JAMES B. BIGELOW vs. REEM PROPERTY, LLC.

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) -- obtained a summary process judgment for possession against Bigelow, he filed this try title action in the Land Court, contending that the

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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. [Note 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, 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 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. [Note 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

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Reem's motion for summary judgment, a Land Court 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 from 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 but on the closely related doctrine of issue preclusion. [Note 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").

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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 between Bigelow and Reem, [Note 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. [Note 5] Bigelow pressed the issue on appeal in Bigelow I, and a panel of 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

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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. [Note 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 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). [Note 7]

Accordingly, the issue preclusive effect of the summary process judgment barred Bigelow from establishing the invalidity of

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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).

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

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that subject matter jurisdictional issues can always be raised in every context and in every forum." Brown v. Federal 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). [Note 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 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 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), [Note 9] is the issuing court. See Air Purchases, Inc. v. Mechanical Coordinators

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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 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 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

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(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 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. [Note 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 to either prove its title or disclaim its interest. Abate, 470 Mass. at 822.

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

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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. [Note 11]

So ordered.