265 MADAKET ROAD LLC v. ALFRED B. COFFIN, III

This matter was before the court on November 13, 2019 with respect to a Motion for Summary Judgment and/or in the Alternative to Sever the Counterclaims (the "SJ Motion") filed by the plaintiff, 265 Madaket Road, LLC (the "Plaintiff" or "Madaket"). In support of its SJ Motion, Plaintiff filed an incorporated memorandum of law and the Affidavit of Attorney Anthony Alva (the "Alva Affidavit"). Defendant Alfred B. Coffin, III (the "Defendant" or "Coffin") filed a written Opposition to Plaintiff's Motion for Summary Judgment (the "Opposition"). The parties appeared at the hearing, through counsel, and argued the foregoing SJ Motion and Opposition.

As grounds for its SJ Motion, Plaintiff contends that there are no genuine issues of material fact in dispute and that it is entitled to summary judgment in its favor as a matter of law on its claim for possession together with dismissal of Defendant's defenses and counterclaims on res judicata grounds. Plaintiff relies on a May 9, 2019 Land Court Judgment (the "Land Court Judgment") [Note 1] entered in favor of Wells Fargo Bank, N.A., the foreclosing mortgagee. Defendant opposes the entry of summary judgment in Plaintiff's favor, but did not file any countervailing evidence or competing affidavit with his Opposition. Defendant does not contest the Land Court Judgment, but challenges the validity of certain instruments that were not part of the Land Court action.

This is a post-foreclosure summary process (eviction) action in which the Plaintiff is seeking possession of the property located at 265 Madaket Road, Nantucket, Massachusetts (the "Property"), together with the fair rental value of the Property. Defendant is the former owner of the Property. He continues to reside in the Property after his receipt of a 72-hour notice to vacate. Defendant filed an answer asserting affirmative defenses and counterclaims as described in greater detail herein.

STANDARD FOR SUMMARY JUDGMENT

The standard of review on summary judgment "is whether, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). See Mass.R.Civ.P. 56(c). The moving party must demonstrate with admissible documents, based upon the pleadings, depositions, answers to interrogatories, admissions, documents, and affidavits, that there are no genuine issues as to any material facts, and that the moving party is entitled to a judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553-56 (1976).

In weighing the merits of a motion for summary judgment, the court must determine whether the factual disputes are genuine, and whether a fact genuinely in dispute is material. Town of Norwood v Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) citing Anderson v Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). The substantive law will identify which facts are material and only disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Carey v New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Comm'r of the Dep't of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether "the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving party." Anderson v Liberty Lobby, Inc., 477 U.S. at 248.

The party opposing summary judgment "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). To defeat summary judgment the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Korouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Madsen v. Erwin, 395 Mass. 715 , 721 (1985), quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney General v. Bailey, 386 Mass. 367 , 371 (1982); see Simplex Techs, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196 , 197 (1999). The court does not "pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts." Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from "pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with . . . affidavits, if any." Mass.R.Civ.P. 56(c). Affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Mass.R.Civ.P. 56(e). "The requirements of rule 56(e) are mandatory." Madsen v. Erwin, 395 Mass. 715 , 719 (1985).

LEGAL STANDARD APPLICABLE TO POST-FORECLOSURE SUMMARY PROCESS ACTION FOR POSSESSION

"Legal title is established in summary process by proof that the title was acquired strictly according to the power of sale provided in the mortgage; and that alone is subject to challenge." Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct. 374 , 379 (2016), quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775 , 775 (1966). See Reem Property, LLC v. Bigelow, No. 18-P-389, 2019 WL 692713, 94 Mass. App. Ct. 1122 (Rule 1:28 unpublished decision February 20, 2019). To prevail in a summary process action involving foreclosed property where the validity of the foreclosure is challenged, "the plaintiff is required to make a prima facie showing that it obtained a deed to the property at issue and that the deed and affidavit of sale, showing compliance with statutory foreclosure requirements, were recorded." Bank of New York v. Bailey, 460 Mass. 327 , 334 (2011). A foreclosure deed and affidavit that meets the requirements of G.L. c. 244, §15 is evidence that the power of sale was duly executed and constitutes prima facie evidence of the plaintiff's case in chief. Federal Nat'l Mortgage Ass'n v. Hendricks, 463 Mass. 635 , 641-642 (2012).

