MISC 12-462971

August 23, 2013

Nantucket, ss.

Piper, J.


The motion to dismiss before the court asks it to rule that the plaintiffs (landowners and mortgagors) are legally unable to proceed under the try title statute, G.L. c. 240, §§ 1-5, to require the defendant, who claims to hold a mortgage on plaintiffs’ land, to bring an action to establish that the defendant truly does hold title to that mortgage. Well aware that in doing so, it is drawing a conclusion directly contrary to that reached by at least one other judge of this court, and followed by a panel of federal appellate judges, this court concludes that the law allows these plaintiffs to bring such an action, and that the motion to dismiss must be denied.

This is an action to try title under G.L. c. 240, §§ 1-5, commenced April 24, 2012. The plaintiffs, Henry Varian and Miriam Varian, allege that they hold title to, and are in possession of, real property that is subject to a mortgage; however, they allege the party claiming to be the mortgagee, the defendant The Bank of New York Mellon s/b/m to The Bank of New York as Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee for the Holders of SAMI II Trust 2006AR7, Mortgage Pass-Through Certificates, Series 2006AR7 (“Bank of NY”), lacks that status. The Varians seek a judgment from the court requiring those claiming to be the current holder of the mortgage to come forward and prove their title.

On October 19, 2012, Bank of NY, Mortgage Electronic Registration Systems, Inc. (“MERS”), and Wells Fargo Bank, N.A. (“Wells Fargo”) (collectively, “defendants”) filed an answer that claims title to the subject property, and denying any need to bring an action to prove their title. See G.L. c. 240, § 3. In the same filing, the defendants assert a counterclaim for declaratory judgment, asking the court to declare that Bank of NY is the holder of both the note and mortgage, and has full authority to foreclose. [Note 1] On June 10, 2013, the defendants filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (1) and 12 (c). [Note 2] The plaintiffs filed an opposition on July 8, 2013. The court (Piper, J.) held a hearing on the motion on July 10, 2013. Following argument, the court offered the parties the opportunity, if desired, to file supplemental legal memoranda addressing the case Brewster v. Seeger, 173 Mass. 281 (1899), which counsel had not earlier considered. Both parties did file supplemental papers on July 29, 2013, and the court took the motion under advisement.

The issue posed by this motion to dismiss is whether a mortgagor in possession and with record title may bring a try title action to compel a putative mortgagee to prove its title prior to foreclosure. The following facts are relevant and are found in the pleadings in a way that makes them available for the court’s consideration for purposes of motions filed under Mass. R. Civ. P. 12 (b) (1) or Mass. R. Civ. P. 12 (c):

1. The plaintiffs hold title to, and remain in possession of, the property (“Property”) known as 54 Union Street, Nantucket, Nantucket County, Massachusetts by deed dated July 23, 1998 and recorded with the Nantucket County Registry of Deeds (“Registry”) in Book 588 at Page 70.

2. On or about July 16, 2006, the Varians executed a promissory note in an original principal amount of $722,500.00. The note was payable to Countywide Bank, N.A. 1.

3. The note was secured by a mortgage granted by the Varians and recorded with the Registry in Book 1031 at Page 225. The grantee of the mortgage was MERS.

4. Recorded with the Registry on April 2, 2010, in Book 1226 at Page 76, is an instrument purporting to assign the Mortgage from MERS to “The Bank of New York Mellon s/b/m to The Bank of New York as Successor to JPMorgan Chase Bank, N.A., as Trustee for Holders of SAMI II Trust 2006AR7 c/o BAC Home Loans Servicing, L.P.”

5. Recorded with the Registry on November 16, 2011, at Book 1300, Page 289, is an instrument titled “Confirmatory Assignment of Mortgage” purporting to “confirm[] and correct[] the prior Assignment of Mortgage..., which failed to state the entire legal name of the assignee.” According to the Confirmatory Assignment of Mortgage, the subject Mortgage was assigned from MERS to “The Bank of New York Mellon as s/b/m to The Bank of New York as Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee for the Holders Of SAMI II Trust 2006AR7, Mortgage Pass-Through Certificates, Series 2006-AR7, c/o BAC Home Loans Servicing, LP.”

