MISC 19-000341

August 19, 2020

Worcester, ss.



In July 2019, plaintiff James Bigelow (representing himself) filed a petition pursuant to M.G.L. c. 240, §§1-5, to compel defendant Reem Property, LLC to try its title to a residential property at 33 Whiting Road in Oxford, Massachusetts. Bigelow claims the property belongs to him. Bigelow also sought a preliminary and a permanent injunction preventing Reem from levying on an execution for possession of the property granted by the Central Housing Court in May 2019, as well as damages for Reem's alleged unfair trade practices in violation of M.G.L. c. 93A.

In late July 2019, this Court denied Mr. Bigelow's motion for a preliminary injunction. In August 2019, Reem answered Bigelow's complaint and, in September 2019, moved for summary judgment. Bigelow opposes the motion. The parties appeared telephonically on May 27, 2020 for argument on the motion. The Court then gave Bigelow leave to file a supplemental and, later, an amended supplemental memorandum of law as to why Reem's motion should be denied. Having reviewed the parties' submissions and having heard their arguments, the Court GRANTS Reem's motion with respect to Bigelow's try-title claims, DISMISSES those claims with prejudice, and DISMISSES Bigelow's c. 93A claims without prejudice for lack of subject-matter jurisdiction.

The undisputed facts are as follows. In 2004, Mr. Bigelow granted to World Savings Bank, FSB a mortgage in 33 Whiting Road. The mortgage secured Bigelow's obligations to repay a $303,200 promissory note to World Savings Bank. World Savings Bank became Wachovia Mortgage, FSB in 2007. In 2007, Wachovia Mortgage merged into Wells Fargo Bank Southwest, N.A., which simultaneously merged into Wells Fargo Bank, N.A. In 2010, Wachovia Bank, N.A. also merged into Wells Fargo.

In June 2015, Wells Fargo conducted a foreclosure auction of 33 Whiting Road. Reem was the highest bidder at that auction. At the time of the auction, Reem was not 33 Whiting Road's mortgagee or Mr. Bigelow's lender (the mortgagee/lender allegedly was Wells Fargo), but instead Reem was a third-party purchaser of the property. In January 2016, a foreclosure deed granting to Reem title in 33 Whiting Road and an affidavit of sale with respect to the 33 Whiting Road foreclosure were recorded at the Worcester District Registry of Deeds.

After the recording of its foreclosure deed, Reem brought pursuant to M.G.L. c. 239 a summary-process action against Mr. Bigelow, in the Central Housing Court. The case is captioned Reem Property LLC v. Bigelow, Housing Ct. No. 16H85SP000275 (the "Housing Court Action"). In July 2016, the Housing Court gave Reem judgment for possession of 33 Whiting Road (the "Housing Court Judgment"). Bigelow appealed the Housing Court Judgment to the Massachusetts Appeals Court, in its case No. 2018-P-839. In his appeal, Bigelow claimed that Reem lacked legal title to 33 Whiting Road because Wells Fargo's foreclosure on the property was invalid. He also argued that the Housing Court proceedings were unfair. See also Reem Property, LLC v. Bigelow, 94 Mass. App. Ct. 1122 , 2019 WL 692713 *1 (2019) (Rule 1:28 decision) ("Bigelow challenges the validity of the foreclosure of the property and Reem Property's title to the property."); id. at *2 n.2 ("Bigelow's argument that the judge was predisposed against his case is not supported by the record . . . .").

In February 2019, the Appeals Court affirmed the Housing Court Judgment. See id. The Supreme Judicial Court denied Mr. Bigelow's request for further appellate review. See Reem Property, LLC v. Bigelow, 482 Mass. 1102 (2019) (table). But in May 2019, Bigelow filed in the Housing Court, pursuant to Rules 60(b)(4) and (6), Mass. R. Civ. P., a Motion for Relief from Judgment and Dismissal of Complaint. Bigelow raised several issues in that motion, including an argument that Reem's title rested on forged documents. Bigelow sought, among other things, (a) relief from the Housing Court Judgment; (b) a declaration that Wells Fargo's foreclosure was void; and (c) dismissal of Reem's summary-process complaint, with prejudice.