Where these documents meet the requirements of G.L. c. 244, §15, it is "incumbent on a defendant to counter with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact." Id. at 642. Once a plaintiff makes a prima facie case, the burden shifts to the opposing party to demonstrate, through the use of evidence that would be admissible at trial, specific facts showing that there exists a genuine issue for trial with regard to plaintiff's compliance with G.L. c. 244, §14. "If a defendant fails to show the existence of a genuine issue of material fact in response to a motion for summary judgment by contesting factually a prima facie case of compliance with G.L. c. 244, §14, such failure generally should result in judgment for the plaintiff." Id.

UNDISPUTED MATERIAL FACTS

The following facts necessary to resolve the legal issues raised in the Plaintiff's SJ Motion and Defendant's Opposition are based on facts set forth in the record that the Court concludes are not in dispute. [Note 2]

1. Coffin took title to the Property by deed dated May 16, 1997 and registered with the registry district on May 16, 1997, as Document No. 76128, and noted on Certificate of Title No. 17096. (Land Court Memorandum, Undisputed Facts ¶1).

2. Coffin transferred the Property to himself, as Trustee of the Coffin Realty Trust, by deed dated January 17, 2008, and registered with the registry district on March 18, 2008, as Document No. 123426, and noted on Certificate of Title No. 22919. (Land Court Memorandum, Undisputed Facts ¶2). 3. On September 14, 2007, Coffin obtained a mortgage loan from World Savings Bank, FSB ("WSB") in the principal amount of $750,000.00, the repayment of which was secured by a mortgage on the Property in favor of WSB (the "Loan"). (Land Court Memorandum, Undisputed Facts ¶3).

4. Wells Fargo Bank, N.A. ("Wells Fargo") is the successor-by-merger to WSB and its assets, including the Loan. (Land Court Memorandum, Undisputed Facts ¶4).

5. Coffin defaulted on the Loan by failing to make the June 2014 payment and each payment thereafter. (Land Court Memorandum, Undisputed Facts ¶17).

6. On or about September 22, 2014, Wells Fargo sent Coffin a Notice of Right to Cure pursuant to G.L. c. 244, §35A (the "35A Notice"), and a Notice of Right to Request a Modified Loan pursuant to G.L. c. 244, §35B (the "35B Notice"), by both First Class and Certified United States Mail to the Property. (Land Court Memorandum, Undisputed Facts ¶18).

7. On September 18, 2015, Wells Fargo filed a Mortgagee's Affidavit in an action commenced under the Servicemembers Civil Relief Act, Wells Fargo Bank, N.A. v. Alfred Byron Coffin, III, as Trustee of Coffin Realty Trust, Case No. 15 SM 007896, which certified, among other things, that notice had been provided to Coffin in compliance with G.L. c. 244, §35A. (Land Court Memorandum, Undisputed Facts ¶19).

8. On April 29, 2016, Wells Fargo executed an affidavit certifying compliance with G.L. c. 244, §§35B-35C, which it subsequently registered with the registry district on June 28, 2016, as Document No. 152027 and noted on Certificate of Title No. 22919. (Land Court Memorandum, Undisputed Facts ¶20).

9. On August 2, 2016, Wells Fargo through its foreclosure counsel, Orlans, P.C. ("Orlans"), sent a Notice of Intention to Foreclose (the "Notice of Foreclosure") by both First Class and Certified United States Mail to Coffin at the Property, which enclosed a "Mortgagee's Notice of Sale of Real Estate" and a "Certification Pursuant to Massachusetts 209 CMR 18.21A(2)(c)". (Land Court Memorandum, Undisputed Facts ¶21).

