February 4, 2020

Housing Court, Southeast Division

Donna Salvidio, First Justice


This is a post-foreclosure summary process (eviction) action. The defendants are the former owners of the property located at 114 Hawthorn Street, New Bedford, Massachusetts (the "Property") and their adult children. The Property consists of a 5,000 square foot home containing six (6) bedrooms and four (4) bathrooms. The facts of this case are set forth in the Court's Memorandum of Decision on Plaintiff's Motion for Summary Judgment, Chaplin, F.J., dated November 21, 2019. [Note 1] The Court granted summary judgment to the plaintiff for possession and damages, which judgment is the subject of an appeal filed by defendants Michele Faith, Jacqueline Faith, Peter Faith and Michael Faith ("Defendants"). [Note 2] At all relevant times, the parties were represented by counsel.

After summary judgment entered for the plaintiff, U.S. Bank National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust ("Plaintiff"), the parties filed a series of motions and oppositions. [Note 3] Among them was Plaintiff's Motion to Dismiss Defendants' Appeal as Moot, or in the Alternative for Clarification of its Rights (the "Motion"), which Motion was argued on January 16, 2020. [Note 4]

I. Undisputed Facts

The Court finds the following facts are undisputed. On November 22, 2019, summary judgment entered for Plaintiff for possession. On or about December 18, 2019, Defendants' counsel sent the key to the Property to Plaintiff's counsel together with a letter stating Defendants "are no longer using or occupying the property per the Court Order which the Faiths are appealing. You now have custody of the property." (Exhibit 1 to Plaintiff's Motion). Plaintiff's counsel acknowledged receipt of the key by letter dated December 20, 2019. This letter informed Defendants' counsel that Plaintiff considered Defendants' actions a surrender of possession, that Plaintiff would seek a Court Order to that effect, and that Plaintiff's agent would take the key and secure the Property by lockbox in the interim. (Exhibit 2 to Plaintiff's Motion).

The sworn affidavits of indigency filed at the time of the Motion hearing for each of the Defendants state that defendants Michael, Michele and Jacqueline Faith reside in North Carolina and defendant Peter Faith resides in Maine. Defendants' counsel also represented to the Court at the hearing that the Defendants have abandoned all personal property remaining in or about the Property. Finally, at the Court's request following the close of the hearing, the parties each filed proposed stipulations pertaining to Plaintiff's rights with respect to the Property during the pendency of an appeal. [Note 5] Defendants' Stipulation of Rights of All Parties Pertaining to Custody of Property ("Defendants' Stipulation") acknowledges, among other things, that: 1) Defendants will remove any personal property remaining in the Property; 2) Plaintiff may make repairs to the Property; and 3) Plaintiff may rent the Property.

II. Mootness of Appeal and Surrender of Possession

Plaintiff asks this Court to dismiss Defendants' appeal or, in the alternative, to clarify Plaintiff's rights with respect to the Property and any of Defendants' personal property remaining therein. For the reasons stated herein, the Court DENIES Plaintiff's request to dismiss the Defendants' appeal, and ALLOWS Plaintiff's request for an order clarifying its rights with respect to the Property. Such Order is set forth in Section III herein.

a. Mootness of Appeal

Plaintiff argues that Defendants' surrender of physical possession of the Property on December 18, 2019 and Plaintiff's acceptance of same renders Defendants' appeal moot. As Plaintiff correctly observes, the purpose of summary process is to recover possession of property wrongfully withheld. See, e.g., Bank of New York v. Bailey, 460 Mass. 327 , 335-336 (2011). Plaintiff posits that because it has already recovered possession by Defendants' voluntary relinquishment of the Property, it no longer requires an execution to recover possession and, therefore, the primary purpose of summary process has been fulfilled. While the Court agrees that Plaintiff now has legal and physical possession of the Property and the need for an execution for possession is mooted, the recovery of possession does not necessarily moot a summary process appeal. See Hodge v. Klug, 33 Mass. App. Ct. 746 , 749 (1992) ("A major aspect of the case, right to possession, therefore, became moot . . . . As there is a monetary component to the judgment (the use and occupancy damages) which survives, we are obliged to consider the appeal"); GML Corp. v. Massey, 2007 Mass. App. Div. 143 (Dist. Ct. 2007) (issues of possession and injunctive relief mooted when tenant vacated the premises, however issues remained on tenant's counterclaims).

Consider, for example, a typical summary process action involving a landlord and tenant; an appeal is not necessarily mooted because the tenant moves out while the appeal remains pending. The result should be no different here simply because the Defendants are former owners of the Property following a foreclosure. Moreover, even if the issue of possession is mooted by Defendants' surrender of physical possession, Defendants also contest the award of damages. Generally, litigation is considered moot when the party claiming to be aggrieved no longer has a personal stake in its outcome. See Attorney Gen. v. Comm'r of Ins., 442 Mass. 793 , 810 (2004). Here, Defendants cite a multitude of reasons in their Opposition why they continue to have a stake in the outcome of their appeal. For these reasons, the Court does not find Defendants' appeal moot.

b. Surrender of Possession

The Court finds that Defendants ceded possession of the Property to Plaintiff by the clear and unequivocal act of sending the key and informing Plaintiff's attorney that it now has custody thereof. [Note 6] Defendants' acts are tantamount to an agreement on their part that they have abandoned physical possession of the Property and amount to a surrender as a matter of law. See, e.g. Talbot v. Whipple, 96 Mass. 177 , 180-81 (1867) (where tenant left premises and ceded all control over them to landlord, and also permitted landlord to gain access thereto and take physical possession thereof, and landlord accepted possession of the premises, such acts are equivalent to an agreement on part of tenant to abandon, and amount to a surrender by operation of law); Randall v. Rich, 11 Mass. 494 (1814) (surrender of keys, acceptance thereof, and subsequent reletting of house amounted to surrender of possession by operation of law); Cf. Malden Real Estate Dev., LLC v. Jordan, 96 Mass. App. Ct. 1117 (Rule 1:28 unpublished decision January 15, 2020) (whether tenant ceded possession of premises is a question of fact; surrender of keys without objection by landlord is evidence of landlord's waiver of notice of termination by tenant). Defendants are estopped to argue otherwise, yet they try again, to "have their cake and eat it too." [Note 7]

