MISC 13-478185

September 27, 2013

Suffolk, ss.

Cutler, J.


Introduction and Background

In this Action, Plaintiff Qadriyyah S. Ali (“Ali” or the “Plaintiff”) seeks to enjoin the Defendant Tremont Credit Union (“Tremont”) from conveying the property at 105 Munroe Street, Boston (the “Property”) to Defendant Liam Deeney. The Plaintiff’s Complaint, filed pro se on June 12, 2013, consists of a short, narrative statement in which she alleges that Tremont did not fully satisfy statutory requirements for foreclosure because it failed to “enter evidence of their possession before entering the mortgage foreclosure deed” and left the Property “vacant and abandoned.” The Complaint further alleges that after Ali “moved onto the Property and filed proper documents with the Registry of Deeds,” she notified Tremont and their attorneys of her claim of ownership, but the Property was unlawfully transferred to Liam Deeney. Ali’s Complaint prays that the court enjoin the transfer of the Property from Tremont to Deeney; “place a permanent injunction on all three parties;” and order Tremont to pay for any damages to the Property. [Note 1]

Accompanying the Complaint (although not specifically referenced therein) are the following documents, labeled as exhibits:

* A photocopy of Tremont’s Foreclosure Deed, dated June 7, 2012 and recorded at Book 49694, Page 246 in the Suffolk County Registry of Deeds on June 20, 2012.

* A photocopy of an instrument entitled “Certificate of Entry to Foreclose,” dated April 6, 2012 and recorded at Book 49694, Page 245 on June 20, 2012, in which two witnesses certify that, on April 6, 2012, they were present and saw Tremont’s duly authorized agent make an open, peaceable and unopposed entry on the Property for the purpose of foreclosing a certain mortgage given by Deborah Briggs and Joseph D. Briggs, Jr., and for the purpose of collecting rents and taking possession of the Property.

* A photocopy of an unrecorded instrument entitled “Deed,” dated April 30, 2013, in which Ali claims ownership of the Property and acknowledges her acceptance of the deed.

* A photocopy of an unrecorded “Affidavit of Title,” dated April 30, 2013, in which Ali purports to be the owner of the Property and sets forth certain statements regarding the condition and use of the Property.

* A photocopy of an instrument entitled “Certificate of Entry,” recorded in the Suffolk County Registry of Deeds at Book 51387, Page 231 on May 2, 2013, which states that the signing witnesses were present on May 1, 2013 and saw Ali make an open, peaceable and unopposed entry onto the Property for the declared purpose of “maintaining residence.”

* A photocopy of an instrument entitled “Certificate of Acknowledgment,” signed by Ali, and recorded in the Suffolk County Registry of Deeds at Book 51418, Page 247 on May 10, 2013, in which Ali purports to be “recorded as the owner on the deed for [the Property]” in the capacity of “Executrix” and acknowledges “acceptance of the deed and lawful ownership of [the Property].”

* An unrecorded instrument entitled “Writ of Mandamus,” in which Ali purports, among other things, to be the “registered owner with indefeasible title to my land and lawful owner of the real property and interests known as Qadriyyah Safiyyah Ali, born September 15, 1979 and registered in the county of Suffolk (Massachusetts)” with “sovereign powers of my land.” Said instrument, which appears to be an original signed by Ali on May 14, 2013, commands “lawful officers to protect her and her property,” and denies the right of anyone to bring a claim against her or her real property.

* An unrecorded instrument entitled “Declaration of Reservation of Rights Supported by Writ of Right and Acknowledgment of Affiant,” in which Ali purports to declare her rights under federal and international laws. The instrument appears to be an original, signed by Ali on May 15, 2013. No reference is made therein to the Property, Tremont’s foreclosure deed, or the instant lawsuit.

* A photocopy of a letter dated May 16, 2013 addressed to Leonard Broderick at Tremont Credit Union, Reneau Longoria, Esq. at Doonan, Graves & Longoria, and MassRealty, “Re: First Notice Regarding Property Known as 105 Munroe Street,” in which Ali asserts that she is the record owner of the property, demands that the addressees cease showing, selling or auctioning the property, states that she will charge Tremont and MassRealty three thousand dollars for every day that they prevent her from being in her home on the Property, and demands that the addressees mail her the keys to the Property.

* A photocopy of the May 23, 2013 Order issued by Superior Court Justice Frances A. McIntyre, denying Ali’s request for relief, dismissing Ali’s case, and ordering Ali not to enter or trespass on the Property. [Note 2]

* A document entitled “Notice of Declaration in the Form of a Commercial affidavit of Truth Notice of Common Law Copyright, Copy Claim, Trademark” addressed to the Land Court Department, Honorable Karyn F. Scheier, “Re: the art work ‘The Ali Family Names and Bloodline…,’ any/all derivatives thereof.” The document, which appears to be an original signed by Ali on June 10, 2013, makes no reference to the Property, Tremont’s foreclosure deed, or the instant lawsuit.

