Home MERRILL LYNCH CREDIT CORP. [Note 1] v. BAHIG BISHAY and another [Note 2]

2016 Mass. App. Div. 56

July 31, 2015 - May 6, 2016

Appellate Division Southern District

Court Below: District Court, Nantucket Division

Present: Finnerty, Kirkman & Finigan, JJ.

Motion heard by Hand, J., [Note 3] in Nantucket District Court.

Michael P. Giunta for the plaintiff.

Bahig Bishay, pro se.

Mary Bishay, pro se.

FINIGAN, J. The defendants in this matter, Mary Bishay and Bahig Bishay (together, the “Bishays”), appeal the denial of their motion to amend their answer and counterclaim filed in this residential summary process action. Following the denial, the matter was tried before a judge in the Nantucket Division of the District Court and possession was awarded to the plaintiff. The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C.

The issue before us is a narrow one: whether it was an abuse of discretion for a District Court judge to deny the defendants’ motion to amend their answer filed in a residential summary process action. While the record assembled does not appear to comply with Dist./Mun. Cts. R. A. D. A. 18, we nonetheless proceed with this

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matter in accordance with Rule 18. Before reaching the merits, some background on the matter is warranted, and we glean the following from the record and relevant facts that appear not to be in dispute as reflected in the briefs filed by the parties.

Procedural history. For many years, the Bishays were owners of a residential property located at 10 Monohansett Road, Nantucket (the “Property”). Title was originally held in the name of Mary Costello, now known as Mary Bishay. In 2004, Costello borrowed $650,000 from Sovereign Bank (“Sovereign”), secured by a mortgage on the Property. Following Costello’s default on the loan, Sovereign instituted foreclosure proceedings.

Merrill Lynch Credit Corp. (“Merrill Lynch”) acquired title to the Property pursuant to a foreclosure deed, dated August 5, 2010, from Sovereign following a foreclosure auction conducted by Sovereign on June 16, 2010. Bank of America, N.A. (“Bank of America”) succeeded to the interests of Merrill Lynch. After the Bishays failed to vacate the premises following the foreclosure, Bank of America served a summary process summons and complaint on the Bishays with a trial date of September 17, 2012. The Bishays filed an answer and counterclaim on September 4, 2012, to which Bank of America responded by filing an answer to the Bishays’ counterclaim on September 21, 2012. Prior to the trial of the summary process action, the Bishays challenged the validity of Bank of America’s title to the Property in an action filed in the Land Court. In light of the Land Court action, a District Court judge stayed the proceedings in the summary process case pending the outcome of the challenge to Bank of America’s title.

The Land Court rejected the Bishays’ challenge to Bank of America’s title in a decision dated March 8, 2012. On March 5, 2013, the Appeals Court affirmed the decision of the Land Court, and on May 3, 2013, the Supreme Judicial Court denied further appellate review. Pursuant to the plaintiff’s motion, the stay of the matter was vacated and the District Court scheduled the matter for trial on July 10, 2013. On June 5, 2013, the Bishays filed a motion for leave to amend answer and amend counterclaim; Bank of America filed an opposition to the Bishays’ motion on July 10, 2013.

Following two continuances of the trial date, one of which was for weather-related reasons, the parties appeared in court on August 14, 2013. The trial judge denied the Bishays’ motion to amend their answer, and the summary process matter proceeded forward to a jury-waived trial. Following the trial, the trial court entered judgment for possession to Bank of America. It is the trial judge’s denial of the Bishays’ motion to amend that brings this matter before us.

Analysis. Amendments to pleadings are governed by Mass. R. Civ. P. 15(a), which allows any party to amend its pleading once as a matter of course within twenty days after it is served. Because the Bishays’ motion to amend their answer was not filed for some nine months after service of their original answer, their proposed amendment was not allowed as a matter of course. Rule 15(a) further provides that after the expiration of the time period described above, “a party may amend his pleading only by leave of court or by written consent of the adverse party.” Bank of America opposed the Bishays’ motion to amend. As a result, their ability to file an amended answer and counterclaim rested with leave of the court.

The Supreme Judicial Court has stated that “Mass. R. Civ. P. 15(a) . . . eliminated the once broad discretionary authority of a judge to deny a motion to amend a pleading,” Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 289 (1977), and that “a

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motion to amend should be allowed unless some good reason appears for denying it.” Id. However, “[i]t is well-settled that prejudice to the non-moving party is the touchstone for the denial of an amendment.” Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 550 n.3 (1987), quoting Cornell & Co. v. Occupational Safety & Health Review Comm’n, 573 F.2d 820, 823 (3d Cir. 1978). See Hamed v. Fadili, 408 Mass. 100, 105 (1990). Our standard for review of the trial court’s decision to deny the defendants’ motion to amend is whether that denial constituted an abuse of discretion. Castellucci, supra at 291-292 (“[A] judge may give weight to the public interest in the efficient operation of the trial list . . . .”).

