ENDEAVOR CAPITAL NORTH LLC and RICOCHET REAL ESTATE, LLC v. STUART SMITH and 23 LONDONDERRY, LLC.

Nearly all the foreclosures of mortgages in the Commonwealth are made by sale, under the power of sale in the mortgage and following the procedure set forth in G.L. c. 244, § 14. An alternative to a foreclosure by sale is a foreclosure by entry. As set forth in G.L. c. 244, §§ 1 and 2, a mortgagee may foreclose by making peaceable entry upon the property, as evidenced by a certificate of entry recorded in the registry. After three years of peaceful possession after the entry (i.e., if the entry or possession is not challenged by the mortgagor or other person claiming the property), any right of redemption in the property is foreclosed and the mortgagee gains full title to the property. Id. While most mortgagees make an entry under § 1 at the same time they conduct a sale under § 14, they almost never complete a foreclosure by entry, for fairly obvious reasons. Three years is a long time to wait for title, and mortgagors are likely to raise some challenge to the entry and the right to foreclose during that period.

This is the rare case of a successful foreclosure by entry. In 2013, Endeavor Capital North LLC (Endeavor) purported to make a foreclosure by sale and a foreclosure by entry on the property encumbered by a mortgage given by 23 Londonderry, LLC, the effect of which would be to wipe out the second mortgage on the property held by Stuart Smith (Smith). Endeavor conveyed the property after the sale to Ricochet Real Estate, LLC (Ricochet), and Ricochet brought summary process actions to evict Smith from the property. Those actions were dismissed on procedural grounds. Endeavor and Ricochet now bring this action seeking a declaration that both the foreclosure by sale and the foreclosure by entry were properly completed, and Ricochet has title to the property. On their motions for summary judgment, the court finds that, while there is a dispute of fact as to the validity of the foreclosure by sale, there is no dispute that Endeavor made a peaceable entry, as evidenced by a certificate of entry recorded on July 18, 2013, and neither 23 Londonderry, LLC nor Smith made any objection before the three-year entry period ran on July 18, 2016. The foreclosure by entry has been completed, and Endeavor gained full title to the property on July 18, 2016, at the latest.

Procedural History

The plaintiffs Endeavor and Ricochet filed their complaint (Complaint or Compl.) in this action on February 20, 2018. On March 19, 2018, defendant Smith filed Defendant, Stuart Smith's Answer to Plaintiff's Complaint (Answer or Ans.). The default of 23 Londonderry, LLC pursuant to Mass. R. Civ. P. 55(a) was entered on March 22, 2018. The court held a case management conference on April 2, 2018. At the case management conference, the parties stipulated that defendant Smith's tenancy is not an issue in this case and would not be adjudicated by the court.

On June 25, 2018, Endeavor and Ricochet filed Plaintiffs' Motion for Summary Judgment, Memorandum in Support of Plaintiffs' Motion for Summary Judgment (Pls.' Mem), and Plaintiffs' Statement of Undisputed Material Facts (Pls.' SOF). On July 30, 2018, Smith filed Defendant, Stuart Smith's Opposition to Plaintiffs' Motion for Summary Judgment, Defendant's Response to Plaintiffs' Statement of Undisputed Material Facts in Support of his Opposition to Plaintiffs' Motion for Summary Judgment (Def.'s SOF), and Stuart Smith's Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment (Def.'s Mem.). On August 6, 2018, Endeavor and Ricochet filed Plaintiffs' Reply Memorandum to Defendant, Stuart Smith's Opposition to Plaintiffs' Motion for Summary Judgment, Plaintiffs' Motion to Deem Certain of Defendant Stuart Smith's Responses to the Statement of Undisputed Material Facts as Admitted for Failure to Comply with the Provisions of Land Court Rule 4, and Plaintiffs' Reponses to Stuart Smith's Additional Facts. On August 14, 2018, the court heard Plaintiffs' Motion for Summary Judgment. Plaintiffs' Motion to Deem Certain of Defendant Stuart Smith's Responses to the Statement of Undisputed Material Facts as Admitted for Failure to Comply with the Provisions of Land Court Rule 4 was denied without prejudice. Smith filed Defendant, Stuart Smith's Supplemental Memorandum (Def.'s Supp. Mem.) on August 21, 2018 and Endeavor and Ricochet filed Plaintiffs' Reply to Defendant, Stuart Smith's Brief as to Standing to Challenge Foreclosure by Entry on August 28, 2018. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the "pleadings, depositions, answer to interrogatories, and responses to requests for admission…together with the affidavits…show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mutual Ins. Co., 410 Mass. 117 , 120 (1991).

