WILMINGTON SAVINGS FUND SOCIETY, FSB, DOING BUSINESS AS CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR BCAT 2014-10TT v. MATTHEW VANDERHOOP

This is a post-foreclosure summary process (eviction) action in which the plaintiff is seeking possession of the premises located at 17 Old South Road, Aquinnah, Massachusetts (the "Property"), together with the fair rental value of the Property from the date of the foreclosure sale. The defendant, Matthew Vanderhoop ("Defendant"), is the former owner of the Property. He continues to reside on the Property after his receipt of a 72-hour notice to vacate.

This matter was before the court on November 27, 2019 with respect to a Motion for Summary Judgment ("SJ Motion") and a Motion to Dismiss Counterclaims ("Motion to Dismiss"), each filed by the plaintiff, Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its Individual Capacity, but solely as Trustee for BCAT 2014-10TT ("Plaintiff") (collectively, the SJ Motion and Motion to Dismiss shall be referred to as the "Motions"). Defendant filed written oppositions to each of Plaintiff's Motions, together with memoranda of law and a document styled Affidavit of Mr. Matthew Vanderhoop (the "Original Vanderhoop Affidavit"). The parties appeared at the hearing, through counsel, and argued the foregoing Motions. At the hearing, pursuant to Mass.R.Civ. P. 12(b), the Court treated Plaintiff's Motion to Dismiss as one for summary judgment, as it included matters outside the pleadings and Defendant had addressed those matters in his written opposition. After the hearing, the Court closed the summary judgment record and took both of Plaintiff's Motions and Defendant's related oppositions under advisement.

Thereafter, without leave of Court and while the Court still had the Motions under advisement, Defendant filed a document captioned Defendant's Revised Affidavit (the "Revised Affidavit"). [Note 1] The Revised Affidavit attached documents that were not originally included in the summary judgment record. Moreover, the Original Vanderhoop Affidavit and the Revised Affidavit were not affidavits at all, since neither was signed and sworn under the penalties of perjury nor were they notarized.

In response to Defendant's filing of his Revised Affidavit, Plaintiff filed a Motion to Strike Defendant's Supplemental Evidence (the "Motion to Strike"). After Plaintiff exposed the deficiencies in both the Original Vanderhoop Affidavit and the Revised Affidavit in its Motion to Strike, Defendant filed a Memorandum of Law in Opposition to Plaintiff's Motion to Strike together with a third document styled Defendant's Amended Revised Affidavit (the "Amended Revised Affidavit"). Thereafter, both parties filed reply briefs regarding the Motion to Strike and the filings that followed it. [Note 2]

Ruling on Plaintiff's Motion to Strike

As a preliminary matter, the Plaintiff's Motion to Strike is ALLOWED. When a court considers the materials accompanying a motion for summary judgment, it 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). The requirements of Mass.R.Civ.P. 56(e) require in relevant part that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

Here, neither the Original Vanderhoop Affidavit nor the Revised Affidavit meet the requirements Mass.R.Civ.P. 56(e). See Bardige v. Performance Specialists, Inc., 74 Mass. App. Ct. 99 , 103 (2009) (unsigned letters not signed or sworn under the pains and penalties of perjury were "ineligible for consideration in a Rule 56 motion."); O'Brion, Russell & Co. v. LeMay, 370 Mass. 243 , 245 (1976) (plaintiff's motion for summary judgment granted where defendant's "'affidavit' was not an affidavit, since it was not sworn to or signed under the penalties of perjury").

After having filed two (2) non-compliant "affidavits", Defendant's Amended Revised Affidavit meets the requirements of Mass.R.Civ.P. 56(e), however, it (and the Revised Affidavit that preceded it) was filed without leave of Court, after the summary judgment record was closed, and is untimely. The Amended Revised Affidavit was ostensibly filed pursuant to Mass.R.Civ.P. 15(a), and incorporates material not attached to the Original Vanderhoop Affidavit.

Defendant, who is represented by counsel, did not seek leave of court to file his supplemental documents. Mass.R.Civ.P. 15(a) does not permit Defendant to file his Revised Affidavit and/or his Amended Revised Affidavit as a matter of right, and to consider same after the closure of the summary judgment record would be prejudicial to Plaintiff. The Court finds that with respect to the additional contentions made in Defendant's Amended Revised Affidavit, the information was available to him at the time of the original SJ Motion. Finally, the Court finds Defendant would fare no better even if the Court were to consider his Amended Revised Affidavit and other supplemental pleadings, because the issues raised therein were already finally adjudicated in a prior court action.

