misrepresentation, negligent misrepresentation, and fraud, and expunging his notice of adverse claim to the certificate of title held by Deutsche Bank National Trust Company (Deutsche Bank) for the property, 80 Snake Pond Road in Forestdale. The defendant also appeals from an order denying his subsequent motion to vacate the Land Court "judgment" (which had been entered as an order). Because we agree with the Land Court judge that the defendant's claims are barred by the doctrine of res judicata, we affirm.

Background. We summarize the relevant facts and procedural history. Following the defendant's default on his home mortgage, Deutsche Bank, as assignee of the mortgage, initiated foreclosure proceedings, conducted a lawful foreclosure sale, and recorded a foreclosure deed in Barnstable County. When the defendant failed to voluntarily vacate the property, Deutsche Bank filed a summary process complaint in the Barnstable District Court seeking eviction. On February 28, 2013, the defendant, acting pro se, and Deutsche Bank, entered into an agreement for judgment for possession of the property by Deutsche Bank. Judgment entered pursuant to the agreement. As part of the agreement, the defendant committed to vacate the premises by April 30, 2013. Again, he failed to do so. Ultimately, after the denial of the defendant's motion to vacate the judgment and dismissal of the appeal of that order , the District Court issued an execution on Deutsche Bank's judgment of possession, and the defendant vacated the property on November 13, 2013.

The appeal was dismissed for failure to pay the appeal bond.

On June 5, 2013, while the appeal of the District Court's order was pending, the defendant, pursuant to G. L. c. 185, § 112, recorded in the Barnstable County registry of the Land Court, a notice of adverse claim to the title of the property. In response, Deutsche Bank filed a petition in the Land Court to dissolve the adverse claim and expunge the notice of claim from the certificate of title. The defendant answered and counterclaimed for fraudulent misrepresentation, negligent misrepresentation, and fraud. An order entered on January 15, 2016, expunging the defendant's notice of adverse claim and dismissing the defendant's counterclaims. The defendant's motion to vacate the "judgment" was also denied. This appeal followed.

Discussion. In a comprehensive written decision, the Land Court judge concluded that the defendant's "claims were judicially estopped by the settlement reached, and barred by the res judicata/claim preclusion effects of the ... [District Court action], in which final judgment had entered and no appeal was pursued." The defendant argues, among other things, that dismissal based on res judicata was error because he was never afforded an opportunity in the District Court to fully litigate Deutsche Bank's standing to foreclose on the mortgage. We review the dismissal of the defendant's counterclaims de novo. Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 774 (2007).

The doctrine of " ‘res judicata’ includes both claim preclusion and issue preclusion." Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). For claim preclusion to bar the defendant's action, three elements are required: "(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." Ibid. (quotation omitted). Here, it is undisputed that the parties were identical in both the District Court summary process action and the Land Court action. The dispute lies in whether the claims alleged in both actions are identical, and whether the District Court action resulted in a final judgment on the merits.

Causes of action are identical if they are "derived from the same transaction or series of connected transactions." Saint Louis v. Baystate Med. Center., Inc., 30 Mass. App. Ct. 393, 399 (1991). "[C]laim preclusion bars not only re-litigation of all matters decided in a prior proceeding but those that could have been litigated as well." Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass. App. Ct. 386, 391 (1994). Here, because title to the property was at issue in the summary process action, see Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011), the defendant could have asserted his challenge to the validity of the foreclosure, including any challenge to Deutsche Bank's standing to foreclose, in the District Court proceeding. He chose not to do so. Rather he entered into an agreement for judgment which awarded possession of the property to Deutsche Bank. Because the validity of the foreclosure and title to the property were at issue in the District Court summary process action, the defendant's Land Court counterclaims challenging Deutsche Bank's title arise out of the "same transaction or series of connected transactions" as those that could have been brought in the District Court summary process action. Therefore, the claims are identical for the purpose of claim preclusion.

An agreement for judgment "conclusively determines the rights of the parties as to all matters within its scope." Kelton Corp. v. County of Worcester, 426 Mass. 355, 359 (1997). By entering into the agreement for judgment, the defendant waived any defenses he may have had regarding the validity of the foreclosure. See Levy v. Crawford, 33 Mass. App. Ct. 932, 933 (1992) ("As a general proposition, an agreement for judgment serves as a waiver of all matters within the scope of that judgment"). Accordingly, the agreement for judgment, which was reviewed and approved by a District Court judge, was a final judgment on the merits as to the defendant's claims. See Kelton Corp., supra at 360.

The defendant argues that even if the elements of claim preclusion have been satisfied, his case fits within an exception to the doctrine of res judicata because he did not have a full and fair opportunity to litigate his claims in the District Court. See Gloucester Marine, supra at 391-392 (doctrine not applied rigidly where consideration of fairness and efficient judicial administration would not be served). The defendant has the burden of proving unfairness, and the judge enjoys wide discretion on the question. Bellerman v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 62 (2014), S.C., 475 Mass. 67 (2016). We are not persuaded that the defendant has met his burden here.

Although the defendant acted pro se in negotiating the agreement for judgment in the District Court, nothing in the record suggests that he was denied an opportunity to challenge the validity of Deutsche Bank's foreclosure. Moreover, the arguments the defendant advances on appeal regarding defects in Deutsche Bank's chain of title and the coercive nature of the settlement agreement, were part of the defendant's emergency motion to vacate the judgment filed in the District Court after he retained counsel. While the defendant complains that the motion was summarily denied from the bench, the record before us does not establish that the motion to vacate, including the assertions of unfairness, was not fairly considered by the motion judge.

Simply put, we conclude that Deutsche Bank has established each element of claim preclusion. We discern no error in the dismissal of the Land Court action on that basis. The defendant has not established that he was denied an opportunity to fully and fairly litigate his claims in the District Court. Accordingly, the Land Court judge did not abuse his discretion when he denied the motion to vacate judgment.

In light of our conclusion that the defendant's counterclaims in the Land Court were barred by claim preclusion, we need not reach the application of issue preclusion.
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To the extent that we do not address the defendant's other arguments, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Order dismissing counterclaims and expunging adverse claim affirmed.

Order denying motion to vacate judgment affirmed.