2014 Mass. App. Div. 113

March 5, 2014 - May 30, 2014

Appellate Division Southern District

Court Below: District Court, Quincy Division

Present: Williams, P.J., Merrick [Note 4] & Ostrach, JJ.

Anthony J. Coletti for the plaintiff.

Stefanie A. Balandis and Richard M.W. Bauer for the defendant.

PER CURIAM. This is a summary process action by Federal National Mortgage Association (“FNMA”) for possession against the former mortgagor, Colleen F. Fiumara, and an occupant, Nicholas Spiro, after a foreclosure sale. The defendants filed counterclaims. On FNMA’s motion for summary judgment, the motion judge entered summary judgment for the defendants on FNMA’s summary process complaint. [Note 5] No action was taken on the counterclaims. FNMA appealed the grant of summary judgment. [Note 6] As the counterclaims have not been decided, this appeal is subject to “the basic rule that interlocutory orders are not subject to appellate review until the entire case has been disposed of at the trial level.” Dolores v. Gustafson, 2009 Mass. App. Div. 267, 268 n.4, quoting Chavoor v. Lewis, 383 Mass. 801, 803 (1981).

The appeal is dismissed as interlocutory.


[Note 1] Also known as Fannie Mae.

[Note 2] Also known as Colleen Fiumara.

[Note 3] Nicholas Spiro.

[Note 4] The Honorable Brian R. Merrick participated in the hearing, review, and decision of this appeal, but retired prior to the issuance of this opinion.

[Note 5] “Summary judgment, when appropriate, may be rendered against the moving party.” Mass. R. Civ. P. 56(c).

[Note 6] The substantive issue in the motion and on appeal was whether a buyer at a foreclosure sale seeking possession in summary process must prove compliance with G.L. c. 244, § 35A. That question, still open at the time of oral argument, has since been resolved by the Supreme Judicial Court. U.S. Bank Nat’l Ass’n. v. Schumacher, 467 Mass. 421 (2014). As there is no final judgment in this case, it remains open to the motion judge to reconsider summary judgment.