WELLS FARGO USA HOLDINGS, INC., SUCCESSOR BY MERGER TO WELLS FARGO FINANCIAL MASSACHUSETTS. INC., Plaintiff v. DONALD M. DANGELO; MARY ELLEN DANGELO; AND JASON DANGELO, Defendants AND MASSACHUSETTS ELECTRIC COMPANY, Defendant/Party-in-Interest

Procedural History

The Complaint in this action was filed on January 10, 2020. The Plaintiff's Assented to Motion to Continue hearing was filed and allowed on February 21, 2020. A Joint Statement for Case Management Conference was filed on March 23, 2020. Wells Fargo's Motion to Dismiss Counterclaim under Rule 12(b)(6) and Brief in Support of Wells Fargo's Motion to Dismiss

Counterclaim was filed on June 2, 2020. The Answer and Counterclaim of Jason Dangelo, Donald M. Dangelo, and Mary Ellen Dangelo was filed on June 3, 2020. The case management conference was held on June 3, 2020. The Motion to Dismiss hearing was held via video conference on July 10, 2020. Wells Fargo's Motion to Dismiss Counterclaim was allowed in part and denied in part. Defendants' counterclaim was to be treated as an affirmative defense per Mass. R. Civ. P. 8(c). The Plaintiff's Supplemental Memorandum of Law as to this Court's Subject Matter Jurisdiction was filed on July 27, 2020. A status report was filed on August 10, 2020.

Undisputed Facts

1. The Plaintiff, Wells Fargo USA Holdings, Inc., is a corporation having a usual place of business at 800 Walnut Street, Des Moines, Iowa 50309. Ver. Comp. ¶ 5.

2. On or about June 29, 2017, Wells Fargo Financial Massachusetts, Inc. merged into Wells Fargo USA Holdings, Inc. (referred to interchangeably as Wells Fargo). Ver. Comp. ¶ 14, Exh. D.

3. The Defendant, Donald M. Dangelo (Mr. Dangelo), is, upon information and belief, a Massachusetts resident with a last known address of 105 Hill Street, Millville, Massachusetts 01529. Ver. Comp. ¶ 6.

4. The Defendant, Mary Ellen Dangelo (Ms. Dangelo), is, upon information and belief, a Massachusetts resident with a last known address of 105 Hill Street, Millville, Massachusetts 01529. Ver. Comp. ¶ 7.

5. The Defendant, Jason Dangelo (Jason), is, upon information and belief, a Massachusetts resident with a last known address of 105 Hill Street, Millville, Massachusetts 01529. Ver. Comp. ¶ 8.

6. The Defendant/Party-In-Interest, Massachusetts Electric Company (MA Electric), is, upon information and belief, a domestic gas and electric utility company with a principal business address of 40 Sylvan Road, Waltham, Massachusetts 02451. The registered agent for MA Electric is a Corporation Service Company, which, upon information and belief, has a principal place of business at 84 State Street, Boston, Massachusetts 02109. Ver. Comp. ¶ 9.

7. On May 16, 2003, Mr. and Ms. Dangelo acquired title to the property by deed filed with the Worcester County Registry District of the Land Court (registry) as Document No. 80956 on Certificate of Title No. 14920. Ver. Comp. ¶ 10, Exh. A.

8. On July 25, 2007, Mr. and Ms. Dangelo and Jason executed a promissory note (note) in the original principal amount of $226,733.78 in favor of Wells Fargo. The note was subsequently endorsed in blank. Ver. Comp. ¶ 11, Exh. B.

9. Also on July 25, 2007, as security for the note, Mr. and Ms. Dangelo granted a mortgage in the original principal amount of $226,733.78 to Wells Fargo. The mortgage is filed with the registry as Document No. 92731. Ver. Comp. ¶ 12, Exh. C.

10. On or about October 1, 2010, Mr. and Ms. Dangelo and Jason defaulted on their mortgage payments. Ver. Comp. ¶ 13.

11. On October 11, 2016, MA Electric obtained a writ of execution against Mr. Dangelo in the amount of $8,038.06. The Execution is filed with the registry as Document No. 110483. Ver. Comp. ¶ 17, Exh. E.

12. The mortgage loan remains in default, with an outstanding principal balance due of $255,589.62, plus interest, escrow balance, and attorneys' fees and costs allowed under the note and mortgage. Ver. Comp. ¶ 19.

