ACORN 420 BROADWAY LLC vs. NEW ENGLAND PHOENIX COMPANY, INC.

This case involves a dispute between Petitioner Acorn 420 Broadway LLC (“Petitioner”) and Respondent New England Phoenix Company, Inc. (NEPCO) (“Respondent”) as to the ownership of the property known as and located at 420 West Broadway, South Boston, MA (“Locus”). Both parties claim to own Locus by virtue of their foreclosure upon mortgages secured by Locus, which were granted by a prior owner of Locus. On June 25, 2013, after Respondent had asserted an ownership claim in Locus, Petitioner commenced this action by filing an unverified petition seeking, pursuant to G. L. c. 240, § 1, to compel Respondent to try its claim to title to Locus and its claim that it is in possession of Locus. Respondent filed an answer to the petition on August 29, 2013; Respondent’s answer denied that Petitioner owned Locus, but did not interpose a counterclaim to assert its own claim to title thereof. A case management conference was held on September 4, 2013, after which the parties began exchanging discovery.

On July 30, 2014, Petitioner filed a motion for summary judgment, seeking an order directing that Respondent must bring an action to assert its title claim or disclaim its interest in Locus, which was supported by a memorandum of law, a statement of undisputed material facts, and an appendix containing affidavits of Pradip Tandon (“Tandon”) (Chief Financial Officer of Petitioner) (“Tandon Affidavit 1”), John Troy, Esq. (“Troy”) (Land Court title examiner), and Douglas L. Whitaker, Esq. (“Whitaker”) (Petitioner’s attorney). On August 29, 2014, Respondent filed a cross-motion for summary judgment, together with a supporting memorandum of law, a statement of additional facts, and anappendixcontaining the affidavit of John M. Keough (“Keough”) (Respondent’s President and attorney) [Note 1]; on the same date, Respondent also filed a motion to strike portions of Tandon Affidavit 1. Petitioner filed its reply brief on September 12, 2014, together with a supporting memorandum of law and an appendix containing supplemental affidavits of Whitaker and Tandon (“Tandon Affidavit 2”); on the same date, Petitioner also filed opposition to the motion to strike. A hearing was held on all three motions on October 20, 2014, and, at that time, this matter was taken under advisement.

Based upon the affidavit testimony and documentary evidence in the summary judgment record, I find that the following material facts are not in dispute:

1. Title to Locus, for purposes of this dispute, can be traced back to an entity called the 420 West Broadway Realty Trust (the “Trust”), which held record title to Locus in 1999. The Trust was established by declaration of trust (the “Declaration of Trust”) dated November 26, 1986 and recorded in the Suffolk County Registry of Deeds (the “Registry”) at Book 13231, Page 191. [Note 2] Pursuant to the Declaration of Trust, Barbara A. Buckley (“Buckley”) was named as the sole trustee of the Trust as well as a twenty per cent beneficial owner of the Trust, with Francis K. Fraine (“Fraine”) [Note 3] named as an eighty per cent beneficial owner of the Trust. Paragraph 3 of the Declaration of Trust states, in relevant part, as follows:

Whenever there shall be more than one Trustee hereunder, any and all deeds, mortgages, leases, subleases, assignments, checks, drafts, notes, or other instruments having to do with the Trust property shall be executed by a majority of the then Trustees.

2. By Trustee’s certificate (the “Fraine Certificate”) dated February 18, 1999 and recorded in the Registry at Book 23463, Page 176, Fraine certified that he had been appointed as a co-trustee of the Trust by appointment of co-trustee (the “Fraine Appointment”) dated November 21, 1998 and recorded in the Registry at Book 23509, Page 23, which was executed by Buckley and Fraine, as beneficiaries of the Trust. The Fraine Certificate stated, inter alia, that “[Fraine] ha[d] been duly authorized by the beneficiary of the said Trust to convey the subject property to a corporation known as On Broadway Corporation [“OBC”] for consideration.” [Note 4]

