MISC 11-448092

September 28, 2011

Norfolk, ss.

Piper, J.


In this action, plaintiffs Joan L. Solomont and David Solomont (“Plaintiffs”) seek to quiet title, and ask for injunctive relief. They allege that they retain fee simple title to two parcels of property known as 60 Heath Hill Road (Lot 5B) and 0 Heath Hill Road (Lot 6B) in Brookline, Massachusetts (together, the “Property”). They contend that their ownership of the Property was not extinguished by a mortgagee's foreclosure sale, under power of sale, as a result of which title of record passed to the Hingham Institution for Savings (“Hingham”), the foreclosing lender and ultimate successful foreclosure sale bidder, free of any right of redemption held by the Plaintiffs. Plaintiffs bring essentially the same claims against defendants Howe Real Estate Advisors, LLC (“Howe”) and Nancy Adler (“Adler”). These defendants acquired titles to Lot 5B and Lot 6B, respectively, under deeds given by Hingham following the foreclosure sale. All of the defendants (“Defendants”) have moved pursuant to Mass. R. Civ. P. 12(b)(6) to dismiss the complaint in its entirety.

The Plaintiffs' Contentions

The Plaintiffs assert their title to the Property in generally two ways. First, Plaintiffs claim that the mortgage to Hingham, which was signed by Joan L. Solomont as mortgagor but not by David, her spouse, did not constitute a valid encumbrance on the Property's title, because the mortgage, by its terms, did not commit the Property's title as security for a note executed by David Solomont, and thus his non-payment did not allow for exercise of the mortgage's power of sale. Plaintiffs say that on this issue the mortgage instrument is unambiguous, and so the court may not look beyond the four corners of the document.

Second, Plaintiffs argue alternatively that David Solomont's interest in the property as tenant-by-the-entirety survived the foreclosure sale, and is a title interest that the court must establish in this action as still belonging to him. Plaintiffs maintain that Hingham, as lender, is charged with the state of title on record in the Registry of Deeds and also, as to unrecorded matters, as to facts actually known by Hingham. Plaintiffs claim that at the time of the execution of the note and mortgage, as well as at the time of final foreclosure, Hingham had actual knowledge of a judgment of the Middlesex Superior Court (entered by default in a creditor's fraudulent conveyance action) declaring the Property to be owned by Plaintiffs as tenants-by-the-entirety, and so Hingham did not acquire a title, as a result of the foreclosure, to any interest of David Solomont.

The Defendants' Motions to Dismiss

Defendant Adler argues that the Plaintiffs' complaint should be dismissed pursuant to Mass. R. Civ. P. 12(b)(6) because the factual allegations made by the Plaintiffs do not establish, as a matter of law, that there was any defect in Joan Solomont's mortgage. This claim rests on the proposition that the mortgage, note, and other loan contract documents are interlocking, and should be reviewed together as part of the same refinance transaction, with the mortgage properly treated as encumbering the full title to the Property and securing repayment of the note. Adler also says that foreclosure was carried out appropriately under the mortgage's power of sale for two independently sufficient reasons: because Joan L. Solomont validly executed the mortgage to commit the Property as security for the debt of her husband, and also because Ms. Solomont failed to pay her property taxes into escrow, breaching her express obligation under the mortgage. Defendant Adler asserts that the Plaintiffs are estopped from raising their current claims because Plaintiffs are bound by their previous representations that the mortgage was a valid encumbrance on the Property and that it secured repayment of David Solomont's note.

Defendant Howe argues that the mortgage executed by Joan L. Solomont encumbered the entire interest in the property because, at the time the Hingham loan closed, Hingham did not have knowledge of the unrecorded default judgment entered by the Middlesex Superior Court, and thus was entitled to rely on the record title, which showed the Property to be owned by Joan L. Solomont individually. Howe also contends that the Solomonts' appeal of the default judgment to the Appeals Court had the effect of staying the effectiveness of the judgment, meaning that, in any event, the Property was not owned by the Plaintiffs as tenants-by-the-entirety at the time of refinance. Howe makes an argument similar to that of Adler, that the mortgage and note need to be read together, and that Joan L. Solomont's mortgage can only be treated as constituting a guarantee of, and security for, repayment of the debt of her husband, requiring the conclusion that the mortgage was foreclosed properly.