Discussion

Wells Fargo brought an action seeking, in Count I, to foreclose its mortgage pursuant to G.L. c. 244, §§ 3-13, and pursuant to the power of sale contained in Paragraph 20 of the mortgage. It seeks a conditional judgment, pursuant to G.L. c. 244, § 5, and, in Count II, a determination that no defendant(s) is/are in the military service within the meaning of the Servicemember's Civil Relief Act, 50 U.S.C. App. § 3901 et seq. (Servicemember's Act).

There is a question whether the Land Court has subject-matter jurisdiction over Count I, Wells Fargo's claim for foreclosure under G.L. c. 244. "The land court is a statutory court, not of general but of strictly limited jurisdiction." Riverbank Improvement Co. v. Chapman, 224 Mass. 424 , 425 (1916). Another Land Court judge recently addressed this issue and found that the Land Court does not have jurisdiction over conditional judgments under G.L. c. 244, § 5. Crowd Lending Fund One, LLC v. Boo Boo LLC, 2020 WL 4745642, *3 (Mass. Land Ct. Aug. 17, 2020) (Vhay, J.). The court opined that "[t]he principal source of [the Land Court's] subject matter jurisdiction is M.G.L. c. 185, § 1," and "[m]issing from those subparagraphs is any mention of c. 244." Id. at *2. This court agrees that the failure to include G.L. c. 244 in G.L. c. 185, § 1, creates an inference that the Legislature did not intend to give the Land Court jurisdiction over claims arising under c. 244. See Skawski v. Greenfield Investors Prop. Dev. LLC, 473 Mass. 580 , 588 (2016) (applying the maxim "expressio unius est exclusio alterius," or, "the expression of one thing in a statute is an implied exclusion of other things not included in the statute," to whether the Land Court enjoys exclusive subject-matter jurisdiction over permit appeals described in c. 185, § 3A). "The Court also does not find within c. 244 itself any express grant of subject-matter jurisdiction to this Court." Crowd Lending Fund One, LLC, 2020 WL 4745642 at *2.

Additionally, as noted in Crowd Lending Fund One, LLC, "[d]efendants have long had the right, after a conditional judgment issues, to request that a jury . . . hear any disputes as to what the defendant truly owes on the mortgage that gave rise to the judgment." Id. at *3; see Slayton v. McIntyre, 77 Mass. 271 (1858) (construing former Mass. Gen. Stats. C. 107, §§ 3 and 5); Foss v. Hildreth, 92 Mass. 76 (1865) (applying former Mass. Gen. Stats. C. 140, § 5). "Slayton and Foss predate the inception of the Land Court, and when the Legislature finally created the Land Court, the Legislature deprived it of the power to hold trials by jury." Crowd Lending Fund One, LLC, 2020 WL 4745642 at *3; see G.L. c. 185, § 25. "Given that the Legislature hasn't equipped the Land Court with juries, it stands to reason that the Legislature hasn't given the Land Court the power to issue conditional judgments under c. 244." Crowd Lending Fund One, LLC, 2020 WL 4745642 at *3. The Land Court lacks subject matter jurisdiction over Count I of Wells Fargo's complaint.

In Count II of the complaint, Wells Fargo also seeks a judgment declaring that the Defendant(s) is/are not entitled to the benefits of the Servicemember's Act. With the current global pandemic, the Land Court is only processing Servicemember's cases if they fall within the exemptions of the state moratorium, which is in effect until October 17, 2020. An Act Providing For a Moratorium on Evictions and Foreclosures During the Covid-19 Emergency, 2020 Mass. Acts 65. Those exemptions include non-residential mortgages or vacant or abandoned properties. Id. Even if the property is non-residential or is vacant or abandoned, the Land Court has also required filers to show some exigency to the case that would justify committing limited court judicial and staff resources advancing it during these times. Land Court Standing Order 7-20: Updated Emergency Measures in Response to Coronavirus Outbreak. This case does not fall within an exemption, nor did Wells Fargo showcase exigency that would justify processing the case during these times.

Conclusion

For the foregoing reasons, Plaintiff's Complaint is DISMISSED. Judgment shall enter dismissing the Complaint and Servicemember's case without prejudice.