THE BANK OF NEW YORK MELLON, Formerly Known As The Bank of New York, Trustee for the Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004-11 v. LORI G. CAIRNS.

In this case, the court must decide whether an action, brought in this court following an effort to foreclose a mortgage (and subsequent to summary process and related proceedings in the Housing Court), seeking from this court a writ of entry under G.L. c. 237, is an available remedy in the Land Court given the holdings in both Attorney General v. Dime Savings Bank of New York, FSB, 413 Mass. 284 (1992) and Federal National Mortgage Ass'n v. Gordon, 91 Mass. App. Ct. 527 (2017). Plaintiff, The Bank of New York Mellon f/k/a The Bank of New York as Trustee for the Certificate Holders of the CWABS, Inc. Asset-Backed Certificates, Series 2004-11 ("Plaintiff") seeks a writ of entry under G.L. c. 237 to recover residential property ("Property") known as 16 Chalmers Road, Worcester, Massachusetts.

On August 26, 2004, Mason Astley and Christine B. Astley ("Astleys") granted a mortgage ("Astley Mortgage"), recorded with the Worcester County Registry of Deeds ("Registry") on August 30, 2004 at Book 34483, Page 342, to Mortgage Electronic Registration Systems, Inc. ("MERS"), acting as nominee for Full Spectrum Lending, Inc. ("Full Spectrum"). The Astley Mortgage was given by the Astleys to secure a loan in the original principal amount of $274,564.08. The Astley Mortgage encumbers the Property as described in a deed dated December 1, 1975, and recorded in the Registry at Book 5847, Page 329. On August 26, 2004, the Astleys also executed a promissory note in favor of Full Spectrum ("Astley Note").

In June of 2008, the Astleys defaulted on their mortgage loan by failing to make the June 1, 2008 payment. On July 3, 2008, Countrywide Home Loans, then the servicer of the Astley Mortgage, mailed a notice of default and right to cure letter to the Astleys. On October 4, 2011, MERS assigned the Astley Mortgage to the Plaintiff. On November 8, 2011 the assignment was recorded in the Registry at Book 48090, Page 1.

On June 8, 2015, Plaintiff made entry on the Property for purposes of foreclosure and conducted a foreclosure sale under the power of sale. Plaintiff was the highest bidder at the sale and is now the purported title holder. On September 14, 2015, Plaintiff executed a foreclosure deed for the Property, which was recorded at the Registry at Book 54566, Page 271 on November 13, 2015. [Note 1] Plaintiff also recorded the certificate of entry on November 13, 2015 at the Registry in

Book 54566, Page 270.

Using a form dated September 28, 2015, Lori G. Cairns ("Defendant") entered into a residential lease with the Astleys, where the "rent" she was to pay was utilities payments and maintenance of the Property.

After the mortgage foreclosure papers went to record, Plaintiff on January 27, 2016 filed with the Worcester Division of the Housing Court Department a summary process action to recover possession of the Property, and service was made on the Astleys. A notice to vacate was served at the last and usual place of residence, the Property, and on all current occupants. The form of the notice to vacate also was transmitted to Worcester Housing Court with the summary process complaint and is in the file in that action, see The Bank of New York Mellon f/k/a the Bank of New York as Trustee for the Certificateholders of CWABS, Inc., Asset-Backed Certificates, Series 2004-11 v. R. Mason Astley. et als., 16H85SP000340. The Astleys had counsel represent them at various points in the proceedings in the Housing Court. The Astleys filed an answer with discovery requests on February 2, 2016 and asserted that they lived both at the Property and in Vero Beach, Florida. Trial initially was set for February 11, 2016. The Plaintiff and the Astleys agreed to continuances of that and successive dates on February 11, 2016, February 25, 2016, and March 10, 2016, but the Astleys never actually appeared on the dates for which the continuances were agreed. After the Housing Court denied the motion for another continuance on March 11, 2016, the Astleys were defaulted for failure to appear on that same day. [Note 2] The Housing Court denied a motion filed by Christine Astley on March 23, 2016 seeking to lift the default, and the same action was taken on subsequent requests by the Astleys.