Facts

The following facts are undisputed:

1. Patricia Benjamin and Smith conveyed the property at 23 Londonderry Lane, Middleborough, MA (the Property) to Smith by a quitclaim deed dated May 14, 2012, and recorded in the Plymouth County Registry of Deeds (registry) at Book 42377, Page 166, on December 11, 2012. Compl. Exh. I, at 2. [Note 1]

2. Smith conveyed the Property to 23 Londonderry, LLC by a quitclaim deed dated December 10, 2018 and recorded in the registry at Book 42377, Page 167, on December 12, 2012. Compl. Exh. I, at 2-3.

3. On December 10, 2012, 23 Londonderry, LLC granted a mortgage encumbering the Property to Endeavor which was recorded in the registry at Book 42377, Page 168 on December 11, 2012 (first mortgage). Compl. ¶ 5 & Exh. A; Ans. ¶ 5.

4. On December 10, 2012, 23 Londonderry, LLC also granted a mortgage encumbering the Property to Smith in the principal amount of $42,640.00 (second mortgage). The second mortgage was recorded in the registry on January 3, 2013, at Book 42498, Page 137. Compl. ¶ 6 & Exh. B; Ans. ¶ 6.

5. As part of the consideration for the second mortgage, 23 Londonderry, LLC agreed that Smith could occupy the Property until 23 Londonderry, LLC had repaid $20,000.00 of the mortgage principal. Compl. Exh. I ¶ 10.

6. The second mortgage between Smith and 23 Londonderry, LLC does not contain any provision regarding Smith's right to occupy the Property and was recorded after the first mortgage to Endeavor. Compl. Exhs. A & B; Pls.' SOF ¶ 25; Def.'s Response to Pls.' SOF ¶ 25.

7. At all times relevant to the present case, Smith has maintained his address as 23 Londonderry Lane, Middleborough, Massachusetts—the Property. Pls.' SOF ¶ 4; Def.'s Response to Pls.' SOF ¶ 4.

8. At all relevant times, there was one mailbox serving the Property. Pls. SOF ¶ 7; Def.'s Response to Pls.' SOF ¶ 7.

9. On May 30, 2012, Endeavor sent a Notice of Mortgage Foreclosure Sale (Notice of Sale) with respect to the first mortgage to Smith at the Property by certified mail, return receipt requested. The envelope containing the Notice of Sale was returned to sender as "not deliverable as addressed, unable to forward." Compl. Exh. G at 3.

10. Smith did not receive notice of the foreclosure sale. Pls.' SOF ¶ 9; Def.'s Response to Pls.' SOF ¶ 9.

11. On July 17, 2013, Endeavor executed and recorded a foreclosure deed and an affidavit of foreclosure sale, recorded in the registry at Book 43362, Page 336. The affidavit states that the foreclosure sale was held at the Property on June 28, 2013, at 10:00 am. Compl. Exh. D.

12. Endeavor purported to convey the Property to Ricochet by a deed dated July 17, 2013, and recorded in the registry at Book 43362, Page 341. Compl. ¶ 12 & Exh. F; Ans. ¶ 12.

13. On July 18, 2013, Endeavor recorded in the registry at Book 43362, Page 335, an Entry to Foreclose Mortgage, stating entry was made on the Property on June 28, 2013 (Certificate of Entry). Pls.' SOF ¶ 1& Exh. A; Def.'s Response to Pls.' SOF ¶ 1.

14. The Certificate of Entry was recorded within 30 days of the entry having been made. Three years from the date of recording was July 18, 2016. Pls.' SOF ¶¶ 2, 3 & Exh. A; Def.'s Response to Pls.' SOF ¶¶ 2, 3.

15. On July 30, 2014, Ricochet served Smith with a 30 day Notice to Vacate. Compl. Exh. I, 4.

16. On September 22, 2014, Ricochet brought its first summary process action in the Southeast Housing Court as case number 14-SP-04390 (first summary process action). Pls. Mot. Summ. J. Exh. H, 2.

17. In the Answer and Counterclaim filed by Smith in the first summary process action, dated September 29, 2014, there is a counterclaim entitled "Tenant's Counterclaims". Pls.' SOF ¶ 5; Def.'s Response to Pls.' SOF ¶ 5.