3. By deed (“OBC Deed 1”) dated February 19, 1999 and recorded in the Registry at Book 23463, Page 177, Fraine, as trustee of the Trust, purported to convey Locus to OBC for consideration of less than $100.00 in accordance with the Fraine Certificate. Notwithstanding Paragraph 3 of the Declaration of Trust, however, only Fraine signed OBC Deed 1. [Note 5]

4. On March 3, 1999, OBC granted to the Massachusetts Bay Transportation Authority Retirement Fund (the “MBTA”) a $2,500,000.00 mortgage (the “MBTA Mortgage”) on Locus, which was recorded in the Registry at Book 23509, Page 24.

5. On September 6, 2000, OBC granted to Buckley (personally) a $100,000.00 second mortgage (“Buckley Mortgage 2”) on Locus, which was recorded in the Registryon October 2, 2000 at Book 25414, Page 165. [Note 6]

6. Also on September 6, 2000, Respondent commenced an action in Suffolk County Superior Court entitled New Eng. Phoenix Co. v. Buckley (Case No. SUCV2000-04021) (the “P.I. Action”), in which Respondent sought an equitable lien and to reach and apply several loans owed to Buckley (including Buckley Mortgage 1 and the Fraine Mortgage). [Note 7] On September 14, 2000, the Suffolk County Superior Court issued a preliminary injunction (the “P.I.”) restraining Buckley “from assigning, transferring, paying, encumbering, or taking any other actions to diminish the value of any assets owned by Buckley ... including but not limited to . . . [Buckley Mortgage 1 and the Fraine Mortgage ].” [Note 8]

7. On May 19, 2001, the MBTA and various other parties (including Buckleyand Fraine, but not Respondent) signed a forbearance agreement (the “Forbearance Agreement”) by which the MBTA agreed to refrain from foreclosing on various mortgages -- including the MBTA Mortgage. As consideration for this promise, the signatories agreed, inter alia, (a) that OBC and the MBTA would execute an amendment to the MBTA Mortgage, (b) that Buckley, as trustee of the Trust, would execute a quitclaim deed conveying Locus to OBC (based upon alleged defects in OBC Deed 1 -- discussed, supra), and (c) that Buckley would agree to subordinate Buckley Mortgage 1 to the amended MBTA Mortgage. The parties also agreed that the Fraine Mortgage and two other, unrelated mortgages granted to Buckley, would be subordinated to the amended MBTA Mortgage. Buckley Mortgage 2 is not referenced in the Forbearance Agreement.

8. By assignment (the “Buckley Mortgage 1 Assignment") dated June 8, 2001 and recorded in the Registry on February 9, 2002 at Book 28011, Page 94, Buckley assigned Buckley Mortgage 1 (as well as the Fraine Mortgage and two other, unrelated mortgages) to Respondent.

9. In accordance with the Forbearance Agreement, by deed (“OBC Deed 2”) dated June 19, 2001 and recorded in the Registry at Book 26715, Page 304, Buckley, as trustee of the Trust, conveyed Locus to OBC for consideration of less than $100.00. [Note 9] On the same day, Buckley, as trustee of the Trust, executed a trustee’s certificate (the “Buckley Certificate”), which was recorded in the Registry at Book 26715, Page292, and stated that Buckley was the sole trustee of the Trust. [Note 10]

10. Also on June 19, 2001, in accordance with the Forbearance Agreement, OBC and the MBTA executed a first amendment and restatement of the MBTA Mortgage (the “MBTA Mortgage Amendment”), which was recorded in the Registry at Book 26715, Page 306. The MBTA Mortgage Amendment increased the amount of the secured note from $2,500,000.00 to $6,000,000.00. [Note 11]

11. Also on June 19, 2001, in accordance with the Forbearance Agreement, Buckley executed a subordination of Buckley Mortgage 1 (the “Buckley Subordination”) to the MBTA Mortgage, as amended, which was recorded in the Registry at Book 26715, Page 310. [Note 12] On the same day Buckley also executed a subordination of the $600,000 mortgage to the MBTA Mortgage, which was recorded in the Registry at Book 26715, Page 315. Buckley did not execute a subordination of Buckley Mortgage 2, which, as noted, supra, was not referenced in the Forbearance Agreement.