10. On September 1, 2016, Wells Fargo conducted a foreclosure auction of the Property at which numerous bids were submitted and the winning bidder agreed to purchase the Property. (Land Court Memorandum, Undisputed Facts ¶22).

11. On July 13, 2017, Coffin registered an "Adverse Claim" in the registry district as Document No. 155627, which Adverse Claim was noted on the Memorandum of Encumbrances for the Certificate of Title for the Property. (Land Court Memorandum, Undisputed Facts ¶23).

12. On March 28, 2018, Wells Fargo brought an action in the Land Court seeking to have the Adverse Claim declared invalid and expunged from the Certificate of Title for the Property as well as a Motion to Adjudicate the Validity of Adverse Claim. (Land Court Memorandum and Judgment).

13. On May 10, 2018, Coffin was instructed by the Land Court to file a verified counterclaim and motion for lis pendens. Wells Fargo filed a Notice of Non-Opposition to the motion for lis pendens and the Land Court approved and endorsed a Memorandum of Lis Pendens on June 19, 2018. (Land Court Memorandum).

14. On July 26, 2018, Coffin registered a Memorandum of Lis Pendens in the registry district as Document No. 158869. (Land Court Memorandum, Undisputed Facts ¶24).

15. On August 14, 2018, the Land Court, among other things, issued an order striking the Adverse Claim and dismissing Wells Fargo's complaint without prejudice. The Land Court also denied in part Wells Fargo's motion to dismiss counterclaim and denied Coffin's motion to file an amended counterclaim without prejudice. (Land Court Memorandum).

16. Thereafter, Coffin filed an amended verified counterclaim with the Land Court. Wells Fargo responded with an answer and motion for summary judgment with supporting documentation. After further filings in conjunction with the summary judgment record, the Land Court heard argument on February 25, 2019 and took the matter under advisement. (Land Court Memorandum).

17. On May 9, 2019, the Land Court allowed Wells Fargo's motion for summary judgment, dismissed Wells Fargo's complaint without prejudice, dismissed Coffin's amended counterclaims with prejudice, dissolved the Memorandum of Lis Pendens filed with the registry district as Document No. 158,869, and struck the Adverse Claim from the Memorandum of Encumbrances for Certificate of Title 22919. (Land Court Memorandum and Land Court Judgment).

18. On May 16, 2019, the Land Court Judgment was filed with the registry district as Document No. 161741. (Judgment, Alva Affidavit Exhibit 2).

19. The counts of Coffin's amended counterclaim dismissed with prejudice by the Land Court Judgment were:

* Count One, Declaratory Judgment, M.G.L. Ch. 231 §1 -- requesting that the Land Court declare that: 1) Coffin holds a superior interest in the legal title to the Property than any claim of interest by WSB and/or Wells Fargo; 2) WSB and/or Wells Fargo did not strictly comply with the provisions of G.L. c. 244, §14 so that the foreclosure is null and void; 3) WSB and/or Wells Fargo did not strictly comply with the provisions of sections 12 and 14 of the WSB mortgage so that the foreclosure is null and void; and 4) the actions of WSB and/or Wells Fargo in failing to comply with G.L. c. 244, §§35A-35C resulted in fundamental unfairness, rendering the foreclosure null and void.

* Count Two, Action to Quiet or Establish the Title to Land, M.G.L. c. 240 §6 -- requesting that the Land Court determine legal title to the Property and the interest, if any, that Coffin holds.

* Count Three, M.G.L. c. 244 Sec. 35A, B, & C -- alleging that Wells Fargo failed to comply with G.L. c. 244, §§35A-C and such noncompliance resulted in fundamental unfairness to Coffin. (Defendant's Amended Counterclaims, Alva Affidavit, Exhibit 5).

