Home THE BANK OF NEW YORK MELLON (F/K/A THE BANK OF NEW YORK), AS TRUSTEE FOR THE BENEFIT OF (CWALT, INC.) ALTERNATIVE LOAN TRUST 2007-5CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-5CB, Plaintiff v. CATHERINE SAMA URSO, FRANK J. URSO, JOHN DOE, JANE DOE AND ALL OTHER OCCUPANTS, Defendants

19-SP-3638CI

January 6, 2020

Housing Court, Southeast Division

Donna Salvidio, First Justice

RULING ON PLAINTIFF'S MOTION FOR DIRECTED VERDICT AND FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This matter was before the court for a jury-waived trial on November 27, 2019. This is a summary process action brought by The Bank of New York Mellon (f/k/a The Bank of New York), as Trustee for the benefit of (CWALT, Inc.) Alternative Loan Trust 2007-5CB, Mortgage Pass-Through Certificates, Series 2007-5CB ("Plaintiff") to obtain possession of the premises located at 84 Old Harbor Road in Chatham, Massachusetts (the "Premises") and damages for unpaid use and occupancy following a foreclosure. Defendants Frank J. Urso, John Doe and Jane Doe did not appear for trial and were defaulted. Defendant Catherine Sama Urso ("Ms. Urso" or "Defendant", collectively with all co-defendants, the "Defendants") filed an answer [Note 1], appeared for trial and testified.

Following the trial, the Court issued an interim order dated December 11, 2019 (the "Interim Order"), requesting that the parties brief the issue of whether the LLC identified in Paragraph 6 herein is an indispensable party to this action. Plaintiff timely filed a brief; Defendants filed nothing.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds, rules and orders as follows:

1. Ms. Urso has resided at the Premises at all times relevant to this action. She and her husband, defendant Frank J. Urso ("Mr. Urso"), are the former owners of the Premises.

2. Ms. Urso and Mr. Urso (collectively, the "Mortgagors") granted a mortgage to Countrywide Home Loans, Inc. ("Countrywide") by and through its nominee Mortgage Electronic Registration Systems, Inc. ("MERS") dated January 26, 2007 (the "Mortgage"), which Mortgage was secured by the Premises. The Mortgage was recorded in the Barnstable County Registry of Deeds (the "Registry") on January 30, 2007 in Book 21736, Page 305. (Plaintiff's Exhibit 4).

3. At the time when they granted the Mortgage, Ms. Urso and Mr. Urso held title to the Premises pursuant to a quitclaim deed dated December 20, 2004, which deed was recorded on December 22, 2004 with the Registry in Book 19375, Page 152. (Plaintiff's Exhibit 3).

4. On or about January 10, 2010, the Mortgagors defaulted on the terms of the promissory note secured by the Mortgage. (Plaintiff's Exhibit 6).

5. By assignment dated October 8, 2010, MERS, as nominee for Countrywide, assigned the Mortgage to Plaintiff by assignment recorded on November 29, 2010 with the Registry in Book 25038, Page 229. (Plaintiff's Exhibit 5).

6. By quitclaim deed dated August 31, 2017 (the "1st Deed"), Ms. Urso and Mr. Urso conveyed the Premises "for and in consideration of the sum of $0.00 and other good and valuable consideration" to NCM LLC (the "LLC"), which deed was recorded on October 3, 2017 with the Registry in Book 30807, Page 222. (Plaintiff's Exhibit 7). Such conveyance was subject to the Mortgage.

7. Plaintiff, through its servicer, Bayview Loan Servicing, LLC ("Bayview"), commenced foreclosure proceedings pursuant to the power of sale conferred by the Mortgagors in the Mortgage. (Plaintiff's Exhibits 1, 4, 5, 6, 8 and 9).

8. A foreclosure sale of the Premises was conducted by the Plaintiff on February 15, 2018 at which sale Plaintiff was the highest bidder at $518,500.00. (Plaintiff's Exhibit 1).

9. Plaintiff acquired title to the Premises at foreclosure pursuant to a foreclosure deed and affidavit of sale dated March 2, 2018 and recorded on May 9, 2018 in the Registry in Book 31255, Page 255. (Plaintiff's Exhibit 1).

10. At the time of the foreclosure, Plaintiff was the holder of the promissory note secured by the Mortgage. (Plaintiff's Exhibits 8 and 9).

11. Plaintiff served each of the Defendants with a 72-hour notice to quit by deputy sheriff on September 17, 2019. (Plaintiff's Exhibit 10).