12. By assignment (the “Invictus Assignment”) dated December 8, 2003 and recorded in the Registry at Book 33648, Page 139, the MBTA assigned the MBTA Mortgage to Invictus Holdings, LLC (“Invictus”).

13. On May 3, 2007, Buckley recorded in the Registry at Book 41759, Page 165 an assignment of Buckley Mortgage 2 to Respondent (the “Buckley Mortgage 2 Assignment”).

14. On September 18, 2007, several creditors of OBC filed an Involuntary Chapter 7 Bankruptcy Petition against OBC (the “OBC Bankruptcy”). On October 17, 2007, the United States Bankruptcy Court for the District of Massachusetts (the “Bankruptcy Court”) entered an Order for Relief adjudging OBC to be bankrupt.

15. On October 18, 2007, Invictus filed a motion for relief from the automatic stay (the “Automatic Stay”) that had issued in connection with the OBC Bankruptcy. This motion listed Respondent as a junior creditor and Buckley Mortgage 1 as a junior lien upon Locus. On November 13, 2007, the Bankruptcy Court granted Invictus relief from the Automatic Stay.

16. Byletter dated November 20, 2007, Invictus sent a notice of sale (the “Invictus Notice of Sale”) pursuant to G. L. c. 244, § 14 to creditors of record of Locus, including Respondent, which stated that a public sale of Locus would take place on December 4, 2007.

17. On December 4, 2007, Invictus made entry (the “Invictus Entry”) on Locus for the purpose of foreclosing upon the MBTA Mortgage and taking possession of Locus, as confirmed by a certificate of entry (the “Invictus Certificate of Entry”) dated December 4, 2007 and recorded at the Registry at Book 42882, Page 251. A public sale of Locus was held at that time, at which 420 W Broadway, LLC (“420 West”) [Note 13] was the highest bidder.

18. On or about December 7, 2007, Respondent also made entry (the “NEPCO Entry”) on Locus for the purpose of foreclosing upon Buckley Mortgage 2, as confirmed by a notice of entry (the “NEPCO Notice of Entry”) dated December 7, 2007 and recorded in the Registry at Book 42823, Page 70. [Note 14]

19. Byletter dated December 24, 2007 (the “2007 Letter”), Respondent notified 420 West (which, at that time, was the highest bidder for Locus, but not yet record title owner) that Respondent believed Buckley’s execution of the Forbearance Agreement and the Buckley Subordination had been improper because Buckley had done so while the P.I. was in effect.

20. Inaccordance with the Invictus Certificate of Entry, byforeclosure deed dated August 21, 2008 and recorded in the Registry at Book 43967, Page 314, Invictus conveyed Locus to itself. Annexed to this foreclosure deed were two affidavits pursuant to G. L. c. 244, §§ 15, 17B.

21. By deed (the “420 West Deed”) dated March 13, 2009 and recorded in the Registry at Book 44665, Page 304, Invictus conveyed Locus to 420 West, for consideration of $722,022.00. [Note 15]

22. By deed (the “Petitioner Deed”) dated August 3, 2012 and recorded in the Registry at Book 50046, Page 229, 420 West conveyed Locus to Petitioner for consideration of $1.00.

23. By mortgage (the “Enterprise Mortgage”) dated August 23, 2012 and recorded in the Registry at Book 50046, Page 253, Petitioner granted a $2,080,000.00 mortgage secured by Locus to Enterprise Bank and Trust Company.

