MICHAEL DARLING and NICOLE DARLING v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, HARMON LAW OFFICES, P.C., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and NATIONSTAR MORTGAGE PROPERTIES, LLC.

This case, filed March 13, 2014, came on for hearing April 29, 2014 by the court (Piper, J.) on the motion to dismiss filed April 9, 2014 by certain of the defendants. [Note 1] At the hearing, counsel for the moving parties appeared and argued. Despite notice, the plaintiffs did not attend the hearing. [Note 2]

After argument, the court granted the motion to dismiss, for substantially the reasons set forth in the moving papers, and for the reasons announced by the court from the bench at the conclusion of the hearing, which are summarized below.

Plaintiffs’ complaint fails to state any claim upon which the court could grant relief, even reading the complaint indulgently as the law requires when a court reviews a motion pursuant to Mass. R. Civ. P. 12(b)(6), see Iannochino v. Ford Motor Co., 451 Mass. 623 , 635-637 (2008): “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.’” Id. at 636.

(1) Each claim presented in plaintiffs’ March 12, 2014 complaint is one that ought to have been raised in prior proceedings in the Housing Court Department. None of the claims brought in this Land Court action relate to factual occurrences or legal theories that were not available during the long pendency of the Housing Court action, Case No. 11H84SP004222. Moreover, notwithstanding that plaintiffs elected to style the instant complaint as one under the try title statute, G.L. c. 240, §§ 1-5, none of the theories presented by the plaintiffs are outside the subject matter jurisdiction of the Housing Court, and those claims either were actually decided in the Housing Court’s April 11, 2013 order on summary judgment, or were required to have been advanced in that court at that time. The summary process plaintiff’s title coming out of the 2011 mortgage foreclosure was a central element of that plaintiff’s case for possession, and the defendants in that case were not legally entitled, at least without expressly reserving the issue for later adjudication, to hold back claims and defenses challenging that title only to press them later in this court in a separate case (this one) seeking to undo FNMA’s post-foreclosure title. See Bank of New York v. Bailey, 460 Mass. 327 , 333-34 (2011); Solomont v. Howe Real Estate Advisors, 19 LCR 481 , 487 (2011) (Misc. Case No. 11 MISC 448092) (Piper, J.), 2011 WL 4483960 at *11.

The Housing Court action produced a final judgment on the merits on April 17, 2013. That judgment was subject to an appeal by plaintiffs, which appeal was dismissed, after extensions, for failure to pursue the appeal, on March 13, 2014. See Federal Nat’l Mtge. Ass’n v. Darling, No. 2013-P-1384 (Mass. App. Ct. filed Aug. 30, 2013). On April 18, 2014, one of the plaintiffs in this action sought an emergency stay of eviction from the Supreme Judicial Court single justice under that court’s superintendence authority, see G.L. c. 211, §3. The single justice entered an order that day denying the emergency application, noting in her Judgment this court’s denial on March 28, 2014 of the plaintiffs’ request in this case for preliminary injunction. Darling v. Federal Nat’l Mtge. Ass’n, SJ-2014-0148 (Botsford, J.).

The court concludes that res judicata prevents plaintiffs from going forward with this action, and the complaint must be dismissed on that ground alone.

(2) Even if res judicata does not prevent the court from reaching the merits of the plaintiffs’ complaint, they have presented in it no legally sufficient claim, whether the claims pleaded by plaintiffs are considered individually or in the aggregate. Without limiting the generality of the preceding sentence, the court concludes that the following claims lack merit and require dismissal:

(A) Allegations by plaintiffs that they were deprived of some right under G.L. c. 244, § 35A are not legally sufficient. It is not correct to characterize the 2005 notice of default received by plaintiffs, now sought to be challenged by them in this case, as a notice under G.L. c. 244, § 35A, a statute which was not enacted until 2007, two years afterwards. Moreover, the express language of Section 35A’s enabling legislation provides that Section 35A “shall not apply to such mortgages accelerated or whose statutory condition has been voided... prior to [May 1, 2008.]” St. 2007, c. 206, § 21. See generally Mitchell v. U.S. Bank Nat’l Ass’n, 22 LCR 120 , 124-127 (2014) (Foster, J.). See also Randle v. GMAC Mortgage, LLC, 18 LCR 546 , 550 (2010) (Piper, J.). Plaintiffs acknowledge that their loan payments went into material default not later than 2005, and that their loan was accelerated in that year, years before Section 35A’s first effective date.

(B) The court does not read the recent decision of our Supreme Judicial Court in U.S. Bank Nat’l Ass’n v. Schumacher, 467 Mass. 421 (2014) as standing for the proposition that any defect at all in the 35A notice would reach a level that would give rise to a challenge to the validity of the title coming out of a foreclosure. Rather, to be entitled even to present to a court an equitable claim or defense, the plaintiffs here “must prove that the violation of § 35A rendered the foreclosure so fundamentally unfair... for reasons other than failure to comply strictly with the power of sale provided in the mortgage.” 467 Mass. at 433 (Gants, J., concurring). The plaintiffs have submitted nothing in their complaint to suggest any such fundamental unfairness.

(C) Even if the complaint did implicate some fundamental unfairness that would justify bringing a separate action in equity (or, as apparently authorized by Schumacher, an equitable counterclaim in a summary process action), the opportunity to do so has passed. The right to seek the sort of extraordinary equitable relief identified in Schumacher goes back generations, see e.g. New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192 , 195196 (1906), and at no point between the declaration of default in 2005 and the consummation of the foreclosure sale in 2011 was such an action or counterclaim pursued.

(D) The remaining allegations of the complaint concerning title are equally unavailing. The record title of the foreclosing entity is well established by a record assignment from 2010. The court rejects as legally incorrect plaintiffs’ challenge to the ability of MERS to convey a mortgage simply because MERS is a nominee; recent decisional law has accepted the validity of MERS as a holder of a mortgage. See Galiastro v. Mortgage Electronic Registration Systems, Inc., 467 Mass. 160 , 163 (2014) (finding no problem where “after the Galiastros’ appeal was docketed in the Appeals Court but before it was stayed, MERS, as nominee..., assigned the Galiastros’ mortgage[.]”) See also Sullivan v. Kondaur Capital Corp., Massachusetts Appeals Court, No. 13-P-706, slip. op. (April 16, 2014), rejecting as “without merit” a challenge “that MERS held the mortgage solely as nominee ... and appears to have held no ownership interest in the debt secured by the mortgage....” Nor is plaintiffs’ challenge based on a lack of nexus between the foreclosing mortgagee and the note holder viable, given that the foreclosure here well predated the date of the new rule announced in Eaton v. Federal Nat’l Mtge. Ass’n, 462 Mass. 569 (2012), which was made by the Supreme Judicial Court prospective only. Id. at 588-89. See Sullivan, supra.

It is

ORDERED that the motion to dismiss is GRANTED; the complaint is to be dismissed in its entirety with prejudice.

So Ordered.