Finally, Howe places reliance on a Preliminary Injunction issued by the Middlesex Superior Court in the creditor's action, preventing changes in the Property's title, an injunction which was modified by the Superior Court specifically to authorize the Hingham refinancing transaction. This, Howe contends, shows the commitment of the Property as security for the mortgage loan facilitated by the injunction's modifications, which the Solomonts expressly requested. The request to the Superior Court stated that the refinance was to generate funds to pay off specific debts to named creditors Astoria Federal Savings Bank, Century Bank & Trust Company, and Pine Bank Nominee Trust. Because the mortgagor to Hingham, Ms. Solomont, was relieved of these prior debts as a result of the successful funding of the Hingham loan, the Defendants argue that her interest in the Property should be treated as fully subject to the refinancing mortgage to Hingham. In addition, the Defendants contend that, as a consequence of this refinancing, Hingham must be treated as having acquired, equitably, the same right to foreclose as was available to those paid-off lenders, under the doctrine of equitable subrogation.

Hingham advances essentially the same broad range of grounds for dismissal relied upon by its codefendants. The Defendants assert that, under the doctrine of res judicata, the Plaintiffs are barred from bringing the claims now before this court because Plaintiffs have litigated, or have had an ample opportunity to litigate, the validity of Hingham's foreclosure in previous lawsuits. Defendants say that the issues now before this court are substantially the same as those which were (or ought have been) raised in the prior lawsuits, and that the parties effectively are the same for purposes of res judicata, because the Defendants are bona fide purchasers, in privity with Hingham, a party to the prior suits. The Plaintiffs argue that res judicata does not apply here; they believe there are issues in the pending case which are not identical to the issues in prior actions, and that the Defendants are not sufficiently the same as those who were party to the prior actions.

* * * *

After consideration of the record and the motion, and after argument, I decide that the Defendants' motions to dismiss are meritorious. Dismissal in this case is warranted.


The following facts are undisputed:

On January 13, 1982 the Plaintiffs, Joan L. Solomont and David Solomont, took title to the Property as tenants-by-the-entirety by deed recorded with the Norfolk County Registry of Deeds (“Registry”) in Book 5964 at Page 82. On April 29, 1999, Plaintiffs transferred their interest in Lot 6B to Joan L. Solomont, individually, in deed recorded at the Registry in Book 13410, Page 423. On May 5, 2004, Plaintiffs transferred their interest in Lot 5B to Joan L. Solomont in a deed recorded at the Registry at Book 20971, Page 14.

Scott Benson, a judgment creditor of David Solomont, brought an action against the Plaintiffs in the Superior Court Department of the Trial Court, Middlesex, on December 13, 2004, alleging that the May 5, 2004 conveyance of Lot 5B constituted a fraudulent transfer. A preliminary injunction in that case issued against the Plaintiffs, enjoining them individually and/or jointly “from selling, assigning, transferring, alienating, conveying, encumbering, pledging, or hypothecating” the Property. The preliminary injunction was recorded with the Registry on June 7, 2006 in Book 23748, Page 148. The court in that action issued a judgment by default (the “Default Judgment”) against the Plaintiffs on July 31, 2006, adjudicating that the May 5, 2004 deed transferring the Solomonts' interest in Lot 5B to Joan L. Solomont, was “void ad initio and of no legal effect.” Middlesex Superior Court, Civil Action No. 04–4921 (July 31, 2006). The court adjudged that “[t]itle is vested in David Solomont and Joan L. Solomont, Husband and Wife as tenants-by-the-entirety.” Id. Plaintiffs filed a Notice of Appeal from the Middlesex Superior Court Default Judgment on August 31, 2006. On January 16, 2007, the Middlesex Superior Court allowed plaintiff Benson's Motion to Dismiss the Solomonts' appeal. The Default Judgment in the Benson v. Solomont action went to record at the Registry on February 16, 2007.