24. By letter dated January 14, 2013 (the “2013 Letter”) from Respondent to Petitioner, Respondent asserted a claim to the ownership of Locus, stating that Respondent “owns [Locus] free and clear from any claims or interests of [Petitioner]”, based on its foreclosure of Buckley Mortgage 2 (which, Respondent claimed, was superior to the MBTA Mortgage) and the NEPCO Entry. The 2013 Letter further alleged that Petitioner’s chain of title contained “numerous” infirmities.

25. In response to the 2013 Letter, Petitioner commenced this action to compel Respondent to try its title to Locus.

26. In Tandon Affidavit 1, Tandon testified that, prior to Petitioner’s ownership of Locus, its predecessor in title, 420 West (which held possession of Locus from 2009 to 2012) “conducted and coordinated numerous inspections of [Locus], and “worked with the City of Boston’s Inspectional Services Department” for the purpose of inspecting the condition of Locus and installing temporary structural supports inside the building -- at a cost to 420 West of around $35,000.00. Further, Tandon testified that, after taking possession of Locus, 420 West boarded up Locus, evicted a squatter therefrom, and “re-secured [Locus] to prevent others from entering” -- at a cost of nearly $75,000.00 to 420 West. [Note 16]

27. Tandon also testified that, since Petitioner’s purchase of Locus in August of 2012, Petitioner has “continued to maintain [Locus] in its boarded-up state, has further secured [Locus], and has controlled who enters and uses [Locus].” Tandon further testified that, in furtherance of the development of Locus, Petitioner has taken “further significant steps”, including “coordinat[ing] an environmental inspection [of Locus]”, “retain[ing] an architectural team to begin design work on the development of Locus”, and “[holding] numerous meetings with state and cityofficials, agencies, and organizations, as well as prospective tenants”. [Note 17]

28. Tandon also testified that, in August of 2012, Petitioner “paid off a municipal lien [on Locus]” (the amount of which was not specified) and that, in February of 2013, Petitioner applied for a tax abatement on Locus (which was denied). Further, Tandon testified that “[Petitioner] and its predecessors have consistently paid real estate taxes on [Locus]”; documentation that property taxes on Locus were paid in full (as of June of 2014) was annexed to Tandon Affidavit 1. Additionally, Tandon testified that “[Petitioner] and [420 West] have purchased and maintained commercial and general liability insurance on [Locus] since March of 2009.”

29. Locus is not currently occupied, and there is not currently a valid certificate of occupancy to do so.

30. On October 10, 2013 (over three months after this action was commenced), an entity called NEPREO, Inc. (“NEPREO”) [Note 18] recorded in the Registry at Book 52224, Page 93 a certificate of tax payment dated October 8, 2013, which stated that NEPREO had paid $7,406.73 in property taxes on Locus. This certificate did not specify the tax period for which such payment was made. [Note 19]

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Respondent’s Motion to Strike

Before considering the merits of this dispute, the court must resolve Respondent’s motion seeking to strike portions of Tandon Affidavit 1. Here, Respondent claims that Tandon did not have personal knowledge of -- and/or was incompetent to testify as to -- certain facts stated in Tandon Affidavit 1. In response to Respondent’s motion, Tandon filed Tandon Affidavit 2 on September 12, 2014, in which he acknowledged that he had personal knowledge of the facts stated in Tandon Affidavit 1, and he stated the basis for this knowledge. The court finds Tandon’s explanation to be satisfactory. As such, Respondent’s motion to strike Tandon Affidavit 1 is hereby DENIED.

The Parties’ Dispositive Motions

As noted, supra, in this action, Petitioner seeks to compel Respondent to try its title to Locus. Petitioner argues that it is in possession of and has legal title to Locus, thereby satisfying all of the required elements to prevail in a try title action. Respondent argues that Petitioner cannot satisfy either element of the try title statute (G. L. c. 240, § 1); Respondent has not interposed a counterclaim to try its title to Locus. See, e.g., Cistercian Order of Strict Observance in Mass., Inc. v. Estate of Burnett, 21 LCR 352 , 353 (Mass. Land Ct. July 12, 2013) (“[T]his court has treated an appropriately-filed counterclaim as complying with the statute without the need to file a separate action.”). Both parties have now moved for summary judgment on the issue of whether Respondent should be compelled to try its title to Locus. It is well-settled that summary judgment is appropriate only where there are no genuine issues of material fact, and where the summary judgment record indicates that the moving party should be granted judgment as a matter of law. E.g., Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

Try title actions are governed by G. L. c. 240, § 1, which states, in pertinent part, as follows:

If 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.

