GABRIEL RIVERA and ALBA CORONA-PEREZ v. MICHAEL VENDITTO, JR.

On March 14, 2012, Gabriel Rivera (Rivera) and Alba Corona-Perez (Corona-Perez) (collectively, Plaintiffs) filed their complaint, pursuant to G. L. c. 240, §§ 1 – 5, challenging the validity of a May 19, 2011 sheriff’s sale of property located at 339 Atlantic Avenue in Marblehead (Locus), conducted on behalf of Defendant Michael Venditto, Jr. (Venditto).

In Count I of a seven-count complaint, Plaintiffs assert that Venditto failed to provide sufficient notice of the public sale of Locus, as required by G. L. c. 236, § 28. In Count II, they assert that Venditto violated the homestead protections of G. L. c. 188. In Count III, Plaintiffs again attack the sufficiency of notice required by G. L. c. 236. The allegation in Count IV is that Venditto failed to adhere to the affidavit component required by G. L. c. 186. In Count V, Plaintiffs assert rights to Locus superior to those of Venditto. In Count VI, Plaintiffs claim Venditto obtained a wrongful judgment for possession of Locus in the Northeast Housing Court. Finally, in Count VII, Plaintiffs aver that Venditto’s actions in engaging a sheriff to effectuate the attachment, execution and public sale of Locus violated Plaintiffs’ due process rights under the Fourteenth Amendment of the U.S. Constitution and their rights under the Twelfth and Thirtieth Amendments of the Massachusetts Declaration of Rights. [Note 1]

Venditto filed an Answer on May 24, 2012, asserting the following affirmative defenses: Plaintiffs’ failure to state a claim upon which relief can be granted, res judicata, unclean hands and laches. Venditto also filed a two-count counterclaim with his Answer, seeking confirmation of the sheriff’s sale and writ of entry, and alleging abuse of process.

On February 4, 2014, Plaintiffs filed a Motion for Summary Judgment. Venditto filed a written opposition and a Cross-Motion for Summary Judgment on February 27, 2014. Plaintiffs filed a reply and opposition to Venditto’s Cross-Motion on March 7, 2014. Venditto filed a limited reply to Plaintiffs’ opposition on March 13, 2014, followed by Plaintiffs’ filing of an additional brief, titled “Petitioners’ Response to Respondent’s Submission of March 12, 2014” on March 19, 2014. [Note 2] A hearing was held on March 26, 2014, at which all parties were heard.

The summary judgment record includes the parties’ briefs and submissions as well as several exhibits filed pursuant to Land Court Rule 4. The following material facts are not in dispute: [Note 3]

First Superior Court Case (Original Action)

1. On or around April 2007, Rivera and Venditto entered into a commercial lease agreement, with Rivera as lessee and Venditto as lessor.

2. On or about November 2007, Venditto filed an action for breach of the lease in Middlesex Superior Court (Case Docket No. MICV 2008-04045-C) (Original Action).

3. Rivera did not answer or appear in the Original Action, and on April 21, 2009, a default judgment in the amount of $275,756.88, plus interest in the amount of $15,684.28 and costs, was entered against Rivera.

4. On September 23, 2009, an execution of the judgment was issued in the Original Action. Venditto gave the execution to the Essex County Sheriff’s Department to levy upon any non-exempt assets belonging to Rivera.

5. Venditto attached Locus on April 12, 2010, recorded with the Southern Essex Registry of Deeds in Book 29388, at Page 229.

6. On May 25, 2010, Rivera recorded a deed granting ownership of Locus to Corona-Perez in the Southern Essex County Registry of Deeds in Book 29482, at Page 525. The stated consideration was $1.00. [Note 4]

7. On May 25, 2010, Corona-Perez filed a Declaration of Homestead in Locus with the Registry in Book 29485, at Page 561.

8. On September 13, 2010, the original execution was returned to the Sheriff’s office for advertising and notification of a sheriff’s sale. The levy was suspended after the Sheriff’s office misplaced the original execution. An alias execution was issued on February 23, 2011.