While the Plaintiffs' appeal to the Appeals Court was pending, on October 4, 2006, Joan L. Solomont executed a mortgage (“Mortgage”) of Lots 5B and 6B to Hingham. The Mortgage stated that Joan L. Solomont was the “Borrower,” having signed a Promissory Note in the amount of $2,675,000.00. Also on October 4, 2006, David Solomont obtained a loan, evidenced by an Adjustable Rate Note he signed in favor of Hingham in the original principal amount of $2,675,000.00. Mr. Solomont's father-in-law, William B. Lichtner, also signed the note as “Guarantor.” Ms. Solomont did not sign the note.

The next day, on October 5, 2006, the Plaintiffs filed a motion in the Middlesex Superior Court action brought by Benson, seeking permission to modify the preliminary injunction earlier issued in that case and appearing of record in the Registry. The Middlesex Superior Court granted their motion and issued a modified preliminary injunction on October 11, 2006, which allowed the Plaintiffs to “proceed with a refinance of the properties ... such that the following existing indebtedness and holders of mortgages encumbering the Property may be satisfied and discharged: a) Astoria Federal Savings Bank, b) Century Bank & Trust Company, and c) Pine Bank Nominee Trust.” Benson v. Solomont, Middlesex Superior Court, Civil Action No. 04–4921 (October 11, 2006). The modified injunction further stated, “the proceeds of this refinance shall be used solely for the purpose of retiring the foregoing existing debt encumbering the Property…” Id.

Hingham filed a complaint under the Servicemembers Civil Relief Act in this court on September 25, 2008, stating that it was seeking to foreclose under the power of sale granted by Joan L. Solomont in the Mortgage. Hingham Institution for Savings v. Solomont, Land Court, No. 08 MISC 381915 (the “Servicemembers Case”). The Plaintiffs signed a Forbearance Agreement on November 26, 2008 in which they admitted to being in default on a “$2,675,000.00 mortgage and note to Hingham ... which is secured by 60 Heath Hill Road and Lot 6B Heath Hill Road, Brookline, Massachusetts.” On December 3, 2008, the scheduled date of the foreclosure sale, Ms. Solomont filed a Chapter 11 bankruptcy petition; that case was converted to a Chapter 7 case on March 20, 2009, and ultimately dismissed by the Bankruptcy Court. On December 31, 2008, Hingham obtained judgment from this court in the Servicemembers Case that Ms. Solomont was not entitled to benefits of the Servicemembers Civil Relief Act. In March 2009, Lot 6B was placed on the market, in an effort to cure the default and reduce the principal balance of mortgage. Plaintiffs obtained a signed purchase and sales agreement, with a price of $1,100,000 for Lot 6B, but Hingham would not release the lien of the Mortgage on the lot and the sale was not consummated.

On April 6, 2009, Plaintiffs filed a Verified Complaint and Request for Damages, Declaratory Judgment, and Injunctive Relief with the Norfolk Superior Court, seeking to prevent Hingham's foreclosure of the Property. Plaintiffs sought a temporary restraining order and preliminary injunction to enjoin Hingham from enforcing the mortgage or proceeding with foreclosure; the court denied the motion for injunctive relief. Solomont v. Hingham Institution for Savings, Norfolk Superior Court, No.2009–00591 (April 7, 2009). Plaintiffs also sought a declaratory judgment on “the enforceability of the mortgage” and “whether Hingham has acted in accordance with applicable laws, standards, and practices relative to its intended foreclosure,” arguing that because of discrepancies in the loan documents, Hingham could not foreclose on the interests of all parties holding title to the Property. The Norfolk Superior Court never had the opportunity to reach a decision on the request for declaration. In May 2009, Mr. Solomont wired $275,000.00 to Hingham for overdue interest, late fees, and an additional payment, thereby addressing the pending loan default and achieving cancellation of the impending foreclosure sale. Hingham filed a motion to dismiss based on Mr. Solomont's reinstatement of the loan, making the foreclosure sale moot; that motion was heard without opposition and was allowed on April 16, 2010.

Mr. Solomont filed for Chapter 11 bankruptcy protection on April 8, 2009; the case was dismissed on May 7, 2009, because of his failure to make filings as required by the court.

