MISC 19-000483

December 23, 2019

Plymouth, ss.



On July 26, 2019, this court dismissed an action filed by the present defendants Alex and Joaquina Vaz (the "Vazs") against the present defendants Keybank N.A. ("Keybank") and Mortgage Electronic System, Inc. ("MERS") in which the Vazs asserted that they were entitled to a discharge of the mortgage on their home at 240 Torrey Street in Brockton on grounds that were not clear, given the lack of clarity in the Vazs' complaint, but that appeared to be based on a theory of unconscionability and breach of fiduciary duty, although the factual basis for such claims, if these were indeed the claims, was also not clear from the pleadings. [Note 1] The Vazs did not appeal the dismissal of their amended complaint, and the judgment of dismissal became final on August 26, 2019.

The Vazs have now filed a second action against the same defendants, Keybank and MERS, alleging that they are entitled to a discharge of the same mortgage relating to the same property. The defendants have moved to dismiss the new complaint on the grounds that it fails to state a claim upon which relief can be granted and that it fails to comply with the requirements of Mass. R. Civ. P. 8. The Vazs filed a written opposition to the motion, which they termed as a motion for summary judgment, but which they acknowledged at the hearing on the motion was properly treated as an opposition to the motion to dismiss. A hearing on the defendants' motion was held on December 20, 2019. The hearing was attended by both of the plaintiffs, who are unrepresented by counsel.

Because the new complaint makes the same claims against the same defendants as the first complaint, because the new complaint fails to comply with the requirements that it contain a short and plain statement of the claim, and because it fails to state a claim upon which relief can be granted, the defendants' motion will be allowed and the complaint will be dismissed.


The allegations in the complaint, ordinarily accepted as true for the purposes of considering a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), are generally not discernable from an attempted reading of the complaint, which, although written with English words, is written in a manner that more resembles some sort of code than ordinary syntax and grammar. For the purposes of this motion, then, the court accepts as true the discernable allegations gleaned from various recorded instruments submitted with the complaint, the motion to dismiss, and the Vazs's opposition to the motion to dismiss, and other undisputed materials outside the pleadings, including those acknowledged by the Vazs at the hearing. Based on these documents and undisputed facts, the court accepts as true the following facts for the purposes of consideration of the motion to dismiss:

1. On or about October 10, 2017, plaintiffs purchased the property located at 240 Torrey Street in Brockton (the "Property"), by a quitclaim deed recorded with the Plymouth County Registry of Deeds ("Registry") in Book 49030, Page 26, for consideration of $335,500.00. The deed describes the Property "being Lot No. 22 and the westerly five feet of Lot No. 21 as shown on Plan of Lots Belonging to Emma E. Bigney, dated December 1893, Hayward and Howard, C.E., (the "Bigney Plan") recorded with Plymouth County Deeds, Plan Book 1, Page 101," and also provides a metes and bounds description that is consistent with the Bigney Plan. The metes and bounds description described the Property as being 65 feet in width and 120 feet deep. This is consistent with the Bigney Plan in that the Bigney Plan shows Lot 22 to be 60 feet in width, and the deed includes in the Property an additional five feet of the westerly portion of Lot 21, for a total of 65 feet.

2. In connection with their purchase of the Property, plaintiffs obtained a loan from KeyBank in the amount of $318,725.00 to purchase the Property. The loan was evidenced by a promissory note dated October 10, 2017 in the original principal amount of $318,725.00 and was secured by a first position mortgage given by the plaintiffs to MERS as nominee for KeyBank and recorded with the Registry in Book 49030, Page 29. The property description in the mortgage is identical to the property description in the deed of the same date.

3. On November 13, 2018, plaintiff Alex Vaz recorded with the Registry a plan entitled, "Plan of Land 240 Torrey Street Brockton, MA" dated November 5, 2018, by Klim Land Surveying, Inc. ("Klim Plan") The Klim Plan was recorded as Plan No. 18-602 in Plan Book 82, Page 175.

4. The Klim Plan is consistent with the description in the October 10, 2017 deed to the Vazs, in that it describes the Property as being sixty-five feet in width and one hundred twenty feet deep.

5. On December 12, 2018, Alex Vaz recorded a "Warranty Deed" purporting to grant the Property to himself and Joaquina Vaz, as husband and wife, but by way of property description, he described the Property by reference to the Klim Plan. The Warranty Deed was recorded at the Registry in Book 54099, Page 328.


Legal Standard on Rule 12(b)(6) Motion to Dismiss.

In considering a motion to dismiss filed pursuant to Mass. R. Civ. P. 12(b)(6), the court accepts as true the 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). The plaintiff is required to plead "factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief[.]" Id., at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). 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), (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 v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 n.4 (2004); Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550 , 555 (2008).

Pleading requirements of Rule 8(a), (e).

Mass. R. Civ. P. 8(a) requires that "[a] pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled." Mass. R. Civ. P. 8(e) requires that "[e]ach averment of a pleading shall be simple, concise, and direct."