On May 4, 2016, the court entered judgment for the Plaintiff against the Astleys, awarding possession and damages, and directed that the judgment be entered nunc pro tunc back to April 8, 2016. Plaintiff applied for execution and it issued May 17, 2016. Motions filed on behalf of the Astleys seeking to vacate the judgment were heard and denied by the Housing Court. Although a notice of appeal was filed on July 5, 2016, the court directed that the claimed appeal was untimely, and that the Astleys could not file further motions without judicial approval. Additional motions were filed on behalf of the Astleys over that summer, including motions directed to their efforts to proceed with appellate review. On August 2, 2016, Plaintiff requested a new execution be issued, a request the court denied on August 3, 2016 after hearing. The docket in the Housing Court reflects a return of execution on August 10, 2016, and an application the following day for a new execution.

At all times relevant until April 6, 2016, the Astleys represented to the Worcester Housing Court and the Plaintiff that they resided at the Property, but were in Florida for health reasons. At some point (the time is not clear), Cairns submitted a copy of a "MASSACHUSETTS LIMITED POWER OF ATTORNEY FORM," dated April 6, 2016, purporting to be the Power of Attorney under which Cairns was acting in her dealings with the Property and the Housing Court proceedings ("Power of Attorney form"). On the Power of Attorney form, Cairns indicated that the Astleys resided at "1110 8th Place, City of Vero, Florida" and that Cairns resided at "16 Chalmers Rd., City of Worcester, State of Massachusetts."

Before this time, the Astleys never had disclosed that any other person was living at the Property. When on August 3, 2016, the Worcester Housing Court heard argument on the Plaintiff's request for new execution to issue, Cairns disclosed that she was the only person residing at the Property. According to Cairns, the Astleys placed her in possession of the Property in September, 2015—after the Astleys' default in June 2008, after the foreclosure sale, and after the execution of the foreclosure deed, but before the recording of the foreclosure deed and related papers in November, 2015 and before the summary process action began on January 27, 2016.

On August 4, 2016, Plaintiff brought an action against Cairns in the Worcester Housing Court to recover possession of the Property. Bank of New York Mellon v. Cairns, 16H85-CV- 00735. In that case, Cairns acknowledged her occupancy at the Property and provided her lease agreement with the Astleys. [Note 3] The Worcester Housing Court, after holding a hearing, entered judgment and granted an injunction on August 16, 2016, which Defendant Cairns brought before a single justice of the Appeals Court for relief. On September 21, 2016, the single justice stayed the execution, but left the injunction in place. On April 24, 2017, the Worcester Housing Court allowed Plaintiff's motion, filed April 7, 2017, to vacate the judgment against the Defendant, as well as Plaintiff's notice of voluntary dismissal of the action there; this was after Plaintiff had filed its action in this court.

Plaintiff filed its complaint in this court on January 25, 2017, seeking a writ of entry under G.L. c. 237 to recover the Property. The summons was returned to the court on February 6, 2017 showing service on the sole Defendant, Lori G. Cairns. On March 13, 2017, Plaintiff filed a request for default pursuant to Mass. R. Civ. P. 55(a), and, on March 15, 2017, Plaintiff followed with a request for default judgment under Mass. R. Civ. P 55(b)(1). An initial Case Management Conference was held on March 27, 2017. Defendant appeared at the hearing, and the court allowed her to avoid default at the time. Defendant's motion for postponement of the conference to seek counsel was denied (Piper, J.) and Defendant indicated her intent to obtain counsel promptly.