In October 2009, David Solomont's loan again went into default, and on November 30, 2009, Hingham began its second action (“Norfolk Servicemembers Action”) under the Servicemembers Civil Relief Act, by again filing a Complaint to Foreclose Mortgage, this time in Norfolk Superior Court, alleging Hingham was the holder of a mortgage from Joan L. Solomont. On February 17, 2010, the day before a scheduled foreclosure sale, Plaintiffs filed a Complaint and Request for Injunctive Relief in Norfolk Superior Court, alleging that Hingham had not followed notice procedures outlined in G.L.c. 244, § 14 by failing to send notice to David Solomont. Solomont v. Hingham Institution for Savings, Norfolk Superior Court, No.2010–00291. The Plaintiffs' Motion for Injunctive Relief was denied, the court ruling that there was no demonstration of likelihood of success on the merits. On June 3, 2010, the Norfolk Superior Court issued a judgment of dismissal, dismissing the Plaintiffs' complaint for failure to serve process on Hingham.

On February 23, 2010 the Norfolk Superior Court issued a Judgment in the Norfolk Servicemembers Action, filed in November 2009 against Joan L. Solomont, adjudicating that she was not entitled to the benefits of the Act of Congress.

David Solomont filed for Chapter 11 bankruptcy protection on March 1, 2010; the Bankruptcy Court dismissed that case on March 25, 2010. On May 12, 2010, Mr. Solomont filed for Chapter 7 bankruptcy protection. Hingham filed an emergency motion with the Bankruptcy Court seeking relief from the automatic stay. In his response to Hingham's emergency motion in Bankruptcy Court, Mr. Solomont admitted:

On May 19,2010, the Bankruptcy Court entered an order that the automatic stay was not in effect, and that relief from it was granted. The Bankruptcy Court dismissed David Solomont's petition on June 15, 2010. In re David Solomont, Bankruptcy Court D. Mass., No. 10–15146–JNF (June 15, 2010).

Hingham made entry for the purpose of foreclosure and conducted a foreclosure sale on the Property, on May 27, 2010, under the power of sale contained in the mortgage executed by Joan L. Solomont, purchasing the Property at the auction conducted pursuant to G.L.c. 244, § 14 for $2,950,000.00. Hingham was the high bidder. The deed for the foreclosure sale is dated June 29, 2010 and was recorded in the Registry on the following day in Book 27793, Page 495.

The Solomonts continued to occupy the Property after the consummation of Hingham's foreclosure sale. On July 19, 2010, Hingham filed a summary process eviction proceeding (the “Summary Process action”) against David and Joan L. Solomont in the District Court Department of the Trial Court, Brookline Division. Hingham Institution for Savings v. Solomont, Brookline District Court, No. 1009–SU–000065. The complaint alleged that “lawful entry and foreclosure was made on or about May 27, 2010 pursuant to a judgement [sic] of foreclosure and ... defendants remain as tenants at sufferance.” The Solomonts (as defendants in that action), by their counsel, filed an answer to the summary process complaint. In their answer, the Solomonts alleged, among other defenses, that Hingham's “entry and foreclosure was not lawful and accordingly defendants are not tenants at sufferance.” The Summary Process action proceeded to a judgment for possession of the Property in favor of Hingham and against both Solomonts. On August 26, 2010, the Brookline District Court issued an Execution for Possession in the action. The Execution recited that the “plaintiff(s) named above has recovered judgment against the defendants named above for possession of the subject premises shown above....” This Execution was addressed to the Sheriffs and Constables of the Commonwealth and commanded them to cause the plaintiff, Hingham, to have possession of the Property “without delay.”

In an Agreement dated August 31, 2010, shortly after the date of the Execution, the Solomonts agreed with Hingham that they would “commence moving their personal belongings out of the premises” by September 1, 2010, and that they would “vacate the Premises” by September 7, 2010. According to this Agreement, if any of several required steps in the agreed departure by the Solomonts from the Property did not occur timely, Hingham would be privileged to “levy on their [sic] execution for possession forthwith.” The Agreement did not contain any language challenging the validity of the foreclosure, casting doubt on Hingham's resulting title, or preserving the Solomonts' right to mount any such challenge at a later time. Counsel in the case at bar agree that no such reservation of rights took place in any way as part of the District Court Summary Process proceeding. The Solomonts did not appeal the Summary Process judgment for possession. They departed the Property as agreed and have not been in possession of it since.