18. On May 14, 2015, the Southeast Housing Court entered a written decision on Ricochet's Motion for Summary Judgment in the first summary process action. Pls.' SOF ¶ 19; Def.'s Response to Pls.' SOF ¶ 19.

19. On November 27, 2015, Ricochet brought a second summary process action in the Southeast Housing Court. SP Summons and Complaint, Ricochet Real Estate LLC v. Smith, case no. 15-H83SP05619-PL (second summary process action).

20. In the Answer and Counterclaim filed by Smith in the second summary process action, dated December 7, 2015, there is a counterclaim entitled "Tenant's Counterclaim". Pls.' SOF ¶ 6; Def.'s Response to Pls.' SOF ¶ 6.

21. The complaint in the second summary process action was dismissed on the day of trial due to the lack of sufficient Notice to Vacate afforded to Smith as a tenant at will. Pls.' SOF ¶ 21; Def.'s Response to Pls.' SOF ¶ 21.

Discussion

Endeavor and Ricochet allege that their foreclosure of the first mortgage on the Property is valid, either by virtue of the foreclosure sale or by foreclosure by entry, and request judgment confirming their title to the Property. This action follows two summary process proceedings in the Southeast Housing Court, which were both dismissed due to plaintiffs' failure to comply with the notice required by G.L. c. 186A and afforded to Smith as a tenant at will. In this action, Endeavor and Ricochet ask the court to find that the Notice of Sale met the requirements of G.L. c. 244, § 14, that Endeavor's entry, as evidenced by the Certificate of Entry, has ripened and is no longer subject to challenge, that Ricochet's claim of title to the Property is superior to Smith's, that neither plaintiff is bound by any rental agreement between 23 Londonderry, LLC and Smith, and that the document on which Smith relies does not provide him with any status with rights other than those belonging to a tenant. Pls.' Mem. 1-2. In response, Smith alleges that Endeavor's foreclosure is invalid due to his having not received notice of the foreclosure sale and that issues of material fact exist that make disposal of the dispute by summary judgment inappropriate. Def.'s Mem. 8-9. Among these alleged issues of material fact are Smith's allegations that the foreclosure sale did not occur on or near the premises and that the foreclosure by entry did not take place. Id. As noted above, the court need not address the questions arising from any rental agreement of Smith or his status as a tenant or otherwise. The remaining claims can be determined by answering three questions: first, whether the decisions in the first and second summary process actions have any preclusive effect; second, whether the undisputed facts support a judgment that the foreclosure sale took place and complied with G.L. c. 244, § 14; and third, whether the undisputed facts show that Smith's or 23 Londonderry, LLC's right of redemption under the first mortgage has been foreclosed by entry under G.L. c. 244, § 1. Each question is addressed in turn.

I. Preclusive Effect of the Housing Court Decisions

Res judicata is the doctrine that promotes judicial finality by preventing claims that were or should have been brought in a previous proceeding from resurfacing in a later proceeding. See Morgan v. Evans, 39 Mass. App. Ct. 465 , 467 (1995). "The term res judicata includes both claim preclusion and issue preclusion." TLT Constr. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass. App. Ct. 1 , 4 (1999) (TLT), quoting Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86 , 98 (1999). Endeavor and Ricochet allege that Smith is barred either by issue preclusion or claim preclusion from asserting (1) that the foreclosure by sale is invalid or (2) that the foreclosure by entry is invalid or did not take place.

Claim preclusion makes a final judgment in an action conclusive on the parties and their privies, barring further litigation of all matters that were or should have been adjudicated in that action. Heacock v. Heacock, 402 Mass. 21 , 23 (1988); Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933). Claim preclusion has three requirements: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the claim or cause of action, and (3) prior final judgment on the merits. DaLuz v. Department of Correction, 434 Mass. 40 , 45 (2001); TLT, 48 Mass. App. Ct. at 4. Here, the question is whether the decisions in the first and second summary process actions act preclude Smith's claims in this action. Reviewing the three elements of claim preclusion, the court finds that the first element is met. The parties in the prior first and second summary process actions are identical to the parties in this action. Both summary process actions were brought by Ricochet against Smith; here, Endeavor, the foreclosing entity, and Ricochet, the entity to which Endeavor sold the premises, bring this action against Smith.