20. A Foreclosure Deed (the "Foreclosure Deed") dated July 6, 2017 and Affidavit of Sale (the "Affidavit of Sale") dated July 27, 2017, were registered in the registry district on July 15, 2019 as Document No. 162366. Pursuant to the Foreclosure Deed, Wells Fargo, as grantor, conveyed the Property to Plaintiff, 265 Madaket Road LLC, for consideration of $880,000.00. (Certified copy of Foreclosure Deed and Affidavit of Sale, Alva Affidavit, Exhibit C).

21. The Affidavit of Sale attests to Wells Fargo's compliance with all statutory foreclosure requirements and includes a copy of the published Notice of Sale. The Affidavit of Sale also states that the Property was sold to Susan McCarthy, being the third highest bidder after the first and second highest bidders defaulted. The bid was then assigned to Plaintiff, as evidenced by the assignment of bid attached to the Affidavit of Sale and registered therewith. (Certified copy of Foreclosure Deed and Affidavit of Sale, Alva Affidavit, Exhibit C).

22. The Foreclosure Deed and Affidavit of Sale incorporates an Affidavit of Continuing Existence pursuant to Land Court Guideline 17. Such Affidavit is dated July 9, 2019 and is signed by Matthew L. Magliozzi, Esq., on behalf of Orlans, and relates to the delayed filing for registration of the Foreclosure Deed relative to the Property. (Certified copy of Foreclosure Deed and Affidavit of Sale, Alva Affidavit, Exhibit C).

23. On September 28, 2016, Wells Fargo executed an Affidavit Regarding Notice of Default, which was registered on July 15, 2019 as Document No. 162360. (Certified copy of Affidavit Regarding Notice of Default, Alva Affidavit, Exhibit D).

24. On September 1, 2016, a Certificate of Entry was executed by Susan McCarthy and Aliaksandr Arashonkau stating in relevant part that they saw Kelly McGovern, an agent of Orlans, make an open, peaceable and unopposed entry onto the Property for the purpose of foreclosing the subject mortgage. Such Certificate of Entry was registered on July 15, 2019 as Document No. 162365. (Certified copy of Certificate of Entry Alva Affidavit, Exhibit E).

25. Plaintiff served a 72-hour notice to quit (the "NTQ") on Coffin by deputy sheriff on July 19, 2019, which NTQ was filed with this Court. (NTQ, Alva Affidavit, Exhibit F).

26. After in-hand service of the summary process summons and complaint on Coffin by deputy sheriff on August 5, 2019, the summons and complaint was filed with this Court on August 12, 2019 pursuant to G.L. c. 239, §1. (See Docket entries dated August 12, 2019).

27. On August 19, 2019, Coffin filed his answer and counterclaim, demand for jury trial and requests for discovery. (See Docket entries dated August 19, 2019).

28. Coffin's answer, affirmative defenses and counterclaim generally challenge the Foreclosure Deed and Affidavit of Sale and the Certificate of Entry. Coffin's counterclaims are:

* Count One, declaratory judgment -- seeking a declaration that the Foreclosure Deed and its attendant documents, the Certificate of Entry and various other powers of attorney are null and void and should be expunged from the Registry of Deeds.

* Count Two, Unlawful Foreclosure -- alleging the documents upon which Plaintiff relies for demonstrating lawful title are invalid and void.

* Count Three, trespassing and harassment -- alleging that Plaintiff or its agents made attempts to contact Coffin, Coffin's tenants and family members in violation of the memorandum of sale, rendering Plaintiff in default of the terms of sale.

29. Coffin continues to occupy the Premises.

DISCUSSION, FINDINGS AND RULING

Defendant does not challenge the Land Court Judgment. What he does challenge are the validity and efficacy of the foreclosure instruments, some of which were executed before the Land Court Judgment entered, but which were not put before the Land Court or registered until after the Land Court Judgment entered. The Defendant raises several bases for challenge, none of which carry the day.