On August 11, 2010 Nancy Adler purchased Lot 6B from Hingham for $1,175,000, in a deed recorded with the Registry at Book 27919, Page 481. On September 10, 2010 Howe Real Estate Advisors, LLC purchased Lot 5B from Hingham for $1,816,000, in a deed recorded with the Registry in Book 28016, Page 587.

Standard of Review

In reviewing a motion to dismiss under Mass. R. Civ. P. 12(b)(6) the court accepts as true the well-pleaded factual allegations in a plaintiff's complaint, as well as any favorable inferences which reasonably may be drawn from those allegations. To survive a motion to dismiss under Mass. R. Civ. P. 12(b)(6), a plaintiff's complaint must “provide the grounds of his [or her] entitlement to relief [and] requires more than labels and conclusions. Factual allegations must be enough to raise a right to relief above the speculative level [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). “What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief.” Iannacchino v. Ford Motor Co., 451 Mass. at 636.

When evaluating a motion to dismiss, the court may consider, in addition to the complaint, exhibits and other matters fairly incorporated within it and matters susceptible to judicial notice, without converting the motion to dismiss into a motion for summary judgment. Marram v. Kobrick Offshore Fund, Inc., 442 Mass. 43 , 45 (2004); Croswell v. Gosnold Planning Bd., 19 LCR 245 , 245–46 (2011) (Misc. Case No. 09 MISC 395547) (Long, J.). The court may take into consideration “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint ...” Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550 , 555 (2008). “Properly considered public records include the records of other courts in related proceedings, of which the judge may take judicial notice in any event.” Reliance Ins., 71 Mass.App.Ct. at 555; Brookline v. Goldstein, 388 Mass. 443 , 447 (1983). For purposes of the pending motions to dismiss, the court may properly consider the records of Plaintiffs' prior suits in Norfolk Superior Court and the Summary Process action in Brookline District Court, in addition to all other exhibits attached to the complaint.


The Defendants supply multiple grounds in their motions to dismiss, more than a few of which appear to have merit and to entitle the Defendants to dismissal of this latest suit by the Solomonts. The court, however, need not address all the Defendants' issues to act on the dismissal requests. It is plain, as a matter of law, and notwithstanding the indulgent standard by which motions to dismiss are reviewed, that the Solomonts have no legally viable claim to challenge the propriety of the foreclosure sale by Hingham, and they lack the ability to contest the title vested in Hingham as a result of that foreclosure sale. The Solomonts' opportunity to raise those claims has passed. The Plaintiffs' challenge to the post-foreclosure sale title of Hingham and its grantees is barred by the prior litigation against them in the District Court Summary Process proceeding, which went to final judgment and yielded an execution for possession in Hingham's favor. The Summary Process adjudication bars the Solomonts from now, at this late date, in a new action in this court, obtaining a judgment that would impugn the title to the Property that Hingham asserted it had at the time it brought the action in the District Court.

The instant action is barred by the doctrine of res judicata, which comprehends the interrelated principles of and claim preclusion and issue preclusion. Res judicata prevents relitigation of claims which have been fully and finally adjudicated in a prior proceeding between the same parties. The principle of res judicata exists to “conserve judicial resources, to prevent unnecessary costs associated with multiple litigation, and to ensure the finality of judgments.” Treglia v. MacDonald, 430 Mass. 237 , 240 (1999), quoting Martin v. Ring, 401 Mass. 59 , 61 (1987). “ ‘Res judicata’ is the generic term for various doctrines by which a judgment in one action has a binding effect in another. It comprises ‘claim preclusion’ and ‘issue preclusion.’ ‘Claim preclusion’ is the modern term for the doctrines traditionally known as ‘merger’ and ‘bar’ and prohibits the maintenance of an action based on the same claim that was the subject of an earlier action between the same parties or their privies.” Heacock v. Heacock, 402 Mass. 21 , 23 (1988). Claim preclusion stands in the way of a repetitive litigation as to all matters that could have or should have been litigated in the earlier action. Charlette v. Charlette Bros. Foundry, Inc., 59 Mass. App. Ct. 34 , 44 (2003) Claim preclusion occurs when the same parties (or their privies) have earlier litigated the same cause of action to final adjudication.