For these reasons, Plaintiff's Motion to Strike is ALLOWED and the Original Vanderhoop Affidavit, the Revised Affidavit and the Amended Revised Affidavit are each hereby stricken.

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). "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. If there are other grounds to set aside the foreclosure sale the defendants must seek affirmative relief in equity." 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 Motion to Dismiss are based on facts set forth in the record that the Court concludes are not in dispute. [Note 3]

1. On April 24, 2007, Defendant obtained a mortgage loan from Sovereign Bank ("Sovereign") in the amount of $850,000.00, which loan was evidenced by a promissory note (the "Note") and secured by a mortgage (the "Mortgage") on the Property. (District Court Order, Factual Background).

2. Defendant has not made the required monthly payment since October 2008. (District Court Order, Factual Background).

3. On September 9, 2014, Santander Bank, the successor-in-interest to Sovereign, assigned the Mortgage to MTGLQ Investors, L.P. ("MTGLQ") (the "2014 Sovereign Assignment"). (District Court Order, Factual Background).

4. On February 2, 2015, MTGLQ assigned the Mortgage to Plaintiff (the "1st MTGLQ Assignment"). (District Court Order, Factual Background).

5. On January 10, 2018, Plaintiff assigned the Mortgage back to MTGLQ (the "2018 Reassignment"). (District Court Order, Factual Background).

6. On February 6, 2018, MTGLQ assigned the Mortgage to Plaintiff for a second time. The assignment was recorded with the Dukes County Registry of Deeds on February 14, 2018 in Book 1460, Page 559 (the "MTGLQ 2nd Assignment"). (Certified copy of MTGLQ 2nd Assignment attached to Plaintiff's Motion to Dismiss as Exhibit A; Exhibit A to SJ Motion; District Court Order, Factual Background).

7. At all relevant times, Selene Finance LP ("Selene") was the servicer of the Note. (District Court Order, Factual Background).

8. Selene mailed a letter by First Class and Certified Mail to Defendant dated June 6, 2017 titled "Right to Request a Modified Mortgage Loan" (the "§35B letter"). The §35B letter stated that Defendant was eligible under Massachusetts law to "request a modification of [his] Mortgage with Selene. The letter also included various enclosures, including a "Mortgage Modification Options form". That form offered four choices, including the option to "request a loan modification." In order to qualify for a loan modification, Defendant would have had to, among other things, attach a complete statement of his total income, assets, and debts. (District Court Order, Factual Background).

9. Selene mailed a second letter by First Class and Certified Mail to Defendant also dated June 6, 2017 titled "90 Day Right to Cure Your Mortgage Default" (the "§35A letter"). The §35A warned that Defendant owed $457,031.52 and that the full amount was due by September 4, 2017, or 90 days from the date of the notice. Otherwise, Plaintiff would conduct a foreclosure sale. (District Court Order, Factual Background).

10. Defendant did not complete and return the attachments included in the §35A and §35B letters, or otherwise cure the Mortgage default before the 90-day deadline elapsed. (District Court Order, Factual Background).

11. On September 30, 2017, Plaintiff filed a complaint against Defendant pursuant to the Servicemembers Civil Relief Act in the Land Court. The Land Court entered judgment against Defendant on June 14, 2018. (District Court Order, Factual Background).

12. On August 22, 2018, Defendant filed a complaint against Plaintiff in Dukes County Superior Court. (District Court Order, Procedural History).

13. Plaintiff removed the action to the United States District Court (the "District Court") on the basis of diversity jurisdiction. (District Court Order, Procedural History).

14. On October 17, 2018, the District Court preliminarily enjoined Plaintiff from foreclosing on the Property. (District Court Order, Procedural History).

15. On November 29, 2018, Defendant filed a "First Amended Complaint for Declaratory and Injunctive Relief with Jury Demand" (the "Amended Complaint") in the District Court. (Exhibit C to Plaintiff's Motion to Dismiss, certified copy of Defendant's Amended Complaint). The Amended Complaint asserted 15 counts, most of which alleged that Plaintiff had breached its contract with Defendant, acted unfairly and deceptively in the loan origination, modification and foreclosure mitigation process, and that various documents, including the assignments in the chain of title, were "materially defective, violate notary requirements, and are void."

16. On January 8, 2019, the District Court granted Plaintiff's motion to dismiss as to all claims set forth in Defendant's Amended Complaint except Count One, which alleged a violation of G.L. c. 244, §35B. (District Court Order, Procedural History).

