MISC 13-480403

May 2, 2014

Suffolk, ss.




This case, concerning the property at 9 Morris Street, Revere, Massachusetts (locus/property), was initiated with the filing of a complaint by the plaintiff Shannon Clabby (plaintiff) on November 4, 2013. Named as defendants are Kevin Clabby, the plaintiff’s former spouse, one Amy Forino who is described as foreclosure department manager for the firm of McKenzie and Swain of Boston, and S:N Servicing-Chrstiana Bank of Eureka, California.

Appearing pro se, the plaintiff asserts, inter alia, that her “complaint is brought under the provisions of M.G.L. Chapter 240, Sections 6 through 10 for the purpose of quieting title to certain property in Revere….” Among her prayers for relief, the plaintiff seeks a “decree that [she] has established… title by adverse possession and holds title by adverse possession against the defendants and holds the title free of any claims of defendants.” [Note 1] But for this prayer, the complaint contains neither a clear allusion to, nor any factual support for, a discernable claim for relief.

The defendants SN Servicing Corporation and Christiana Bank and Trust Company (defendants) have now moved, pursuant to Mass. R. Civ. P. 12, to dismiss the plaintiff’s complaint. At the hearing on the Motion to Dismiss, the plaintiff appeared pro se. Following the hearing on the Motion to Dismiss on March 19, 2014, the following docket entry was made:

Result: Event Held. Plaintiff is afforded ten days to retain counsel and supplement any previous filing. If counsel is retained and notification has been sent the court will afford new counsel fourteen days thereafter to supplement the opposition to the motion to dismiss.

As of this date, there has been no appearance or supplemental filing on behalf of the plaintiff.

In their supporting memorandum, the defendants acknowledge that “[a]t one point Christiana Bank and Trust Company held the mortgage over the subject property and SN Servicing Corporation was the mortgage holder’s agent and servicing company. However, the present action differs from the prior actions in that the subject property has now been sold to a third party at a foreclosure sale.”


The defendant’s argue that the complaint must be dismissed pursuant to Rule 12 (b)(7) for failure to name one Jose Pereira, [Note 2] the current owner, as an indispensible party. “The defendants that are listed in the complaint do not own the Property or hold a mortgage upon the Property.” [Note 3] However, see in this regard Mass. Practice, Smith and Zobel, Volume 6, s. 12.16 (Smith and Zobel) captioned Motion to dismiss-Failure to Join indispensible party, as follows:

Dismissal is appropriate only if the absent party is both indispensible and beyond reach of the court’s process… [A] complaint should ordinarily withstand a motion to dismiss for this kind of ‘possible technical defect’. The preferred solution is amendment of the complaint.

In the case at hand, the plaintiff has submitted just such a motion to the court. While it has yet to be marked for hearing as required by our Rules, this court is satisfied that no dismissal is required at this juncture for failure to join an indispensible party.

The defendants argue, as well, that the complaint should be dismissed pursuant to Rule 12 (b)(9) on account of prior pending actions in the Superior Court. The first such lawsuit was filed on March 8, 2011 and the second on June 20, 2013.

In the first Superior Court matter, Docket SUCV2011-00852, the plaintiff referenced the composition of her immediate family. She cited too, the divorce proceeding from her former husband Kevin Clabby in the Family and Probate Court. The complaint continued as follows:

On April 21, 2010 the honorable Judge Smoot award me & my 4 children annuity money to get our home out of foreclosure the bank has received from May 10, 2010-October 2010 $48 thousand and I paid 12 thousand to Revere City Hall for taxes for 2009-2010….

By way of relief, she asked that the property “not…be auctioned.”

After preliminarily enjoining any foreclosure, the Superior Court Judge on November 7, 2011 allowed the motion of the defendant Christiana Bank & Trust Company, to dissolve the preliminary injunction. The court concluded as follows:

After conducting several hearings and reviewing the pleadings and accounting filed by the parties, the court concludes that plaintiff is not likely to succeed on the merits…. [Note 4]

On June 20, 2013, the plaintiff initiated a second lawsuit in Suffolk Superior Court, Docket SUVC2013-02256 naming as a defendant therein a law firm which presumably represented “Christiana Bank-SN Servicing”. In her complaint, the plaintiff’s allegations included the following:

Filing a preliminary injunction asking the courts to take consideration that this law firm has refused to tell Christiana Bank-SN Servicing to work with me on paying my mortgage and staying in my property. I have four daughters under 16. And have resided there 13 years. They, bank-SN Servicing gave me a loan modification package and they –McKenzie and Swain have a foreclosure sale date scheduled for June 24, 2013. And I’m working with the Attorney General’s Office on keeping my home and the law firm refuse to postpone the auction.

By way of relief, the plaintiff asked the Court to “put a stop to this [foreclosure] sale [scheduled for June 24, 2013].” On June 26, 2013, the following Docket Entry was made:

After hearing the Court finds no basis in law to enjoin the foreclosure [;] the request for injunctive relief is Denied.

The last docket entry dated October 28, 2013 reads as follows:

Case status changed to ‘Needs status review[‘] at service deadline review

The common thread running through the two Superior Court actions as well as the instant matter, concerns the mortgage given by the plaintiff’s former spouse, Kevin Clabby to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for First NLC Financial Services, LLC on March 9, 2006.