Under the doctrine of claim preclusion, a valid, final judgment becomes binding on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action. Heacock v. Heacock, 402 Mass. 21 , 23 (1988); see also Kobrin v. Board of Registration in Medicine, 444 Mass. 837 , 843 (2005). Preclusion rests on the basis that the precluded party had the incentive and opportunity to litigate the matter fully in the prior lawsuit. See Kobrin, 444 Mass. at 843. Three elements are required for claim preclusion: “(1) the identity or privity of the parties to the present and prior actions; (2) identity of the cause of action; and (3) prior final judgment on the merits.” TLT Construction Corp. v. A. Anthony Tappe and Assoc., Inc., 48 Mass. App. Ct. 1 , 4 (1999).

Issue preclusion prevents relitigation of an issue determined in an earlier action, where the same issue arises in the next action. Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006). For there to be issue preclusion, “... 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.” Id. (citations omitted). “[T]he issue decided in the prior adjudication must have been essential to the earlier judgment” and “[i]ssue preclusion can be used only to prevent litigation of issues actually litigated in the prior action.” Id.

A defendant may appropriately employ res judicata in support of a motion to dismiss under Rule 12(b)(6), where the court has all of the materials necessary to rule on the motion, because they are either attached to the complaint or are official records subject to judicial notice, and those materials, and the facts they evince, are not disputed. See McMillen v. Kadis, 18 LCR 110 , 112 (2010) (Misc. Case No. 08 MISC 385629) (Long, J.); Boyd v. Jamaica Plain Coop. Bank, 7 Mass. App. Ct. 153 , 156–157 (1979). Here, the court has all materials necessary to rule on the res judicata question; the relevant papers from the prior proceeding in the Brookline District Court are either attached to the complaint or included in public records of this related proceeding and subject to judicial notice. All of these papers are lodged in the motion to dismiss record counsel assembled for this court. Res judicata is a proper ground for dismissal in the current case as it is now postured.

The determination of title in a prior proceeding will, in appropriate cases, bar a new litigation attempt to adjudicate title again in a fresh action. A court may bar a claim under res judicata principles when title to property was at issue between the same parties (or those in privity with them) in a prior action, and is sought to be litigated in the current proceeding. See Sheehan Construction Co. v. Dudley, 299 Mass. 51 , 54 (1937) (finding title issues involved in a prior summary process proceeding, between parties in privity with parties in the second case, were barred under res judicata). Strong v. Lemon, 15 LCR 187 (2007) aff'd 72 Mass. App. Ct. 1105 (2008). Indeed, the strong interest in certainty of title to land makes invocation of res judicata especially worthwhile to prevent multiple attacks on title in sequential litigation.

Here, the Plaintiffs' claim to quiet title in themselves is barred because the current parties are the same as, or in privity with, those who were parties to the prior Summary Process action; the issue of Hingham's post-foreclosure title was integral to the Summary Process action; and the outcome of the Summary Process action was a valid, final judgment on the merits.

Res judicata applies not only to parties to previous actions, but also to those in privity with those parties, including successors-in-interest. Willett v. Webster, 337 Mass. 98 , 101 (1958). Here, res judicata is binding on the Plaintiffs as they themselves were the defendants in the Summary Process action in the Brookline District Court. Res judicata also is proper here because Defendants Howe and Adler are in privity with Hingham, a party to the Summary Process action, as grantees and successors-in-interest to the title (to Lot 5B and Lot 6B, respectively) held post-foreclosure by Hingham.

In the current action, the Solomonts have claimed that the foreclosure of the Mortgage was not valid, that no title passed to Hingham as a result, or that the title, if any, emerging from the Mortgage's foreclosure did not establish a complete title in the foreclosing mortgagee. These same parties, the Plaintiffs in the case at bar, now seek relief, however styled, that would place title in them and undo some or all of the effect of the foreclosure.

These contentions, advanced now by the Plaintiffs in the pending case, go directly to an essential part of the litigation before the District Court in the Summary Process action. Indeed, the answer which counsel for the Solomonts filed there on their behalf raised, as an issue in that case, claimed problems with the foreclosure. In the District Court answer, the Solomonts defended by attacking the legality of the foreclosure of the Mortgage, and disputing whether or not the title asserted by Hingham post-foreclosure truly stood, as Hingham claimed, in Hingham. This is the meaning of the Solomonts' allegation in the Summary Process action that they were not, at that time, “tenants at sufferance.” The question of the state of the title after the foreclosure was an issue raised by the Solomonts there, in a proceeding in which Hingham and both of the Solomonts were parties, represented by counsel, and fully able to square off on the issue of the bank's title.