9. A sheriff’s sale for Locus was scheduled and held on May 19, 2011. Venditto was the only bidder, with a successful bid of $375,000.00. Venditto recorded the deed with the Southern Essex County Registry of Deeds in Book 30416, at Page 544.

10. Rivera moved to vacate the default judgment on an unknown date, which was denied by the Superior Court judge. Rivera appealed the denial to the Appeals Court, which affirmed the Default Judgment entered in the Original Action on December 19, 2012, in a Rule 1:28 memorandum of decision (2011-P-1092). Further appellate review was denied on February 4, 2013 (SJC- FAR-21307).

Second Superior Court Case

11. On February 6, 2012, Rivera initiated a second action in Middlesex Superior Court in which he sought relief from the judgment entered in the Original Action, pursuant to Rule 60(b)(4) and (6), alleging that the complaint in the Original Action was void for lack of service (Case No. MICV 2012-00447).

12. Venditto filed a motion to dismiss on the grounds of res judicata, which was allowed by the Superior Court, and the case was dismissed.

13. On May 11, 2012, Plaintiffs appealed the dismissal to the Appeals Court which affirmed the Superior Court on December 19, 2012, in a Rule 1:28 memorandum of decision (2012-P-0797). Further appellate review was denied on February 4, 2013 (SJC- FAR-21309).

Housing Court Litigation

14. On May 19, 2011, Venditto served Rivera and all other occupants of Locus with a Notice to Quit and Vacate Premises.

15. On July 8, 2011, Venditto filed a Summary Process Summons and Complaint with the Lynn District Court (Northeast Housing Court Docket No. 11H77SP002441). Both Rivera and Corona-Perez were listed as “Defendants/Tenants/Occupants” along with several other people. At some point in the litigation, Corona-Perez sought to have Rivera dismissed from the action, because he had not lived at Locus for several years. Venditto assented to Rivera’s dismissal.

16. The Northeast Housing Court (Housing Court) issued a Default Judgment in Venditto’s favor on August 3, 2011. Venditto filed a motion for access to Locus on that same date. Rivera moved to vacate the Default Judgment on August 4, 2011.

17. On August 9, 2011, Plaintiffs appealed to the single justice of the Appeals Court (2011-J-0351) (Rubin, J.), seeking to stay the Housing Court order (issued August 9, 2011) allowing Venditto access to Locus. [Note 5] Rivera also sought a stay of eviction proceedings and requested additional time to prepare a memorandum in support of his petition and motion. The single justice denied Rivera’s request for a stay of the order allowing access. The single justice also ruled that, because Rivera did not allege that eviction was imminent, the single justice would take the request for a stay of the eviction proceedings under advisement and allow Rivera until August 15, 2011, to submit a memorandum in support of the requested relief. Rivera submitted the memorandum on August 15, 2011.

18. On August 17, 2011, the single justice dismissed Rivera and Corona-Perez’s petition without prejudice, with leave to refile if necessary after the trial court’s determination of Rivera’s motion for reconsideration (filed in Housing Court on August 10, 2011).

19. On September 8, 2011, Rivera and Corona-Perez filed a “Memorandum and Record Appendix of the Appellants in Support of Motion for Leave to Appeal Pursuant to G. L. c. 231, § 118” with the single justice of the Appeals Court (Cypher, J.), seeking to revive their August 9, 2011 petition and including several new claims. The single justice denied this petition. [Note 6]

20. A final judgment in the Summary Process action in Housing Court issued in Venditto’s favor on January 4, 2012.

21. On June 22, 2012, Plaintiffs appealed the Housing Court final judgment to the Appeals Court (2012-P-1017).

22. The Appeals Court affirmed the Housing Court decision on December 19, 2012, in a Rule 1:28 memorandum of decision. The Appeals Court stated that the appellants, Rivera and Corona-Perez, presented a “difficult to discern brief and argument,” and failed to provide a full transcript of the summary judgment hearing. The failure to produce the transcript was reason enough to affirm the lower court judgment. [Note 7] Further appellate review was denied on February 4, 2013 (SJC- FAR-21310).