In Bevilacqua v. Rodriguez, 460 Mass. 762 ,766 (2011), the Supreme Judicial Court interpreted G. L. c. 240, § 1 as prescribing a two-stage process in a try title action. In the first stage, “the plaintiff [must] establish jurisdictional facts such that the adverse claimant might be ‘summoned to show cause why [he] should not bring an action to try [his] claim[ ]’ . . . .” Id. (quotation omitted). To succeed in this stage, “[t]here appear to be two jurisdictional facts that must be shown to establish standing under G. L. c. 240, § 1. First, . . . only ‘a person in possession’ of the disputed property may maintain a try title action. Second, . . . a plaintiff must hold a ‘record title’ to the land in question.” Id. (quotation omitted).

If a litigant successfully establishes record title to and possession of the property in question, the try title action then moves to the second stage, wherein “the adverse claimant [is required] either to disclaim the relevant interest in the property or to bring an action to assert the claim in question . . . .” Id. We consider first whether Petitioner has made a sufficient showing of standing to bring this try title action by demonstrating record title to and possession of Locus. [Note 20]

A. Record Title to Locus

Respondent claims that Petitioner’s chainoftitle contains “numerous” infirmities. Specifically, Respondent alleges that OBC Deeds 1 and 2 were invalid, and thus that the MBTA Mortage likewise should be invalidated. In the alternative, Respondent argues that, even if OBC Deeds 1 and/or 2 (and thus also the MBTA Mortgage) were found to be valid, the MBTA Mortgage Amendment should be deemed a new mortgage of lower priority to Buckley Mortgages 1 and 2 (as well as the Fraine Mortgage).

1. The Validity of the OBC Deeds

Pursuant to OBC Deed 1, Fraine (as Trustee of the Trust) purported to convey Locus to OBC. After apparently obtaining title to Locus pursuant to OBC Deed 1, OBC granted the MBTA Mortgage on Locus. However, Paragraph 3 of the Declaration of Trust required that any/all deeds conveying Trust property to be executed by a majority of the trustees of the Trust. At the time of OBC Deed 1, Fraine was one of two trustees of the Trust, so obtaining a “majority” of the Trust would have required both trustees (i.e., Fraine and Buckley) to execute the document. However, the Fraine Certificate stated, inter alia, that “[Fraine] ha[d] been duly authorized by the beneficiary of the said Trust to convey the subject property to a corporation known as On Broadway Corporation [“OBC”] for consideration” -- a statement that was confirmed bythe Confirmatory Fraine Certificate -- which suggested that Fraine had Buckley’s proxy to enter into OBC Deed 1. [Note 21]

It appears that, at some point after the MBTA Mortgage was executed, the MBTA came to believe that the fact that only Fraine signed OBC Deed 1 might lead to a potential title defect in said deed, and therefore sought to secure its interest in Locus by negotiating a confirmation of OBC Deed 1 and an amendment to the MBTA Mortgage. As such, the MBTA required, as conditions of granting the Forbearance Agreement, (a) that Buckley execute a new deed conveying Locus to OBC, (b) that the MBTAMortgage be modified (so as to cross-collateralize and consolidate severalseparate loans), and (c) that Buckley subordinate several mortgages she held upon Locus (including Buckley Mortgage 1, but not Buckley Mortgage 2) to the amended MBTA Mortgage.

