DENNIS M. CLOHERTY v. FIRST HORIZON HOME LOANS, a division of FIRST TENNESSEE BANK NATIONAL ASSOCIATION

This case comes before the court on special motion of the Defendant First Horizon Home Loans, a division of First Tennessee Bank National Association to dismiss the Complaint, pursuant to G.L. c. 184, § 15(c). The underlying action is for slander of title and presumably to reform a foreclosure deed of the parcel of real property, known as and numbered 2 Harvest Road in Wakefield, owned of record by Defendant (Property). Plaintiff Dennis M. Cloherty alleges that the actual address of the Property is 34 Line Road. Defendant argues that the Complaint lacks sufficient facts and any basis in law and, therefore, should be dismissed.

The Complaint is the latest in a series of events arising out of a longstanding neighborhood dispute, involving the rights of the parties to use Harvest Road, a private way. Plaintiff owns a parcel of land located on Harvest Road. Defendant is the current owner of a lot located at the intersection of Harvest Road and Line Road. The former owner of that corner lot, Mr. Noseworthy, defaulted on his mortgage, whereupon the lot was purchased at the foreclosure sale by Defendant, the mortgagee. A decision sketch is attached.

The record indicates that Plaintiff and Mr. Noseworthy had been involved in a dispute for some time concerning the rights of Mr. Noseworthy to use Harvest Road. Following the foreclosure, Plaintiff is still involved in a cantankerous disputed with Defendant and has, on several occasions, allegedly hollered obscenities and other disparaging remarks to representatives of the owner and real estate agents attempting to show the property to prospective buyers. The Wakefield Police Department has been called to the scene on several occasions, and the matter has been on court dockets more than once.

General Laws chapter 184, § 15 provides that a party may make a special motion to dismiss an action or claim supporting a memorandum of lis pendens on the grounds that the claim is frivolous. An action or claim is frivolous if “(1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds.” 184, § 15.

In the present case, the Complaint claims only that the Defendant “did falsely record 34 Line Road as 2 Harvest Road.” The Complaint then recites a description of the parcel, known as and numbered 2 Harvest Road in Wakefield, identical to that contained in record title documents of the Property. The Complaint concludes with the statement that the false recordation “implies that the owner of the parcel has a fee interest in Harvest Road. The Complaint requests that the court correct the “Slander of Title.” Attached to the Complaint is an assignment of a mortgage encumbering the property from Mortgage Electronic Registration Systems, Inc. to Defendant. Plaintiff has not filed any affidavits.

Even if taken as verified, the Complaint does not assert any facts to support a claim of slander of title or reformation of title. Instead, it appears that following a foreclosure sale, Defendant became owner of the Property and on July 15, 2008 recorded a foreclosure deed, identifying the Property as 2 Harvest Road. The property is located on the corner of Line Road and Harvest Road. Defendant contends that 2 Harvest Road is the mailing address of the property. More significantly, the Land Court does not have jurisdiction over a claim of slander of title. See G.L. c. 185, § 1.

At oral arguments, Plaintiff argued that Property’s address is significant, because he fears that a change in address from Line Road to Harvest Road could result in ownership of a portion of the road itself, by the owner of the Property. However, this concern is not based in law. Ownership in a way is not determined by street address, but by express grant or statutory presumption. See G.L. c. 183, §57.

On September 1, 2009, Plaintiff filed a request to file an Amended Complaint, pursuant to Mass. R. Civ. P. 15(a). While Plaintiff’s Amended Complaint is verified, it includes the addition of thirteen counts, none of which include any alleged facts and over most of which this court does not have jurisdiction. Attached to the Amended Complaint is a police summons of Plaintiff resulting from an incident on Harvest Road on May 30, 2009. Also attached is a copy of Plaintiff’s title insurance policy and a number of photographs of the Harvest Road and the abutting properties. The Amended Complaint states that “[t]he actions of the defendant have interfered with and continue to interfere with the comfort of the plaintiff in the enjoyment and occupation of my property, making it uncomfortable and impossible to enjoy the ordinary use of the premises as a dwelling house and to pursue the ordinary occupation of life therein.” The Complaint contains only accusations, and again, the court can decipher no conceivable wrongdoing by Defendants from the facts alleged.

Lastly, Plaintiff requests that the court issue a declaratory judgment that his title insurance company has a duty to defend his title. This request is improper for a number of reasons, not the least of which is that the Plaintiff’s title insurance company is not a party to this action.

Accordingly, it is hereby:

ORDERED that the Defendant, First Horizon Home Loans, a Division of First Tennessee Bank National Association’s Special Motion to Dismiss is ALLOWED. The Complaint shall be dismissed.

So Ordered.

Judgment to enter accordingly.

By the court (Trombly, J.).

Attest:

Deborah J. Patterson

Recorder

Dated: September 28, 2009