SHEASA R. KENNEY and LANE M. FRANK v. DANIEL A. BROWN, LISA D. OXBOEL, GOEFFREY BRENT BARKIN, HOMECOMINGS FINANCIAL NETWORK, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), COLLINS ASSET GROUP, LLC, and U.S. BANK NATIONAL ASSOCIATION.

In January 2007, the defendant U.S. Bank National Association conducted a foreclosure sale on the property owned by plaintiffs Sheasa R. Kenney and Lane M. Frank. After the sale, the property was conveyed to defendant Geoffrey Brent Barkin; in 2008, Barkin conveyed the property to defendants Daniel A. Brown and Lisa D. Oxboel. In 2016, Kenney and Frank brought this complaint challenging the original foreclosure sale, claiming that U.S. Bank did not hold the mortgage by assignment as required by Bevilacqua v. Rodriguez, 460 Mass. 762 (2011) and U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 (2011). The defendants have moved for judgment on the pleadings on the grounds that Kenney's and Frank's claims are barred by G.L. c. 244, § 15, as amended by St. 2015, c. 141, "An Act Clearing Title to Foreclosed Properties." Because Kenney and Frank failed to comply with the requirement of the amended §15 to record their amended complaint within one year of the effective date of the act, by December 31, 2016, their claims are barred, and this action must be dismissed.

Procedural History

Kenney and Frank filed their Verified Complaint (Complaint) on September 12, 2016. The Complaint named as defendants Daniel A. Brown, Lisa D. Oxboel, HomeComings Financial Network, Inc. (HomeComings), Mortgage Electronic Registration Systems, Inc. (MERS), and Collins Asset Group, LLC (CAG). The Verified Complaint had two counts. Count I was a try title claim and Count II was a claim for declaratory judgment.

The Answer to Verified Complaint of Defendants Daniel A. Brown and Lisa D. Oxboel was filed on November 25, 2016. The Answer of MERS was filed November 30, 2016. A case management conference was held on December 1, 2016, at which the Court allowed the plaintiffs Kenney and Frank to amend their Verified Complaint to name additional defendants by December 8, 2016. The plaintiffs filed their Amended Complaint (Am. Compl.) on December 8, 2016. The Amended Complaint names additional defendants Geoffrey Brent Barkin (Barkin) and U.S. Bank National Association, as Trustee (U.S. Bank), and maintains the same two counts as the Verified Complaint. On January 13, 2017, the Answer, Counterclaim and Cross-Claims of Defendants Daniel A. Brown and Lisa D. Oxboel to Plaintiffs' Amended Complaint (Ans. Def. Brown and Oxboel) was filed. The Answer of MERS to the Amended Complaint (Ans. Def. MERS) and the Answer (Ans. Def. U.S. Bank), Counterclaim (Counterclaim of Def. U.S. Bank to Am. Compl.), and Crossclaim of Defendant U.S. Bank to the Amended Complaint were filed on January 19, 2017. On February 6, 2017, Kenney and Frank filed Defendants' Answer to Counterclaim of Daniel A. Brown and Lisa D. Oxboel and Defendants' Answer to Counterclaims of U.S. Bank (Def. Kenney and Frank Ans. to Counterclaim).

Defendants Daniel A. Brown and Lisa D. Oxboel's Motion for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction (Motion for Judgment on the Pleadings), Memorandum in Support of Defendants Daniel A. Brown and Lisa D. Oxboel's Motion for Judgment on the Pleadings and to Dismiss for Lack of Subject Matter Jurisdiction, and Defendants Daniel A. Brown and Lisa D. Oxboel's Statement of Facts were filed on February 13, 2017. The Joinder of Defendants U.S. Bank and MERS in Motion to Dismiss of Defendants, Daniel A. Brown and Lisa D. Oxboel, was filed on February 21, 2017.

On March 10, 2017, Kenney and Frank filed Plaintiffs' Opposition to Defendants Brown and Oxboel's Motion to Dismiss (Opp.), Plaintiffs' Motion to Stay, and Motion to Amend Complaint. Defendants, U.S. Bank and MERS Combined Opposition to Plaintiffs' Motion to Stay and Motion to Amend was filed on March 23, 2017. Defendants Daniel A. Brown and Lisa D. Oxboel's Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss and Defendants' Opposition to Plaintiffs' Motion to Stay were filed on March 24, 2017.

