Petitioner Amy L. Stephens-Martin (Petitioner) commenced this action by filing her unverified Petition to Try Title (which was dated May 31, 2012) on June 4, 2012, by which she sought to challenge, pursuant to G. L. c. 240, §§ 1 - 5, the validity of a foreclosure sale by Respondent Bank of New York Mellon Trust Company, N.A. f/k/a The Bank of New York Trust Companyas Successor to JPMorgan Chase Bank, N.A. as Trustee for RAMP 2006RZ4 (BONYM) of property allegedly owned by Petitioner and located at 52 Bridge Street, South Hadley, MA (Locus). [Note 1] A case management conference was held on July 9, 2012, which was continued to September 26, 2012 because of a lack of service on all Respondents.
On October 17, 2012, Respondents [Note 2] filed a Motion to Dismiss Petitioners Second Amended Petition. [Note 3] On December 14, 2012, Petitioner filed her Opposition to Respondents Motion to Dismiss. Respondents filed their Response to Petitioners Opposition on January 31, 2013. A hearing was held on the Motion to Dismiss on May 7, 2013. [Note 4] After reviewing the submissions relative to the Motion to Dismiss, the court held a telephone status conference on July 10, 2013, at which time the court notified the parties that it intended to avail itself of its discretion, pursuant to Mass R. Civ. P. 12 (the Rules), to convert the matter from a Motion to Dismiss to a Motion for Summary Judgment. [Note 5] In light of this procedural conversion, this court gave the parties time to submit additional briefs in the context of a Motion for Summary Judgment.
On August 2, 2013, Petitioner filed an Opposition to Respondents Motion to Dismiss Being Treated by the Court as a Motion for Summary Judgment, together with Exhibits, Affidavit of Daniel Martin (Martin), and Affidavit of Jamie Ranney, Esq (Ranney). On August 13, 2013, Respondents filed a Response to Petitioners Opposition to Respondents Motion for Summary Judgment, together with Affidavit of James L. Rogal, Esq. (the Rogal Affidavit) and Affidavit of Julie A. Brennan, Esq. The Motion to Dismiss/Motion for Summary Judgment was then taken under advisement. [Note 6]
By Decision dated October 1, 2013 (Land Court Decision 1), I found as follows: (a) that the discharge (the Discharge) of a mortgage from Joseph N. Gormley and Darla L. Gormley to MERS dated October 31, 2002 (MERS Mortgage 1) was valid and that there was no possibility of a cloud on title to Locus resulting from MERS Mortgage 1; (b) that Petitioner did not have standing to challenge the validity of the assignment by MERS to BONYM dated May 17, 2010 (the BONYM Assignment) of a mortgage from Petitioner to MERS dated June 26, 2006 (MERS Mortgage 2); (c) that the BONYM Assignment was valid; (d) that the Note from Petitioner to South Star dated June 26, 2006, in the amount of $154,900 (the Note) and MERS Mortgage 2 could be split; (e) that BONYM and its agents had complied with G. L. c. 244, § 35A; and (f) that the issue of notice of the postponement of the foreclosure sale gave rise to a material disputed fact.
In view of these findings, the court determined that a trial was necessary to determine (a) whether a public proclamation was made on April 18, 2012, (b) whether Petitioner and/or Martin received notice of the postponement date byanyother means (including, but not limited to, a courtesy notice (discussed below) from BONYMs counsel to Petitioner and Martin via First Class mail informing them that the foreclosure sale was postponed from April 18, 2012 to June 4, 2012 at 12:00 PM), (c) whether an unopposed entry was made onto Locus on June 4, 2012, and (d) whether a Certificate of Entry executed by two purported witnesses (David Bergeron and Charlene Henchey) that claimed that James Palumbo, a duly authorized attorney in fact for BONYM, made an open, peaceable and unopposed entry onto Locus . . . then declared, of foreclosing [MERS Mortgage 2] for breach of conditions thereof, was properly executed. [Note 7]
Less than a month after the Land Court Decision 1 was issued, on October 29, 2013, Ranney filed a Motion to Withdraw as counsel and to Terminate Representation of Petitioner. [Note 8] [Note 9] On November 14, 2013, Respondents filed a limited opposition to this motion on the basis of concerns regarding outstanding discovery. Because (as discussed below) Ranney was later disqualified as counsel to Petitioner, this motion to withdraw became moot.
