MISC 12-469307

March 17, 2015

Barnstable, ss.



Petitioner Scott Morse (“Petitioner” or “Morse”) filed this try title action pursuant to G. L. c. 240, §§ 1 – 5, to challenge the validity of the foreclosure deed held by respondent Federal National Mortgage Association (“FNMA”). Alleging that he has both possession of and record title to the premises at 16 Clause Way, Marston Mills, Massachusetts (the “Premises”), Morse demands that the respondents, FNMA and two prior holders of a first mortgage on the Premises, be compelled to come into court and try their title to the Premises. The respondents filed an answer and a “memorandum in support of their answer,” along with attachments including the petitioner’s deed, mortgage, mortgage assignments, and the foreclosure deed. In their answer, the respondents answered generally that they should not be compelled to try title for the reasons set forth in the attached memorandum. These reasons were that the respondents Mortgage Electronic Registration Systems, Inc. (“MERS”) and Residential Credit Solutions, Inc. (“RCS”), both former mortgage holders, no longer had any interest in the Premises and should be dismissed, and that the assignment of the mortgage from MERS to RCS, and the subsequent chain of title from RCS to FNMA, were valid and effective to vest title in FNMA. Therefore, the respondents argue, because Morse lacks record title to the Premises, Morse has no standing to bring a try title action.


Morse filed this try title action, pursuant to G. L. c. 240, §§ 1-5, on August 21, 2012. This action to try title is the latest in a string of related actions in which the petitioner challenges the validity of efforts to foreclose on his home. These prior actions were referenced in the respondents’ supporting memorandum and in other filings by the parties in this court, including a case management conference statement, and were discussed by the parties at the oral argument of these motions. In considering a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c), “a judge may take judicial notice of the court’s records in a related action.” Jarosz v. Palmer, 436 Mass. 526 , 530 (2002). The court takes judicial notice of the prior related actions.

Following the resolution of his case in U. S. Bankruptcy Court on or about October 9, 2011, [Note 1] apparently without resolution of issues concerning his mortgage for the Premises, Morse filed an action in this court on December 19, 2011, challenging the validity of the assignment of his mortgage to present respondent RCS (the “prior Land Court action”). [Note 2] RCS removed that action to federal district court. [Note 3] Petitioner voluntarily dismissed that action on March 15, 2012. While the case was pending in federal district court, RCS proceeded with the foreclosure of the mortgage on the Premises, conducting the foreclosure sale on January 19, 2012. [Note 4] RCS, the buyer at the foreclosure sale, assigned its successful bid to FNMA and delivered a foreclosure deed to FNMA in February, 2012. FNMA then filed a summary process action against the petitioner in Barnstable District Court. Morse countered by filing the present action in this court, resulting in a stay of the summary process action pending the resolution of this action. Morse has remained in possession of the Premises at all relevant times.

Morse filed a motion for judgment on the pleadings, Mass. R. Civ. P. 12 (c), on April 1, 2014. The respondents filed their opposition to the motion for judgment on the pleadings, and their cross motion for judgment on the pleadings, on July 22, 2014. On August 28, 2014, Morse filed a motion to strike the respondents’ filings as untimely. The court (Speicher, J.) held a hearing on the motions for judgment on the pleadings and the motion to strike on February 25, 2015, following which, the court denied Morse’s motion to strike, allowed the respondents’ motion to allow the late filing of their cross motion, and took the matter under advisement. On March 9, 2015, after hearing and while the motions for judgment on the pleadings were under advisement, the Supreme Judicial Court issued its decision in Abate v. Fremont Investment & Loan, No. SJC-11638 (Mass. Mar. 9, 2015).

For the reasons set forth below, Morse’s motion for judgment on the pleadings is DENIED, and the respondents’ cross motion for judgment on the pleadings is ALLOWED.


For the purposes of this Rule 12(c) motion for judgment on the pleadings and cross motion for judgment on the pleadings, the facts pleaded by the parties are accepted as true. The respondents’ cross motion is treated essentially as a motion to dismiss under Rule 12(b)(6). Jarosz v. Palmer, supra, at 529. The documents attached by the respondents to the “memorandum in support of their answer” are part of the pleadings and will be accepted as documents to be considered in deciding the Rule 12(c) motions. See Mass. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”). See also Schaer v. Brandeis University, 432 Mass. 474 , 477 (2000) (In considering motion to dismiss, “items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.”). Some of the allegations taken as true for the purpose of these motions are those alleged by the petitioner in his complaint in the prior Land Court action. The court takes judicial notice of those allegations. See Jarosz v. Palmer, supra, 436 Mass. at 530. Since the subject matter jurisdiction of the court to consider this case on the merits is at issue, the court also considers the issues before the court under the ambit of Mass. R. Civ. P. 12(b)(1), pursuant to which the court is “properly allowed to review materials outside of the petition in deciding subject matter jurisdiction.” Abate v. Fremont Investment & Loan, No. SJC-11638, slip op. at 4 n. 5 (Mass. Mar. 9, 2015). “As a component of subject matter jurisdiction,…a judge may consider, sua sponte, standing under rule 12(b)(1) at any time.” Id. at 13.