On March 30, 2017, a hearing was held on the Motion for Judgment on the Pleadings, Motion to Stay, and Motion to Amend Complaint. The Court denied the Motion to Stay and the parties were given until May 1, 2017, to file briefs discussing the issue of the effective date of the relevant statute and any additional case law, and until May 8, 2017, to submit responsive briefs. On May 1, 2017, the following were filed: Plaintiff's Memorandum of Law on the Effective Date of 2015 Mass. Acts. c. 141 (Pl. Mem. on Effective Date), Defendants Daniel A. Brown and Lisa D. Oxboel's Supplemental Memorandum in Support of their Motion for a Judgment on the Pleadings, and the Supplemental Memorandum of Defendant, U.S. Bank, Supporting the (a) Sufficiency of Affidavit of Sale for Purposes of G.L. c. 244, sec. 15 and (b) the Fact that the Foregoing Statute is a Statute of Repose Rather than a Statute of Limitations. Defendants Daniel A. Brown and Lisa D. Oxboel's Reply to Plaintiffs' Memorandum of Law on the Effective Date of 2015 Mass. Acts. c. 141 (Def. Mem. on Effective Date) and Answer of CAG (Ans. Def. CAG) were filed on May 8, 2017. U.S. Bank's Answer to Cross Claim of Defendant CAG was filed May 10, 2017. The Motion for Judgment on the Pleadings and Motion to Amend Complaint were then taken under advisement. This Memorandum and Order follows.

Standard for Motion for Judgment on the Pleadings

A motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) is actually a motion to dismiss for failure to state a claim upon which relief can be granted, and is analyzed under the standard for motions to dismiss. Jarosz v. Palmer, 436 Mass. 526 , 529-530 (2002). The court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does 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); see Jarosz, 436 Mass. at 529-530. 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. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n. 4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008). Therefore, the court will accept as true the allegations of the Amended Complaint for the purposes of the Motion for Judgment on the Pleadings. The court will consider the various recorded instruments referenced in or submitted with the Amended Complaint and the Motion for Judgment on the Pleadings, and other documents referred to in the Amended Complaint. [Note 1]

Facts

For purpose of the Motion for Judgment on the Pleadings, the court accepts as true the following facts as alleged in the Amended Complaint.

1. On October 21, 2005, Kenney and Frank purchased the property at 17 High Street, Greenfield, Massachusetts (Property) by a deed recorded with the Franklin County Registry of Deeds (registry) in Book 4971, Page 301. That same day, Kenney and Frank granted two mortgages to MERS, as nominee for HomeComings: one in the amount of $151,920.00, recorded with the registry in Book 4971, Page 304 (First Mortgage), and a second in the amount of $37,980.00, recorded with the registry in Book 4971, Page 324 (Second Mortgage). Both the First Mortgage and the Second Mortgage show a term and maturity date of November 1, 2035. Am. Compl., ¶¶ 10-16, Exh. A, pp. 1-29; Ans. Def. U.S. Bank, ¶¶ 10-1-16; Ans. Def. MERS, ¶¶ 10-16.

2. In late 2006, U.S. Bank initiated foreclosure proceedings against Kenney and Frank after they defaulted on the First Mortgage. Am. Compl. ¶ 18; Ans. Def. U.S. Bank ¶ 18.

3. On October 4, 2006, at the instruction of HomeComings, counsel for U.S. Bank sent Kenney and Frank a Notice of Acceleration making all amounts of the First Mortgage immediately due and payable. Counterclaim of Def. U.S. Bank to Am. Compl. ¶ 14; Def. Kenney and Brown Ans. to Counterclaim of U.S. Bank, ¶ 14.

4. On October 5, 2006, U.S. Bank filed a Complaint under the Service Members Civil Relief Act in the Land Court, 06 MISC 331257, against Kenney and Frank (Servicemembers Action). On December 6, 2006, U.S. Bank recorded the complaint in the Servicemembers Action with the registry in Book 5232, Page 279. Am. Compl. ¶¶ 20, 22, Exh. A, p. 30; Ans. Def. U.S. Bank, ¶¶ 20, 22.

5. U.S. Bank published the notice of Mortgagees Sale of Real Estate in the Greenfield Recorder on December 19, 2006, December 26, 2006, and January 2, 2007. Am. Compl. ¶ 21, Exh. A, p. 34; Ans. Def. U.S. Bank, ¶ 21.