12. All that a post-foreclosure owner is required to do to recover possession of the foreclosed premises from a former owner who holds over after the foreclosure is to provide such former owner with some reasonable advance notice to vacate the premises and, if s/he fails to vacate within the specified period of time, to bring a summary process action pursuant to G.L. c. 239, §1 et. seq. Attorney General v. Dime Savings Bank of New York, FSB, 413 Mass. 284 , 291 (1992).

13. It is undisputed that: 1) Defendants never occupied the Premises as tenants either before or after the foreclosure; 2) Plaintiff never entered into a tenancy with any of the Defendants after the foreclosure; and 3) Defendants never paid Plaintiff any rent for their use and occupancy of the Premises after the foreclosure.

14. Plaintiff commenced this summary process action after the expiration of the notices to quit by serving each of the Defendants with a summary process summons and complaint by deputy sheriff on or about October 1, 2019.

15. By virtue of the recording of a foreclosure deed and an affidavit of sale that meets the requirements of G.L. c. 244, §15, the Defendants' receipt of the notices to quit and their receipt of the summary process summons and complaint, the Plaintiff has established a prima facie case for possession to the Premises. See Federal Nat'l Mortgage Ass'n v. Hendricks, 463 Mass. 635 , 641-642 (2012).

16. While this Court recognizes the challenges facing self-represented litigants navigating a complex process, self-represented litigants are not entitled, because of their status, to be excused from the relevant rules of procedure and substantive law. Pandey v. Roulston, 419 Mass. 1010 , 1011 (1995). Ms. Urso's jumbled and repetitive filings were not submitted in accordance with any of the applicable rules of court, but even if duly filed they could not reasonably be read to state a valid defense to the Plaintiff's prima facie case. [Note 2]

17. As of the time of trial, Ms. Urso continues to occupy the Premises. Ms. Urso testified that she is the sole occupant of the Premises.

18. Plaintiff's complaint seeks use and occupancy from February 15, 2018, the date of the foreclosure sale, to the date of trial.

19. According to licensed realtor Irene Cook, the fair rental value of the Premises is $2,000.00 per month (based on year-round rentals and not seasonal rates) and the fair market sale price is $500,000.00. (See Plaintiff's Exhibit 2). Ms. Cook testified that she based her opinions of value on a review of public records, expired MLS listings for the Premises containing photographs of the interior, comparable listings and multiple visual exterior inspections of the Premises and the surrounding area. Ms. Cook testified that she took into consideration the condition of the Premises, its style and lack of curb appeal, its location on a main road, the small lot size, the number of bedrooms and bathrooms, the square footage, its proximity to commercial businesses and the condition of other properties in the immediate vicinity in determining the fair market rental and sale values. The Court credits Ms. Cook's testimony.

20. While Ms. Urso testified to the blighted condition of the home across the street from the Premises, Ms. Cook testified that she took the condition of neighboring properties and other negative factors into consideration in determining the fair market rental and sale values of the Premises.

21. The Court finds the fair rental value of the Premises is $2,000.00 per month. The Court finds Plaintiff is entitled to damages for use and occupancy of the Premises from February 15, 2018 to the date of trial in the amount of $42,803.25. [Note 3]

22. The Court finds that the purported conveyance of the Premises to the LLC by Ms. Urso and Mr. Urso pursuant to the 1st Deed was of no effect and that the LLC is not an indispensable party to this action. First, it appears that the 1st Deed was executed and recorded in an attempt to thwart the foreclosure. It was done at a time shortly before the foreclosure sale when the Mortgagors were already in default for a period of more than seven (7) years, it recites "consideration of the sum of $0.00 and other good and valuable consideration", the LLC's address shown on the 1st Deed is the Premises address [Note 4], and there is nothing in the record to demonstrate that the LLC was in fact a legal entity in good standing at the time the 1st Deed was recorded. At a minimum, it is clear from the face of the 1st Deed that the LLC was not a bona fide purchaser for value.

23. After the foreclosure deed was recorded, Ms. Urso, purportedly in her capacity as "president" of the LLC, conveyed the Premises back to herself for nominal consideration by way of a 2nd Deed. [Note 5] This series of deeds from the Mortgagors to the LLC and then back to Ms. Urso for no consideration evidences an intention to thwart the foreclosure. A deed for insufficient consideration, such as the 1st Deed purportedly conveying the Premises to the LLC, where there is fraud, is insufficient to transfer title. See Ward v. Ward, 70 Mass. App. Ct. 366 , 371 (2007). Second, even if the 1st Deed to the LLC is valid, the subsequent foreclosure of the Mortgage terminated any interest in the Premises that the LLC and/or Ms. Urso purportedly held. Pursuant to G.L. c. 183, §21 the "exercise of a power of sale . . . shall forever bar the mortgagor and all persons claiming under [her] from all right and interest in the mortgaged premises, whether at law or in equity." Accordingly, the purported transfer of the Premises from the LLC to Ms. Urso following the foreclosure by way of the 2nd Deed is of no effect because the LLC had no interest in the Premises to convey after the recording of the foreclosure deed. Finally, the LLC is not a bona fide purchaser for value. To the extent the LLC legally exists, it was not prejudiced by Plaintiff's failure to name it as a party to this action because Ms. Urso was a signatory on the 1st and 2nd Deeds and represented both herself and the LLC as its "president" in the execution and recording of such deeds.