I. Non-Compliance with Land Court Guideline No. 17

Defendant contends that the Foreclosure Deed is void because registration of the Foreclosure Deed and Affidavit of Sale took place more than two (2) years after the date the Foreclosure Deed was signed in contravention of Land Court Guideline No. 17. [Note 3] Defendant makes the same argument concerning the timeliness of the registration of the following three (3) additional documents filed by Orlans to establish its authority to foreclose on behalf of Wells Fargo: 1) a Power of Attorney Dated July 17, 2017 from Wells Fargo to Orlans; 2) the Certificate of Appointment dated July 27, 2017; and 3) a document entitled "Orlans PC Delegation of Authority and Appointment and Revocation of Authority" dated March 24, 2017 (collectively, the "Authority Documents"). The argument that these foreclosure documents were improperly accepted for filing by the Land Court and thereby rendered void is preposterous.

First, the Land Court Guidelines are just that - guidelines -- they are issued for the information and guidance of those persons filing documents concerning registered land. They serve as a guide to the minimum requirements for documents to be accepted for filing. As the Foreclosure Deed and Affidavit of Sale were accepted for filing and noted on the Certificate of Title for the Property after review and approval by the Land Court, that should end the inquiry. The Land Court would not have accepted the Foreclosure Deed for registration unless it determined that the filer complied with the relevant Land Court Guidelines.

Second, Land Court Guideline No. 17 states that a deed may be registered more than one (1) year from the date of its execution when accompanied "by the affidavit of an attorney or a person having personal knowledge of the facts and stating whether the grantor and the grantee under the deed are still living." Here, just such an affidavit was filed by attorney Matthew L. Magliozzi (the "Magliozzi Affidavit") and registered with the Foreclosure Deed. [Note 4] Defendant's claim that the Foreclosure Deed was accepted for recording in violation of Land Court Guideline No. 17 ignores the very text of the Guideline and the Magliozzi Affidavit, and is without merit.

Third, G.L. c. 185, §1(a ½ ) vests the Land Court with original and exclusive jurisdiction of "[c]omplaints affecting title to registered land . . . ." To the extent Defendant contends that the foreclosure documents were accepted for registration improperly, he must assert his challenge in the Land Court. "[A] certificate of title represents a determination by the Land Court that only those encumbrances appearing on the certificate are valid. The Legislature has greatly limited the circumstances in which that determination may be challenged. It has further provided, reasonably we think, that any attack on the integrity of a judgment of registration may only be asserted in the Land Court, the forum from which the challenged judgment issued. See Bell v. Eames, 310 Mass. 642 , 645, 39 N.E.2d 582 (1942) (Land Court decrees in subject matters within its jurisdiction cannot be attacked collaterally in other courts)." Tetrault v. Bruscoe, 398 Mass. 454 , 459–60 (1986).

For these reasons, there can be no question that Plaintiff registered the Foreclosure Deed and the related documents, including the Authority Documents, in accordance with Land Court Guideline No. 17.

II. Challenge of the Foreclosure Documents

Separate from his argument that the foreclosure documents should never have been accepted for filing by the Land Court and registered on the Certificate of Title for the Property, Defendant seeks to challenge the form of the documents themselves as "fatally defective." This argument fails because: 1) the very text of the relevant Authority Documents clearly authorize the actions taken by Orlans thereunder; 2) Defendant lacks standing to challenge the validity of the Authority Documents; any alleged infirmities in the Authority Documents could only render them voidable, rather than void. See Culley v. Bank of Am., N.A., No. 18-CV-40099-DHH, 2019 WL 1430124, at *14 (D. Mass. Mar. 29, 2019); 3) Defendant's assertion that the Certificate of Entry is void is not supported by an affidavit satisfying the basic requirements of Mass.R.Civ.P. 56(e) and is otherwise meritless; and 4) despite Defendant's argument that the Affidavit of Sale is not based on the personal knowledge of the affiant or otherwise duly authorized, an affidavit of sale in the statutory form is sufficient to satisfy the requirements of G.L. c. 244, §15. [Note 5] "The statutory form 'shall be sufficient,' even if it is altered to suit the particular circumstances (in other words, if the blanks in the form are filled in as appropriate)." Deutsche Bank Nat. Trust Co. v. Gabriel, 81 Mass. App. Ct. 564 , 568 (2012). [Note 6] Because an uncontroverted affidavit of sale in statutory form "is sufficient to show compliance with the power or sale for the purpose of establishing the right of possession by motion for summary judgment in a summary process action" this Court need not address whether the Affidavit of Sale also meets the requirements of Mass.R.Civ.P 56(e). Federal Nat'l Mortgage Ass'n v. Hendricks, 463 Mass. 635 , 635-636 (2012). Here, the Affidavit of Sale is in statutory form.