6. On January 4, 2007, the Land Court entered judgment in the Servicemembers Action. On May 23, 2007, the judgment was recorded with the registry in Book 5324, Page 33. Am. Compl. ¶¶ 23-24, Exh. A., p. 36; Ans. Def. U.S. Bank, ¶¶ 23-24.

7. On January 9, 2007, U.S. Bank conducted a foreclosure sale on the Property. The Property was conveyed to U.S. Bank for $161,948.23, by a Foreclosure Deed dated April 11, 2007, and recorded with the registry on May 23, 2007, in Book 5324, Page 34 (Foreclosure Deed). Am. Compl. ¶¶ 26, 28-29, Exh. A, pp. 32-34, 36-37; Ans. Def. U.S. Bank, ¶¶ 26, 28-29; Ans. Def. MERS, ¶ 28.

8. On or about April 11, 2007, an Affidavit of Sale pursuant to G.L. c. 244, § 15, was executed by a representative of Residential Funding Company LLC, as attorney in fact for U.S. Bank, attesting to the conducting of the foreclosure pursuant to the power of sale. On May 23, 2007, the Affidavit of Sale was recorded with the registry in Book 5324, Page 35. Am. Compl. ¶ 28, Exh., A, pp. 32-34; Counterclaim of Def. U.S. Bank to Am. Compl., ¶ 21; Def. Kenney and Frank Ans. to Counterclaim, ¶ 21.

9. On May 8, 2007, MERS assigned the First Mortgage to U.S. Bank (Assignment). On May 23, 2007, the Assignment was recorded with the registry in Book 5324, Page 26. Am. Compl. ¶¶ 30-31, Exh. A, p. 35; Ans. Def. MERS, ¶¶ 30-31; Ans. Def. U.S. Bank, ¶¶ 30-31.

10. On June 8, 2007, U.S. Bank conveyed the Property to Barkin for $160,000.00, by a deed recorded with the registry in Book 5333, Page 308. The same day, Barkin granted a mortgage to Bank of America (Barkin Mortgage) that was recorded with the registry in Book 5333, Page 311. Am. Compl. ¶¶ 35-36; Exh. A, pp. 38-58; Ans. Def. MERS, ¶¶ 35-36; Ans. Def. U.S. Bank, ¶¶ 35-36.

11. Barkin conveyed the Property to Brown and Oxboel by a deed dated April 2, 2008, and recorded with the registry in Book 5481, Page 323. Am. Compl. ¶ 38, Exh. A, pp. 60-61; Ans. Def. Brown and Oxboel, ¶ 38; Ans. Def. U.S. Bank, ¶ 38.

12. On May 8, 2008, a Mortgage Release, Satisfaction, and Discharge of the Barkin Mortgage was recorded with the registry in Book 5499, Page 59. Am. Compl. ¶ 37, Exh. A, p. 59; Ans. Def. Brown and Oxboel, ¶ 37; Ans. Def. U.S. Bank, ¶ 37.

13. On August 5, 2014, CAG purchased the Second Mortgage from HomeComings. Am. Compl. ¶ 17, Exh. A, p. 62; Ans. Def. U.S. Bank, ¶ 17; Ans. Def. CAG, ¶ 17.

14. On June 29, 2015, Kenney and Frank recorded an affidavit pursuant to G.L. c. 183, § 5B, with the registry in Book 6876, Page 64. Opp., Exh. A, pp. 4-6.

15. On January 19, 2016, Attorney General Healey sent the Secretary of State her opinion of whether St. 2015, c. 141, "An Act Clearing Titles to Foreclosed Properties", may be subject to a referendum petition. Def. Mem. on Effective Date, Exh. A, pp. 10-12.

16. On January 19, 2017, a copy of the Amended Complaint in the instant action was recorded with the registry in Book 6980, Page 205. Pl. Mem. on Effective Date, p. 2, Exh. A, p. 1.