The Housing Court denied Mr. Bigelow's Motion for Relief from Judgment and Dismissal of Complaint the day Bigelow filed it. The Housing Court endorsed this on the Motion: "5/21/19 - Denied w/out a hearing. [Appeal No.] 18-P-389 issued Feb. 20, 2019 determined all issues related to this matter, Defendant cannot now raise new issues." Two days later, the Housing Court issued to Reem an execution for possession of 33 Whiting Road.

Mr. Bigelow did not appeal the Housing Court's denial of his Motion for Relief from Judgment and Dismissal of Complaint. Instead, in July 2019, he filed in this Court his complaint to try title, contending (among other things) that Reem's foreclosure deed and various documents filed with Wells Fargo's affidavit of sale are forgeries.

Reem moves for summary judgment on the grounds that the Housing Court Judgment precludes Mr. Bigelow from raising at this time any claims that challenge Reem's foreclosure deed, including claims that the deed is a forgery or was obtained through use of forged documents. "[C]laim preclusion requires three elements: '(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) [a] prior final judgment on the merits.'" DeGiacomo v. City of Quincy, 476 Mass. 38 , 41 (2016), quoting Kobrin v. Board of Reg. in Med., 444 Mass. 837 , 843 (2005). If the court holds that all three DeGiacomo elements are present, a party is precluded in a second or subsequent action from raising any claims as to "all matters that were or should have been adjudicated in the [prior] action." Heacock v. Heacock, 402 Mass. 21 , 23 (1988).

This is so even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim, or seeks different remedies. The doctrine [of claim preclusion] is a ramification of the policy considerations that underlie the rule against splitting a cause of action, and is "based on the idea that the party to be precluded has the incentive and opportunity to litigate the matter fully in the first lawsuit."

Id. at 23-24 (citations omitted, quoting Foster v. Evans, 384 Mass. 687 , 696 n.10 (1981)).

It's undisputed that the parties to this case, Mr. Bigelow and Reem, were litigants in the Housing Court Action. It's also undisputed that the Housing Court Judgment is final. Instead, the disputes in this case center, first, on whether there's an "identity of the cause of action" in the Housing Court Action and the claims Bigelow presents to this Court; second, whether the doctrine of claim preclusion applies in the context of quiet-title action that follows a judgment in a summary-process proceeding; and third, whether Reem has the right to argue claim preclusion at this stage of this try-title action.

The Court turns first to the issue of whether this case and the Housing Court Action present identical claims or causes of action. "'A claim is the same for [claim preclusion] purposes if it is derived from the same transaction or series of connected transactions.' 'The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, agreement, and seeks redress for the same wrong.'" TLT Constr. Corp. v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1 , 8 (1999) (brackets in original; citations omitted; quoting Saint Louis v. Baystate Med. Center, 30 Mass. App. Ct. 393 , 399 (1991), and Mackintosh v. Chambers, 285 Mass. 594 , 596 (1934)). "'What factual grouping constitutes a "transaction", and what groupings constitute a "series", are to be determined pragmatically.' Whether the facts are related in origin or motivation and whether they form a convenient trial unit are among the considerations." Saint Louis, 30 Mass. App. Ct. at 399, quoting Restatement (Second) of Judgments §4(2) (1980).

The Court concludes that Mr. Bigelow's try-title claims arise out of the identical "transaction" - that is, the foreclosure of 33 Whiting Road - that was the focus of the Housing Court Action. Bigelow's objective in both actions is the same: defending his claimed title to his residence. His incentive in both actions is the same: in both actions, he asserts that he's the sole owner of 33 Whiting Road. And both actions focus on what Wells Fargo or its agents did (or didn't do) in the process of foreclosing on 33 Whiting Road, events that form a "convenient trial unit" in terms of events and witnesses. Reem thus has proven all three elements for claim preclusion.