The claims in the summary process actions and this action are the same as well. In assessing whether the second suit involves the same claim, the inquiry rests on whether both claims "are founded on the violation of the same legal rights." Fassas v. First Bank & Trust Co. of Chelmsford, 353 Mass. 628 , 630 (1968). "A claim is the same for claim preclusion purposes if it is derived from the same transaction or series of connected transactions." Saint Louis v. Baystate Med. Ctr., Inc., 30 Mass. App. Ct. 393 , 399 (1991), citing Boyd v. Jamaica Plain Co-op Bank, 7 Mass. App. Ct. 153 (1979). "What constitutes a transaction or series of connected transactions should be 'determined pragmatically', considering whether the facts in each are related in origin or motivation and form a convenient trial unit, for the policy reason that parties and the judiciary should be spared repetitive actions based on the same wrong." Bjorklund v. Zoning Bd. of Appeals of Scituate, 24 LCR 66 , 68 (2016), quoting Saint Louis, 30 Mass. App. Ct. at 399; Restatement (Second) of Judgments § 24(2) (1980). Here, though the claims in the prior summary process actions were brought under G.L. c. 239 for possession of the Property, they arose from the same claim to title to the Property arising from the foreclosure and subsequent sale that forms the basis for this action.

The third element of claim preclusion is not met, however, because there was no final judgment on the merits of Smith and Endeavor's claims to title in the Property based on the foreclosure by sale or entry. While a dismissal with prejudice would constitute an adjudication on the merits, see Saint Louis, 30 Mass. App. Ct. at 399, the two summary process actions were dismissed without prejudice by the Housing Court on the separate issue of defective notice. These dismissals without prejudice were not adjudications on the merits, and, therefore, Smith is not barred by claim preclusion from raising objections to Endeavor's foreclosure by sale or by entry.

The second res judicata doctrine, issue preclusion, "prevents re-litigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies." TLT, 48 Mass. App. Ct at 4-5 (internal quotations omitted. For issue preclusion to bar Smith's claim that the foreclosure sale and foreclosure by entry never took place, there must be "proof that '(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication is identical to the issue in the current adjudication. Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment.'" Id. at 5, quoting Commissioner of the Dept. of Employment & Training v. Dugan, 428 Mass. 138 , 142 (1998). A nonparty to a prior adjudication can be bound by it only where the nonparty's interest was represented by a party to the prior litigation. Massachusetts Property Ins. Underwriting Ass'n v. Norrington, 395 Mass. 751 , 754 (1985). As discussed, the party against whom estoppel is asserted – Smith – was a party to the prior adjudication in the housing court. The other two requirements for issue preclusion, however, are not met. In the summary process actions, Ricochet sought to recover possession of the Property. It sought a judgment that it had good title and that Smith, the defendant in both of those actions and in this action, did not have a legal or equitable right to title. That issue was not decided in those actions. The first summary process action resulted in findings of fact and an order dismissing the complaint for lack of notice, and the second summary process action resulted in an order on the day of trial dismissing the complaint for the same reason. Both dismissals turned on the issue of notice to Smith as a tenant at will. Neither addressed Endeavor's, Ricochet's, or Smith's right to title or the validity of the foreclosure, either by sale or by entry, the issues that are the subject of the current action. The issues in the two summary process actions are not identical to the issue in this current action, and the issue in this current action was not essential to the earlier judgments. Therefore, Smith is not barred by issue preclusion from challenging the foreclosure by sale or by entry.

II. Foreclosure by Sale Pursuant to G.L. c. 244, § 14

Smith challenges the validity of the foreclosure sale on two grounds. First, he alleges that he did not receive the Notice of Sale. Pls. SOF ¶ 9; Def.'s Response to Pls.' SOF ¶ 9. Second, he alleges that the foreclosure sale did not take place at the Property on June 28, 2013. Def.'s Response to Pls.' SOF Exh. K, Affidavit of Stuart L. Smith ¶ 15 (Smith Aff.). The first allegation is undisputed, and the court accepts the second allegation as true for the purposes of this motion.

Even though Smith did not receive it, Endeavor's Notice of Sale complied with G.L. c. 244, § 14. Section 14 requires that "a copy of [the notice of sale] be sent by registered mail to all persons of record as of 30 days prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed, said notice to be mailed at least 14 days prior to the date of sale to each such person at the address of such person set forth in any document evidencing the interest or the last address of such person known to the mortgagee." G.L. c. 244, § 14. The notice of sale requirement is satisfied by mailing, and non-receipt is irrelevant. Hull v. Attleboro Sav. Bank, 33 Mass. App. Ct. 18 , 25 (1992); see Lindsey v. First Horizon Home Loans, 2012 WL 689745, No. 11-10408-FDS, (D. Mass. March 1, 2012) at *3; In re Bailey, 468 B.R. 464, 472- 473 (Bankr. D. Mass 2012). "Nowhere in… the relevant statutes… is it required that the [mortgagee] confirm… receipt of Notice." Dooling v. James B. Nutter & Co., 139 F. Supp. 3d 505, 512 (D. Mass. 2015). The "statute does not contain any requirement that the holder of the mortgage ensure that the mortgagor receives actual notice of sale. By its terms, it requires only that the notice 'has been sent by registered mail' at the appropriate times and to the appropriate addresses." Lindsey, 2012 WL 689745 at *3; see Hull, 33 Mass. App. Ct. at 25.

