MISC 10-427157

August 26, 2010

ESSEX, ss.

Long, J.


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Plaintiff Francis Bevilaqua holds no title to the property at 126-128 Summer Street in Haverhill. That title is held by defendant Pablo Rodriguez. What Mr. Bevilaqua has is a quitclaim deed from US Bank, N.A., which conducted an invalid foreclosure sale on the property (it was not the holder of the mortgage at the time the sale was noticed and conducted as required by G.L. c. 244, § 14) [Note 1] and thus acquired nothing from that sale. See US Bank v. Ibanez, 17 LCR 202 (Mar. 26, 2009) & 17 LCR 679 (Oct. 14, 2009) and cases cited therein. US Bank therefore had nothing to convey, and its purported conveyance to Mr. Bevilaqua was a nullity. See Bongaards v. Millen, 440 Mass. 10 , 15 (2003).

Despite this, Mr. Bevilaqua now seeks to create a full, fee simple title in himself — quite literally, something from nothing — through the “try title” procedure of G.L. c. 240, §§ 1-5. He cannot do so, for the reasons set forth below. Accordingly, his complaint is DISMISSED in its entirety, with prejudice.


G.L. c. 240, §§ 1-5 — the so-called “try title” statute — reads in relevant part as follows: If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land claiming an estate of freehold therein…may file a petition in the land court stating his interest, describing the land, the claims and the possible adverse claimants so far as known to him, and praying that such claimants may be summoned to show cause why they should not bring an action to try such claim….If the supposed claimants are residents of the commonwealth, the petition may be inserted like a declaration in a writ, and served by a copy, like a writ of original summons….

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If the petition is not so served, the court shall order notice thereof by publication to the supposed claimants, whether residents or not residents of the commonwealth. Such notice shall bind all the world, but the court may also require personal or other notice, and if, upon return of the order of notice duly executed, the parties notified do not appear within the time limited or, having appeared, disobey the lawful order of the court to try their claim, the court shall enter a decree that they be forever barred from having or enforcing any such claim adversely to the petitioner, his heirs or assigns, in the land described, and may require them to execute, within such time as the court orders, a conveyance, release or acquittance duly relinquishing the same….

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If the persons notified or summoned appear and disclaim all right and title adverse to the petitioner, they shall recover costs. If they claim title, they shall by answer show why they should not be required to bring an action to try such title, and the court shall enter an appropriate decree relative to bringing and prosecuting such action. If the party or parties against whom a judgment or decree for a conveyance, release or acquittance may be rendered by any court in the commonwealth do not comply therewith, within the time therein limited, such judgment or decree shall, subject to the following section, have the same effect as if the conveyance, release or acquittance had been executed conformably thereto.

G.L. c. 240, §§ 1-3. It is a procedural mechanism — broadly speaking, a way (there are others) [Note 2] to bring all parties with legitimate claims to property into court to “try” those claims — most often used when there is a genuine dispute as to which competing title chain (each with a plausible basis) is the correct one. Mr. Bevilaqua’s situation is far different (he has no plausible claim — just a deed on record derived solely from an invalid foreclosure sale), and his attempt to use this statute to create title in himself has no merit.

The first reason it has no merit is the most obvious. By its express terms, G.L. c. 240, § 1 et seq. only applies “if the record title of land is clouded by an adverse claim.” G.L. c. 240, § 1 (emphasis added). Here, there is no cloud, and certainly none that would give Mr. Bevilacqua standing to assert it. [Note 3] A cloud is not created simply on someone’s say so. There must be, at the least, a plausible claim to title by the G.L. c. 240, § 1 plaintiff. See Daley v. Daley, 300 Mass. 17 , 21 (1938) (“[a] petition to remove a cloud from the title to land affected cannot be maintained unless both actual possession and the legal title are united in the petitioner”) (emphasis added). Otherwise, in the classic example, a litigant could go to the registry, record a deed to the Brooklyn Bridge, commence suit, hope that the true owners either ignored the suit or (as here, discussed more fully below) could not readily be located and be defaulted, and secure a judgment. As shown on the face of his complaint, Mr. Bevilacqua has no plausible claim to title since it derives, and derives exclusively, from an invalid foreclosure sale.