Mr. Bigelow raises three arguments as to why the Housing Court Judgment shouldn't preclude him from presenting his forgery claims now. His first argument rests on the text of M.G.L. c. 239, §7. That statute provides in part: "The judgment in an action under this chapter" - and it's undisputed that the Housing Court Judgment arises from a summary-process action brought under c. 239 - "shall not be a bar to any action thereafter brought by either party to recover the land or tenements in question, or to recover damages for any trespass thereon . . . ."

While §7's text and Miller v. Campello Co-operative Bank, 344 Mass. 76 (1962), made Bigelow's argument plausible at the time he filed his suit in this Court, a subsequent decision of the Appeals Court in Duross v. Scudder Bay Capital, LLC, 96 Mass. App. Ct. 833 , 839-840 (2020), casts doubt on whether §7 or Miller should be interpreted as preventing the application of res-judicata principles to judgments in summary-process actions. Duross further noted the Appeals Court's 2016 decision in Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687 , 691 (2016). In Santos, the Appeals Court held that judgments in summary-process actions may have claim-preclusive effect. See id. at 692-696. Duross notes that Santos may be "in tension with Miller" and other authorities (including, perhaps, §7), but Duross left resolution of any such conflict "for another day." Duross, 96 Mass. App. Ct. at 840 n.12. Duross thus leaves Santos as the last word of the Appeals Court as to whether judgments in summary-process actions have claim-preclusive effects. As Bigelow hasn't identified any developments since Santos that would lead this Court to conclude that the Santos Court reached the wrong result, this Court is obliged to apply Santos to this case, notwithstanding §7's text or Miller.

Mr. Bigelow's second and third arguments against the application of claim preclusion are brief, but unpersuasive. He contends that the doctrine of claim preclusion never applies in actions to try title. Bigelow offers no authority for that argument, and the Court hasn't found any either. Bigelow also claims that one cannot use a judgment obtained by fraud as a basis for claim preclusion. That proposition too lacks authority. [Note 1] Bigelow's correct that the legal system shouldn't (and doesn't) tolerate fraudulently obtained judgments. But under Massachusetts law, with rare exceptions not present here, see Harris v. Sannella, 400 Mass. 392 , 395 (1987), a final judgment from a court with plausible jurisdiction stands "'unless reversed under some recognized and available procedure.'" Streeter v. City of Worcester, 336 Mass. 469 , 472 (1957), quoting Moll v. Town of Wakefield, 274 Mass. 505 , 507 (1931). There are at least three avenues for expunging fraudulent judgments. The first is an appeal from the judgment (see M.G.L. c. 211A, §10); Bigelow's appeal of the Housing Court Judgment shows that he's aware of that remedy. The second avenue for getting rid of a fraudulent judgment is a motion under Rule 60(b)(3), Mass. R. Civ. P.: "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment . . . for . . . fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party." Rule 60(b)(3) applies to summary-process actions in the Housing Court, see Rule 11(b), Uniform Summary Process Rules (Trial Court Rule I), and hence Bigelow could have used Rule 60(b)(3) to combat the alleged fraud lurking behind Reem's foreclosure deed. [Note 2] Finally, Rule 60(b) recognizes a more ancient "independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court." But generally speaking, the proper venue for Rule 60(b)(3) motions or independent actions for relief from judgment is the court that rendered the judgment, which in this case is the Housing Court. See U.S. Bank Nat'l Assoc. v. Golrick, 26 LCR 43 , 44-45 (2018) (Vhay, J.).

Mr. Bigelow's final argument, raised in his amended supplemental memorandum, is that this Court may not consider Reem's claim-preclusion arguments until this try-title action reaches what Bevilacqua v. Rodriguez, 460 Mass. 762 , 766 (2011), calls the "second" step of the action. Bigelow relies on this passage from Bevilacqua:

There are . . . two steps to a try title action: the first, which requires the plaintiff to establish jurisdictional facts such that the adverse claimant might be "summoned to show cause why [he] should not bring an action to try [his] claim," and the second, which requires the adverse claimant either to disclaim the relevant interest in the property or to bring an action to assert the claim in question.