17. Kenney and Frank currently reside in Nevada City, California. Am. Compl. ¶¶ 1-2.

Discussion

On November 25, 2015, the Governor signed into law chapter 141 of the Acts of 2015 (Act). St. 2015, c. 141. The Act states that its effective date is December 31, 2015. Id. § 6. The Act amended G.L. c. 244, § 15 (Statute or § 15), to provide protections to bona fide subsequent purchasers of foreclosed properties. Id. § 2. As amended by the Act, § 15 provides that an affidavit of sale will provide clear title to an arm's length third party purchaser of foreclosed property, even if the underlying foreclosure contained certain defects, after the running of a certain period of time. G. L. c. 244, § 15(c), as amended by St. 2015, c. 141, § 2. To challenge the validity of a foreclosure sale, the challenger must commence an action in court and record a correct copy of the complaint or pleading asserting the challenge in the registry of deeds for the county in which the property lies within the time period; after that time, claims challenging the foreclosure are barred. Id. at §§ 15(c), (d)(i). The deadline set by the Act is three years following the recording of an affidavit of sale, or one year after the Act's stated effective date, by December 31, 2016, whichever is later. Id. at §§ 15 (c), (d)(i); St. 2015, c. 141, §§ 3, 6. [Note 2]

The question raised by the Motion for Judgment on the Pleadings is whether Kenney and Frank's Amended Complaint is barred by § 15, as amended by the Act. The Complaint and the Amended Complaint both challenge the validity of the January 9, 2007 foreclosure, the Foreclosure Deed, and the ultimate conveyance of the property to Brown and Oxboel. See generally Bevilacqua v. Rodriguez, 460 Mass. 762 (2011); U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 (2011). It is undisputed that the Affidavit of Sale with respect to the foreclosure was recorded on May 23, 2007, and that Brown and Oxboel are arm's length third-party purchasers of the Property. It is further undisputed that both the Complaint, filed on September 12, 2016, and the Amended Complaint, filed on December 8, 2016, were filed before the latter deadline under the Act—by December 31, 2016, one year after the effective date. Finally, it is undisputed that the Complaint was never recorded with the registry, and the Amended Complaint was not recorded with the registry until January 19, 2017.

On these undisputed facts, it would appear that the Amended Complaint is barred by § 15. Kenney and Frank claim that they satisfied the filing requirement of § 15 by recording an affidavit in the registry pursuant to G.L. 183, § 5B, on June 29, 2016, and that if the § 5B Affidavit does not strictly comply with the recording requirement, the defendants still had sufficient notice of the Complaint to satisfy the intent of the Act. Alternatively, they argue that their Amended Complaint recorded with the registry on January 19, 2017, meets the recording requirement. They allege that the effective date of the Act amending § 15 is February 23, 2016, 90 days after the Act became law, and not December 31, 2015, because the Act is subject to the referendum petition and the main design of the Act is not to expand the jurisdiction of the court. Therefore, Kenney and Frank allege, they satisfied the recording requirement by recording their Amended Complaint within one year of the Act's effective date, by February 23, 2017. Kenney and Frank also contend that the defendants waived any defense based on § 15 because they did not raise it as an affirmative defense in their Answers. These arguments are addressed in turn.

G.L. c. 183, § 5B Affidavit and Notice

On June 29, 2016, Kenney and Frank recorded with the registry an affidavit pursuant to G.L. c. 183, § 5B (5B Affidavit). The 5B Affidavit sets forth various deeds, mortgages, and assignments with respect to the Property. These facts disclose that the foreclosure sale took place before the Assignment of the First Mortgage to U.S. Bank. The 5B Affidavit states, "U.S. Bank was not the holder of record of the mortgage as of the date of the first publication; and was not the holder of record of the mortgage when their agent made entry; and was not the holder of record of the mortgage when the foreclosure deed was executed." Opp., Exh. A, p. 5. Kenney and Frank argue that the 5B Affidavit is sufficient to satisfy § 15's recording requirement because it can be considered a pleading. Alternatively, if the 5B Affidavit is not sufficient, they argue that the purpose of the recording requirement is to provide the defendants notice of the action, and here, all defendants had actual notice because they were actively participating in the action. They reason that because the defendants had ample notice of the Complaint and Amended Complaint before the deadline, no actual harm occurred from the recording delay, and their claims should not be dismissed. The court disagrees with both contentions.

While it may comply with G. L. c. 183, § 5B, the 5B Affidavit is not sufficient to meet the recording requirement of the amended § 15. Section 15 requires that a "copy of the complaint or pleading asserting a challenge" be recorded. G. L. c. 244, § 15(d)(i). The 5B Affidavit is not a complaint, nor can it be considered a pleading. Mass. R. Civ. P. 7, 8. While it sets forth the factual claims at issue, the 5B Affidavit does not contain claims for relief, defenses, or affirmative defenses. Mass. R. Civ. P. 8. It makes no reference to the present Land Court action and has no case name or docket number, no doubt because the Complaint had not yet been filed.

The 5B Affidavit does not satisfy the recording requirement of the Statute. It is insufficient to put this action on record.