On June 15, 2017, counsel for Defendant did appear, and the Defendant filed a motion to answer late and a proposed answer. Plaintiff on July 10, 2017 filed an opposition to Defendant's motion to file answer late. The court (Piper, J.) held a hearing on July 12, 2017 on the motion to file late answer and allowed the motion. [Note 4] The court did not schedule a hearing on Plaintiff's motion for summary judgment, filed June 30, 2017, because Defendant's counsel recently had appeared in the case. At the hearing, the court also directed the parties to meet and submit to the court a joint, written schedule for discovery, to close on September 29, 2017. [Note 5]

On November 20, 2017, a stipulation to extend the dispositive motion deadline was filed and the court (Piper, J.) allowed the request on December 1, 2017. The Plaintiff and Defendant both filed summary judgment motions on December 4, 2017. Both Plaintiff and Defendant proceeded to file oppositions to the other's motion for summary judgment, as well as reply briefs to the oppositions they received. On February 20, 2018, Plaintiff filed a notice of intent to proceed in light of the Defendant's cross-motion for summary judgment. On February 27, 2018, the Defendant filed an affidavit of Jean Mitchell ("Mitchell affidavit"), purportedly a handwriting expert, regarding the Astley Note Plaintiff produced during discovery. Plaintiff filed a motion to strike the Mitchell affidavit, and, in the alternative, a motion for leave to present rebutting affidavits.

The court (Piper, J.) held a hearing on February 27, 2018 on the cross-motions for summary judgment and the motion to strike the Mitchell affidavit. After argument, the court deferred ruling on the motions for summary judgment and invited the parties to submit supplemental memoranda to address issues which arose during the hearing but were not adequately addressed in the parties previous filings: (1) whether in this action, brought post-foreclosure and subsequent to summary process and related proceedings in the Housing Court an action, such as this one, for writ of entry under G.L. c. 237, is an available remedy in the Land Court; (2) whether the holding of Attorney General v. Dime Savings Bank of New York, FSB, 413 Mass. 284 (1992) and Federal National Mortgage Ass'n v. Gordon, 91 Mass. App. Ct. 527 (2017) precludes or limits the court from hearing or granting the requested relief in this case; (3) whether the line of cases detailing certain exceptions to the holding in Treglia v. MacDonald, 430 Mass. 237 (1999) (that a default judgment does not have preclusive effect in subsequent litigation between the same parties or those with whom they are in privity) apply to the earlier Housing Court summary process default judgment. The court (Piper, J.) did not rule on the motion to strike, but instead allowed Plaintiff, when filing its supplemental memorandum, to include an affidavit to respond to the Mitchell affidavit. [Note 6]

On April 2, 2018, Plaintiff filed an emergency motion to enlarge time to file opposing affidavit and the court (Piper, J.) granted the motion. On the same day, the Plaintiff also filed its supplemental brief in response to the questions from the court, with a supplemental appendix. On April 5, 2018, Plaintiff filed a rebuttal affidavit of attorney Michael R. Maloney, who was asked to review the promissory note at issue and give his opinion as to whether it was the original note or not. Defendant filed a reply to Plaintiff's supplemental brief, with a supplemental appendix, on May 8, 2018.

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Summary judgment is appropriate under Mass R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002), when there are no genuine issues of material fact and the party bringing the motion is entitled to judgment as a matter of law. LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316 , 325-326 (2012). Each party moving for summary judgment must show that there are no genuine issues of material fact in dispute, and that the moving party is as a legal matter entitled to have judgment enter in its favor. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 644 (2002).

The pivotal issue in this case requires the court to determine the proper cause or causes of action which must or may be brought to recover possession from a holdover tenant occupying premises following a mortgage foreclosure, in a case in which there has been brought already a summary process action in the Housing Court Department of the Trial Court. It is helpful to review the competing possible causes of action concerning recovery of possession of property, and their statutory underpinnings.