23. On February 14, 2013, an execution issued in the Housing Court.

24. On February 21, 2013, all occupants listed on the Summary Process Summons and Complaint were evicted from Locus on execution of the eviction judgment.

* * * * *

This case is before the court pursuant to the parties’ Cross-Motions for Summary Judgment. “Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

However, when the court is faced with cross-motions, as is the case here, it must analyze the parties' legal positions at the summary judgment stage guided by which party has the burden on the issues before the court. This standard is identical for both motions, and the fact that one motion fails does not mean that the cross-motion automatically prevails. Epstein v. Bd. of Appeals of Boston, 77 Mass. App. Ct. 752 , 756 (2010). Instead, the burden of affirmatively demonstrating the absence of a triable issue of fact may very well shift back and forth between the parties. This case is ripe for summary judgment because the material facts are not in dispute and the case may be decided based on applicable law.

I. Plaintiffs Lack Standing To Maintain A “Try Title” Action

Plaintiffs titled their complaint as a complaint pursuant to G. L. c. 240, §§ 1 – 5. They also state that, as an action to try title to real estate, the Land Court is vested with exclusive jurisdiction over this case, pursuant to G. L. c. 185, § 1(d), and state that G. L. c. 240 is a “controlling” statute. Plaintiffs provide no other citations or support for their action to try title outside of these references, and did not allege facts necessary to sustain an action to try title. In their prayer for relief, Plaintiffs simply request that the court declare that title to the land lies with them. Although Plaintiffs’ complaint was vague and did not clearly lay out a count for a try title action, they addressed the try title issue more fully in their Motion for Summary Judgment and at the hearing on the motions.

Plaintiffs must plead specific facts in order to establish standing to bring a try title action. G. L. c. 240, § 1 states, in relevant part, that

"[i]f 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."

This statute provides two steps for a try title action: first, the plaintiff must establish jurisdictional facts so that the adverse claimant must show cause why he or she should not bring an action to try the claim and second, the adverse claimant must either disclaim the relevant interest in the property or bring an action to assert the claim in question. Bevilacqua v. Rodriguez, 460 Mass. 762 , 766 (2011).

Plaintiffs must prove two jurisdictional facts to establish standing under G. L. c. 240, § 1. First, only a “person in possession” of property may maintain an action to try title to that property. G. L. c. 240, § 1; Bevilacqua, 460 Mass. at 767. Second, the plaintiff must hold “record title” to the land in question. Bevilacqua, 460 Mass. at 767. Plaintiffs in the instant case fail to establish either of these necessary facts. Ms. Corona-Perez and other occupants were evicted from Locus on February 21, 2013, prior to the hearing on the parties’ cross motions in this action, and therefore are not “in possession” of Locus. Additionally, Rivera has not resided at Locus for over ten years, and was dismissed from the Housing Court action based on the representations of Corona-Perez, acting as his attorney, that he did not live, reside at Locus and had not in over ten years. Furthermore, Venditto holds record title to Locus after a successful bid at a sheriff’s sale on May 19, 2011, after which he recorded the sheriff’s deed with the Essex County Registry of Deeds. Therefore, Plaintiffs lack standing to bring a try title action as they cannot prove the two jurisdictional facts essential to such claim.

II. Plaintiffs’ Claims In The Instant Case Are Barred By Res Judicata

This case stems from separate but related cases involving both parties in two other departments of the Trial Court. Through two cases in the Superior Court Department, both of which were affirmed by the Appeals Court, and denied FAR by the SJC, Venditto secured a Default Judgment against Plaintiffs and, upon execution of that judgment, attached Locus and conducted a sheriff’s sale. Venditto purchased Locus at the sale, leading to a summary process action in the Northeast Housing Court to gain possession of Locus. Plaintiffs filed appeals to the single justice of the Appeals Court and directly to the Appeals Court at various points, as set forth above. All appeals were denied. Further appellate review to the Supreme Judicial Court in each instance was also denied. Following denial of appellate relief, final judgments were entered at the trial court level in both the Superior Court and the Housing Court cases.