Kenney and Frank's alternative contention regarding the purpose of the recording requirement in § 15(d)(i) also fails, as it is unsupported by the language of the statute. In interpreting a statute, the court first looks at its plain language. Commonwealth v. Raposo, 453 Mass. 739 , 743 (2009). If the intent of the Legislature is unambiguously conveyed by the statutory language, the court ends its analysis and gives effect to the legislative intent. Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594 , 601 (2010). A statute is to "be construed 'so that effect is given to all its provisions, so that no part will be inoperative or superfluous.'" Wolfe v. Gormally, 440 Mass. 699 , 704 (2004), quoting Bankers Life & Cas. Co. v. Commissioner of Ins., 427 Mass. 136 , 140 (1998); see Taylor v. Board of Appeals of Lexington, 68 Mass. App. Ct. 503 , 511 (2007) (court may not ignore statute's plain words). The court will not look "to extrinsic sources to vary the plain meaning of a clear, unambiguous statute" unless a literal construction would yield an unworkable result. Department of Community Affairs v. Massachusetts State College Bldg. Auth., 379 Mass. 418 , 427 (1979).

The Statute provides that a "challenge to the validity of a foreclosure sale [must be] commenced in a court of competent jurisdiction by a party entitled to notice of sale under § 14 or a challenge [must be] asserted as a defense or counterclaim in a legal action in a court of competent jurisdiction and a true and correct copy of the complaint or pleading asserting a challenge must be duly recorded in the registry of deeds for the county or district in which the subject real property lies before the deadline." G.L. c. 244, § 15(d)(i). The language of the Statute is conjunctive. It requires both the commencement of an action in court and the recording of the complaint or pleading with the registry before the deadline. The recording requirement is not surplusage. It is not simply a notice provision, but rather an additional requirement necessary to file a timely suit. Section 15's recording requirement serves to provide notice not only to the defendants but also to all persons potentially holding an interest in the Property. The recording system is intended to notify purchasers of existing claims through a public record in which prospective purchasers of interest in real property may ascertain the existence of prior claims that might affect their interests. Pinti v. Emigrant Mtge. Co., Inc., 472 Mass. 226 , 249 (2015); Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 507 (2005).

The plain language of § 15 is unambiguous. The action must be filed and the complaint or pleading must be recorded prior to the deadline. The court does not need to look at any extrinsic evidence to determine the legislative intent. Kenney and Frank failed to comply with the Act's recording requirement by failing to record their September 12, 2016, Complaint, and failing to timely record their Amended Complaint with the registry before the December 31, 2016 deadline. Their Amended Complaint is barred because they did not satisfy both requirements of § 15 before the deadline.

Effective Date

Having failed to satisfy the statutory requirements before December 31, 2016, Kenney and Frank next argue that the one-year statutory deadline under the Act was not December 31, 2016, but rather February 23, 2017. They submit that the Act was not excused from the general rule that statutes go into effect 90 days after signing. The Act was signed on November 25, 2015, and, according to Kenney and Frank, went into effect 90 days later on February 23, 2016. Using this effective date, they argue that the deadline for recording the complaint was February 23, 2017, one year later, and they met this deadline by recording the Amended Complaint on January 19, 2017.

Addressing this argument requires an analysis of the Massachusetts Constitution and the provisions of the Act. Under the Massachusetts Constitution, an act passed by the General Court goes into effect 90 days after it has been signed into law by the Governor. Mass. Const. art. 48, The Initiative, II, § 2. There are two exceptions to the 90 day rule: (1) emergency laws and (2) laws that are not subject to a referendum petition. Id. These exceptions should be "strictly construed." Opinion of the Justices, 254 Mass. 617 , 620 (1926).

Emergency laws are laws that contain an emergency preamble; a statute without an emergency preamble does not become effective for 90 days. Vittands v. Sudduth, 41 Mass. App. Ct. 515 , 518 (1996). The emergency preamble must set forth the facts constituting the emergency, and contain a statement of why the law is necessary for the immediate preservation of the public peace, health, safety or convenience. Mass. Const. art. 48, The Initiative, II, § 2. The Legislature must hold a separate recorded vote on the preamble, which must be adopted by two-thirds of the members of each House. Id. "[T]he Governor holds emergency power similar to the Legislature" and may file a statement of emergency and set forth facts constituting the emergency with the Secretary of State. Opinion of the Justices to Governor, 368 Mass. 889 , 894- 896 (1975). The Governor signed the Act into law on November 25, 2015. At the time of signing, the Act contained no emergency preamble passed by the Legislature or statement why the law is necessary for the preservation of peace, health, safety or convenience. Nor did the Governor declare the Act to be emergency legislation when signing it. The Act does not meet the requirements of the emergency law exception.