A writ of entry action, brought pursuant to G.L. c. 237, is an action to recover estates of freehold in fee simple, fee tail or for life. Writ of entry actions involve not just proving superior possession, but superior title. Buttrick v. Tilton, 141 Mass. 93 , 96 (1886). To do so, the plaintiff must show that he or she is entitled to the land and has a right of entry onto that land. Olson v. Carpenter, 296 Mass. 120 , 124 (1936). The plaintiff need not prove actual entry, but the plaintiff can only maintain the action if he or she possessed a right of entry at the time the action began. G.L. c. 237, § 4; see e.g., Austin v. Cambridgeport Parish, 38 Mass. 215 , 224 (1838) (finding that even though plaintiff did not prove actual entry, plaintiff was still able to maintain writ of entry action because plaintiff established legal title to the premises in her writ). The plaintiff must allege disseisin by the defendant, and prove that he is entitled to the property and that he or she had a right of entry on the day when the action was commenced. G.L. c. 237, § 4. If the plaintiff is successful, he or she will prevail in the writ of entry action, unless the defendant is able to prove a superior title. Olson, 296 Mass. at 124. If the plaintiff does prevail, he or she receives an execution for possession, which then is recorded in the registry of deeds for the county or district where the property lies, followed by the return on the execution to the Recorder's office. G.L. c. 237, § 42.

Massachusetts General Laws Chapter 184, §18 forbids forcible entry and sets out the proper method for a person attempting to recover possession of land or tenements. The statute states that the only appropriate procedures for recovering possession are summary process actions, brought pursuant to G.L. c. 239, and "such other proceedings authorized by law." G.L. c. 184, § 18. The statute does not elaborate on the type of actions that fall into the category of "such other proceedings authorized by law."

A summary process action, brought pursuant to G.L. c. 239, is an action to recover possession of real estate. Summary process actions usually are brought to recover possession in the context of a landlord-tenant relationship, but under the statute there are other scenarios where summary process is appropriate; the purchaser of premises following a mortgage foreclosure under the power of sale also is entitled to bring an action for summary process. G.L. c. 239, § 1.

Summary process actions are intended to operate on an accelerated track, because the legislature realized the importance of expediting questions of possessory rights. See generally Commentary to Rule 1 of the Uniform Summary Process Rules (2018) (dating to 1980); Qureshi v. Fiske Capital Mgt., Inc., 59 Mass. App. Ct. 463 , 469 (2003). The plaintiff in a summary process action is not required to prove superior title to the property, but only that he or she has a superior right to possess the premises. King v. Dickerman, 77 Mass. 480 , 480-481 (1858); see also Bank of New York v. Bailey, 460 Mass. 327 , 333 (2011) (explaining that demandants in summary process cases must establish right of possession). Before eviction can occur, the defendants must have an opportunity to appear in court, where they are able to assert defenses and counterclaims. Kargman v. Dustin, 5 Mass. App. Ct. 101 , 105 (1977). If the plaintiff prevails in a summary process case, he or she obtains an execution for possession. G.L. c. 239, § 3. The Supreme Judicial Court in Bank of New York v. Bailey, 460 Mass. at 328, held that the Housing Court could hear title challenges as a defense in summary process actions.

Massachusetts General Laws chapter 185, § 1 lists most, but not all, of the actions over which the Land Court has jurisdiction. Because the Land Court is a court of limited jurisdiction, it only may hear cases over which it either has exclusive or concurrent jurisdiction. Those include within the Land Court's exclusive original jurisdiction writ of entry actions: "Actions to recover freehold estates under chapter two hundred and thirty-seven." G.L. c. 185, § 1(c). The Land Court, however, does not possess jurisdiction over summary process actions. Those cases only may be heard in the Superior Court, District Court, Boston Municipal Court, and Housing Court Departments of the Trial Court. Rule 1 of the Uniform Summary Process Rules (2018).