On December 31, 2013, Respondents filed a motion seeking to compel discovery, or alternatively for sanctions. In the parties pre-trial memorandum, filed on January 24, 2014, Petitioner (notwithstanding the holdings in Land Court Decision 1) purported to limit the issues for trial to a single issue: whether the foreclosure sale originally scheduled for April 18, 2012 was postponed by public proclamation until June 4, 2012; Respondents, for their part, claimed that the issues for trial included whether Petitioner and/or Martin had actual notice of the postponed foreclosure sale. In the pre-trial memorandum, Respondents listed Ranney as a trial witness. A pre-trial conference and hearing on Respondents motion was held on January 27, 2014; Petitioner filed opposition to Respondents motion at this hearing. By order dated January 27, 2014, the court issued several directives relative to Respondents motion, and set a deadline for Petitioner to file a motion for a protective order relative to Respondents request that Ranney appear as a fact witness in this case.
Petitioner filed her Motion for Protective Order on February 3, 2014, by which she sought to strike Ranney as a witness at trial. On February 10, 2014, Respondents opposed this motion and cross-moved for a motion in limine forbidding Petitioner from introducing certain evidence; on February 21, 2014, Petitioner opposed this cross-motion in limine. By Order dated February 26, 2014 (the February 2014 Order), the court (a) allowed Ranney as a trial witness, finding that Ranneys knowledge of the postponement was key evidence at trial (and the April 2012 Email, as hereafter defined, was only produced by Ranney at trial as a witness); (b) held that Ranney, because he would be testifying as a fact witness at trial, was disqualified from representing Petitioner in this case; and (c) framed the issues for trial as both whether a public proclamation of postponement was made and whether Petitioner received notice of the postponement date by any other means. The February 2014 Order also raised the issue of whether Ranneys knowledge could be imputed to Petitioner. [Note 10]
Petitioner was given thirty days to find substitute counsel, which deadline was later extended to May 9, 2014, on which date a second pre-trial conference was held. At that conference, Petitioner represented that she had not retained an attorney (despite having over sixty days to do so), so the court set the case down for a trial. The parties submitted a second joint pre-trial memorandum on April 30, 2014, in which Petitioner, now pro se, again attempted to limit the issue for trial to only whether the April 18, 2012 foreclosure sale was postponed by public proclamation; Respondents, as before, claimed that the issues for trial included whether Petitioner and/or Martin had actual notice of the postponed foreclosure sale.
The first day of trial was held at the Land Court in Boston, MA on July 9, 2014. Ranney did not appear at trial that day, where he was scheduled to appear as a witness, because he claimed he was not properly served by subpoena. [Note 11] The second day of trial was also held at the Land Court in Boston, MA on August 19, 2014, at which time Ranney appeared as a witness and produced several documents requested in the subpoena. [Note 12] Testimony at trial for Petitioner was given by Dan Martin (Petitioners husband). Testimony at trial for Respondents was given by Amy Stevens-Martin (Petitioner), James Rogal (attorney for Orlans Moran PLLC), Dee Tache (auctioneer), Jerry Tache (auctioneers husband) (de bene), and Jamie Ranney (Petitioners attorney). Respondents recalled Dan Martin as a recall witness. There were fifteen exhibits submitted into evidence. Ranney filed an Affidavit on September 4, 2014 indicating that he had produced at trial all documents relative to discovery requests. Post-trial briefs were filed on October 6, 2014, and at that time the case was taken under advisement.