III. Application of Res Judicata to Defendant's Defenses and Counterclaims

Plaintiff argues that the doctrine of res judicata bars relitigation of the Defendant's claims and defenses that were dismissed with prejudice by the Land Court. Defendant contends that Plaintiff's failure to disclose the Foreclosure Deed and attendant documents during the Land Court action was done to conceal the defective nature of such documents from the Land Court and that Plaintiff should not now be permitted to "hide their defects behind an argument for preclusion."

In questioning why Plaintiff did not file and record the Foreclosure Deed and related documents in 2017 when they were executed, Defendant implies a nefarious motive on the part of Wells Fargo to conceal the foreclosure documents from the Land Court. This ignores a far less reprehensible reason for delaying the recording of the Foreclosure Deed and attendant documents -- the fact that Defendant registered his Adverse Claim on the Memorandum of Encumbrances for the Certificate of Title for the Property on July 13, 2017. It was Defendant's Adverse Claim that forced Wells Fargo to bring the action in the Land Court to remove the cloud on the title created by his Adverse Claim, and the Memorandum of Lis Pendens that followed ensured that Wells Fargo could not deliver clear title to the Property until after the Land Court action was adjudicated. The Land Court Judgment was registered on May 16, 2019, and the Foreclosure Deed and related documents were registered promptly thereafter on July 15, 2019.

There is no merit to Defendant's argument that "Plaintiff is clearly attempting to conceal the defects in its case behind the rules of preclusion." The Court finds the rules of preclusion apply to bar Coffin's defenses and counterclaims.

The term "res judicata" is "the generic term for various doctrines by which a judgment in one action has a binding effect in another." Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). The term encompasses the doctrines of claim preclusion, also known as true res judicata, and issue preclusion, traditionally known as collateral estoppel. Mancuso v. Kinchla, 60 Mass. App. Ct. 558 , 564 (2004). A brief explanation of both follows.

Claim Preclusion

The doctrine of claim preclusion "makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action. . . . This is so even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim, or seeks different remedies." Heacock at 23. Three elements are required: 1) a prior final judgment on the merits; 2) identity or privity of the parties to the prior and present suits; and 3) identity of the causes of action. Mancuso v. Kinchla, 60 Mass. App. Ct. 558 , 567 (2004). A claim in a later case is considered the same as the one in a prior case if it "grows out of the same transaction, act, or agreement, and seeks redress for the same wrong." Mackintosh v. Chambers, 285 Mass. 594 , 596 (1934). Accordingly, claim preclusion applies even if a litigant puts forth different grounds, legal theories or evidence or seeks different remedies or forms of relief in the later action. Massaro v. Walsh, 71 Mass. App. Ct. 562 , 565-566 (2008); Heacock v. Heacock, 402 Mass. at 23.

Issue Preclusion

Under the doctrine of issue preclusion, or collateral estoppel, a claimant is barred from litigating in a later action an issue that was determined in an earlier action. Heacock, 402 Mass. at 23 n.2. "Before precluding a party from relitigating an issue, 'a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.'" Kobrin v, Board of Registration in Med., 444 Mass, 837, 843 (2005), quoting Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998). In addition, "the issue decided in the prior adjudication must have been essential to the earlier judgment." Kobrin at 844, quoting Tuber at 134-135. See also Duross v. Scudder Bay Capital, LLC, No. 18-P-897, 2020 WL 262701 (Mass. App. Ct. Jan. 17, 2020).