The question, then, is whether the Act is one that is excluded from a referendum petition. A referendum petition allows voters to repeal a law enacted by the Legislature. Mass. Const. art. 48, Definition, I. Laws that relate to the powers, creation, or abolition of the courts are among those excluded from a referendum petition. Id.; The Referendum II, § 2. Article 48 of the Massachusetts Constitution prohibits an initiative petition that "expressly confers or restricts a court's jurisdiction." Commonwealth v. Yee, 361 Mass. 533 , 538 (1972); see Mazzone v. Attorney General, 432 Mass. 515 , 519 (2000) (treating powers of courts exclusion under initiative portion of art. 48 similarly to referendum exclusion). A statute that is excluded from a referendum petition becomes effective in thirty days, unless another time is specified as part of the law. G.L. c. 4, § 1.

A referendum petition must be filed with the Secretary of State within thirty days of the statute having become law, upon which the Secretary of State then sends a request to the Attorney General to determine whether the subject law is excluded from the referendum. Mass. Const. Art. 48, The Referendum III, §§ 2, 3; G.L. c. 12, § 3. Here, a referendum petition was filed with the Secretary of State and sent to the Attorney General for review. The Attorney General reviewed the Act and opined in a January 19, 2016, letter that "the Act implemented two changes to existing law; (1) it changed the jurisdiction of the Housing Court; and (2) it set forth substantive rules for resolving competing claims of title following a foreclosure sale." Def. Mem. on Effective Date, Exh. A, pp. 10-12. The Attorney General specifically determined that § 1 of the Act broadened Housing Court Jurisdiction because it extended that jurisdiction to defenses and counterclaims regardless of their connection to the plaintiff's claim of title or possession. Id. While the court may consider and respect the view of the Attorney General on this issue, it need not defer to the Attorney General's conclusions, and may conduct its own review. Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209 , 227-229 (1981). As set forth below, this court agrees with the Attorney General's analysis that the Act is excluded from the referendum.

"The 'power of the courts' exclusion has been interpreted to implicate two types of legislative enactments." Commonwealth v. Nsubuga, 88 Mass. App. Ct. 788 , 791 (2015). The first type is a "statute which expressly confer[s] or restrict[s] a court's jurisdiction." Id., quoting Vittands, 41 Mass. App. Ct. at 518. "The second is a statute whose 'main purpose is directed at [the] powers [of the court].'" Id., quoting Vittands, 41 Mass. App. Ct. at 519. As to the first exception, Kenney and Frank allege that the Act did not confer or restrict jurisdiction on the Housing Court, but merely confirmed and codified the decisions in Bank of America v. Rosa, 466 Mass. 613 , 615 (2003), and Bank of New York v. Bailey, 460 Mass. 327 , 328 (2011). This argument is unavailing.

In Bailey and Rosa, the Supreme Judicial Court held that the Housing Court had jurisdiction over counterclaims and defenses challenging a plaintiff's title in a post-foreclosure summary process action. Rosa, 466 Mass. at 615; Bailey, 460 Mass. at 328. Specifically, the Housing Court was found to have jurisdiction of defenses and counterclaims attacking the plaintiff's claim of title to, or right to possession of, the subject property. Rosa, 466 Mass. at 625-626. Section 1 of the Act effectively expands the jurisdiction of the Housing Court beyond the holdings in Bailey and Rosa. It grants jurisdiction to hear "defenses or counterclaims by any party entitled to notice under G.L. c. 244, § 14, or by any party entitled to notice of sale and who continues to occupy the mortgaged premises." St. 2015, c. 141, § 1. This grant of jurisdiction does not limit the Housing Court to hearing claims or defenses that only relate to title. Indeed, § 1 of the Act does not limit the types of defenses or counterclaims the Housing Court can hear at all. Rather, it sets forth the category of parties who can bring their unlimited claims or defenses as "any party entitled to notice under G. L. c. 244, § 14," or "to notice of sale." Id.