Also on October 6, 2014, Respondents filed their Motion for Rule 11 Sanctions Against Attorney Jamie Ranney and Petitioner Amy L. Stevens-Martin, together with Affidavit of Gregory S. Bombard (Bombard). Ranney filed his Opposition to the Motion for Sanctions on October 23, 2014, together with Cross Motion for Sanctions, Attorneys Fees and Costs Against Respondent Bank of New York Mellon and Attorney Gregory S. Bombard. On October 24, 2014, Petitioner filed her Opposition to Respondents Motion for Sanctions, Cross-Motion for Sanctions, and Motion to Strike Respondents Post-Trial Brief. A hearing was held on the post-trial motions on October 24, 2014, and these motions were also taken under advisement.
The court has issued a decision (Land Court Decision 2) as of todays date. In accordance with Land Court Decision 1 and Land Court Decision 2, it is hereby:
ORDERED and ADJUDGED that the Discharge was valid and that there is no possibility of a cloud on title to Locus resulting from MERS Mortgage 1; and,
ORDERED and ADJUDGED that Petitioner does not have standing to challenge the validity of the BONYM Assignment; and,
ORDERED and ADJUDGED that the BONYM Assignment is valid; and,
ORDERED and ADJUDGED that the Note and MERS Mortgage 2 can be split; and,
ORDERED and ADJUDGED that BONYM and its agents complied with G. L. c. 244, § 35A; and,
ORDERED and ADJUDGED that the trial testimony of Jerry Tache is admitted into evidence; and,
ORDERED and ADJUDGED that the Affidavit of Sale recorded withthe Hampshire County Registry of Deeds (the Registry) on July 25, 2012, at Book 10985, Page 289 (the Affidavit of Sale) is prima facie evidence that BONYM and its agents complied with the requirements of G. L. c. 244, § 15; and,
ORDERED and ADJUDGED that here was a public proclamation of postponement of the foreclosure sale at Locus on April 18, 2012; and,
ORDERED and ADJUDGED that both Martin and Petitioner had knowledge of the postponement of the foreclosure sale of Locus (from April 18, 2012 to June 4, 2012) before the foreclosure sale of Locus took place on June 4, 2012 -- as did Ranney -- and that the foreclosure sale of Locus on June 4, 2012 was valid; and,
ORDERED and ADJUDGED that Ranneys knowledge of the postponement of the foreclosure sale of Locus (from April 18, 2012 to June 4, 2012) may properly be imputed to his clients, who (even if they did not, as they claim, have actual notice) are therefore deemed to have had constructive knowledge of the postponement; and,
ORDERED and ADJUDGED that the foreclosure sale of Locus was valid, as was the postponement of said sale from April 18, 2012 to June 4, 2012. ; and,
ORDERED and ADJUDGED that Petitioners Second Amended Petition to Try Title is DISMISSED, with prejudice; and,
ORDERED and ADJUDGED that economic sanctions against Petitioner, Martin, and Ranney pursuant to Mass. R. Civ. P. 11 and 37 may be warranted; [Note 13] however, Respondents request that this case be dismissed as a sanction against Petitioner and/or Ranney is DENIED; and,
ORDERED and ADJUDGED that sanctions against Bombard or Respondents would not be appropriate; therefore, Petitioner and Ranneys Motion for Sanctions is DENIED in all respects.
By the court.
[Note 1] Petitioner thereafter amended her pleadings twice, by filing her First Amended Petition to Try Title on August 15, 2012 (which added additional Respondents) and her Second Amended Petition to Try Title on October 9, 2012, which added further additional Respondents, as well as a challenge to the July 2012 foreclosure deed to Locus from BONYM to BONYM (discussed below).
[Note 2] Respondents include BONYM, Mortgage Electronic Registration Systems, Inc. (MERS), GMAC Mortgage, LLC - Residential Asset Mortgage Products, Inc. (GMAC), and JPMorgan Chase Bank, N.A.