In view of the foregoing circumstances, OBC Deed 2 should be construed as a confirmatory deed confirming the prior conveyance of Locus to OBC pursuant to OBC Deed 1, and clarifying that, while only Fraine signed OBC Deed 1, both Trustees intended to convey Locus to OBC in conformance with the terms of the Declaration of Trust.

While OBC Deed 2 would therefore seem to have been effective to confirm the conveyance of title to Locus to OBC, Respondent argues that, in fact, OBC Deed 2 should be deemed null and void ab initio because, Respondent claims, Buckley’s execution of said deed violated the terms of the P.I., which had restrained Buckley “from assigning, transferring, paying, encumbering, or taking any other actions to diminish the value of any assets owned by Buckley . . . .” The only authority cited by Respondent in support of its argument that OBC Deed 2 should be nullified is In re Dooley, 399 B.R. 340 (Bankr. D. Mass. 2009) -- a bankruptcy case pertaining to a settlement between a debtor and creditor in breach of an automatic bankruptcy stay, which is completely inapplicable to the present facts. [Note 22]

Even if Dooley were applicable here, Respondent’s argument would still fail for a number of reasons. First, the P.I. Action was commenced against Buckley personally, and the P.I. issued in said action only affected Buckley individually and property owned by her personally; however, it is clear that Buckley executed OBC Deed 2 not in her personal capacity, but rather in her capacity as trustee of the Trust. Moreover, as discussed, supra, the effect of said deed was merely to confirm a prior conveyance of property (which occurred prior to the date the P.I. came into effect) that had been owned by the Trust -- not Buckley personally.

Next, whereas the P.I. prohibited transactions that diminished the value of Buckley’s personal assets, OBC Deed 2 confirmed the conveyance of Trust property pursuant to a deed that had already been granted by Fraine, for the same consideration, prior to the effective date of the P.I. Thus, it is not clear that there was any diminishment of Buckley’s personal assets. [Note 23] In addition, although the P.I. made reference to multiple mortgages granted by Buckley to which it applied, it did not list Locus as one of the eight specific assets covered by the P.I.; moreover, every other asset listed was in the name of Buckley personally. [Note 24]

Finally, there is no indication that Respondent ever pursued a contempt action against Buckley for her alleged breach of the P.I., which undermines Respondent’s claimthat Buckleyviolated the P.I. by signing OBC Deed 2. Moreover, even if Respondent were correct on this point, based upon Respondent’s argument that a conveyance made in violation of the P.I. should be deemed null and void ab initio, the Buckley Mortgage 1 Assignment would itself have been rendered null and void. Similarly problematic is the fact that nothing in the record indicates that Respondent ever obtained relief from the Automatic Stay prior to the NEPCO Entry.

Based upon the foregoing considerations, I find that OBC Deed 1 was a valid conveyance, since, pursuant to the Fraine Certificate and Confirmatory Fraine Certificate, Buckleyunambiguously indicated that she had given her proxy to Fraine to execute OBC Deed 1 on her behalf. Further, I find that OBC Deed 2 was a valid confirmatory deed confirming her consent to the Trust’s prior conveyance of Locus (prior to the effective date of the P.I.) pursuant to OBC Deed 1.

2. The Priority of the Buckley Mortgages after the MBTA Mortgage Amendment

On the same day that Buckley executed OBC Deed 2, she also executed the MBTA Mortgage Amendment and the Buckley Subordination, pursuant to which Buckley Mortgage 1 (but not Buckley Mortgage 2) was subordinated to the MBTA Mortgage, as amended. Nonetheless, Respondent argues, even if the MBTA Mortgage Amendment were found to have been valid (a finding already made, supra), the MBTA Mortgage should be found to have lost its priority to Buckley Mortgages 1 and 2 (and the Fraine Mortgage) when it was amended. [Note 25] Respondent’s argument here is that a senior mortgage loses its lien priority if it is modified in a way that prejudices the rights of a junior mortgage without the consent of the junior mortgagee. Here, Respondent claims, junior mortgagees (i.e., the mortgagee of Buckley Mortgages 1 and 2) were prejudiced because the MBTA Mortgage Amendment substantially increased the amount of the loan. [Note 26]

