Home ROBERT R. GAMBEE vs. WELLS FARGO BANK, N.A. and HSBC BANK, USA, N.A., as Trustee for MLMI 2006-AF2.

MISC 16-000763

June 6, 2017



Plaintiff Robert R. Gambee ("Gambee") commenced this action by filing an unverified Complaint (the "Complaint") on December 29, 2016, seeking declaratory relief, pursuant to G.L. c. 185, §1(k), with respect to a January 21, 2010 foreclosure sale (the "Foreclosure Sale") of property formerly owned by Gambee, located at 7 Wingspread Lane in Nantucket ("Locus"). Specifically, Gambee sought the following judicial declarations:

1. That in relation to the [Foreclosure Sale] of [Locus], [Defendant HSBC Bank USA, N.A., as Trustee for MLMI 2006-AF2 ("HSBC")] improperly gave notice of the sale.

2. That the Notice of Sale utilized by [HSBC] in relation to the [Foreclosure Sale] of [Locus] was invalid.

3. That in relation to the [Foreclosure Sale] of [Locus], [HSBC] utilized an invalid affidavit regarding the sale and compliance with MGL Chapter 244.

4. That in relation to the [Foreclosure Sale] of [Locus], [HSBC] conducted an invalid foreclosure sale.

5. That the current owners of [Locus] do not hold valid title to the property. [Note 1]

Gambee also sought various other forms of related relief with respect to the Foreclosure Sale. [Note 2]

On January 31, 2017, Defendants Wells Fargo Bank, N.A. ("Wells Fargo") and HSBC (together, the "Banks") filed, in lieu of a responsive pleading, a motion seeking the dismissal of this action pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a claim. The basis of this motion was the Banks' claim that Gambee's causes of action asserted herein were barred as res judicata. [Note 3] The Banks' motion was supported by a memorandum of law and five documentary exhibits. On March 3, 2017, Gambee filed his opposition to the Banks' motion to dismiss, which consisted of a legal memorandum and two exhibits. The Banks filed a reply brief (with one additional exhibit) on March 10, 2017. A motion hearing was held on March 23, 2017, and this court took the Banks' motion to dismiss under advisement at that time.

Of even date hereof, the court has issued the Decision (the "Decision"). NOW, THEREFORE, for the reasons stated in the Decision, it is hereby:

ORDERED and ADJUDGED that Gambee's claims in his Complaint are BARRED by the doctrine of res judicata, and;

ORDERED and ADJUDGED that the Banks' motion to dismiss Gambee's Complaint is ALLOWED, and;

ORDERED and ADJUDGED that Gambee's Complaint is DISMISSED in its entirety, WITH PREJUDICE.



[Note 1] The record does not disclose who the current owners of Locus are, nor were they named as parties.

[Note 2] Gambee's pro se Complaint lists four separate counts, but they all request the same five judicial declarations (noted above) pursuant to G.L. c. 185, §1(k), as well as an award of damages and costs. The fourth count also requests a general declaration that "the [Foreclosure Sale] and affidavit [of sale] are [ ] void", an order directing that Locus be "returned intact", and an order directing that Locus "be placed into the Spread Wings Foundation". The legal basis for these additional claims was not stated.

[Note 3] "[T]he defense of former adjudication can be presented in a rule 12(b)(6) context where all the materials necessary for the decision are official records available to the judge ruling on the motion and not subject to dispute, and can be read together with the complaint." Boyd v. Jamaica Plain Co-op. Bank, 7 Mass. App. Ct. 153 , 156-57, n.7 (1979).