Plaintiff's Motion for Directed Verdict filed at the close of evidence is ALLOWED IN PART and DENIED IN PART. It is ALLOWED with respect to Ms. Urso's affirmative defenses, to the extent pled and raised, because Ms. Urso had the burden of proof at trial and submitted no evidence in support thereof. It is DENIED with respect to Plaintiff's claims for possession and damages because the Court chose to rule on the merits after consideration of all the evidence rather than make a directed finding.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enter for the Plaintiff for possession and damages in the amount of $42,803.25 as to Defendant Catherine Sama Urso, plus costs.

2. Execution shall issue ten (10) days after the date on which judgment enters.

SO ORDERED.

FOOTNOTES

[Note 1] This action was originally commenced in the Orleans District Court, Docket No. 1926SU000097 (the "District Court"). Prior to her transferring the action to this Court, Ms. Urso filed multiple documents in the District Court, the substance of which were challenging the foreclosure. Among Ms. Urso's filings were documents dated October 18, 2019. These documents were received by the District Court on October 21, 2019 and were docketed as an answer despite having been styled as an "affidavit" by Ms. Urso. After October 21, 2019, the date the answer was due, Ms. Urso filed a motion for trial by jury. The case was transferred to this Court before action was taken on any of Ms. Urso's filings. At later hearings on November 13, November 20 and November 27, 2019, this Court found Ms. Urso's purported jury demand untimely pursuant to Uniform Summary Process Rule 8 and deemed her to have waived her right to trial by jury. On November 26, 2019, the day prior to trial, Ms. Urso filed a document styled "counterclaim" which sought, among other things, to add a counterclaim for violation of consumer protection laws. This "counterclaim" named "Bayview Servicing" and "Mckensie and Sawin" as defendants-in-counterclaim, neither of whom are parties to this action. At the hearing on November 27, 2019, Ms. Urso's "counterclaim" was stricken on a basis that it was untimely, non-compulsory and because it sought to add third parties without leave of court in violation of Rule 14(a) of the Mass.R.Civ.P. In addition, it appeared to assert claims that were dismissed in prior actions related to the same foreclosure brought by Ms. Urso in the Barnstable Superior Court (Docket Nos. 1872CV00316 and 1972CV00252) and in the Orleans District Court (Docket No. 1926CV000053). In dismissing Ms. Urso's latest claim against Plaintiff in the case of Catherine Urso v. Bank of New York Mellon and Bayview Servicing, LLC, Barnstable Superior Court Docket No. 1972CV00252, the Superior Court (Perrino, J.) ruled in relevant part as follows: "The allegations contained in the complaint do not set forth claims which plausibly demonstrate an entitlement to relief. As a matter of law the plaintiff is not entitled to a Lis Pendens and the doctrine of claim preclusion bars her further attempt to litigate matters concerning the mortgage foreclosure." (emphasis added).

[Note 2] Prior to the start of the trial, Plaintiff's Motion in Limine to Exclude Evidence and/or Argument Challenging the Mortgage Foreclosure was allowed based on res judicata grounds as three (3) separate actions brought by Ms. Urso seeking to challenge the foreclosure were previously dismissed by the Barnstable Superior Court and the Orleans District Court. Ms. Urso's second Superior Court action was dismissed in part on grounds that the doctrine of claim preclusion barred her further attempt to litigate matters concerning the mortgage foreclosure. See footnote 1, supra.

[Note 3] Use and occupancy was calculated as follows: $2,000.00/month fair rental value x 12 months = $24,000.00 per year ÷ 365 = $65.75/day x 651 days between February 15, 2018 and November 27, 2019 = $42,803.25.

[Note 4] The address of the LLC is stated as "84 old harbor road, Chatham, Connecticut 02633." The Court presumes the reference to Connecticut to be a scrivener's error since the remainder of the address corresponds to the Massachusetts address of the Premises.

[Note 5] See certified copy of quitclaim deed filed by Plaintiff as Attachment 1 to its brief in response to the Court's Interim Order. Such quitclaim deed dated September 26, 2018 was recorded with the Registry in Book 31556, Page 112 and purportedly transferred the Premises from NcmLLC to Catherine Urso (the "2nd Deed").