Other familiar rules of statutory interpretation lead to the same conclusion. Statutes are to be construed “in harmony with one another, recognizing that the Legislature did not intend internal contradiction.” Water Dept of Fairhaven v. Dept. of Environ. Protection, 455 Mass. 740 , 744-45 (2010) (citing DiFiore v. American Airlines, Inc., 454 Mass. 486 , 491 (2009)). “[W]hen two statutes (or provisions within those statutes) conflict…the more specific provision, particularly where it has been enacted subsequent to a more general rule, applies over the general rule.” Doe v. Attorney Gen., 425 Mass. 210 , 215 (1997). Here the more specific and later statute is G.L. c. 244, § 14 [Note 4] which sets forth the requirements for a valid foreclosure sale. A “strict compliance” with those requirements is “essential to the valid exercise of the [foreclosure] power,” and failure to do so makes the sale “a nullity; it is as if no such sale had been made.” Bottomly v. Kabachnick, 13 Mass. App. Ct. 480 , 484 (1982). If Mr. Bevilacqua’s view of G.L. c. 240, § 1 prevailed, the protections of G.L. c. 244, § 14 could be circumvented in the default situation likely to occur here. [Note 5] Title would be created in Mr. Bevilacqua not only out of nothing, but out of a wrongful act. This cannot be so. Moreover, it would be a judgment not obtainable under G.L. c. 240, § 6 (see n. 2, supra), and this cannot be so since a “harmonious” reading of statutes addressing the same issues should lead to the same substantive result. See Water Dept of Fairhaven, supra. Lastly, it cannot be so since it would circumvent the requirements of adverse possession (inter alia, twenty year occupation) and G.L. c. 244, § 1 et seq. (foreclosure by entry) (inter alia, three year occupation).


For the foregoing reasons, the plaintiff’s claims are dismissed in their entirety, with prejudice. Judgment shall enter accordingly. [Note 6] I have great sympathy for Mr. Bevilacqua’s situation — he was not the one who conducted the invalid foreclosure, and presumably purchased from the foreclosing entity in reliance on receiving good title — but if that was the case his proper grievance and proper remedy is against that wrongfully foreclosing entity on which he relied.


By the court (Long, J.)


[Note 1] The mortgage at issue was granted by Mr. Rodriguez to Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Finance America, LLC. At the time of US Bank’s foreclosure, MERS has not assigned the mortgage to US Bank. Complaint at 2, ¶¶ 7-8 (Apr. 8, 2010).

[Note 2] The more common procedure is to file an action pursuant to G.L. c. 240, § 6 “to quiet or establish the title to land situated in the commonwealth, or to remove a cloud from the title thereto” (commonly known as “clear title” or “cloud” cases). In § 6 cases, parties are identified, served and, if they fail to respond, entry of default and default judgment are then sought. Default judgment, however, is not automatic. As in all default situations, a § 6 plaintiff must prove entitlement to judgment (i.e. that he has proper title) before such judgment may enter. See Bright v. American Felt Co., 343 Mass. 334 , 336 (1961) (“The decree taking the petition for confessed did not ensure a decree for the petitioner. It only established as true the facts properly pleaded, and required the entry of whatever decree those facts demanded”).

Mr. Bevilacqua asserts that § 1 and § 6 produce different substantive outcomes in default situations — in his case, allowing him to obtain title to property without any substantive basis for that title merely by employing the § 1 procedure. For the reasons set forth below, this is incorrect.

[Note 3] I need not and do not decide if Mr. Rodriguez could use the statute to rid the registry records of Mr. Bevilacqua’s invalid deed.

[Note 4] G.L. c. 240, § 1 et seq. was first enacted in 1851. St. 1851, c. 233 § 66. G.L. c. 244, § 14, in original form, was enacted six years later in 1857. St. 1857, c. 229, § 1.

[Note 5] Mr. Bevilacqua has left his property, presumably as a result of the wrongful foreclosure sale. According to the plaintiff, he cannot presently be located. If true, service would likely be by publication in Haverhill (where this property is located) and in two other localities where Mr. Rodriguez last owned property over two years ago.

[Note 6] Given this result, I need not and do not decide plaintiff’s motion for service on the defendant by publication.