Venditto alleges that Plaintiffs are now attempting to raise arguments in the Land Court that were already addressed in the prior litigation between the parties, and that Plaintiffs are estopped from relitigating these issues by res judicata. This court agrees. The term “res judicata” incorporates both claim preclusion and issue preclusion. The party asserting res judicata as an affirmative defense carries the burden of establishing the facts necessary to support each essential element. McSorley v. Town of Hancock, 11 Mass. App. Ct. 563 , 565 (1981). Massachusetts courts apply res judicata in a “thoroughly conventional way,” applying the same elements as required under federal law. Kom v. Paul Revere Life Ins. Co., 83 Mass. App. Ct. 431 , 440 n.2 (2013). Venditto argues that claim preclusion prevents this case from proceeding.

Claim preclusion consist of three elements: 1) the identity or privity of the parties to the present and prior actions; 2) the identity of the cause of action in the present and prior actions; and 3) prior final judgment on the merits. Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005); DaLuz v. Dep’t of Corr., 434 Mass. 40 , 45 (2001). It prevents relitigation of issues that were or could have been adjudicated in the prior action, with the aim of encouraging parties to litigate matters fully in the first lawsuit. O’Neill v. City Manager of Cambridge, 428 Mass. 257 , 259 (1998).

a. The Housing Court Case concluded With A Final Judgment On The Merits

In the Housing Court action, Plaintiffs challenged Venditto’s title to Locus and raised issues regarding notice and publication of the sale and alleged homestead protections. Both Rivera and Corona-Perez appeared and participated in the Housing Court action. Venditto assented to the dismissal of Rivera from that action, based on the representations of Corona-Perez, who was acting on her own behalf pro se, and acting as Rivera’s lawyer, that he did not live and had not lived at Locus for nearly ten years. A final judgment entered on January 4, 2012, satisfying one of the three elements necessary for claim preclusion. [Note 8]

b. There Is Identity Or Privity Of Parties To The Prior And Present Actions

Venditto also satisfies the remaining elements of claim preclusion. The identity of the parties in both the prior actions and the instant action are identical. The plaintiff and defendant in the Middlesex Superior Court case were Michael Venditto, Jr., and Gabriel Rivera, respectively. Corona-Perez, Rivera’s ex-wife, represented Rivera in that action. Venditto and Rivera were also parties in the Housing Court case, which included several other defendants, among them Corona-Perez. She represented herself and also represented Rivera in that action. In the current case, both Corona-Perez and Rivera are the plaintiffs while Venditto the defendant. Corona-Perez represents herself and Rivera. The parties, aside from simply switching roles of plaintiff and defendant, have remained the same for each of the several lawsuits brought between 2007 and 2012.

Plaintiffs challenge the identity or “privity of the parties” by claiming that Rivera was dismissed from the Housing Court action early in the proceedings because he did not live at Locus. However, the defendants in the Housing Court case—Plaintiffs in this case—sought the dismissal of Rivera. He was a named defendant, but was not made available for a deposition, forcing the filing of a motion to compel his deposition by Venditto. In response to the motion, Corona-Perez argued Rivera’s participation in the case was irrelevant as he did not reside at Locus and had no interest in the litigation. Venditto agreed to the motion to dismiss Rivera from the Housing Court case based on these representations by Rivera and Attorney Corona-Perez. Rivera and Corona-Perez, after choosing to seek the dismissal of Rivera from the Housing Court case, cannot now argue in the Land Court that Rivera is not bound by the Housing Court disposition.