Balanced against the liberal approach concerning amendments provided by Mass. R. Civ. P. 15 is the counterweight of the goal of summary process and the rules that govern such actions, which provide that the rules “shall be construed and applied to secure the just, speedy, and inexpensive determination of every summary process action.” Rule 1 of the Uniform Summary Process Rules. Here, the proceedings were stayed while the Bishays challenged the plaintiff’s title in Land Court. Ordinarily, a tenant cannot challenge a landlord’s title in a summary process action. Connors v. Wick, 317 Mass. 628, 630 (1945). An exception lies where, as here, the summary process action is for eviction where the property was purchased at a foreclosure sale. New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192, 195 (1906). Of course, the Bishays’ challenge to the plaintiff’s title could have been brought as a defense in the summary process action, which would have eliminated the need for a stay pending the result of the Land Court matter. Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011).

Nonetheless, the trial court did stay the summary process action until the Land Court matter concluded in the plaintiff’s favor and all further appeals were exhausted. That litigation effectively sidelined the summary process case for six months. Subsequent to the matter being restored to the trial list, the Bishays filed their proposed amended answer and counterclaim. The proposed amended answer consisted of twenty-seven numbered paragraphs under the heading “The Underlying Facts” and referenced exhibits marked A through U (because the exhibits were not included as part of the assembled record, we do not consider them [Note 4]). The amended answer also included three affirmative defenses, four counterclaims, and a request for a jury trial.

On the record before us, it is difficult to gauge the significance of the Underlying Facts, which appear to be a chronology of grievances between the Bishays and Bank of America in proceedings now or formerly pending in three other courts -- Suffolk Superior Court, Essex Superior Court, and the United States Bankruptcy Court. In any event, the absence of these from the pleadings did not result in any disadvantage to the Bishays at trial. The three affirmative defenses raised challenges to Bank of America’s request for use and occupancy pursuant to its complaint. Because the trial court did not award damages but merely possession, the Bishays were not adversely affected by the inability to raise these defenses at trial.

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The amended answer also included four counterclaims. The first seeks declaratory relief. While the trial court has power to issue declaratory judgments in summary process actions, G.L. c. 218, § 19C, the Bishays have not addressed this issue in their brief, and we therefore deem it to be waived. Duvivier v. Kay’s Oasis Enters., Inc., 2010 Mass. App. Div. 31, 34 n.2, citing Dist./Mun. Cts. R. A. D. A. 16(a)(4). See also note 4, supra. The remaining three counterclaims raise issues concerning alleged misconduct by Bank of America in other forums, including a breach of the implied covenant of good faith and fair dealing and violations of G.L. c. 93A. To introduce these claims on the eve of trial would have undoubtedly again sidetracked the summary process trial, and consequently the judge’s denial cannot be deemed arbitrary and capricious. See Hamed, supra at 106 (improper to allow plaintiff to add fraud-in-the-inducement claim at close of evidence, where new claim was so materially different from contract claim that some substantial difference in trial preparation, strategy, and technique would have been required on part of defendants).

Lastly, the amended answer included a request for a jury trial, which was absent from the defendants’ original answer filed nine months earlier. Our rules require a request for a jury trial to be made no later than the date on which the answer is due. See Rule 8 of the Uniform Summary Process Rules, incorporating Mass. R. Civ. P. 38. Pursuant to Rule 38(b), “Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.” Rule 38(d) further provides, “The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury” (emphasis added). We see no error in the judge’s denial of trial by jury.

Appeal dismissed. [Note 5]


[Note 1] Now known as Bank of America, N.A.

[Note 2] Mary Costello, also known as Mary Bishay.

[Note 3] The Honorable Kathryn E. Hand recused herself from this appeal, and did not participate in its hearing, review, or decision.

[Note 4] A party bringing an appeal has a duty to present to this Division a proper record. Grandoit v. R.J. Leyden, LLC, 2015 Mass. App. Div. 107. “A pro se litigant is bound by the same rules of procedure as litigants with counsel.” International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983). “Those rules include the basic requirements of appellate procedure, including the preparation of an accurate and complete record appendix.” Hussain v. Cameron Constr. & Roofing Co., 2007 Mass. App. Div. 14, 15.

[Note 5] In its brief, Bank of America seeks costs pursuant to Dist./Mun. Cts. R. A. D. A. 25 for the defense of this appeal, contending that this appeal is frivolous. We do not so find and decline to order.