Evidence sufficient to show compliance with § 14 includes certified mail labels, certified mail receipts, and certified mail return notices, as these documents demonstrate that the foreclosing entity sent the requisite notice to the appropriate addresses, thus complying with the notice requirement of § 14. Louis v. Bank of America, N.A., 2017 WL 2615742, No. 16-10859 (D. Mass. June 16, 2017), at *3. Here, the undisputed facts are that Endeavor sent the Notice of Sale by certified mail as evidenced by the copies of the letter and the certified mail receipts in the record. Compl. Exh. C; Pls. SOF Exh. E. Smith does not contend that the address to which the Notice of Sale was sent is wrong and concedes that he regularly received mail at that address both before and after the date of mailing. Pls. SOF ¶ 4; Def.'s Response to Pls.' SOF ¶ 4. Having sent the Notice of Sale to the correct address, Endeavor has complied with § 14. It need not show that Smith received the notice and it does not matter that the notice was returned unclaimed. See In Re Bailey, 468 B.R. at 473.

Smith distinguishes both Hull and Lindsay on the basis that the mortgagors in both cases did not receive notice due to their own act or omission. Smith contends that the effect of a failure of a mortgagor to receive notice through no fault of the mortgagor's own is an issue of first impression. Nothing in § 14 or the case law arising from it distinguishes between a notice of sale to a mortgagor and one to a junior lien holder or distinguishes between fault and no-fault failures to receive notices. Section 14 does not extend compliance beyond the requirement that notice be sent by registered mail to the correct address. The Notice of Sale satisfied G.L. c. 244, § 14.

Smith may, and does, challenge the foreclosure sale by alleging that it did not take place. Smith Aff. ¶15. Such an allegation raises a claim that the foreclosure is void because Endeavor did not comply with G.L. c. 244, § 14, or properly exercise the power of sale. That Endeavor filed an affidavit of sale does not bar such a challenge. The affidavit of sale is "evidence that the power of sale was duly executed" and the foreclosure sale properly held. G.L. c. 244, § 15. "An affidavit that meets the requirements of G.L. c. 244, § 15, does nothing more. Such an affidavit is not conclusive proof of compliance with G.L. c. 244, § 14." Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635 , 641 (2012), citing Atkins v. Atkins, 195 Mass. 124 (1907). Notwithstanding the affidavit of sale, Smith may challenge the foreclosure sale and allege, as he does by his affidavit, that it did not take place. Such an allegation raises a disputed issue of fact as to whether Endeavor complied with G.L. c. 244, § 14, or properly exercised the power of sale, and, if not, whether the foreclosure is void. Smith's allegation that the foreclosure sale was not held is the kind of "toehold" sufficient to withstand summary judgment on the claim that the foreclosure by sale was valid. Marr Equip. Corp. v. ITO Corp. of New Engl., 14 Mass. App. Ct. 231 , 235 (1982).

III. Foreclosure by Entry

An alternative to a foreclosure by sale is a foreclosure by entry by the current mortgagee. G.L. c. 244, § 1. Non-judicial foreclosure by entry requires that the mortgagee enter the property in the presence of two witnesses, declaring that an entry is being made for purposes of foreclosure. G.L. c. 244, §§ 1, 2. The two witnesses must sign and swear in a certificate of entry that they witnessed the open, peaceable, and unopposed entry and the mortgagee must then record or register the certificate of entry with the registry of deeds or land court division in the county where the property is located. G.L. c. 244, § 2. The mortgagor's right of redemption is foreclosed three years from the date of recording or registering the certificate, unless the mortgagor challenges the entry before that three-year period ends. G.L. c. 244, § 1. That a mortgagor remains in occupancy of the premises does not prevent the mortgagee from gaining full title through the foreclosure by entry process. Singh v. 207-211 Main Street, LLC, 78 Mass. App. Ct. 901 , 902 (2010), citing Cunningham v. Davis, 175 Mass. 213 , 222 (1900).