Id. (brackets in original; footnote omitted; quoting c. 240, §1). Bigelow views Reem's motion as an effort to prove its interest in 33 Whiting Road, something Reem shouldn't be able to do (or so Bigelow claims) until Reem "brings an action to assert the claim in question." Bevilacqua, 460 Mass. at 766.

The Court disagrees with Mr. Bigelow's characterization of Reem's motion. The motion implicates the "first step" of a try-title action, the one that requires the plaintiff (here, Bigelow) to establish sufficient "jurisdictional facts" that allow the plaintiff to file a try-title action. Bevilacqua identifies two such jurisdictional facts: that the plaintiff is "in possession" of the disputed property, and that the plaintiff "hold[s] a 'record title' to the land in question." Bevilacqua, 460 Mass. at 767. (Abate v. Fremont Invest. & Loan, 470 Mass. 821 , 827 (2015) (footnote omitted), notes a third jurisdictional fact: "the existence of an actual or possible 'adverse claim' clouding the plaintiff's record title.") Reem's motion contends that, according to the Housing Court Judgment, Bigelow doesn't have record title to 33 Whiting Road. If Bigelow doesn't have record title, he lacks standing to bring a try-title action.

While Bevilacqua comments that consideration of some "first step" jurisdictional inquiries might be more appropriate for consideration in the "second step" title action brought by the adverse claimant, see Bevilacqua, 460 Mass. at 76 n.2, four years after Bevilacqua, the Supreme Judicial Court ruled in Abate, 470 Mass. at 826, that this Court may determine the issue of superior title in the "first step" if that issue is "determinative of [the plaintiff's] standing to bring a try title action and ultimately the Land Court's subject matter jurisdiction." Because (according to the Housing Court Judgment) Mr. Bigelow doesn't have record title in 33 Whiting Road, this Court holds that he lacks standing to bring a try-title action concerning that property.

Abate gives this Court guidance as to how this Court should dismiss Mr. Bigelow's try-title claims. Like plaintiff Abate, Bigelow cannot meet "the standing requirement of record title," id. at 836, so long as the Housing Court Judgment remains intact. In such circumstances, a dismissal of Bigelow's try-title claims, with prejudice, is proper. See id. By contrast, the Court cannot reach the merits of Bigelow's claim for damages under c. 93A. The Land Court lacks jurisdiction over commercial c. 93A claims. See M.G.L. c. 93A, §11. The Court thus will dismiss Bigelow's 93A claims without prejudice, for lack of subject-matter jurisdiction.

Judgment to enter accordingly.


[Note 1] In his amended supplemental memorandum, Bigelow expands this argument, contending that Reem can't rest its title on a forged deed. That's a correct statement of the law, but it has no application at this time to this case. That's because, so long as the Housing Court Judgment stands, Reem has a final judgment, affirmed on appeal, that rests on a court's conclusion that Reem has superior title to 33 Whiting Road.

[Note 2] Mr. Bigelow styled his May 2019 motion to the Housing Court as one arising under Rules 60(b)(4) and (6), so as of May 2019 he was aware of Rule 60(b). In several pleadings in this Court, Bigelow argues that the Housing Court didn't give the May 2019 motion any consideration, let alone proper consideration. Bigelow also attached to his amended supplemental memorandum in this Court an affidavit in which he states his belief that, "no matter what, I am not going to get justice from the [Central Housing Court]." But Bigelow was aware at the time the Housing Court denied his motion of the facts relating to that Court's consideration (or, allegedly, lack of consideration) of his Rule 60(b) motion. He also was contemporaneously aware of whatever facts led him to conclude that he wasn't going to get justice from that Court (indeed, he had previously argued to the Appeals Court that the Housing Court was "predisposed against him," see Reem Property, 94 Mass. App. Ct. 1122 , at *2 n.2). It was thus incumbent on Bigelow to appeal, in a timely fashion, the Housing Court's denial of his May 2019 motion. Bigelow chose not to do that.