However, even if Rivera’s dismissal from the Housing Court case somehow preserved his ability to challenge title in a subsequent action, claim preclusion still prevents him from raising such issues in the instant case. Privity of parties also applies where a party’s interest was represented by a party in the prior litigation. Mongeau v. Boutelle, 10 Mass. App. Ct. 246 , 249-50 (1980). As here, Ms. Corona-Perez was a party in several of the cases decided by the Superior Court, Housing Court, and Appeals Court. In matters where she was not a party litigant, Venditto characterizes her role as an “agent of sorts” for her ex-husband, whom she represents. Because Corona-Perez remained in the Housing Court case and litigated it on the merits, privity is established between the Housing Court case and the Land Court case, despite Rivera’s dismissal from the former, at Corona- Perez’s urging.

c. There Is Identity Of Cause Of Action In the Prior And Present Actions

To satisfy the final element of claim preclusion, the claim asserted in the earlier action must be the same claim asserted in the subsequent action. TLT Constr. Corp. v. A. Anthony Tappe & Assoc., Inc., 48 Mass. App. Ct. 1 (1999). Claims are identical if they involve a “common nucleus of operative facts,” or “derive from the same transaction or series of connected transactions.” Baby Furniture Warehouse Store, Inc. v. Meubles D & F Ltée, 75 Mass. App. Ct. 27 , 34 (2009) (internal quotation marks omitted). When reviewing the facts to determine whether claims are sufficiently identical, the court should consider whether viewing the facts as part of the same transaction or claim serves the objectives of res judicata, which is to spare courts from hearing repeated actions based on the same wrong. Id. Claim preclusion applies even if a plaintiff brings forth different evidence, legal theories, or remedies in the subsequent action. Massaro v. Walsh, 71 Mass. App. Ct. 562 , 565 (2008).

Both the Housing Court action and the current action arise out of the same series of connected transactions surrounding the sheriff’s sale of Locus and subsequent summary process action. Plaintiffs challenged Venditto’s title to Locus in the Housing Court case, received an unfavorable decision and pursued all available appeals. The Housing Court action took place after Venditto secured a judgment against Rivera in Superior Court, resulting in the attachment of Locus and execution of a sheriff’s sale. [Note 9]

The Northeast Housing Court confirmed Venditto’s title to Locus. The Appeals Court affirmed this determination and the Supreme Judicial Court declined further appellate review. The Housing Court has the authority to determine title matters in connection with its summary process cases. See Bank of America v. Rosa, 466 Mass. 613 (2013) (holding that the Housing Court has jurisdiction to determine plaintiff’s title in a post-foreclosure summary process action). In fact, Plaintiffs did challenge Venditto’s title in the summary process action, attacking the sufficiency of notice, publication and recording of the deed. The determination of title in a prior proceeding can, in appropriate cases, bar another attempt to adjudicate title again in a new 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 Constr. 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). The importance of certainty of title to land makes the application of res judicata particularly useful in order to prevent multiple attacks on title in subsequent lawsuits. The Housing Court validly determined title in the prior action; therefore, Plaintiffs cannot collaterally attack it in this Land Court action.

III. Plaintiffs Failed to Redeem Their Property Within the One-Year Statutory Period

At the hearing on the parties’ cross-motions, Corona-Perez urged that this court has jurisdiction notwithstanding all prior trial litigation and appellate proceedings and the defense of res judicata asserted by Defendant due to the fact that the Land Court may allow redemption under G. L. c. 236, § 33. That statute provides a debtor whose land or rights have been taken and set off on execution with a “right of redemption,” a one-year period within which the debtor may redeem his property by paying or tendering to the creditor or purchaser the amount for which they were so set off or sold. The one-year period begins after the levy or within one year of a sale if the land or rights have been sold on execution. Because Locus was sold in a sheriff’s sale on May 19, 2011, Rivera’s right to redemption expired on May 19, 2012; any tender must have been proffered by Plaintiffs within that timeframe.

To exercise the right of redemption, the debtor “must tender fulfillment of all obligations secured, plus certain expenses.” Wells Fargo Business Credit v. Environamics Corp., 77 Mass. App. Ct. 812 , 824 n.14 (2010) (citing Official Comment 2 to Uniform Commercial Code, § 9-623, 3 U.L.A. 555 (Master ed. 2002)) (italics added). The “obligations” referred to in G. L. c. 236, § 33 include the original amount for which land or rights were set off or sold, interest accrued from the time of levy, all amounts paid for lawful taxes and assessments, and reasonable expenses incurred for repairs and improvements. Additionally, a tender must comprise more than simply a promise to pay or to perform: “it requires payment in full of all monetary obligations then due.” Id. There has been no such tender by Rivera, nor do Plaintiffs even allege that such a tender has been made, timely or otherwise.