6. The Varians allege that both the April 2, 2010 Assignment and the November 16, 2011 Confirmatory Assignment are “fraudulent, invalid, void and/or legally inoperative” for a number of reasons, the legal or factual sufficiency of which are not at issue in this narrowly-framed motion to dismiss, see note 2, supra.

* * * * *

Mass. R. Civ. P. 12 (c) provides: “Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” When a motion for judgment on the pleadings seeks dismissal, the court must take all wellpleaded allegations in the complaint as true, and all contravening assertions in the defendants’s papers as false. A judgment on the pleadings may enter in a party’s favor where there are no material facts in dispute on the face of the pleadings, and the undisputed facts establish, as a legal matter, that that party is entitled to a judgment. See Wing Memorial Hosp. v. Deparment of Pub. Health, 10 Mass. App. Ct. 593 , 596 (1980). In reviewing a motion to dismiss under Mass. R. Civ. P. 12 (b) (1) for lack of subject matter jurisdiction, the court accepts as true the factual allegations in the complaint, as well as any favorable inferences which reasonably may be drawn from those allegations. Ginther v. Comm’r of Ins., 427 Mass. 319 , 322 (1998). The try title statute, G.L. c. 240, §§ 1-5, provides that: “If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land... may file a petition in the land court stating his interest, describing the land, the claims and the possible adverse claimants so far as known to him, and praying that such claimants may be summoned to show cause why they should not bring an action to try such claim.” G.L. c. 240, § 1 (emphasis supplied). There is no requirement that a plaintiff plead a “superior” title. Id. [Note 3]

Our Supreme Judicial Court in Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), ruled that a mortgagee (or one standing in the mortgagee’s shoes) may not use the try title statute to compel a mortgagor to try its title. Id. at 776-77. To bring an action to compel another to try its title, a plaintiff must allege an adverse claim, or the possibility thereof. G.L. c. 240, § 1. Bevilacqua, 460 Mass. at 773. The title of mortgagee and mortgagor ordinarily are not adverse to each other. 460 Mass. at 776 (“The crucial point is that a mortgage, by its nature, necessarily implies the simultaneous existence of two separate but complementary claims to the property that do not survive the mortgage or each other.”). “[A] litigant who asserts that he or she is the holder of a mortgage necessarily asserts that the mortgage continues to exist and that the mortgagor’s claims to the property remain valid.” Id. Accordingly, the Bevilacqua court ruled that the plaintiff, in asserting a status as mortgagee, was not able to use the try title statute to obtain relief against a party, the original mortgagor, who held an interest which was complementary and not adverse. Id. at 777.

A recent decision of this court, however, has extended this principle of Bevilacqua to the reciprocal scenario, where the try title plaintiff is the mortgagor, seeking a try title judgment against a putative mortgagee. Doing so in effect, flips Bevilacqua on its head, ruling that a plaintiff mortgagor “cannot bring a try title action to compel a purported mortgagee to try its mortgage title before a foreclosure.” Abate v. Freemont Inv. & Loan, 20 LCR 630 , 632 (2012) (Misc. Case No. 12 MISC 464822) (Foster, J.) (emphasis added). Citing to Bevilacqua, the order in Abate reasoned “[t]he try title act may be used to challenge a party’s claim to hold a mortgage only after that party has foreclosed, because it is only after foreclosure that the mortgagee has a claim of superior title.” 20 LCR at 632. The Court of Appeals for the First Circuit has since cited favorably to Abate, affirming dismissal of a complaint to try title filed by a mortgagor for the reason that the defendant’s “interest in the [p]roperty as mortgagee was not adverse to the [plaintiffs’] interest as mortgagor under Massachusetts law.” Lemelson v. U.S. Bank Nat’l Assoc., No. 12-2275, slip op. at 12 (1st Cir. July 1, 2013). The First Circuit went on to say: “Uncertainty as to who holds a valid mortgage does not provide the requisite adversity to cloud a mortgagor’s claim of equitable title.” Id. at 14 n. 7. [Note 4]

For the following reasons, this court today parts from the earlier decision of the Land Court in Abate, and from the First Circuit’s treatment of Massachusetts law in Lemelson. This court respectfully suggests that the outcomes in these two cases are not compelled by Bevilacqua. The opposite alignment of the parties in those cases--between Bevilacqua, on the one hand, where a party asserting rights as mortgagee sought to compel its mortgagor to try title, and Abate and Lemelson, on the other, where it was the mortgagors seeking to require putative mortgagees to try their titles--is critical. Bevilacqua v. Rodriguez was not Rodriguez v. Bevilacqua.