The defendants seek dismissal of the complaint, contending that: the complaint fails to 1) meet the Mass. R. Civ. P. 8(a) and (e) requirement of a short and plain statement of claims showing entitlement to relief, with averments that are simple, concise and direct; or to 2) allege facts that articulate any claim of any right enforceable by the plaintiffs, or any cognizable wrongdoing by the defendants necessitating relief that can be granted by the court. In addition, the court takes judicial notice of the plaintiffs' complaint against the same defendants that was dismissed earlier this year, and accordingly considers whether the present action is barred by the doctrine of res judicata.

1. The Present Action is Barred by the Doctrine of Res Judicata.

"Res judicata is the generic term for various doctrines by which a judgment in one action has a binding effect in another." Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). The doctrines of "issue preclusion" and "claim preclusion" are encompassed within the term "res judicata." Kobrin v. Board of Registration in Medicine, 444 Mass. 837 , 843 (2005). The Vazs seek in the present action a judgment discharging their mortgage; this is the same relief they sought against the same defendants in the previous litigation dismissed by the court in July 2019.

"Three elements are essential for invocation of claim preclusion: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." DaLuz v. Dep't of Correction, 434 Mass. 40 , 45 (2001); Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933). The party asserting res judicata bears the burden of establishing all the elements. Longval v. Comm'r of Correction, 448 Mass. 412 , 416-417 (2007). However, the present cause of action "need not be a clone of the earlier cause of action" to invoke claim preclusion. Mancuso v. Kinchla, 60 Mass. 558 , 571 (2004); Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n, 142 F.3d 26, 38 (1st Cir. 1998).

To the extent one might argue that the present question is more properly characterized as one of issue preclusion, the analysis is essentially the same. "Before precluding the party from relitigating an issue, 'a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.'" Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457-458 (2006), quoting Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998).

There is no question that the present case meets the requirements for application of claim or issue preclusion with respect to identity or privity of the parties. The parties in the present action are the same parties as in the prior action dismissed by the court in July 2019. There is also no question that the earlier action was dismissed by a final judgment on the merits. In the earlier action, the plaintiffs were given an opportunity to amend their complaint so that they might state their claim in a manner that complied with both Rules 8 and 12(b)(6). When their amended complaint failed to state a claim or to otherwise comply with these rules, it was dismissed, and judgment was entered on the merits. A dismissal with prejudice constitutes an adjudication on the merits as fully and completely as if an order had been entered after trial, and constitutes a final judgment for the purposes of res judicata. Bagley v. Moxley, 407 Mass. 633 , 636 (1990); Boyd v. Jamaica Plain Co-op Bank, 7 Mass. App. Ct. 153 , 157 n.8 (1979).

On the question whether there is a sufficient identity of the cause of action between the prior litigation and the present action, Mr. Vaz argued at the hearing that the present claim is sufficiently different from the earlier claim to avoid dismissal because he is making a different argument in support of his claim for a mortgage discharge than he did in the prior case. Although that is not clear from reading either complaint, the court gives him the benefit of the doubt and will accept that there was a different legal theory behind the complaint in the prior action than in the present action.

Mr. Vaz argues that in the earlier complaint, the claim was based on the unconscionability of the mortgage contract. In the present action, he argues, his claim is based on another legal theory. He argues that his December 2018 deed reconveying the Property to himself and his wife, with what he asserts (incorrectly) is a different property description, leaves the bank without a valid interest in the Property, since he has conveyed it with a different metes and bounds description that he claims is different from the Property in which the bank has an interest. Even if this argument were factually or legally correct, which it is not, it would not entitle the Vazs to make this argument in a new case, having failed to assert it in the earlier litigation.

This "new" argument by the Vazs is based on a December 2018 deed, and thus is one that could have been raised in the prior litigation. That the Vazs did not make this argument in the prior litigation does not mean that they may bring a new action to assert a claim that could have been raised in the prior case. "The doctrine of res judicata precludes relitigating not only the issues raised in the prior action, but the issues that could have been raised." Brennan v. Harmon Law Offices, P.C., 81 Mass. App. Ct. 1125 (2012), citing Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 449 (1982); Baby Furniture Warehouse Store, Inc. v. Muebles D&F Ltée, 75 Mass. App. Ct. 27 , 35 (2009).

The claims in both cases were between identical parties, were claims that could have been raised in the earlier case, and resulted in a final judgment in the earlier case. Accordingly, the claims in the present case are precluded by the doctrine of res judicata.