Here again, Smith and Zobel offer the following guidance with regard to a Rule 12 (b) (9) motion. See in this regard s. 12.17 captioned Motion to dismiss-Prior action pending:

On any given claim, plaintiff may only pursue defendant in one action…. Courts do not favor the shotgun approach to litigation; nor the splitting of claims, a condition Rule 12(b)(9) seeks to prevent. Thus the later action is subject to dismissal on motion if the parties and issues are identical.

Dismissal of an action pursuant to Rule 12 (b)(9) is appropriate if the parties and issues in that action are identical to those in a prior pending action in a court of the Commonwealth. Harvard Community Health Plan, Inc. v. Zack, 33 Mass. App. Ct. 649 , 652 (1992).

For purposes of this 12 (b)(9) motion then, this court is satisfied that the issues before it [Note 5] and the Superior Court [Note 6] are essentially the same. Were both courts to fully adjudicate these matters, the cases would in critical respects be not only duplicative but would otherwise constitute an inappropriate use of judicial resources. Rule 12 (b)(9) is intended to obviate just such a situation. See Yentile v. Howland, 26 Mass. App. Ct. 214 , 216 (1988).

Even if Rule 12 (b)(9) did not warrant a dismissal of her complaint, this court is of the view that dismissal is warranted pursuant to Rule 12 (b)(6).

The defendants argue that the complaint should be dismissed pursuant to Rule 12 (b)(6) for failure to state a claim upon which relief may be granted. This court concurs. In this regard the complaint provides in essential terms as follows: [Note 7]

This complaint is brought under the provisions of M.G.L. Chapter 240, Sections 6 through 10 for the purpose of quieting title to certain property in Revere, Suffolk County, Massachusetts.

1) The plaintiff Shannon Clabby is an individual who resides at 9 Morris Street Revere Mass. whit[h] her four children under 16 years of age for 13 years.

2) The defendant Kevin Clabby is residing at parents’ home 11 Uncle Bob’s Way So. Dennis Ma for 6 years now.

3) On July 12, 2011 a divorce decree ordered defendant Kevin Clabby to transfer all rights, title and interest of the property at 9 Morris St. and the adjacent lot (1400 to his wife plaintiff Shannon Clabby….

4) On June 4, 2012 defendant Kevin Clabby refused to sign qui[t] claim deed ordered in Family & Probate Suffolk County Court so Judge Kaplan ordered special master Martha Bagely to do the signing. And defendant was ordered out of the court room….

5) On November 9, 2012 the bank told me that the loan had been paid off. And they no longer have to speak with me and sent me an Assi[gn]ment of mortgage with a different date than what was recorded….

6) On June 28, 2013 I was approached by a woman stating she bought my home for $150 thousand from SN Servicing Bank-Kevin Clabby.

In her prayers for relief, the plaintiff requests as follows:

1) The court decree that the plaintiff has established his title by adverse possession against the defendants and holds the title free of any claims of defendants.

2) I have paid numerous money to the bank and taxes to keep my home for me and my daughters. And bank knows Kevin Clabby defendant as not payed any moneys since 2008.

3) I never received foreclosure of property on self. As I remained in property for many years and do believe I should receive some deems just and proper from this on going interference with my stability.

In Iannocchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008), the Supreme Judicial Court clarified the standard for determining the sufficiency of a complaint under Rule 12(b)(6):

While a complaint attacked by a . . . motion to dismiss does not need detailed factual allegations. . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 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 allegations in the complaint are true (even if doubtful in fact). What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect the threshold requirement of [Fed R. Civ. P.] 8(a)(2) that the plain statement possess enough heft to sho[w] that the pleader is entitled to relief.

In applying this standard, this court must accept as true all factual allegations contained in the complaint, as well as “any favorable inferences reasonably drawn therefrom.” Eigerman v. Putnam Investments, Inc., 450 Mass. 281 , 282 (2007). Even with this highly favorable standard of review, this court is unable to conclude that the plaintiff has presented a complaint that may withstand a motion to dismiss. [Note 8] This court is unable to discern any factual allegations which suggest, plausibly so, an entitlement to relief. As a consequence, the plaintiff has failed to meet the threshold requirements to which the Court alluded in Iannocchino.


For the foregoing reasons, defendants’ Motion to Dismiss is hereby ALLOWED.

Judgment to enter accordingly.



[Note 1] See memorandum in support of Motion to Dismiss (Defendants’ Memorandum): “The defendants maintain no interest or ownership in the subject property.”

[Note 2] On June 24, 2013, the foreclosing bank deeded the locus to Norma Pereira who, in turn, assigned her high bid to Jose Pereira, the current property owner.

[Note 3] See Defendants’ Memorandum.

[Note 4] A Docket Entry dated December 13, 2012 reads as follows:

On review, the request for an order to enjoin the sale of the property is DENIED as MOOT, since the motion states that the property has already been sold.

[Note 5] To the extent this court can discern the substance of the claims before it.

[Note 6] This is a reference to the pending first superior court action.

[Note 7] All spelling and phraseology are as they appear in the original pleadings.

[Note 8] While the plaintiff has referenced “adverse possession” she has included no factual support for her claim. It is highly unlikely in any event, that she could, as a matter of law, maintain such a claim against any of the defendants named herein. The reference to “the foreclosure of property on self” lacks both clarity and factual support. To the extent the plaintiff seeks to reference a purported deficiency in the notice of foreclosure she may well be able to raise that issue in the pending Superior Court action, if she has not already done so.