It is not surprising that the Solomonts would have thought to challenge these assertions of title by Hingham in the Summary Process action. Not only is the issue of title germane to the question of eviction in a summary process case, see discussion following, but in this instance the Solomonts already were well attuned to these arguments concerning the inadequacies they said afflicted the Mortgage and the title which flowed from its foreclosure by Hingham. In the several suits the Plaintiffs initiated in the Norfolk Superior Court prior to the Summary Process Action, they brought forward challenges to the state of title in Hingham under the Mortgage. Many of these challenges strike the same chords as those pleaded by the Plaintiffs in the case now in this court. The fundamental factual bases for the claims to title made by Plaintiffs in the pending case were known to and understood by the Solomonts and their then counsel at the time the Superior Court actions were commenced. While those actions did not go to final judgment, and so may not provide the full preclusive effect of a fully-adjudicated case, the point is that the claims now put forward in the pending case were fully available to the Solomonts to put forward when Hingham sued them in the Summary Process action, which did proceed to final adjudication.

Our law long has been that the legal title to property purchased at a foreclosure sale is properly put at issue in a summary process proceeding. Sheehan Constr., supra, 299 Mass. at 54. Sheehan offers a close parallel to the case now before this court. Sheehan was a writ of entry in the Land Court brought following both a mortgage foreclosure and a subsequent summary process action in the District Court. Alice C. Barry held a mortgage on the locus, bought it at the foreclosure auction sale held pursuant to the power of sale, took title by foreclosure deed, and then brought summary process in the district court to recover possession. The defendant in the summary process action contested the ability of the summary process court to consider the question of the title held by the summary process plaintiff. When the foreclosing mortgagee's successor owner by deed sought the writ of entry in this court, the defendant tenant took the position that in a summary process case, the question of title was out of bounds, and that only the issue of possession could lawfully have been reached. On this basis, the defendant sought to litigate in the later Land Court case the state of the title that derived from the foreclosure sale. This argument failed in this court and before the Supreme Judicial Court.

As Chief Justice Rugg said in Sheehan, “[t]here is no merit in the contention of the tenant ... that there was error in the ruling that, in an action of summary process by the purchaser at a mortgagee's sale, the legal title may be put in issue and it therefore is incumbent upon such purchaser to establish his right of possession. The legal title in those circumstances plainly may be put at issue.” Id. at 53. The court confirmed that the prior summary process proceeding did properly treat and settle the disputed title on which the summary process plaintiff-the foreclosing mortgagee and high bidder at the sale-rested its claim for possession. Id., at 54, citing the earlier appeal, Barry v.. Dudley, 282 Mass. 258 (1933). “The tenant in the present [Land Court writ of entry] proceeding asserts title in opposition to the validity of the foreclosure on which the demandant bases its right. That question has been settled against the tenant and in favor of the predecessor in title of the demandant.” Sheehan, at 54. The Sheehan court upheld this court's determination that “this matter had become res judicata as to the issue raised in the [Land Court] case ... and was not here open to controversy.” Id.

Sheehan continues to be governing law on this point. In a case recently decided by our Supreme Judicial Court, Bank of New York v. Bailey, 460 Mass. 327 (2011) the court relied upon Sheehan, and decided that a summary process judge ought not have rebuffed an effort by the defendant, the mortgagor remaining in possession after a foreclosure sale, to challenge the adequacy, under the controlling statute, G.L.c. 244, § 14, of the mortgagee's notice of the foreclosure auction sale. The defendant alleged that the foreclosure was invalid, and that the title asserted by the summary process plaintiff thus did not support its claim of a right to recover possession from the mortgagor. The bank argued to the judge in the Housing Court that it lacked the jurisdiction necessary to adjudicate the question of the legal adequacy of the foreclosure sale notices and whether they had resulted in extinguishment of the owner's right of redemption. The trial court judge sided with the bank on this point, but the Supreme Judicial Court vacated the award of summary judgment to the bank, remanding the summary process case to the Housing Court so it could take up the question of the adequacy of the foreclosure on which the bank's claim rested. Bailey, at 334–335.