Defendants contend that they have not abandoned the Property, but were "compelled to relinquish custody of the home, due to the Court Order [granting summary judgment for Plaintiff for possession] as well as the uninhabitable conditions while the issues in the case are on appeal." (See Opposition, page 3, Docket Entry No. 187). Reducing Defendants' 1½ inch thick Opposition filed on the day of the Motion hearing to its essence, Defendants contend that they were constructively evicted from the Property due to lack of heat at a time when they were paying use and occupancy, and they "are not withdrawing their Appeal for possession as they still have a personal stake in the outcome of the litigation as to their ownership rights in the property." Id.

At the core of their specious argument, Defendants attempt to draw a legal distinction between surrender of physical "custody" and surrender of possession of the Property. At the Motion hearing, Defendants' counsel acknowledged that Defendants are not residing in the Property and that they have abandoned any remaining personal property therein; however, he argued that their surrender of physical "custody" is not permanent but intended to last the duration of their appeal. [Note 8] Defendants would have the Court adopt an equivocal concept of surrender, or constructive possession, called "custody" that falls short of conceding possession of the subject Property. The Court finds Defendants' argument legally untenable and expressly rejects Defendants' concept of "custody."

In the case of Attorney General v. Dime Sav. Bank of New York, FSB, 413 Mass. 284 , 288-89 (1992), the Supreme Judicial Court ("SJC") considered whether an owner of property out of possession had constructive possession sufficient to maintain an action of trespass where another person was in actual possession. The SJC concluded that there is no such thing as constructive possession when another person actually possesses the property: "We have not addressed the question whether an owner out of possession has constructive possession sufficient to maintain an action of trespass where actual possession is in another. Courts that have considered the question, however, have concluded that, for the purposes of a trespass action, there can be no constructive possession by an owner of property actually possessed by another. ...(citations omitted). The "fiction of 'constructive possession' has no application when another is in actual possession." W. Prosser & W. Keeton, Torts §13, at 77 n. 99 (5th ed. 1984)."

Attorney Gen. v. Dime Sav. Bank of New York, FSB, 413 Mass. 284 , 288-89 (1992).

The Court finds no merit in Defendants' argument that they may claim constructive possession while acknowledging that they have surrendered complete physical custody of the Property to Plaintiff. Their argument is pure "fiction."

III. Plaintiff's Rights Upon Defendants' Surrender of Possession

Finding as a matter of law that Defendants have surrendered physical possession of the Property to Plaintiff, and that Plaintiff now holds both physical and legal possession of the Property, no execution is necessary. The Court authorizes Plaintiff to exercise all rights and incidents of ownership of the Property, including, but not limited to, the right to sell same and to remove any remaining personal property of the Defendants therein.



[Note 1] See Docket Entry No. 173.

[Note 2] Summary judgment also entered for Plaintiff on Defendants' possession-related counterclaims. The Court severed Defendants' remaining counterclaims that did not entitle them to relief affecting the right to possession and transferred those counterclaims to the civil docket. See Fed. Nat. Mortg. Ass'n v. Rego, 474 Mass. 329 , 339 (2016).

[Note 3] Also argued at the same 2 ½ hour hearing, inter alia, were Defendants' Motion to Stay Execution of Use and Occupancy Pending Appeal and Request for Waiver of Bond and Plaintiff's Cross-Motion to Set an Appeal Bond. A separate order on the appeal bond is entered this day. The Court's ruling on whether to require Defendants to pay ongoing use and occupancy as a condition of the bond is necessarily intertwined with the determination set forth herein as to whether Defendants surrendered possession of the Property.

[Note 4] Defendants filed a voluminous, bound opposition to Plaintiff's Motion captioned Defendant/Faiths Opposition to Plaintiff's Motion to Dismiss Defendants' Appeal as Moot, or in the Alternative for Clarification of its Rights (the "Opposition"). See Docket Entry No. 187.

[Note 5] See Docket Entry Nos. 192 and 195.

[Note 6] See also Defendants' Stipulation, Docket No. 192, which proposes that Plaintiff may rent the Property and must repair it during the pendency of the appeal.

[Note 7] In their related motion to waive the appeal bond decided this day, Defendants argue that they should not be required to pay continuing use and occupancy during the pendency of the appeal because they have surrendered custody of the Property. They cannot both be excused from the obligation to pay ongoing use and occupancy pursuant to G.L. c. 239, §§5-6 and reap the benefits of the "fiction" of a constructive right to possession. The Court relieved Defendants of the obligation to pay ongoing use and occupancy as a condition of the appeal bond specifically because the Court finds they relinquished possession. It follows that if Defendants are found not to have relinquished possession, they must be required to pay use and occupancy during the pendency of their appeal. They cannot have it both ways.

[Note 8] At the hearing on January 16, 2020, Defendants' counsel acknowledged that in surrendering "custody" (but not possession) of the Property to Plaintiff, Defendants expect Plaintiff to install a new heating system in the Property at Plaintiff's expense. According to Defendants, Plaintiff's "custody" would last the duration of Defendants' appeal, following which Defendants contend a successful appeal would restore legal title in the former owners.