However, as is clear from Invictus’s sale of Locus to 420 West, the proceeds from the sale of Locus were not even sufficient to cover the original $2.5 million debt under the MBTA Mortgage; thus, Respondent would have been left without recourse upon Locus whether or not the MBTA Mortgage had been amended. Moreover, Buckley, the mortgagee under Buckley Mortgages 1 and 2, was the party who executed the Forbearance Agreement, the MBTA Mortgage Amendment, and the Buckley Mortgage 1 Subordination. She thus agreed, on the one hand, to the increase in the amount of debt secured by the MBTA Mortgage, and, on the other, to subordinate her own loan.

Under such circumstances, Buckley would be hard pressed to demonstrate prejudice. [Note 27]

The legal authority cited by Respondent in support of its argument as to priority-shifting is extremely thin. Aside from unconvincing secondary authority and non-controlling (and factually inapplicable) case law, Respondent cites only Shane v. Winter Hills Fed. Sav. & Loan Ass’n, 397 Mass. 479 , 485-486 (1986) in support of its claim that the modification of the MBTA Mortgage should render Buckley Mortgages 1 and 2 senior to the MBTA Mortgage. However, in Shane, whereas the court did find that “a later modification of the mortgage by a senior mortgagee may not prejudice the rights or impair the security of a junior mortgagee, without the latter’s consent”, it did not allow a smaller junior mortgage to jump priority over an existing senior mortgage after such a modification. Id. Rather, the court ruled that when a senior mortgage was modified in a way that was prejudicial to and significantly impaired the security of a junior mortgage, the junior mortgage was not bound by the modification to the extent that it exceeded the interest charge contemplated by the junior mortgage. See id. at 488.

In sum, there is simply no basis for the relief suggested by Respondent. Irrespective of whether Buckley breached the P.I. (which, as noted, supra, even if true, would not by itself necessarily render instruments executed by Buckley in breach thereof void ab initio) by executing the Buckley Subordination and MBTA Mortgage Amendment, the fact that she did so unambiguously indicates that she consented to the subordination of Buckley Mortgage 1 to the MBTA Mortgage. For that reason, and because there is no definitive indication that the MBTA Mortgage Amendment actually prejudiced the holders of Buckley Mortgages 1 and 2, I find that the MBTA Mortgage Amendment did not have the effect of rendering the MBTA Mortgage junior to either Buckley Mortgages 1 or 2, or any other mortgage (including the Fraine Mortgage and the other mortgages referenced in the Buckley Subordination).

Subsequent to the MBTA Mortgage Amendment, Petitioner’s record title history is uneventful. On December 8, 2003, the MBTA Mortgage, as amended, was assigned to Invictus. After receiving relief from the Automatic Stay, Invictus made entry onto Locus, deeded Locus to itself by foreclosure deed, and then deeded Locus to 420 West, who deeded Locus to Petitioner in 2012. Respondent offers no challenge to any of these conveyances. Therefore, I find that the Invictus Assignment, the Invictus Notice of Sale, the Invictus Entry, the Invictus Certificate of Entry, the 420 West Deed, and the Petitioner Deed effectively conveyed title to Locus from the MBTA to Petitioner. Having found all conveyances of Locus from OBC Deed 1 to the Petitioner Deed, I find that Petitioner has record title to Locus, subject to the Enterprise Mortgage.