Apparently noting that a mortgagor and putative mortgagee might, on some set of facts, have claims to the same property that are adverse, the Bevilacqua court noted: “[A] plaintiff in a try title action may be heard to claim that a mortgage no longer exists, that claims to the contrary are adverse, and that the putative mortgagee should be required to bring an action trying the claim. See, e.g., Brewster v. Seeger, 173 Mass. 281 (1899).” 460 Mass. at 776-77 (citation in original). Brewster v. Seeger was a try title action brought by a title holder against a putative mortgagee. 173 Mass. at 282. The dispute in Brewster centered around a certain mortgage, originally given to one Perry, “as he is guardian of Elsie S. Adams, a minor.” Id. After the minor had come of age, Perry assigned the mortgage, which was later paid and discharged. Id. Elsie S. Adams, now married and known as Elsie S. Seeger, claimed that title to the mortgage had vested in her once she came of age, that Perry had no authority to assign the mortgage, and that she had “entered to foreclose.” Id. The suit was brought to test Seeger’s right to enter as mortgagee to avail herself of the mortgagee’s remedy of foreclosure by entry. [Note 5] Thus, the case of Brewster v. Seeger was a pre-foreclosure try title action, commenced by a title holder in possession, against one who claimed to be the mortgagee and was taking affirmative steps to terminate the right of redemption under the mortgage. The central issue in the case was whether the assignor of a mortgage possessed the requisite title or authority to make a valid assignment. Notably, the Supreme Judicial Court (Holmes, J.) reached the merits without pausing to consider whether defendant’s theory of the case, i.e., that the two parties had complementary estates, required the court to dismiss for lack of an adverse claim. 173 Mass. 282 -83. It should be obvious why: because on the plaintiff’s theory of the case, Elsie Seeger, the putative mortgagee, was a stranger to the property, holding no title whatsoever.

To be sure, the difference between Brewster v. Seeger and the case at bar is that in Brewster, the plaintiff alleged the mortgage was fully discharged by payment of the underlying obligation, the dispute being whether the payment had been made to the appropriate person; in the pending case, the plaintiffs admit the mortgage is outstanding, but dispute that the defendant is the holder. In both instances, however, the merits of the case turn on the validity, or not, of an assignment. And a judgment in favor of the defendant would establish (or confirm) a relationship of mortgagor/mortgagee. Just as it would have made no sense to force Brewster to wait until Seeger foreclosed her “mortgage” before allowing Brewster to file a try title action, it makes no sense to order that today, in ruling on the pending motion. This is because if Brewster prevailed in his try title, the result would be that Seeger had no ability to proceed with foreclosure, which is the same outcome sought in the case at bar. If the Varians prevail fully on the merits of this case, then Bank of NY will lack the ability to foreclose. An interpretation of the try title statute that requires the Varians to suffer a foreclosure to take place before contesting the ability to foreclose is strange indeed, and certainly not the conclusion compelled by Bevilacqua.

The crucial difference between the instant case and the Bevilacqua decision is that in Bevilacqua, the plaintiff, as a matter of law and logic, had to admit the existence of the subject mortgage, admit he stood before the court as the mortgagee, and simultaneously allege that the defendant Rodriguez was the mortgagor. Taking all these allegations together, the plaintiff failed to plead any adversity of interest. See 460 Mass. at 775: “The title that [plaintiff] might claim as mortgagee, however, would be inconsistent with the relief that might be provided under G.L. c. 240, §§ 1-5.” Here, the Varians’ title is established independently of the mortgage because they indisputably hold a fee interest under a recorded deed. The Varians have not pleaded any facts which, if true, would be inconsistent with the relief they seek. On the contrary, and unlike the facts in Bevilacqua, the Varians allege that Bank of NY is a stranger to the title. Admitting that they (the Varians) have granted a mortgage to some party does not prevent them from arguing that Bank of NY is not that party. As between the mortgagor and a stranger–who holds no title but nonetheless claims to–clearly there is an adverse relationship.