The facts thus pleaded in the petition, the answer, and shown by the exhibits to the memorandum filed in support of the answer, or alleged by Morse in the prior Land Court action are as follows:

1. The Premises were deeded to Morse by a quitclaim deed dated November 10, 2006, and recorded with the Barnstable Registry of Deeds (“Registry”) on January 18, 2007 in Book 21707, Page 185.

2. Morse executed a promissory note with BankUnited, FSB (“BankUnited”) dated October 4, 2007, secured by a mortgage on the Premises, also executed by Morse, in the amount of $215,000. On the mortgage, BankUnited is designated as the “Lender” and Mortgage Electronic Registration Systems (“MERS”), “acting solely as a nominee for Lender and Lender’s successors and assigns,” is designated as the “mortgagee.”

3. The mortgage is dated October 4, 2007 and was recorded on October 10, 2007 with the Registry in Book 22395 Page 53.

4. MERS assigned the mortgage to RCS by an assignment dated March 2, 2010, and recorded with the Registry on August 2, 2010 in Book 24721, Page 260. The assignment was executed by a person identified as a vice president of MERS, and whose signature was notarized by a notary public, who attested that the vice president was personally known to her and personally appeared to sign the document.

5. On July 30, 2010, RCS filed a complaint under the Servicemembers’ Civil Relief Act in the Land Court, pursuant to which judgment entered in favor of RCS on November 17, 2010. A foreclosure sale was initially scheduled for December 21, 2010.

6. The foreclosure sale was postponed because, on December 21, 2010, Morse filed for bankruptcy. The bankruptcy action was terminated on October 9, 2011.

7. Morse filed the prior Land Court action on December 19, 2011, challenging the validity of the assignment of the mortgage to RCS. After the case was removed to federal district court by RCS, it was voluntarily dismissed by Morse.

8. Following the termination of the bankruptcy proceeding, RCS restarted the foreclosure process. According to the G. L. c. 244, §15 foreclosure affidavit, the following steps were taken in the foreclosure process:

a. A Notice of Mortgagee’s Sale of Real Estate was published in the Barnstable Patriot on October 21, October 28 and November 4, 2011;

b. Notices pursuant to G. L. c. 244, §14 were sent by certified mail, return receipt requested;

c. The originally scheduled sale on November 17, 2011 was postponed by public proclamation to December 20, 2011;

d. On December 20, 2011 the sale was postponed by public proclamation to January 19, 2012;

e. On January 19, 2012, the Premises were sold at public auction to RCS for $275,449.96; and

f. RCS assigned its successful bid to FNMA.

9. A Foreclosure Deed in Fannie Mae’s name was recorded in the Registry on March 7, 2012 at Book 26136, Page 119.


The try title statute, G. L. c. 240, §§ 1-5, provides that: “If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land... 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.” G. L. c. 240, § 1. A successful petition filed under the try title statute results only in a judgment requiring a party with a claim to the subject property to come forward and try their title, or otherwise be barred. Accordingly, G. L. c. 240, § 3, provides that “If [a person summoned] claim[s] title, they shall by answer show why they should not be required to bring an action to try such title, and the court shall enter an appropriate decree relative to bringing and prosecuting such action.” This is the so-called “first step” of the try title statute. The “second step” would be a separate action (or counterclaim) brought by the adverse claimant to prove its title against the petitioner.

“A petitioner must establish three jurisdictional elements in the ‘first step’ of a try title action: (1) that he holds ‘record title’ to the property; (2) that he is a person ‘in possession’; and (3) the existence of an actual or possible ‘adverse claim’ clouding the [petitioner’s] record title.” Abate, supra, at 11-12. This question is one of jurisdiction, because if the petitioner fails to meet any single element, the court lacks subject matter jurisdiction to hear the case. See Bevilaqua v. Rodriguez, 460 Mass. 762 , 770 (2011). Where, as here, a respondent challenges a jurisdictional prerequisite, a court may properly decide the matter on a motion to dismiss without doing violence to the two-step process. Abate, supra, at 12-13. This is because, when the jurisdictional challenge “necessarily reaches and effectively negates the merits of a petitioner’s claim, the two- step process is not abrogated.” Abate, supra, at 13.