In Bailey, after reviewing the origins and evolution of summary process in Massachusetts, the Supreme Judicial Court instructed that “[c]hallenging a plaintiff's entitlement to possession has long been considered a valid defense to a summary process action for eviction where the property was purchased at a foreclosure sale....” Id. at 333. “There is nothing in ... [the statutory summary process] jurisdictional scheme that supports a conclusion that the Legislature intended to give the Housing Court concurrent jurisdiction over summary process actions, yet preclude its consideration of the long-recognized validity of title defense to summary process.... The pursuit of ‘speedy and inexpensive’ summary process actions is compromised if the Housing Court must stay summary process proceedings while litigation on the validity of the foreclosure proceedings continues in another court. This creates precisely the type of unnecessary delay and inefficiency that the Legislature intended to eliminate when it reorganized the trial courts in the Commonwealth.” Bailey, at 333–334.

The import of these cases is that a mortgagor owner, faced with eviction in a summary process action commenced following mortgage foreclosure, has the full opportunity needed to raise, as a defense in the summary process case, challenges to the mortgage foreclosure, and to the validity of the title which the foreclosure sale and deed yielded. Deferral of these questions, holding them in reserve for another day in another court, is not an acceptable tactic for the mortgagor to employ, at least without some clear understanding on the part of all the summary process parties that reserves until later the question of the title following the foreclosure. When the foreclosing lender comes into the Housing or District Court to recover possession, and bases its right on a title derived from a mortgage foreclosure recently conducted against the mortgagor, the mortgagor, who has knowledge of legal grounds why that foreclosure did not establish title in the grantee under the foreclosure deed, is bound to raise and pursue those legal grounds then, in the summary process forum. The failure to do so will preclude later litigation on these questions, which are fundamental elements of the case for possession.

The Solomonts cannot now have this court address in a binding way their challenges to the state of the title which was produced by the foreclosure and the recording of the foreclosure deed. Those challenges were available to the Solomonts at the time of the summary process litigation. The grounds of those challenges had been signaled by them in their earlier abortive lawsuits in the Superior Court. Those grounds needed to be asserted in defense of the eviction proceeding, but were not pressed by the Solomonts in that action. Their failure to do so cuts off their chance to go forward with the pending case, which, however pleaded, is an effort to undo the Hingham mortgage foreclosure, and to dispute the complete title to the Property which Hingham asserts it gained when it accepted and recorded the deed of foreclosure of the Mortgage. [Note 1], [Note 2]

The motions to dismiss are ALLOWED. The appropriate judgment to enter is one dismissing the Solomonts' claims, all of which rest on the proposition that the Mortgage was not properly foreclosed, and that the Solomonts retain some title to the Property. By virtue of res judicata, the Solomonts have no ability to assert any right, title, or interest in the Property which is superior to or in any manner contrary to that of Howe and Adler as grantees of Hingham.

Judgment accordingly.


[Note 1] The court does not mean to say that every possible defect which may reside in the back title to land as to which there is a summary process proceeding, is, based on res judicata principles, forever afterwards beyond assertion. It is doubtful that the Supreme Judicial Court would so hold, given its recognition that the legislative direction is to have, as much as possible, speedy determination of summary process cases. A summary process defendant ought not be bound to conduct an exhaustive search of the plaintiff's back title, and to mount a full-bore defense based on record title flaws buried deep in the Registry of Deeds, at the risk of losing forever the right to raise those kinds of claims if not pressed at the time.

But where the defendant in the summary process case is not just a tenant under a lease of short duration, but rather the former owner, whose right of redemption is said by the plaintiff to have been cut off by its recent mortgage foreclosure, there is far more reason to shoulder the defendant with an understanding of the title to the land. This is particularly so as to claims that have to do with the mortgage instrument itself, and with the effect on title that the recent foreclosure of that instrument brought about.

[Note 2] This decision rests on the bar to the current action raised by the preclusive effect of the prior summary process litigation. This basis alone supports the allowance of the motions to dismiss and the entry of judgment directed by this decision. The court, by relying on this entirely adequate ground, does not in any manner suggest that various of the other grounds for dismissal advanced by the defendants lack merit. That is not so.