On July 15, 2013, Plaintiff filed a Motion to Enjoin the Transfer of Property Rights. [Note 3] As grounds for her motion, Ali asserts that she herself has established a claim in the Property, while the Defendants have neglected to follow proper procedures for retaining title. Specifically, Ali contends that Tremont failed to “sustain its mortgage foreclosure deed with evidence of possession” in accordance with G.L. c. 185, § 70, and G.L. c. 244, § 2, and that the previous owner of the Property, Joseph Briggs, moved from the Property with no intention of returning as the owner.

On July 31, 2013, Defendants Tremont and Deeney filed an Answer and Counterclaim. In Count I of the Counterclaim, Tremont alleges intentional interference with contractual relations. Count II seeks injunctive relief for Ali’s actions in recording fraudulent instruments in the Registry of Deeds, fraudulently claiming ownership of the Property, interfering with a contract to sell the Property, breaking and entering, destruction of property, and the filing of frivolous and bad faith litigation. The Plaintiff never answered or otherwise responded to the Counterclaims and, by separate order, has been defaulted pursuant to Mass. R. Civ. P. 55(a).

The Motions to Dismiss

On July 17, 2013, Defendant Doonan, Graves & Longoria [Note 4] moved to dismiss Ali’s Complaint on the grounds that the issues raised in the Complaint have already been litigated in Superior Court action, SUCV 2013-01786. On July 26, 2013, Defendants Tremont and Deeney filed a “Motion to Dismiss and for Summary Judgment,” arguing that the Complaint should be dismissed for failure to state a claim because Plaintiff Ali has no cognizable interest in the Property. They argue in the alternative that the Complaint should be dismissed under the doctrines of issue and claim preclusion.

On August 20, 2013, Ali filed “Plaintiff’s Response to Defendant’s Motion to Dismiss.” [Note 5] Plaintiff’s Response discusses Ali’s concerns about her family and her community, and asserts that the Property was an answer to her prayers to find a home for herself and her child. She states that the previous occupant of the Property moved out the weekend before Ali moved in, and that getting into the house “presented no struggle because the back door was ajar which allowed me access.” [Note 6] Because the Response does not attempt to refute any of the facts asserted in the Defendants’ Motions, and does not present any legal argument in opposition to the Defendants’ Motions, I have determined that the Motions to Dismiss may be decided without oral argument, pursuant to Land Court Rule 6.

To survive a motion to dismiss for failure to state a claim upon which relief may be granted, a complaint must set forth factual allegations which, if true, plausibly suggest that the plaintiff is entitled to the requested relief. Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (“What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief…” (Internal citations omitted)). The Complaint in the instant action seeks to enjoin Tremont’s conveyance of the Property on the grounds that the failure to have followed certain statutory foreclosure requirements renders Tremont’s foreclosure deed invalid. However, Ali does not allege that she was either in possession of, or the record owner of, the Property at the time of the foreclosure. Nor does she allege that she was a party to the foreclosed mortgage. [Note 7]

Based upon the allegations made in the Complaint, and considering the documents filed with the Complaint, as well as the matters of which I may take judicial notice, including the docket, complaint, orders, and Judgment in SUCV 2013-1786, I conclude that Ali’s claim is not barred by either claim preclusion or issue preclusion. [Note 8] However, because Ali asserts no legally cognizable interest in either the Property or the mortgage thereon which was foreclosed in 2012, I conclude that she lacks standing to challenge the validity of Tremont’s foreclosure deed. Accordingly, the Plaintiff’s Complaint in the instant action fails to state a claim upon which relief may be granted, and Defendants Tremont and Deeney’s Motion is ALLOWED on that ground.

When the allegations in the Complaint are read together with the documents accompanying that Complaint, it appears that the Plaintiff holds herself out as the present owner of the Property by virtue of having entered the vacant house on the Property in April of 2013 (approximately a year after Tremont acquired the Property by foreclosure deed), and then having executed (and in some instances having recorded) documents declaring herself as owner of the Property. The documents accompanying the Complaint, however, lend absolutely no support to her claim of ownership. Merely declaring herself the owner of the Property does not make it so, despite the fact that her declarations were recorded at the Registry of Deeds. As the Supreme Judicial Court recognized in Bevilacqua v. Rodriguez, 460 Mass. 762 , 770-771 (2011), “there is nothing magical in the act of recording an instrument in the registry that invests an otherwise meaningless document with legal effect.” See also, Strother v. Shain, 322 Mass. 435 , 437 (1948), (“neither acknowledgment nor recording could confer validity upon an invalid instrument.”)