A motion to dismiss a try title petition for failure to satisfy the jurisdictional requirements must create a factual challenge to petitioner’s jurisdictional allegations through the introduction of evidence “negating the petitioner’s claim.” Abate, supra, at 16. Once the jurisdictional facts asserted by the petitioner have been challenged, the petitioner “bears the burden to prove those facts by a preponderance of the evidence.” Id. [Note 5]

Morse’s claim in his petition is simple and direct: as one who is in possession, and who holds record title to the Premises, he is entitled, pursuant to the try title statute, G. L. c. 240, §§ 1-5, to compel FNMA, which is the grantee on a putative foreclosure deed to the Premises, or any other adverse claimant, to come into court and show why their title is superior to Morse’s title. His petition alleges that any claim to title by FNMA fails because neither RCS nor FNMA can establish that they validly held any mortgage on the Premises, they cannot establish any right to foreclose, and their claim to title is “void” because of unspecified failures on the part of RCS to comply with the foreclosure requirements of G. L. c. 244, §§1, et seq., and G. L. c. 183, §21. The respondents’ answer and memorandum claims they should not be compelled to try their title, because Morse has no record title, and therefore lacks a jurisdictional prerequisite to using the try title statute. The parties agree that Morse remains in physical possession of the Premises. The only remaining question, then, in evaluating whether he has standing to bring a try title action, is whether he is the record title holder.

Morse’s argument is essentially that all he must do to survive a motion to dismiss or a motion for judgment on the pleadings based on his lack of record title is produce a recorded deed. Even allowing for the fact that Morse did not have the benefit of the Abate decision when drafting his petition, this argument is insufficient to establish record title because it is the same argument that the Supreme Judicial Court explicitly rejected in Bevilacqua, supra. The theory that “[a] quitclaim deed may be sufficient by itself to support record title to the property…is incorrect as a matter of law…We are not persuaded by this ‘single deed’ theory for a number of reasons, not least of which is the fact that there is nothing magical in the act of recording an instrument with the registry that invests an otherwise meaningless document with legal effect.” Bevilacqua, supra, at 770-771. “[I]t is the effectiveness of a document that is controlling rather than its mere existence.” Id. at 771. Merely showing that he holds a deed to the subject property is not enough to establish a petitioner’s standing in a try title case where “the law requires the plaintiff to bear the burden of establishing sufficient facts on which jurisdiction can be found.” Abate, supra, at 17.

As applied to the present case, the principle stated in Bevilaqua requires the court, in order to establish its jurisdiction, to inquire whether Morse still holds title to the Premises notwithstanding the foreclosure deed into FNMA. As in Abate, “[t]he respondents’ challenge to [petitioner’s] record title, based on their argument that the assignment was indeed valid, was in effect a challenge to [petitioner’s] standing.” Abate, supra, at 18. The same challenge ultimately decides the present case. This is because, in order for Morse to prove he has standing, he must prove his record title. See Abate, supra, at 16 (petitioner “bears the burden to prove [jurisdictional] facts by a preponderance of the evidence.”).

Here, the facts alleged in the pleadings, and shown in the records of which the court has taken judicial notice, disclose the following chain of assignments and title: Morse obtained title by quitclaim deed recorded in January, 2007; Morse granted a mortgage to MERS, as mortgagee, which was recorded in October, 2007; MERS assigned the mortgage to RCS by an assignment dated March 2, 2010 and recorded August 2, 2010; RCS published a Notice of Mortgagee’s Sale of Real Estate in three successive weeks in October and November of 2011, and served the Notice by certified mail, return receipt requested; the sale was postponed twice by public proclamation; and finally, the foreclosure sale took place on January 19, 2012. RCS, as the successful bidder, assigned its bid to FNMA, and a foreclosure deed to FNMA was recorded on March 7, 2012. These facts asserted by the respondents are sufficient to challenge the petitioner’s standing under Abate, supra, at 16. Accordingly, Morse now has the burden of proving his standing by a preponderance of the evidence. Id.

Although he had the burden to prove record title after that jurisdictional fact was challenged, Morse did not offer any evidence to counter the respondents’ evidence. Nor did Morse offer any evidence at all, or any allegations of specific facts, upon which the court could conclude that the assignment from MERS to RCS was invalid (rendering the foreclosure invalid), or that there was any defect in the procedure under G. L. c. 244 that would render the foreclosure invalid.