Whether it be claim or issue preclusion here, Defendant argues that the elements have not been met because the alleged defects in the foreclosure documents were not actually litigated in the Land Court, there was no final judgment on the merits and, because the Foreclosure Deed and related documents were not before the Land Court they could not have been essential to the Land Court Judgment. The Court finds otherwise and rules that all four (4) prongs of the issue preclusion standard have been met here.

There is no question that Coffin actively litigated his claim of superior possession based on Wells Fargo's alleged failure to strictly comply with the terms of the subject mortgage, the provisions of G.L. c. 244, §14 and G.L. c. 244, §§35A-35C and whether notices sent to Coffin were fundamentally unfair. Essential to the Land Court Judgment was the determination that Wells Fargo held a superior interest in the legal title to the Property.

That Coffin has articulated in Housing Court a somewhat new or different theory as to why he should prevail on the question of whether he holds a superior interest in the legal title to the Property does not mean that the question was not already "actually litigated." Here, the key issue presented in the Land Court action -- whether Plaintiff's predecessor in title obtained legal title to the Property pursuant to the power of sale provided in the subject mortgage - is identical to the primary issue in this case. Accordingly, issue preclusion applies and Coffin is barred from relitigating the issue of superior title in the Housing Court.

IV. Defendant's Counterclaims

The same doctrine applies to bar Coffin's counterclaims for declaratory judgment [Note 7] and unlawful foreclosure. These counterclaims seek to relitigate the validity of the foreclosure, the foreclosure documents and the superiority of legal title after final adjudication of these issues by the Land Court. With respect to Coffin's counterclaim for trespassing and harassment, Coffin's bare assertions in his counterclaim are wholly unsupported in the summary judgment record by the materials contemplated in Mass.R.Civ.P. 56(e).

The Court finds that Plaintiff has proven its prima facie case by showing that it obtained a Foreclosure Deed to the Property and that the Foreclosure Deed and Affidavit of Sale, showing compliance with statutory foreclosure requirements, were recorded. Bank of New York v. Bailey, 460 Mass. 327 , 334 (2011). The Court finds the Foreclosure Deed and Affidavit of Sale meet the requirements of G.L. c. 244, §15. Where these documents meet the requirements of G.L. c. 244, §15, it is "incumbent on a defendant to counter with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact." Federal Nat'l Mortgage Ass'n v. Hendricks, 463 Mass. 635 , 642 (2012). Here, the Defendant failed to meet his burden. Defendant failed to provide any countervailing evidence, by way of affidavit or otherwise, showing that there exists a genuine issue for trial. Defendant's arguments concerning the improper acceptance of the Foreclosure Deed and attendant documents for filing by the Land Court and the facial invalidity of such documents are meritless.

After reviewing the evidence set forth in the summary judgment record, the Court finds there are no genuine issues as to any material facts with respect to the superior right of possession by Plaintiff. The Court concludes as a matter of law that Plaintiff acquired legal title to the Premises from Wells Fargo after foreclosure and has a superior right to possession of the Premises over the right to possession asserted by the Defendant. Accordingly, Plaintiff is entitled to the entry of summary judgment in its favor on the issue of possession.

The Court finds that Defendant's affirmative defenses are insufficient to rebut Plaintiff's right to possession of the Property and its right to use and occupancy payments from Defendant because the undisputed facts negate each such affirmative defense and Defendant has not produced any admissible evidence showing that there is a genuine issue for trial.

The Court finds that Defendant's counterclaims for declaratory judgment and unlawful foreclosure are barred from being relitigated in the Housing Court by the doctrine of res judicata. The Court finds Defendant's counterclaim for declaratory judgment must also be dismissed on independent grounds for lack of subject matter jurisdiction.