The problem with reading Bevilacqua to require dismissal on the facts in this case is that such a reading assumes that the party claiming to be the mortgagee is, in fact, the mortgagee, despite the contents of the plaintiff’s complaint. Here, Bank of NY’s argument is that the court should dismiss this action because the Varians and Bank of NY hold complementary title. But this assumes Bank of NY is in fact the “mortgagee,” and this is disputed at the very core of the Varians’ complaint. The Varians claim that Bank of NY is not the mortgage holder, and if that is true (and the court must assume it is when ruling on a motion under Rule 12), then Bank of NY’s contrary claim absolutely is adverse to the Varians’ title. Allowing dismissal under Rule 12 because Bank of NY alleges it is the mortgagee would be tantamount to granting a motion to dismiss because the defendant is convinced it will prevail at trial: to do so simply sidesteps the legal standard the court must apply when considering these dismissal motions.

The First Circuit in Lemelson in a footnote says that “[u]ncertainty as to who holds a valid mortgage does not provide the requisite adversity to cloud a mortgagor’s claim of equitable title.” Lemelson, supra at 14 n. 7. It is not clear why this should be the case, and there is no state appellate decisional law the court is aware of to compel that conclusion. Both Bevilacqua, supra, at 776-77, and Brewster v. Seeger, supra, assume that uncertainty--as to whether a certain mortgage is valid--provides the requisite adversity. [Note 6] There is no compelling reason why uncertainty as to the holder of a mortgage should be treated any differently. [Note 7], [Note 8]

None of this is to say that Bank of NY will ultimately be unable to prove its title, either by assembling a record and moving for summary judgment, or by offering evidence at trial. In fact, the court would be remiss if it did not express a healthy skepticism about the merits of the Varians’ challenge to Bank of NY’s title, most of which focuses on whether the signatories on certain instruments possessed the proper authority. Contra G.L. c. 183, § 54B. Nonetheless, the determination of those questions needs to await further proceedings. It is

ORDERED that the Motion to Dismiss pursuant to Mass. R. Civ. P. 12 (b) (1) and 12 (c) is DENIED. It is further

ORDERED that within fourteen (14) days from the date of this Order, the parties are to file a joint report detailing their collective or respective views on how the court should proceed to adjudicate this case on the merits. Without limitation, the required report should address the need for additional discovery, if any, and whether either party intends to file a motion under Mass. R. Civ. P. 56. The court will review the submission of the parties and issue appropriate instructions without another hearing unless otherwise ordered.

So Ordered.


[Note 1] A successful petition filed under the try title statute results only in a judgment requiring a party with a claim to the subject property to come forward and try their title, or otherwise be barred. The defendants first contest that they be required to do that, and to that end have filed this motion to dismiss. Should defendants not prevail on the motion to dismiss, they have represented through counsel that they will proceed by motion filed under Mass. R. Civ. P. 56 to demonstrate why no such decree or judgment should enter. They have reserved their right to do so even though they have filed their counterclaim seeking declaratory judgment. If the court ultimately does require, under the G.L. c. 240, § 3, that defendants “bring an action to try such title[,]” it would appear that the counterclaim for declaration as to their title would be sufficient for that purpose. The now considerably dated try title statute is not specific as to what form the mandated “action” must take, and–without making any ruling on the issue in advance–it does not appear that the interests of justice and efficiency would be served by closing the instant case by issuing a judgment which simply orders the defendants to file a whole new action--seeking what would essentially be the same declaration requested in their already-filed counterclaim.

[Note 2] The defendants filed an answer and counterclaim on October 19, 2012 and did not file a motion to dismiss under Mass. R. Civ. P. 12 (b) (6). The instant motion, filed under Mass. R. Civ. P. 12 (b) (1) and 12 (c) does not address the merits of the Varians’ underlying objections to the validity of the two purported assignments, and the court expresses no opinion on, and makes no ruling as to, the adequacy of those claims or the likelihood of success on the merits. Counsel are agreed that the motion now before the court is brought only to test the legal availability of a try title action to plaintiffs in the position of the Varians, and is not intended by the parties or the court to test the legal viability of any of the multitude of title deficiencies the Varians allege afflict the purported devolution of the disputed mortgage to the Bank of NY.