In the prior Land Court action, which was dismissed voluntarily after removal to federal court but before the foreclosure, Morse made several allegations of defects in the assignment of the mortgage from MERS to RCS, such as a challenge of the authority of the vice president signing the assignment. These allegations were not made in the present action, and so they need not be addressed here. However, the court notes that the allegations of invalidity claimed in the prior Land Court action are claims that were deemed insufficient to render a respondent foreclosing mortgagee’s title void in in a case with almost identical facts, Bank of New York Mellon Corp., Trustee v. Wain, 85 Mass. App. Ct. 498 (2014). [Note 6]

Another claim raised in the prior Land Court action, the facts of which are not addressed by any of the parties in the present action, is Morse’s earlier claim that MERS had no authority to assign the mortgage because it did not hold Morse’s promissory note. Because this is a pre- Eaton foreclosure, this issue was properly not raised in the present action. See Federal National Mortgage Association v. Eaton, 462 Mass. 569 (2012) (mortgagee must be holder of note at time of foreclosure sale, but holding applied prospectively to foreclosures post-June 22, 2012). [Note 7]

It is worth noting that, even applying the familiar standard for testing the sufficiency of complaints adopted in Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008), which requires a petitioner to plead “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief[,]” Morse’s petition would not survive the instant Rule 12 motion. Morse asserts in his petition that, “Neither [FNMA] nor RCS can establish that they lawfully and validly held any mortgage recorded with respect to the premises[,]” and that, “Neither [FNMA] nor RCS can establish that they have complied with the terms of any mortgage recorded with respect to the premises; and thus, neither can establish any right to foreclose, including the right of entry and/or the right to enforce the statutory power of sale that may be contained in any such mortgage.” These allegations are plainly contradicted by the recorded assignment from MERS to RCS of the subject mortgage. Nothing in the petition, in the April 1, 2014 motion for judgment on the pleadings, or in any other filing made by Morse “plausibly suggests” that this assignment is void. Of course, in light of Abate, the petitioner faces an even higher standard.

Accordingly, Morse has failed to meet his burden to establish by a preponderance of the evidence, as required by Abate, that he “demonstrate ‘better title’ than the mortgagee in order to show that the foreclosure was invalid and, thus, that the mortgagor retained title after the foreclosure auction occurred.” Abate, supra, at 20. [Note 8] On the contrary, “[h]aving established its superior title as a matter of law, [FNMA] demonstrated that it would prevail in the second phase of any try title litigation. Other than mere delay, nothing would be served by going through such additional process.”Bank of New York Mellon v. Wain, supra, 85 Mass. App. Ct. at 506.


For the foregoing reasons, the petitioner Morse’s motion for judgment on the pleadings is DENIED, and the respondents’ cross motion for judgment on the pleadings is ALLOWED. Judgment shall enter dismissing the complaint with prejudice. [Note 9]

Judgment accordingly.


[Note 1] The bankruptcy case, Chapter 7 Petition No. 10-23704, was filed December 21, 2010.

[Note 2] The prior Land Court action is Miscellaneous Case No. 11 MISC 457044 (HMG)

[Note 3] Morse v. Residential Credit Solutions, Inc., No. 1:11-CV-12275-RWZ (D. Mass. filed Dec. 20, 2011).

[Note 4] An action filed in the Land Court pursuant to the Servicemembers Civil Relief Act, Residential Credit Solutions, Inc. v. Morse, Miscellaneous Case No. 10 MISC 435627, went to judgment on or about November 17, 2010.

[Note 5] This analysis applies to the first two elements, record title and possession. When the third element, existence of an adverse claim, is challenged, the petitioner’s factual allegations “are entitled to a presumption of truth regardless of a factual challenge....” Abate, supra, at 16.

[Note 6] The allegation in the 2011 Land Court action, 11 MISC 457044, is, essentially, that the “notice to cure letter” required by G. L. c. 244, § 35A was defective because it named RCS as mortgagee instead of MERS. In Wain, where the same allegation was made, the Appeals Court held: “As the Supreme Judicial Court recently held, where the notice to cure letter sent to a mortgagor does not fully comply with G. L. c. 244, § 35A, the mortgagor has the right to bring an equitable action in Superior Court to enjoin the threatened foreclosure. U.S. Bank Nat’l. Assn. v. Schumacher, 467 Mass. 421 , 429 (2014).” See Wain, supra, at 501.

[Note 7] Even if the foreclosure in the instant case occurred after June 22, 2012, the cases affirming MERS’s ability to hold and assign mortgages are myriad. See, e.g. Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202 , 208-210 (2014) rev. denied, 469 Mass. 1104 (2014), Wilson v. HSBC Mortgage Servs., 744 F.3d 1 (1st Cir. 2014), and Culhane v. Aurora Loan Servs., 708 F.3d 269 (1st Cir. 2013).

[Note 8] It is unnecessary to reach the remaining jurisdictional fact, an examination of the adverse claim. Where the decision is “premised on [petitioner’s] lack of standing based on the lack of record title, the remaining jurisdictional fact, adverse claim, has no bearing on the outcome of [the case].” Abate, supra, at 23.

[Note 9] Normally, a dismissal for lack of jurisdiction is without prejudice. Here, however, dismissal is an adjudication on the merits, and is with prejudice. See Abate, supra, at 27.