B. Possession of Locus

Based upon Tandon’s affidavit testimony, it is clear that Petitioner’s predecessor in title, 420 West, commencing in 2009, held possession of Locus before selling Locus. As a condition of closing on the foreclosure sale of Locus from Invictus, 420 West also paid several years of back property taxes due on Locus -- totaling approximately $150,000.00. Further, upon taking possession, 420 West evicted a squatter from Locus, boarded all windows and doors, and re-secured Locus to prevent further entry at a cost of nearly $75,000.00. 420 West also worked with the City of Boston’s Inspectional Services Department in April and July of 2012 to both secure and inspect Locus as well as install temporary structural support inside the building; these services cost 420 West an additional $35,000.00. In addition, since Petitioner’s purchase of Locus in 2012, Petitioner has maintained Locus, had an environmental inspection of Locus, prepared design work for Locus, had meetings with Boston city officials, paid off a municipal lien on Locus, and paid commercial and general liability insurance and taxes on Locus. Petitioner has also given a mortgage on Locus, the validity of which is not specifically challenged by Respondent.

Petitioner argues that all of these actions demonstrate Petitioner’s use and possession of Locus based upon the fact that Petitioner, in fact, controls who is able to access Locus. Petitioner further claims that Respondent’s alleged cloud of title hinders both the occupancy and development of the building and the ability to take profits from Locus.

Respondent does not specifically dispute any of these facts. Rather, Respondent argues that, whereas G. L. c. 240, § 1 requires actual possession, boarding up a property and the resulting non-use does not satisfy that requirement. As a fallback position, Respondent argues that it shares “mixed use” of Locus -- based upon a single tax payment apparently made after this action was commenced by an entity that is related to Respondent but which is not party to this case. Additionally, Respondent argues (without explanation) that Petitioner should not be allowed to rely on the prior possession of 420 West, noting that doing so would be “fundamentally unfair”.

Because Locus does not have a current certificate of occupancy, “the nature of the occupancy [must be examined] in relation to the character of the land.” Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). While the Supreme Judicial Court has found that mere constructive possession is not enough when a property has been left generally vacant, Munroe v. Ward, 86 Mass. 150 , 152 (1862), Petitioner has shown multiple actual uses of Locus. Petitioner (as well as 420 West) has secured the building from adverse use (including evicting a squatter) and has incurred significant expenses to secure and improve Locus. Petitioner has also undertaken numerous activities to plan for the development of Locus and has made payments for real estate taxes, municipal liens, and insurance. Petitioner also has a current mortgage on Locus. All of these activities demonstrate Petitioner’s use of Locus. Moreover, the court is convinced by Petitioner’s explanation as to why it had not taken steps to develop Locus and install occupants therein, since the cloud upon the title to Locus would mean that anysuch activities would be “at risk”. Respondent’s reference to a single tax payment made by an entity that is not party to this case after this case was already commenced is simply insufficient to rebut Petitioner’s showing of actual possession. [Note 28] In sum, I find that Petitioner has adequately demonstrated that it has possession of Locus.

C. Conclusion

Based upon the foregoing discussion, because Petitioner has amplydemonstrated both record title to and possession of Locus, I find that Petitioner has standing to bring this try title action. Having found such standing, the burden would normally shift to Respondent to either disclaim any/all interest in Locus or file an action to establish such interest as Respondent may claim. See Bevilacqua, 460 Mass. at 766. Here, although Respondent did not interpose a counterclaim to establish an ownership interest in Locus, the parties’ competing claims to record title of Locus were already fully briefed by both parties. In the estimation of this court, since the issue of record title to Locus has already been determined as a matter of law, nothing that was not previously submitted by Respondent could possibly establish that Respondent has superior title to Locus. It therefore would appear to be unnecessary for this case to proceed further, as doing so would merely be to relitigate issues this court has already determined. E.g., Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 , 506 (2014) (“Having established its superior title as a matter of law, the bank 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.”). As such, I find that Petitioner holds record title to Locus free and clear of any claim of Respondent.

Accordingly, Petitioner’s Motion for Summary Judgment is hereby ALLOWED in all respects; Respondent’s Cross-Motion for Summary Judgment is hereby DENIED in all respects. Further, Respondent’s claims to record title to Locus are hereby DISMISSED, with prejudice.

Judgment to enter accordingly.