The issue for the court to decide is whether Plaintiff properly may bring a writ of entry action pursuant to G.L. c. 237 in this court, post-foreclosure and subsequent to summary process proceedings in the Housing Court. Plaintiff argues that writ of entry actions are included among the "such other proceedings authorized by law" referenced in G.L. c. 184, § 18, which reads "[n]o person shall attempt to recover possession of land or tenements in any manner other than through an action brought pursuant to chapter two hundred and thirty-nine or such other proceedings authorized by law." Defendant urges the court the court to conclude that a writ of entry does not lie on the facts of this case, that summary process is the route Plaintiff must follow, and so to dismiss this case for lack of subject matter jurisdiction, relying on the holdings of both Attorney General v. Dime Savings Bank of New York, FSB, 413 Mass. 284 (1992) and Federal National Mortgage Ass'n v. Gordon, 91 Mass. App. Ct. 527 (2017).

In Attorney General v. Dime Savings Bank of New York, FSB, 413 Mass. 284 (1992), the Attorney General of Massachusetts brought an action for declaratory and injunctive relief against The Dime Savings Bank of New York, FSB ("Dime Savings"). Dime Savings had brought trespass actions against foreclosed mortgagors and tenants in an attempt to eject them from the mortgaged properties. Dime Savings, 413 Mass. at 284. Dime Savings was the mortgagee for each of the premises and after default, Dime Savings recorded memoranda of entry, conducted foreclosure sales, and purchased the properties at the foreclosure sales, thereby gaining title free of the mortgagors' rights of redemption. Id. at 286. In every case, either the mortgagor or a tenant of the mortgagor was in actual possession and occupied the premises prior to and at the time of foreclosure. Id. Post-foreclosure, Dime Savings sent notices to the occupants of the premises to demand possession. Id. When the occupants refused to vacate the premises, Dime Savings brought actions for trespass in the Superior Court Department against the occupants. Id. The Attorney General sought a declaration from the court that Dime Savings' method of ejectment violated G.L. c. 184, § 18, as what Dime Savings had commenced was not a summary process action under G.L. c. 239 nor "such other proceedings authorized by law." Id. at 284-285. The Attorney General additionally requested that the court enjoin Dime Savings from engaging in such actions in the future. Id.

Holding that trespass actions did not fall into the category of other proceedings authorized by law and therefore were not an appropriate method to obtain possession of the foreclosed premises from a holdover tenant or a mortgagor, the SJC ruled that Dime Savings' practice violated G.L. c. 184, § 18. Id. at 287-288 ("[A] mortgagee who forecloses on real property by sale may not bring a trespass action against a holdover tenant or mortgagor in actual possession of the foreclosed premises"). The Dime Savings court opined that summary process was the appropriate action for immediate possession of foreclosed property. Id. at 290-291 ("Dime [Savings] . . . asks the courts to 'fashion a remedy' to fit [Dime Saving's] right to immediate possession of the properties on which it has foreclosed. There is no need. The Legislature already has fashioned a remedy; it is the summary process statute.").

The Appeals Court significantly extended the holding of Dime Savings in Federal National Mortgage Ass'n v. Gordon, 91 Mass. App. Ct. 527 (2017). In Gordon, Wells Fargo Bank, N.A. ("Wells Fargo") was the original mortgagee, and after the mortgagors defaulted, Wells Fargo conducted a foreclosure auction. 91 Mass. App. Ct. at 528. Wells Fargo submitted the highest bid at the auction, and then proceeded to execute an assignment of the bid to the Federal National Mortgage Association ("FNMA"). Wells Fargo delivered as well to FNMA a foreclosure deed of the property, which then was recorded. Id. Not long after, FNMA brought a summary process action against the mortgagors in the Boston Housing Court to obtain possession of the foreclosed property. Id. at 528-529. About two years later, one of the foreclosed mortgagors entered into a lease agreement with two tenants for a three year period. Id. at 529. This situation was distinct from that in Dime Savings because the tenants in Gordon did not enter into a lease agreement with the mortgagor until after both the date of foreclosure and the date on which FMNA began a summary process action against the mortgagors. Dime Savings, 413 Mass. at 286; Gordon, 91 Mass. App. Ct. at 528-529. FNMA eventually learned of the lease relationship and that the tenants had moved into the property. Gordon, 91 Mass. App. Ct. at 530. FMNA proceeded to file a complaint against the tenants which included both a trespass action and a request for injunctive relief. Id. This action was separate from the summary process case that still was pending in the Boston Housing Court. Id.