This expansion of jurisdiction renders the entire Act immune from the referendum, including § 2. Section 2 amended G. L. c. 244, § 15, to change the substantive law that courts will apply in proceedings by setting a definitive deadline of three years after the recording of the affidavit of sale, by which one must challenge the foreclosure. St. 2015, c. 141, § 2. Although § 2 does not involve the powers of the court, "referendum provisions of the Constitution do not permit a law to be dismembered and subjected to referendum in parts." Powell v. Cole-Hersee Co., 26 Mass. App. Ct. 532 , 535 (1988). The Act must be viewed as a whole to determine if it is excluded from the referendum petition process. Id. Looking at the Act in its entirety, because § 1 broadens the scope of Housing Court jurisdiction, the Act cannot be subject to a referendum petition. Since the Act is not subject to a referendum petition based on the "power of the courts" exclusion, the Act is not subject to the 90-day effective date provision, and the effective date of the Act remains December 31, 2015.

Kenney and Frank argue that because the Act's main purpose is that provided in § 2, to provide a mechanism to clear title to real property affected by Ibanez foreclosures, § 1, the part of the law relating to the powers of courts, is merely "incidental and subsidiary" to the Act as a whole. Yee, 361 Mass. at 537. They contend that because the provision invoking the "power of the courts" exclusion is only incidental to the Act's main purpose, the Act is subject to a referendum petition, making the effective date February 23, 2016. Vittands, 41 Mass. App. Ct. at 519. The Attorney General in her letter defines incidental as "subordinate to something of greater importance" or "having a minor role." Subsidiary is defined in her letter as "serving to assist or supplement" or "auxiliary." Def. Mem. on Effective Date, Exh. A, pp. 10-12. The Attorney General concludes that § 1 of the Act, extending the Housing Court's jurisdiction, operates independently of the other sections and, therefore, does not "assist" or "supplement" them. This court agrees.

The Act has two independent objectives. Section 1 of the Act expands the Housing Court's jurisdiction. The purpose of § 1 is more comprehensive than simply allowing for the implementation of the Act's substantive provisions set forth in § 2, which changes the substantive rules for resolving competing claims of title. The main design of the Act is not solely to resolve competing claims of title, but also to expand the jurisdiction of the court. Because § 1's expansion of the Housing Court's jurisdiction serves a broader purpose, it is not incidental and subsidiary to the main purpose of the Act. The Act is therefore excluded from the referendum process because it expands the jurisdiction of the Housing Court, and the effective date of the Act is December 31, 2015, with a deadline date of December 31, 2016. St. 2015, c. 141, §§ 3, 6.

Waiver

Kenney and Frank finally assert that the defendants are barred from raising § 15 as a defense because they did not raise it as an affirmative defense in their answers to the Complaint and Amended Complaint. The defendants argue that they did not have to raise § 15 as an affirmative defense because it is a statute of repose and a statute of repose is not waived if not raised as a defense. Rule 8(c) of the Massachusetts Rules of Civil Procedure sets forth the affirmative defenses that are waived if they are not raised in an answer or responsive pleading. Mass. R. Civ. P. 8(c). A statute of repose is not enumerated in Rule 8 as a "matter constituting an avoidance or affirmative defense." Riley v. Benson, No. 10-P-1906, 2011 WL 5515305 at *1, n. 5 (Mass. App. Ct. November 14, 2011) (finding G.L. c. 260, § 4, a statute of repose and rejecting argument that defendant waived the statute by not asserting it in the answer to the complaint). Federal courts and courts in other jurisdictions have explicitly found that statutes of repose are not affirmative defenses and, therefore, need not be pleaded in a defendant's answer. See Roskam Baking Co., Inc., v. Lanham Mach. Co., Inc., 288 F.3d 895, 902-904 (6th Cir. 2002); American Federation of Teachers, AFL-CIO v. Bullock, 605 F. Supp. 2d 251, 260-261 (D.D.C. 2009); Cheswold Volunteer Fire Co. v. Lamberston Constr. Co., 489 A2d 413, 421 (Del. 1985). Because a statute of repose extinguishes a claim before it accrues, it is not a statute of limitations or other affirmative defense or avoidance, and cannot be waived. Lewis v. Russell, 838 F. Supp. 2d 1063, 1069 (E.D. Cal 2012) (Minnesota law addressing capacity of a defunct corporation to sue or be sued is a substantive statute of repose and not a waivable affirmative defense); see also Donell v. Keppers, 835 F. Supp 2d 871, 877 (S.D. CA 2011) (unlike a traditional statute of limitations, a statute of repose cannot be waived); accord Warfield v. Alaniz, 453 F. Supp. 2d 1118, 1130 (D. Ariz. 2006); Klein v. Capital One Fin. Corp., No. 4:10-CV-00629-EJL, 2011 WL 3270438 at *7-8 (D. Idaho July 29, 2011).