There is, moreover, nothing in the Complaint to suggest that Ali either held or claimed any lawful interest in the Property at the time of the foreclosure sale in 2012. Rather, her allegations concerning ownership of the Property relate only to events occurring in May, 2013, more than a year after the foreclosure sale took place and Tremont’s foreclosure deed was recorded. [Note 9]

Thus, taking as true the allegations in Ali’s Complaint, as well as all inferences reasonably drawn therefrom in the Plaintiff’s favor, I conclude that Ali lacks standing to challenge the validity of Tremont’s foreclosure deed. She has presented no plausible claim of an ownership interest in the Property, either at the time of the foreclosure or at present, and no plausible claim of injury as a result of the foreclosure, Tremont’s foreclosure deed, or any subsequent conveyance of the Property by Tremont. [Note 10] Ali has also raised no cognizable claim against any of the other Defendants.

Accordingly Defendant Tremont and Deeney’s Motion to Dismiss is ALLOWED. However, because Tremont’s counterclaims are still pending, final judgment shall not enter at this time.


[Note 1] No specifics are alleged as to the nature of the actions to be enjoined (other than the transfer of the Property), and no specifics are alleged regarding property damages. Notably, on the Civil Action Cover Sheet filed with the Complaint, the Plaintiff identified three causes of action. In addition to identifying “Try Title G.L. c. 240, § 1-5” and “Mandamus - G.L. c. 249, § 5” as her No. 2 and No. 3 causes of action, respectively, Ali identified “Recover Freehold Estate (Writ of Entry) – G.L. c. 237” as No. 1, her main cause of action.

[Note 2] There is no identifying case number on the Plaintiff’s exhibit. However the documentation provided by the Defendants indicates that the Order was issued in Suffolk Superior Court Case NO. SUCV2013-01786.

[Note 3] Ali never marked up the Motion for hearing. Therefore, the Motion to Enjoin was not scheduled for a hearing and the time for filing of responses to the non-dispositve Motion never commenced. See Land Court Rule 5.

[Note 4] Although not named as a defendant in this action, Attorney Reneau Longoria, joined in the Motion.

[Note 5] The Response does not indicate whether it is intended to address one or both of the Defendants’ Motions to Dismiss. Therefore, since no other filings were made in response to the Motions to Dismiss, I have treated the Response as an opposition to both Motions.

[Note 6] Ali also voices her objections to the manner in which the Land Court judge has treated her case, apparently taking the court’s observations that she might benefit from seeking the advice of legal counsel as a bias against her pro se status.

[Note 7] While the civil action cover sheet identifies Ali’s cause of action as seeking a writ of entry, and secondarily as a complaint under the Try Title statute, the Complaint itself does not articulate the elements of such claims or pray for relief consistent with such claims. “The object of a writ of entry is to obtain possession of real estate from a disseisor who is in possession and holds the demandant out.” Mead v. Cutler, 208 Mass. 391 , 392 (1911). “If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land claiming an estate of freehold therein . . . 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.

[Note 8] There is no claim preclusion because the action filed by Ali in Superior Court did not seek the same relief she now seeks in Land Court. Her Superior Court complaint was one for recovery of personal belongings which, Ali asserted, were wrongfully removed from the Property by Tremont Credit Union, Doonan, Graves & Longoria, and MASSREALTY. She did not include a claim that Tremont’s foreclosure deed was invalid, and Deeney was not a defendant in the Superior Court case. There is also no issue preclusion, as the title to the Property was not fully litigated and decided in the Superior Court action. Although the Superior Court’s denial of injunctive relief, dismissal of the complaint, and order for Ali not to trespass on the Property necessarily involved a determination that Ali had not established possessory rights in the Property, no express findings were made (or necessary) regarding the validity of Tremont’s foreclosure deed, or any other title questions. Therefore, Motion to Dismiss filed by Defendant Doonan, Graves & Longoria is Denied.

[Note 9] It must be noted that Tremont obtained its foreclosure deed in connection with a foreclosure under a power of sale pursuant to G.L. c. 244, § 14. A foreclosure under power of sale is only one of the available methods of foreclosing on a mortgage, and does not depend upon performance of the statutory requirements for foreclosure by entry under G.L. c. 244, § 2. Thus, although I do not decide whether or not the foreclosure deed is valid, nonconformance with the foreclosure by entry procedure alleged by Ali would have no effect on the legal status of Tremont’s foreclosure deed.

[Note 10] To the extent that Ali is claiming under G.L. c. 237 that she has been unlawfully ousted by a disseisor, or to the extent that she is attempting to bring a try title action under G.L. c. 240, § 1-5, she also lacks standing under those statutes.