In Gordon, the Appeals Court ruled that the holding of Dime Savings applied. Id. at 534. The court reasoned that it was illogical to expect that lessees would check the status of their landlord's title before entering into a lease relationship, and therefore the tenants here should be treated like the holdover tenants in Dime Savings. Id. at 534-535 ("To treat a purported tenant such as Gordon differently from the bona fide tenants in Dime Savings could only be justified by applying some expectation that residential renters will take steps to determine the validity of their landlord's title prior to entering a lease. We know of no basis for any such expectation.") The Appeals Court also noted that at the time the landlord-tenant relationship began, the mortgagor in this case was defending actively against FNMA's summary process action and lawfully occupying the premises. Id. at 535.

Here, the Plaintiff would have this court read narrowly the holdings of both Dime Savings and Gordon, to have them stand for the proposition that the SJC in Dime Savings only barred trespass actions against post-foreclosure mortgagors. Plaintiff contends that those decisions read together mean that trespass actions are improper only against holdover tenants, and nothing more. Plaintiff provides no case law that would require or in any principled way support such a strict reading of these two cases. (It is noteworthy that the court in Gordon expanded upon, rather than read narrowly, Dime Savings.)

The court sees no compelling reason to understand the holdings of Dime Savings and Gordon to be as narrow as Plaintiff urges. For the writ of entry cause of action to lie in this case, Plaintiff would need to show that the writ of entry action is different in some material way from the trespass actions barred in Dime Savings and Gordon. Plaintiff is unable, however, to direct the court to any case law that distinguishes a writ of entry from a trespass action in a meaningful way when the two causes of action are compared, based on the proof required or the remedies to be secured.

Plaintiff also argues that because title purportedly is at issue in this case, a writ of entry is the proper action. Plaintiff cites to several writ of entry cases where title was at issue, but again, none make a meaningful distinction between a writ of entry and a trespass. See, e.g., Woodside v. Ridgeway, 126 Mass. 292 (1879) (holding that a mortgagee or purchaser that has never had possession of the premises may not maintain a summary process action); Boyle v. Boyle, 121 Mass. 85 (1876) (holding that summary process may only be used when plaintiff has had actual possession, as opposed to a right of possession).

In fact, Bailey, which Plaintiff cites in a footnote, directly addresses Plaintiff's concern about trying title in a summary process case. Bank of New York v. Bailey, 460 Mass. 327 (2011). In Bank of New York v. Bailey, the plaintiff Bank of New York ("BNY") gained title to the defendant's home through a mortgage foreclosure sale. Id. at 328. BNY filed a summary process action against the defendant to recover possession after the defendant refused to vacate the property subsequent to receiving a notice of BNY's intention to terminate the defendant's occupancy. Id. at 329. The defendant wished to raise a title challenge in the summary process action, arguing that BNY's title was defective because there was not adequate notice of the mortgage foreclosure sale. Id. at 328. The judge in the Housing Court held that the Housing Court did not have jurisdiction over title challenges, and the defendant appealed. Id. The SJC held that the Housing Court did have jurisdiction over title challenges brought as defenses during summary process eviction actions post-foreclosure. Id. at 333. The SJC stated that requiring title challenges to be tried in a separate court would run counter to the goal of resolving summary process cases in an expedited fashion. Id. at 334 ("Our conclusion that the Housing Court may consider the defense promotes the legislative goal of "just, speedy, and inexpensive" resolution of summary process cases . . . [avoiding] the type of unnecessary delay and inefficiency that the Legislature intended to eliminate when it reorganized the trial courts in the Commonwealth").