The question is whether § 15 constitutes a statute of repose. "A statute of limitations governs the time within which legal proceedings must be commenced after the cause of action accrues. A statute of repose, however, limits the time within which an action may be brought and is not related to the accrual of any cause of action." Klein v. Catalano, 386 Mass. 701 , 702 (1982). "The purpose of a statute of repose is to give particular types of defendants the benefit of a date certain on which their liability for past conduct will definitively come to an end." Nett v. Bellucci, 437 Mass. 630 , 639 (2002). To satisfy the absolute time limit of a statute of repose, an action must be commenced prior to the expiration of the time limit. McGuinness v. Cotter, 412 Mass. 617 , 622 (1992).

By placing a time limit on a challenge to contest the validity of a foreclosure, after which such claims are barred and cannot be brought, § 15 is not a statute of limitations, but a statute of repose. As a statute of repose, § 15 precludes challenges to the validity of an arm's length purchaser's title arising out of a foreclosure sale that appears in the chain of title if a challenge is not timely asserted. If a challenge to a foreclosure is not asserted and recorded within three years from the recording date of the foreclosure affidavit or, where the affidavit was recorded before the effective date of the statute, a challenge is not asserted and recorded by December 31, 2016, the statute completely eliminates a cause of action. G. L. c. 244, §§ 15(c), (d)(i); St. 2015, c. 141, §§ 3, 6. This statute places an outer limit on the right to bring an action that is measured from the date of recording the affidavit of sale, not from the date that a claim accrues.

Even assuming that a statute of repose is an affirmative defense that must be pled in the answer, that defense has not been waived. The defense did not become available to the defendants until January 1, 2017, after the one year deadline of the effective date, December 31, 2016, had passed. When Kenney and Frank filed their Amended Complaint on December 8, 2016, it superseded the original complaint and became the operative pleading in the case. The defendants were then required to plead or move in response to the Amended Complaint. Once the statute of repose defense became available to the defendants, they properly raised it in their Answers to Kenney and Frank's Amended Complaint. See Riley, 2011 WL 5515305 at *1 (rejecting Plaintiff's argument that Defendant waived statute of repose by not asserting it in his answer because it was properly raised in response to amended complaint).

Try Title Claim

Count I of the Amended Complaint, the try title claim, must be dismissed for an entirely separate reason: Kenney and Frank lack standing to bring the claim and the court lacks subject matter jurisdiction to hear it. A try title claim, brought under G. L. c. 240, §§ 1-5, has a standing and jurisdictional element that requires that the plaintiff be a person in possession of the subject property. G. L. c. 240, § 1; Abate v. Fremont Inv. & Loan, 470 Mass. 821 , 827-828 (2015). Kenney and Frank do not live at the Property; they live in California. It is undisputed that neither of them is a "person in possession" of the Property. G. L. c. 240, § 1. Count I must be dismissed. Abate, 470 Mass. at 828-829.

Second Amended Complaint

Leave to amend a complaint shall be freely given when justice so requires. Mass. R. Civ. P. 15(a). A motion to amend may be denied if the amendment would be futile. See Castellucci v. United States Fidelity & Guaranty Co., 372 Mass. 288 , 290 (1977). As discussed, a statute of repose limits the time within which an action may be brought. James Ferrera & Sons, Inc. v. Samuels, 21 Mass. App. Ct. 170 , 173 (1985). Statutes of repose are not subject to the doctrine of relation back. Casco v. Warley Elec. Co., 37 Mass. App. Ct. 701 , 703 (1994). Because the court has determined that § 15 is a statute of repose, it completely eliminates the plaintiffs' causes of action. Id. The bar is absolute and there is no relation back, because any application of the relation back doctrine would have the effect of reactivating a cause of action that was intended to be eliminated. Kenney and Frank's Amended Complaint would therefore be futile. The Motion to Amend is denied.

Conclusion

For the foregoing reasons, the Motion for Judgment on the Pleadings is hereby ALLOWED, and the Lane M. Frank's Motion to Amend Complaint is DENIED. Judgment shall enter dismissing the Amended Complaint WITH PREJUDICE.

SO ORDERED