2. Plaintiffs' Complaint Fails to Meet the Mass. R. Civ. P. 8(a) Requirement of a Short and Plain Statement of Claims Showing Entitlement to Relief

"[A] judge must consider whether the . . . complaint is so verbose and confusing that it fails to give the defendants 'fair notice of what the plaintiff's [claims are] and the grounds upon which [they rest].'" Mmoe v. Commonwealth, 393 Mass. 617 , 621 (1985) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). See Noel v. Eversource Energy, 91 Mass. App. Ct. 1113 (2017) ("[T]he factual allegations [in the complaint], as a matter of both plausibility and law, [do not] support entitlement to relief"). "[A]lthough some leniency is appropriate in determining whether a pro se complaint meets the requirement of the Massachusetts Rules of Civil Procedure, the rules bind a pro se litigant as they bind other litigants." Mmoe v. Commonwealth, supra, 393 Mass. at 620; Pidge v. Superintendent, Massachusetts Correctional Inst., Cedar Junction, 32 Mass. App. Ct. 14 , 15 (1992) ("[T]he diffuse averments of the plaintiff's complaint were far from the 'short and plain statement' called for by the rules.").

Although the Vazs are pro se litigants, they are still expected and required to adhere to the requirements of the Massachusetts Rules of Civil Procedure that their complaint include an understandable, short and plain statement of their claims. See Mmoe v. Commonwealth, supra, 393 Mass. at 620; Pidge, 32 Mass. App. Ct. at 15. The Vazs were on notice from the dismissal of the amended complaint in the prior litigation that they are required to file an understandable, plain statement of their claim. Instead, the new complaint, to a greater degree than the complaint and the amended complaint in the prior litigation, is written in a manner that defies understanding, and appears to be written in a code that neither the court nor the defendants can be expected to break. The inclusion of what may be intended to serve as a glossary of terms does not make the complaint any less incomprehensible, and in any event serves as an admission that the complaint defies understanding without it. Neither the court, nor the defendants, should be required to de-code language that is not readily understandable. Like the complaint and the amended complaint in the prior litigation, the present complaint fails to convey to the court any factually-defined claim showing an entitlement to relief. While the complaints in the prior litigation consisted largely of confusing, unrelated statements that appeared to be bits of legal jargon that do not relate to any coherent claim, the present complaint does not even include any grammatical declarative sentences. For instance, paragraph 10 of the complaint states: "For these claimants'-parcel-of-land is with the correct-position- "GPS"- with the [al]lodial-title-claim, with the origin-surveyor-info with the chain-of-the-title back to the first-authority-written-documents."

Accordingly, the complaint fails to present its claims by the required short and plain statement of claims showing an entitlement to relief.

3. Plaintiffs' Complaint Fails to State a Claim Upon Which Relief Can Be Granted.

"[U]nder Mass. R. Civ. P. 8(a), a complaint must show not merely a grievance but a violation of legal right which belongs to plaintiff, and which defendant has breached." Donnelly v. Suffolk University, 3 Mass. App. Ct. 788 (1975). Although is not possible to discern from the complaint what the Vazs are asking of the court, at the hearing Mr. Vaz explained his theory of the case as follows: by conveying the Property from himself to himself and his wife with a different deed description than the one used in the Vazs' 2017 deed and in the mortgage, the bank is left without an interest in the Property, because the Property has now been, essentially, redefined as a different parcel of land, with different boundaries. This argument fails on the merits and fails to state a claim upon which relief can be granted for at least three reasons.

First, even if Mr. Vaz's theory that a reconeyance of the Property with slightly different boundaries would deprive the bank of a valid mortgage interest, both he and his wife would have had to participate in the reconveyance. However, Mr. Vaz was the only grantor on the deed recorded in December 2018, leaving Mrs. Vaz's interest, even if the legal theory were correct, as stated in the 2017 deed and mortgage, and therefore subject to the bank's mortgage even under Mr. Vaz's theory of the case.

Second, any attempted conveyance of the Property by the Vazs' without obtaining a discharge of the mortgage from the bank is a conveyance that is simply subject to the bank's interest. The granting of a mortgage is a conveyance of an interest in real estate, and the owner of the fee subject to that mortgage cannot convey his or her fee interest free of the mortgage. See Conway Savings Bank v. Vinick, 287 Mass. 448 , 450 (1934); McRae v. Pope, 311 Mass. 500 , 505 (1942). If Mr. Vaz's theory were correct, then any mortgagor could avoid a mortgage simply by conveying the mortgaged property to a third party or conveying away parts of the property by utilizing a different deed description.

Third, while Mr. Vaz explained to the court at the hearing that the boundaries of the Property as conveyed in the December 2018 deed are different than the boundaries as conveyed to the Vazs in their 2017 deed and to the bank in its mortgage, an examination of the instruments, all of which were submitted to the court by the parties, reveals this not to be the case. Indeed, the original 2017 deed and mortgage descriptions recognize the sixty-five foot width of the Property as resulting from the conveyance to the Vazs of Lot 22 as shown on the Bigley Plan plus the westerly five feet of Lot 21, for a total width of sixty-five feet. The Klim Plan incorporated into the December 2018 deed is entirely consistent with that description.


For the foregoing reasons, the defendants' motion to dismiss is ALLOWED. Judgment will enter dismissing the complaint.


[Note 1] Vax v. Keybank, 19 MISC 000093