Bailey is instructive here. Plaintiff argues that because it foresaw title challenges occurring in the litigation to eject the Defendant from the foreclosed property, a writ of entry was and is the proper cause of action. Yet in Bailey, BNY, the plaintiff seeking to recover possession, also obtained title through a foreclosure sale. Id. at 328. The defendant in Bailey was the party seeking to raise title as an issue during the litigation, whereas Plaintiff is the one doing so in our case, but such a distinction is immaterial. What is not immaterial though, is that the court was clear when it held that the Housing Court had subject matter jurisdiction over title challenges, particularly within the post-foreclosure summary process context. Id. at 333.

Plaintiff also is unable to cite to any case law post-Dime Savings and Gordon which holds that a case for writ of entry is an appropriate action to use to obtain possession post- foreclosure. Plaintiff is unsuccessful in distinguishing Deutsche Bank National Trust Co. v. Gabriel, 81 Mass. App. Ct. 564 (2012), a case Defendant relies upon in her supplemental briefing. In Gabriel, the Appeals Court stated that summary process was the appropriate and required action to recover possession from defendants occupying the premises post-foreclosure sale. Id. at 565-566 ("Deutsche Bank, having acquired the property after a foreclosure sale, was both required and entitled to use summary process, G.L. c. 239, § 1, to recover possession from the defendants, who continued to occupy the premises after the foreclosure").

The court views the facts in this matter as substantially close to those in the Dime Savings and Gordon cases. Like the homeowners in Dime Savings and Gordon, the Astleys defaulted on their mortgage by failing to make required loan payments, leading to a foreclosure sale. See Dime Savings, 413 Mass. at 286; Gordon, 91 Mass. App. Ct. at 528. Here, Plaintiff purportedly obtained title through foreclosure sale, as the defendants in Dime Savings and Gordon did. Id. Plaintiff is seeking to obtain possession through the ejectment of a tenant, as was the case in Dime Savings and Gordon. Dime Savings, 413 Mass. at 286; Gordon, 91 Mass. App. Ct. at 528-529. Additionally, the Defendant here is in actual possession of the premises, just as the defendants in Dime Savings and Gordon were. See Dime Savings, 413 Mass. at 286; Gordon, 91 Mass. App. Ct. at 535. Defendant entered into the lease with the Astleys soon after Plaintiff executed a foreclosure deed for the premises, just as the tenant in Gordon entered into a lease subsequent to the date of foreclosure on the property. Gordon, 91 Mass. App. Ct. at 529. Defendant's possessory claim is presumably stronger than that of the defendants in Gordon, as Defendant's lease with the Astleys predates the summary process action in the Worcester Housing Court and the defendants in Gordon entered into the lease post-foreclosure and with the summary process case underway. Id.

The court concludes that, on the undisputed facts of this case, and given the procedural posture of the parties' prior litigation, this writ of entry action is not a proper cause of action by which Plaintiff may recover possession. What is required is summary process, a cause of action lying outside the Land Court's jurisdiction. This conclusion hardly leaves Plaintiff without an effective way to obtain possession judicially. There is no basis to say that Plaintiff can not rejuvenate its efforts to secure possession in a summary process action against Defendant, presumably in the Worcester Housing Court. Plaintiff, if entitled in the summary process court to prevail on the merits, can secure a meaningful judgment vindicating Plaintiff's right to possession of the disputed property. A summary process judgment provides Plaintiff the full measure of relief it would secure in the writ of entry case which Plaintiff cannot move forward with in the Land Court. [Note 7]

Defendant's motion for summary judgment is ALLOWED and Plaintiff's motion for summary judgment is DENIED. A judgment will enter dismissing the complaint.

By the Court.