[Note 3] That phrase, “superior title,” does not appear in the try title statute. In the Bevilacqua decision, discussed in the following text, the court notes in a footnote that one difference between an action to try title, G.L. c. 240, §§ 1-5, and to quiet title, G.L. c. 240, §§ 6-10, is that “the plaintiff in a try title action may defeat the specified adverse claims through a default or by showing title that is merely superior to that of the respondent.” 460 Mass. 762 , 768 n. 5. Citing to Bevilacqua, the Land Court in Abate v. Freemont Investment & Loan, infra, reasons that “[i]t is only upon a foreclosure that the mortgagee... now holds a title in the property superior to the mortgagor’s.” 20 LCR at 632 (emphasis added). While this undoubtedly is true, it should not be read as a restatement of the statutory requirements. A showing of superior title is sufficient to prevail in an action to try title; but it is not a necessary part of the pleadings to compel another to try its title. All that a plaintiff is required to plead under G.L. c. 240, § 1 is that his or her title is “clouded by an adverse claim, or by the possibility thereof[.]”

[Note 4] See also Abate, 20 LCR at 632. “If all that Abate was alleging in the complaint was that there is uncertainty over who holds the [m]ortgage, he would not have a try title claim.”

[Note 5] “This question is the only one before us, and, in other words, it is whether the respondent has a right to enter and foreclose as legal owner of the note and mortgage.” 173 Mass. at 282.

[Note 6] Viewed this way, cases in which record landowners employ the try title statute to require proof, from one claiming to hold a valid, outstanding mortgage (particularly one asserted to be in default), that that party in fact holds the mortgage, fit comfortably within the general sweep and purpose of the try title cause of action, provided the landowners can articulate grounds why the defendant might not enjoy that status. The classic application of the try title statute occurs where a landowner in possession confronts assertions of adverse title interests, and needs the court’s assistance to ferret out those making those assertions, so they can be required to move forward with them or forfeit their claims. The landowner comes to the court and demonstrates that one or more persons are holding themselves out as having a title interest in the property which is inconsistent with the plaintiff landowner’s good title to it. The statute serves to identify and hale into court those who are asserting rights at odds with the plaintiff’s title, and to give them an opportunity to “put up or shut up,” at the risk of losing any interest they may have in the land if they do not formally press their claim. It is hard to see how this mechanism ought not be available to deal with one who publically proclaims to hold a mortgage that is in default, and publishes statutory notice of a foreclosure by exercise of a power of sale, see G.L. c. 244, s. 14, if the landowner can articulate legally viable reasons why the one who is asserting the right to foreclose actually has no title to the mortgage and no right to enforce remedies under it. The statute indulgently requires the record title to be “clouded by an adverse claim, or the possibility thereof...,” G.L. c. 240, s. 1, and when a party asserts its right and intention to conduct a foreclosure sale at an upcoming published appointed hour, that does seem adverse enough. Successful employment of the statutory power of sale will cut off the right of redemption and utterly divest the mortgagor of any title. Try title cases are brought to address adverse claims which are not nearly so sweeping. (For example, those who claim to be tenants in common may be named respondents in a try title case, see Gurney v. Waldron, 137 Mass. 376 (1884), and the most right they would have is to shared possession, some profits, and partition.) The defendant in this action concedes that if it had made good on its announced plans to foreclose, the Varians’ right to bring their try title case would thereafter arise. Given the low standard of the statute (“the possibility thereof”), it seems a harsh rule to require the guillotine to drop on the mortgagor landowner, making her wait until the gavel falls at the auction, before the court could entertain a try title case or afford any relief under the statute. Indeed, Bank of NY’s contrary interpretation of the statute might prevent this court from issuing any preliminary injunctive relief in a try title case, including to stop an imminent foreclosure–because the threatened foreclosure sale had not yet taken place. Such an interpretation flies in the face of a chief goal of the statute, which is to cause simmering adverse title claims to be brought forward judicially, and be resolved in the courts before the contestants come to direct conflict. Of course, this analysis by the court is needed because the plaintiffs here have elected to proceed solely under the try title statute. The statute is, as the Bevilacqua court intimated, somewhat anachronistic given today’s liberal pleading standards under the Rules of Civil Procedure. The try title act raises some legitimate concern at times about its tendency to shift both burdens of proof and the obligation to litigate to preserve property interests. In a world where declaratory judgment is readily available, one could question the need for the Varians to resort exclusively to the try title statute to achieve the relief they want. But the legislature has not seen fit yet to repeal the try title statute, and no court has declared it obsolete. So the questions of its meaning, and of its applicability to cases such as these, still need to be determined.