17. On July 15, 2019, the District Court granted Plaintiff's motion for summary judgment as to Count One of Defendant's complaint. (Exhibit D to Plaintiff's Motion to Dismiss, certified copy of District Court Order).

18. A Foreclosure Deed (the "Foreclosure Deed") dated July 18, 2019 and Affidavit of Sale Under Power of Sale in Mortgage (the "Affidavit of Sale") dated July 18, 2019, were recorded with the Dukes County Registry of Deeds on September 6, 2019 in Book 1505, Page 83. Pursuant to the Foreclosure Deed, Plaintiff acquired title to the Property for consideration of $1,025,000.00. (Certified copy of Foreclosure Deed and Affidavit of Sale attached to Motion to Dismiss as Exhibit B; Exhibit B to SJ Motion).

19. The Affidavit of Sale attests to Plaintiff'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 Plaintiff, being the highest bidder.

20. Plaintiff, through counsel, served a 72-hour notice to quit (the "NTQ") on Defendant in-hand by deputy sheriff on September 19, 2019, which NTQ was filed with this Court. (See Docket entry #2 dated October 3, 2019).

21. After service of the summary process summons and complaint on Defendant by deputy sheriff on September 25, 2019, the summons and complaint with return or service was filed with this Court on October 3, 2019 pursuant to G.L. c. 239, §1. (See Docket entry #1 dated October 3, 2019).

22. Defendant timely filed an answer and counterclaim with jury demand on October 15, 2019 asserting affirmative defenses and counterclaims generally challenging the following: the legal sufficiency of the notice to quit, the legal sufficiency of the Foreclosure Deed and Affidavit of Sale, Plaintiff's title acquired through foreclosure, the propriety of the loan modification process, and the validity of certain assignments and other documents in the chain of title. Defendant asserted counterclaims for material breach of contract, unfair and deceptive practices, violation of G.L. c. 244, §§35A-C and fraudulent misrepresentation. (See Docket #5 dated October 15, 2019).

23. Defendant continues to occupy the Premises.

DISCUSSION, FINDINGS AND RULING

The arguments set forth in Defendant's oppositions to Plaintiff's SJ Motion and Motion to Dismiss are as follows: 1) the documents on which Plaintiff relies to support its prima facie case are facially defective and, therefore, "void"; 2) the subject mortgage loan was predatory and the conduct of the loan servicer surrounding Defendant's efforts to obtain a loan modification and/or loan mitigation and the transfer of servicing of the loan were unfair and deceptive; and 3) res judicata does not apply to bar Defendant from litigating his counterclaims and affirmative defenses in the current action. This Court disagrees, and finds Defendant cannot prevail on any of his defenses or counterclaims as a matter of law. [Note 4]

I. Challenge of the Foreclosure Documents

Defendant challenges the form of the foreclosure documents themselves as facially invalid and defective. Defendant's challenges relate to: 1) the validity of the MTGLQ 2nd Assignment (see ¶6 of Undisputed Material Facts, supra), which assignment transferred the subject Mortgage to Plaintiff; 2) the form of the Affidavit of Sale; and 3) the validity of an Affidavit Regarding Note Secured by Mortgage to be Foreclosed (the "§35B Affidavit"). [Note 5]

a. Facial Invalidity of MTGLQ 2nd Assignment of §35B Affidavit

According to Defendant, the notary acknowledgment on the MTGLQ 2nd Assignment is "facially invalid and defective" [Note 6] and the authority of the signatories to the §35B Affidavit and the notary acknowledgement thereon likewise render the §35B Affidavit "facially invalid." [Note 7] These arguments fail because the same issues were raised by Defendant in his Amended Complaint in the District Court and expressly rejected. It is quite clear from Defendant's Amended Complaint that he made arguments concerning "materially defective notarization" and "patently defective acknowledgement" of the MTGLQ 2nd Assignment [Note 8] and the §35B Affidavit [Note 9] in the District Court. The validity of these documents was essential to the District Court's ruling, and the doctrine of res judicata precludes Defendant from relitigating the same issues here.

b. Validity of Affidavit of Sale

The Defendant next argues that the Affidavit of Sale is invalid because it not based on the personal knowledge of the affiant and "does not indicate that it was signed as a free act." [Note 10]

i. Form of Affidavit of Sale

It is well-established that an affidavit of sale in the statutory form is sufficient to satisfy the requirements of G.L. c. 244, §15. [Note 11] "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 12] 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.

ii. Notarization of Affidavit of Sale

The Affidavit of Sale was notarized in the state of Florida. Defendant does not offer any admissible evidence to demonstrate that the notary public was not duly authorized, or that the notary clause fails to comply with Florida law; but even if Defendant did, G.L. c. 183, §54B clothes the Affidavit of Sale with a presumption of validity in Massachusetts where, on the face of the Affidavit of Sale, it was signed by a Florida notary who acknowledged the Affidavit of Sale with what appears to be his signature. [Note 13] Defendant offers no admissible evidence to rebut the presumption of validity established by G.L. c. 183, §54B.