It is undisputed that Endeavor recorded the Certificate of Entry on July 18, 2013. This means that if the entry remained unchallenged, 23 Londonderry, LLC's and Smith's respective rights of redemption were foreclosed three years later, on July 18, 2016. It is undisputed that 23 Londonderry, LLC did not challenge the foreclosure by entry, and its right of redemption is therefore foreclosed. With respect to Smith, Ricochet and Endeavor argue that their entry has ripened to a foreclosure for two reasons. First, they allege that, as a junior lien holder, Smith did not possess a right of redemption allowing him to oppose the foreclosure by entry. This is not correct. Possession for the three-year period is considered peaceable, within the meaning of the statute, "if not opposed by the mortgagor or person claiming the premises." Thompson v. Kenyon, 100 Mass. 108 , 111 (1868) (emphasis supplied); see G.L. c. 244, §1. Smith, as mortgagee of the second mortgage, has an interest in the Property that could be wiped out by the foreclosure of the first mortgage, and therefore is a person claiming the land who could challenge the foreclosure by entry.

Endeavor and Ricochet fare better on their argument that Smith did not challenge the entry before July 18, 2016. "If the mortgagor wants to challenge a foreclosure by entry, it is incumbent on him to do so before the three-year period has elapsed." Singh, 78 Mass. App. Ct. at 902, citing Bennett v. Conant, 10 Cush. 163 , 166-167 (1852). Smith argues that the bringing of the summary process actions and Smith's counterclaims in those actions constituted such a challenge. The Singh decision is instructive on this question. In Singh, the defendant LLC made a foreclosure by entry and, after taking possession of the property, brought a summary process action to evict the mortgagor Singh. The LLC's summary process action was dismissed on jurisdictional grounds; namely, that because the three-year possession period had not yet run, the LLC had no right to possession. Id. After the possession period ran, the LLC brought a second, successful summary process action, and Singh appealed, arguing that the first summary process action interrupted the possession period. Id. The Appeals Court rejected this argument. The court found that Singh never challenged the LLC's superior right to possession before the three-year period ran, either in the summary process action or otherwise. Id. at 902-903. In particular, the court held that the Housing Court in the first summary process action did not address the parties' respective rights in the foreclosure proceeding, because the dismissal of that action on the grounds that it was premature did not implicate the LLC's right to foreclose or to continue the foreclosure for the three-year period. Id. at 903.

Smith is in virtually the same position here as was the mortgagor Singh. Both summary process actions sought to evict Smith from the Property and give possession to Ricochet. In objecting to these proceedings, Smith challenged Endeavor's title by disputing the foreclosure sale on the basis that he never received notice of the sale. Throughout the summary process actions, however, Smith never objected to the foreclosure by entry. Moreover, like the summary process action in Singh, both summary process actions were dismissed on procedural grounds— the lack of a proper notice to vacate—and did not in any way adjudicate or implicate Endeavor's entry or possession. The summary process actions did not implicate Endeavor's right to foreclose on the mortgage by entry or to continue to possess the Property, and Endeavor remained in peaceable possession within the meaning of the statute. See id. at 902-903.

Smith does now object to the foreclosure by entry and claims that he could not have objected to the entry in earlier proceedings because Ricochet had not yet acquired title through foreclosure by entry at that time. Def.'s Supp. Mem. 5. This is not correct. The three-year period after entry is the proper time during which a mortgagor or other party claiming under the mortgagor may oppose the foreclosure by entry. G.L. c. 244, §§ 1, 2. That period closed on July 18, 2016, three years after the Certificate of Entry was recorded and well before Smith lodged his opposition in this case. Neither 23 Londonderry, LLC nor Smith challenged Endeavor's entry before three years had passed from the recording of the Certificate of Entry. Their respective rights of redemption were extinguished on July 18, 2016, at which time Endeavor acquired full title to the Property.

Conclusion

For the foregoing reasons, the Plaintiffs' Motion for Summary Judgment is ALLOWED IN PART AND DENIED IN PART. 23 Londonderry, LLC' and Smith's rights of redemption were foreclosed on July 18, 2016, after three years of peaceable possession following Endeavor's entry onto the Property, and Endeavor acquired full title to the Property on that date. Judgment will not enter at this time, because material facts remain in dispute as to whether Endeavor acquired title by foreclosure by sale. A telephone status conference is set down for December 5, 2018 at 9:45 am.

SO ORDERED