The Court finds Defendant's allegations in his counterclaim for trespassing and harassment consist solely of conclusory allegations, are unsupported by the materials contemplated in Mass.R.Civ.P. 56(e), and are insufficient to defeat a motion for summary judgment as a matter of law. Accordingly, the Court finds there are no genuine issues of material facts with respect to this claim and Plaintiff is entitled to summary judgment in its favor on Defendant's counterclaim for trespassing and harassment as a matter of law.

For these reasons, Plaintiff's SJ Motion is ALLOWED on Plaintiff's claim for possession of the Property and on each of Defendant's counterclaims.

V. Plaintiff's Claim for Use and Occupancy.

Plaintiff seeks to recover use and occupancy from Defendant from July 15, 2019, the date the Plaintiff took title. The Court finds Defendant became a tenant at sufferance following the mortgage foreclosure. See Carney v. Conveyancers Title Ins. & Mtg. Co., 309 Mass. 197 , 200 (1941). The Court finds Defendant has not paid use and occupancy to Plaintiff since Plaintiff took title to the Property on July 15, 2019.

Under Massachusetts law, "[t]enants at sufferance in the possession of land or tenements shall be liable to pay rent therefor for such time as they occupy or detain the same." G.L. c. 186, §3. "A tenant at sufferance is liable for the reasonable worth of its use and occupancy and/or detention of the premises." Dale v. H.B. Smith Co., 136 F.3d 843, 850 (1st Cir. 1998). The measure of damages for a use and occupancy charge is the then current fair rental value of the premises. Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492 , 502 (1997). This is true even where there was never any tenancy relationship between the former owner and the party seeking possession of the premises following a foreclosure. See U.S. Bank Trust, N.A. v. Minnehan, 95 Mass. App. Ct. 1123 , *2 (Rule 1:28 unpublished decision August 9, 2019), further appellate review denied 2019 WL 5423316 (October 18, 2019). The statutory term "rent" is broadly defined to encompass "the sum which the trier of fact finds the use and occupation were reasonably worth." Lowell Hous. Auth'y v. Save-Mor Furniture Stores, Inc., 346 Mass. 426 , 431 (1963). The determination of use and occupancy under G.L. c. 186, §3 is a pure finding of fact. Dale v. H.B. Smith Co., 136 F.3d 843, 850 (1st Cir. 1998). The Court finds unavailing the arguments asserted by Defendant in support of his claim that he should not be required to pay use and occupancy.

The Court finds Defendant is required to pay fair use and occupancy for the Property while he continues to occupy it. Plaintiff submitted the Alva Affidavit as part of its SJ Motion. Attached to the Alva Affidavit as Exhibit 7 are comparable listings for weekly summer rentals. Although Defendant did not dispute the fair rental value as asserted by Attorney Alva, the Alva Affidavit does not establish a foundation for Alva's expertise to provide an opinion of the fair rental value, nor does the Alva Affidavit provide any information as to the fair rental value of the Property averaged over an annual basis, instead of a weekly basis during peak rental season. The information provided in the Alva Affidavit is insufficient for the Court to make a finding as to the fair market rental value of the Property. Accordingly, a hearing will be held on the issue of use and occupancy.

ORDER FOR JUDGMENT

Based upon all the credible evidence submitted as part of the summary judgment record in light of the governing law, the Court finds there are no genuine issues of material fact and Plaintiff is entitled to summary judgment as a matter of law. It is ORDERED that:

1. Plaintiff's Motion for Summary Judgment on its complaint for possession and all counterclaims of Defendant is ALLOWED, plus costs.

2. This matter shall be set down for hearing on the issue of use and occupancy on Wednesday, February 19, 2020 at 11:00 a.m. in the Barnstable session.

3. Execution for possession and costs only shall issue ten (10) days after the date on which judgment enters.

SO ORDERED.