There is no question that Venditto bought Locus subject to the possibility that Rivera would move to redeem the property within a year. Plaintiffs claim Venditto never advised them of their right of redemption, but do not cite any authority that Venditto had the obligation to so inform them, and this court does not know of any such authority. Venditto asserts he “repeatedly inquired” whether Plaintiffs had any interest in redeeming Locus, but Plaintiffs made it “abundantly clear” they would not pay. It is not the court’s role to assess the credibility of these assertions at the summary judgment stage. See Bailey, 386 Mass. at 370-71. Plaintiffs failed to allege any facts or evidence in their extensive briefing that they tendered the full amount due in an effort to exercise their right of redemption. They do not even make that claim. Even if Plaintiffs had expressed an interest in redeeming Locus, that is not sufficient. Under the statute, they must have paid or tendered the total amount owed. See McNeil v. O’Brien, 204 Mass. 594 (1910) (stating that the redemption of real estate from a tax sale is wholly statutory and the party seeking to redeem must follow the statute in order to assert its rights). The sheriff’s sale occurred on May 19, 2011, and a year passed from that date with no payment or tender offered. Therefore, Plaintiffs’ right to redemption has long since expired.

IV. Venditto Proved Legal Title to Locus, Warranting a Writ of Entry

In his counterclaim, Venditto seeks to establish title to Locus pursuant to a writ of entry under G. L. c. 237, which provides in section 5 that “. . . if the plaintiff proves he is entitled to the estate set forth in the complaint and that he had a right of entry on the day when the action was commenced, he shall recover the land unless the defendant proves a better title in himself.” The burden falls on the plaintiff to prove his own legal title, Sheriff’s Meadow Found., Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 (1987), and he cannot simply rely on the weakness or nonexistence of the defendant’s title. Butrick v. Tilton, 141 Mass. 93 , 96 (1886).

Venditto holds title based on a levy of execution on Locus, which resulted in a sheriff’s sale. The sale and the subsequent sheriff’s deed constituted a valid conveyance of Locus to Venditto. The record establishes that, as a matter of title, Venditto complied with the Real Estate Bar Association Title Standard No. 20 (Levy of Execution by Sale). A title based on a levy of execution is not defective if 1) there was full compliance with the procedural requirements of G. L. c. 236; [Note 10] 2) title into the judgment debtor is acceptable; and 3) . . . or (ii) there has been an adjudication of record by writ of entry.

Challenges to the attachment, levy and sale of Locus were already raised in Middlesex Superior Court (twice) and in the Northeast Housing Court. As discussed above, any challenges or issues with the sheriff’s sale are barred by res judicata. However, even if this court was not faced with res judicata as an affirmative defense, it is clear that Venditto is entitled to an adjudication of his title by writ of entry based on the record presented. He complied with all procedural requirements of G. L. c. 236. He purchased Locus at a public auction on May 19, 2011, at which he was the highest bidder. A notice delivered to the debtors on April 15, 2011, by the Essex County Sheriff’s Department, which also posted the notice in public places in Marblehead, Swampscott and Salem on the same day, preceded this sale. Notice of the sale was published once a week for three successive weeks in the Lynn Daily Item, a newspaper. These steps were outlined in the Sheriff’s Department Return of Service. Venditto recorded the sheriff’s deed with the Essex County Registry of Deeds on May 19, 2011, which is within six years of the date of levy.

Accordingly, for the reasons stated above, Plaintiffs’ Motion for Summary Judgment is DENIED, and Defendant’s Cross-Motion for Summary Judgment is ALLOWED.

Judgment in Defendant’s favor to issue.