[Note 7] If one were to suppose a plaintiff landowner facing assertions by a party, X, that X had a right to pass over the plaintiff’s land by virtue of an easement, it would not seem right that X should be able to obtain dismissal of the try title case simply because the plaintiff admitted that the land was burdened by an easement granted to another party, Y. The question would be whether the easement rights given to Y had or had not devolved to X or to the benefit of land currently owned by X. If the plaintiff denied that X held any right under the easement to Y, and presented good grounds supporting that denial, there should be no reason the court would not issue a try title judgment to X. The plaintiff’s quarrel is not with Y, but with X. So too where a mortgagor admits the mortgage, but has good grounds to challenge a given defendant’s title as holder of that mortgage. The key question is whether there is legitimate dispute about whether the defendants hold the title rights they claim. This is the point of older cases under early renditions of the try title statute. See Dewey v. Bulkley, 67 Mass. 416 (1854); Hill v. Andrews, 66 Mass. 185 (1853). In those cases, the court did not permit try title actions, brought by petitioners (owning land as assignees of insolvent mortgagors) against mortgage holders, to proceed. But these authorities do not stand for the broad proposition that a landowner in all instances lacks the ability to use the try title statutes to deal with mortgages the landowner can show are not validly held by the defendants. Chief Justice Shaw clarifies the reason for dismissal of those cases. They could not proceed because there was no challenge to the mortgages, or the holding of them by the respondents, raised to justify the issuance of a try title judgment. “All that appears upon the petition and answer is, that the petitioners, by the assignment made by the commissioner of insolvency to them, acquired the estate of the insolvent debtor in the premises, which was subject to a prior mortgage on record, the validity of which they nowhere deny. These estates are prima facie consistent with each other.” Dewey, 67 Mass. at 417. Given the lack of any challenge to the mortgagee’s title, “no reason [was] shown why the respondents should be obliged to bring an action to enforce a mortgage, held by them merely as security for the payment of the mortgagor’s debt....” Id. Similarly in Hill, the court rebuffed a try title action brought by a landowner, who held his title under an assignment made by an insolvency commissioner, against one who held a mortgage from the insolvent debtor made before insolvency. The court observed that “when there are two deeds of the same estate from the same grantor, the first in time is prior in right. The assignee is privy in estate with the insolvent, the respondent’s prior grantor, and therefore, is bound by his prior conveyance, unless there be something to defeat it.” 66 Mass. at 186 (emphasis supplied). Dismissal of the try title action was indicated because there was no legally cognizable basis asserted under which the mortgage in the hands of the respondent could have been found to be invalid and unenforceable. The court was clear that the petitioner could “bring an action himself to try the question of title, counting on his own seisin, and a disseisin by the respondent. The issue will be on the title, not on the possession.” Id. The court preserved the right of the petitioner to challenge the mortgage as, for example, if it had been “given for the purpose of defrauding creditors; and to avoid it on that ground.” Id.

[Note 8] In this case, the plaintiff alleges numerous problems with the chain of assignments of the mortgage. Deficiencies in record instruments, such as assignments of the mortgage, go to the defendant/mortgagee’s title. Whether or not the defendant in this case possesses the original promissory note (or authorization to act on behalf of the note holder), see Eaton v. Fed. Nat’l Mtge. Ass’n, 462 Mass. 569 , 587 (2012), is not part of the court’s ruling today on the motion to dismiss. It is worth observing, however, that the analysis under the try title statute might be different if the court were presented with a case where the only allegation in a complaint to try title is that the “mortgagee” does not hold the note. This is because, while the Eaton court adopted a rule that the term “mortgagee” as used in G.L. c. 244, § 14 should be interpreted to mean “a mortgagee who also hold the underlying mortgage note,” Eaton, supra, at 584, that decision preserved the longstanding Massachusetts doctrine that “a mortgage and the underlying note can be split.” Eaton, supra, at 576. Thus, a mortgagor might fail to plead adversity of title if his or her only claim was that, preceding foreclosure, the mortgage holder did not possess the promissory note.