[Note 3] Respondents Merrimack Mortgage Co., Inc. (Merrimack) and Applied Mortgage Services, Corp. (Applied) did not join in this motion, but rather each filed disclaimers, disclaiming any right and title to Locus.
[Note 4] Counsel for Merrimack and Applied appeared at this hearing. After discussion with the parties, this court ALLOWED the Disclaimer of Merrimack and the Disclaimer of Applied. By this Decision, this court hereby DEFAULTS Respondent South Star Funding LLC (South Star), by and through its Chapter 7 Trustee, Harry W. Pettigrew, which has not filed an answer or appearance in this case.
[Note 5] In considering a motion to dismiss for failure to state claim under Rule 12(b)(6) of the Massachusetts Rules of Civil Procedure, the allegations of the complaint, as well as such inferences as may be drawn therefrom in the Petitioners favor, are to be taken as true. Nader v. Citron, 372 Mass. 96 , 98 (1977). The court will not accept legal conclusions cast in the form of factual allegations. Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008) (quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000)). Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. See Mass. R. Civ. P. 12(b), 12(c). Under Rule 12(b), a court may treat a Rule 12(b)(6) motion to dismiss as a motion for summary judgment if matters outside the pleadings are presented and not excluded by the court. Respondents submitted many documents that are clearly beyond what was submitted with the pleadings. The court intended to utilize such documents in its analysis, and as a result, determined judicial economy necessitated a conversion from a Rule 12(b)(6) motion to a Rule 56 Motion.
[Note 6] While the motion was under advisement, on September 25, 2013, Respondents notified the parties and the court that they had substituted their former attorneys (Prince Lobel Tye LLP) for Hinshaw & Culbertson LLP, who filed appearances as of that date, and who today remain their counsel of record.
[Note 7] Items 3 and 4 of the triable issues specified in Land Court Decision 1 were later removed from contention by the parties.
[Note 8] This was actually Ranneys second Motion to Withdraw; his first such motion (filed on June 28, 2013) was voluntarily withdrawn after Ranney and Petitioner apparently resolved a billing dispute.
[Note 9] Around the time that Land Court Decision 1 was issued, the parties began to engage in motion practice regarding discovery. On September 23, 2013, despite the fact that the Motion to Dismiss was still under advisement, Petitioner moved to compel responses to discovery requests; Respondents opposed this motion and cross-moved for a protective order on October 2, 2013. On October 21, 2013, Respondents moved for an order permitting the parties to engage in discovery. On October 24, 2013, the parties entered into a stipulation by which they agreed to commence discovery.
[Note 10] Petitioner appealed the February 2014 Order to the Massachusetts Appeals Court, but the appeal was denied on April 1, 2014 as untimely.
[Note 11] Respondents counsel represented that they had attempted to serve Ranney at his office, but that he or his representatives refused service. Counsel also alleged that service was attempted at Ranneys last known address, but that the Sheriff declined to make service because the property appeared to be an unoccupied rental property. The court, on the record, opined that if the Sheriff had left copies of the subpoena at this residential address, service thereof would have been good.
[Note 12] Prior to being called to testify, both Ranney and Petitioner objected to Ranneys production of documents pursuant to subpoena, primarily on the bases that they were privileged and/or already in Respondents possession. At the request of Respondents, the court reviewed the documents that Ranney had brought with him in camera, determined that the documents were not privileged, and admitted them as a trial exhibit. After Respondents had a brief opportunity to review the documents produced, they represented that the documents had not previously been disclosed, either in a document production or in a privilege log. They questioned Ranney as to whether additional documents existed that had not previously been produced and as to what measured he had used to review his files. In view of the fact that the documents produced by Ranney at trial had not previously been disclosed, the court required Ranney to file an affidavit certifying that he had produced all relevant documents in his and Petitioners possession.
[Note 13] As noted in Land Court Decision 2, this court retains post-judgment jurisdiction over this matter pending the resolution of Respondents motion for sanctions, which will be addressed solely to the extent specified in Land Court Decision 2.