Finally, even accepting Defendant's arguments as to the alleged infirmities of the MTGLQ 2nd Assignment, the §35B Affidavit and the Affidavit of Sale as true, such infirmities could only render the documents voidable, rather than void, and only the parties to the documents themselves have standing to declare such documents void. See Culley v. Bank of Am., N.A., No. 18-CV-40099-DHH, 2019 WL 1430124, at *14 (D. Mass. Mar. 29, 2019).

For the foregoing reasons, Defendant's arguments with respect to the invalidity of the MTGLQ 2nd Assignment, the §35B Affidavit and the Affidavit of Sale are meritless.

II. 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 by the District Court. 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 issues raised in the prior District Court litigation were "not essential to the merits in this case." [Note 14] This Court disagrees.

First, Defendant misapplies the fourth prong of the standard for application of issue preclusion, because the test is whether the issue decided in the District Court case was essential to the District Court's judgment and not whether it is essential to the merits in this case. Next, Defendant applies the fourth prong of the test correctly and argues that the issues raised here were not essential to the District Court's decision on the merits of the Defendant's action seeking a preliminary injunction. Again, this Court finds otherwise. Defendant's action in the District Court sought both injunctive and declaratory relief wherein Defendant sought declarations, among others, that Plaintiff did not comply with Massachusetts notary requirements concerning the MTGLQ 2nd Assignment and the §35B Affidavit. [Note 15] Clearly, a determination concerning the validity of these documents was essential to the District Court's dismissal of Defendant's Amended Complaint.

Finally, Defendant argues that res judicata does not apply to the Foreclosure Deed and Affidavit of Sale, because these instruments were not considered by the District Court in its ruling. While it is true that the validity of these instruments was not considered by the District Court, it does not change the outcome. 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. Here, Defendant provided no admissible evidence, in any form, to counter Plaintiff's prima facie case.

Defendant's Counterclaims

It is clear from a comparison of Defendant's Amended Counterclaim filed in the District Court and his answer and counterclaims filed in this action that Defendant seeks to relitigate the same claims that were previously adjudicated by the District Court.

An exhaustive comparison of the Defendant's counterclaims filed in this case and in the District Court is not necessary. Counts I through VII of Defendant's counterclaims claim unfair or deceptive acts with respect to the origination of the subject mortgage loan [Note 16], material breach of contract with respect to the loan modification and foreclosure mitigation process and a failure to strictly comply with the power of sale contained in Defendant's Mortgage. All of these issues were raised and litigated by Defendant in the District Court and the District Court's adjudication of same was essential to the District Court Order granting summary judgment in favor of Plaintiff.

The same is true for Counts VII through XIII of Defendant's counterclaim. The crux of each of these claims concerns the alleged defective notarization of the foreclosure documents. Identical arguments were raised and rejected by the District Court. There is no question that Defendant actively litigated each of these claims in the prior District Court case. The doctrine of res judicata precludes Defendant from relitigating them again in the Housing Court.

III. Rulings

For the foregoing reasons, Plaintiff's Motion to Strike is ALLOWED and Plaintiff's SJ Motion and Motion to Dismiss are ALLOWED on Plaintiff's claim for possession of the Property and on each of Defendant's counterclaims.

Plaintiff's Claim for Use and Occupancy

While Plaintiff's complaint seeks damages in an amount to be determined at trial, Plaintiff's SJ Motion does not seek use and occupancy from Defendant from the date of the foreclosure. 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). "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).

If Plaintiff seeks use and occupancy as part of the judgment entered in this matter, it shall file a motion on the issue of the fair rental value of the Property not later than ten (10) days from the date of this Order, failing which Plaintiff's claim to use and occupancy shall be deemed waived. If a timely motion to assess use and occupancy is filed, the Defendant shall file his opposition thereto within seven (7) days, and an evidentiary hearing will be held on the issue of use and occupancy promptly thereafter.

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 is ALLOWED, plus costs.

2. Plaintiff's Motion to Dismiss Counterclaims, which motion was converted to a motion for summary judgment as to all counterclaims of Defendant, is ALLOWED.

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

SO ORDERED.