Fed. Nat'l Mortg. Ass'n

Not overruled or negatively treated on appealinfoCoverage
Appeals Court of Massachusetts.Nov 16, 2016
65 N.E.3d 29 (Mass. App. Ct. 2016)
65 N.E.3d 2990 Mass. App. Ct. 1116

No. 15–P–1568.




The defendant, Vital D. Rosa, was served with a summons and complaint in the underlying summary process action; the summons stated that he was to appear for trial in the Housing Court on August 14, 2014. Three days before trial, Rosa, acting pro se, filed a motion to dismiss for lack of standing. On the scheduled trial date, a Housing Court judge denied Rosa's motion to dismiss and conducted a trial on the merits, with Rosa again appearing pro se. Counsel for Federal National Mortgage Association (Fannie Mae) introduced documentary evidence supporting its claim for possession. Rosa's defense was essentially to challenge the validity of the exhibits on the ground that they had been "robo-signed."

That documentation showed that, in March, 2007, Rosa took out a mortgage loan of $304,000 from lender Countrywide Home Loans, Inc. (Countrywide), executing a note payable to Countrywide and a mortgage secured by his home at 21 Broad Street in Merrimac, to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee and nominee for Countrywide and its successors and assigns. On or about May 9, 2009, MERS assigned the mortgage to BAC Home Loans Servicing, LP (BAC). Rosa defaulted on his loan repayment obligations. By written notice dated December 17, 2008, Countrywide's loan servicer, Countrywide Home Loans Servicing, LP (CHLS), notified Rosa of his default and the amount needed to cure, which Rosa failed to do. In April, 2009, CHLS changed its name to BACHLS. In June, 2011, BAC, record holder of the mortgage, noticed and conducted a foreclosure sale of the property, at which BACHLS was the highest bidder. On August 17, 2011, BACHLS's successor (Bank of America, N.A.) assigned its bid to Fannie Mae, and the foreclosure deed conveying title to Fannie Mae was recorded on August 31, 2011.

In August, 2014, the judge issued findings, rulings, and an order for judgment, finding that Fannie Mae had presented a prima facie case for possession, and that Rosa had not presented any credible defenses to the eviction action. The judge accordingly ordered that judgment for possession enter for Fannie Mae.

On September 3, 2014, Rosa, now represented by counsel, filed a motion to vacate the judgment. After hearing, the judge denied the motion, and Rosa timely filed a notice of appeal from the judgment. The record does not show that Rosa took any further steps at that point to pursue his appeal.

On June 19, 2015, Fannie Mae moved to dismiss the appeal for Rosa's failure to post bond under G.L. c. 239, § 5, which the judge allowed. On July 17, 2015, Rosa filed a petition seeking review of the dismissal order to a single justice of this court under G.L. c. 231, § 118, first par., purporting to appeal what he thought was an interlocutory order. By order dated August 24, 2015, noting that the Housing Court's order was not interlocutory, but a final, appealable order, the single justice dismissed the petition. However, the single justice noted that "the Housing Court docket sheets make it appear that a timely notice of appeal was filed subsequent to the order dismissing the [first] appeal [from the summary process judgment]," thus suggesting that Rosa had timely appealed the dismissal order to a full panel of this court.

For present purposes, we accept the single justice's reading of the docket and treat the appeal from the Housing Court's dismissal order as properly before us. Proceeding on that basis, we do not dismiss Rosa's appeal. That said, we affirm the order. Rosa has not addressed the dismissal order at all; his opening brief is silent on the issue, and he did not file a reply brief to address Fannie Mae's arguments regarding the dismissal order. Any argument regarding the dismissal of his appeal has accordingly been waived. See Abate v. Fremont Inv. & Loan, 470 Mass. 821, 833 (2015) (failure to address issue on appeal waives right to appellate review).

We note, however, that the subsequent notice of appeal to which the single justice referred is not included in the record before us.

Order dismissing appeal affirmed.