MISC 10-434162

January 25, 2013


Grossman, J.


This instant action is brought by Joseph L. and Mary R. Sullivan (the “plaintiffs”/“Sullivans”) challenging the foreclosure of the property located at 98 Wild Hunter Road, Dennis, Massachusetts (the “Locus”/“Property”) by Kondaur Capital Corporation (“defendant”/“Kondaur”). The plaintiffs allege, inter alia, that the foreclosure is invalid because of irregularities in the mortgage and note assignments. The defendants, in turn, maintain that the foreclosure was valid, and have requested that the court dismiss the plaintiffs’ claims and dissolve a previously-issued lis pendens, allowing for sale of the property to a third party. Plaintiffs have moved to further amend their Amended Verified Complaint and have subsequently requested that the court allow them to substitute a new Second Amended Complaint to accommodate changes to the law and newly-discovered facts since the original Second Amended Complaint was filed.


Plaintiffs are the owners of a piece of registered land located at 98 Wild Hunter Road, Dennis, Massachusetts, which is described as Lots C-31 and C-34 on Land Court Plan No. 647-I, Certificate of Title No. 174074. [Note 2] On January 11, 2006, the Sullivans granted a mortgage (the “Mortgage”) to Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for the lender, WMC Mortgage Corp. (“WMC”), in the amount of Seven Hundred Four Thousand Dollars ($704,000.00). [Note 3] The Mortgage was recorded in the Barnstable Registry of Deeds on January 13, 2006 as Document No. 1,023,753. [Note 4] On May 21, 2008, WMC assigned the Mortgage (the “first assignment”) to Saxon Mortgage Services, Inc. (“Saxon”). [Note 5] The first assignment was recorded in the Barnstable Registry of Deeds on June 20, 2008 as Document No. 1,092,434. [Note 6] On February 12, 2009, Saxon assigned the Mortgage (the “second assignment”) to Kondaur. [Note 7] The second assignment was recorded in the Barnstable Registry of Deeds on February 25, 2009 as Document No. 1,107,431. [Note 8] On October 15, 2009, Kondaur foreclosed under the power of sale contained in the Mortgage, and was the purchaser of the property at the sale. [Note 9]

The plaintiffs initiated an action in the Barnstable Superior Court challenging the foreclosure and their pending eviction from their home. The Barnstable Superior Court approved a lis pendens on the property. The defendant seeks its dissolution. On February 25, 2010 the parties [Note 10] entered into an Agreement for Judgment in Orleans District Court whereby the plaintiffs voluntarily relinquished possession of the property to Kondaur. [Note 11] Plaintiffs vacated the property in early March of 2010. [Note 12] Subsequently, the Superior Court concluded that it lacked jurisdiction over the action as the Locus consists of registered land. It therefore transferred the case to the Land Court pursuant to G.L. c. 212, § 26A. Plaintiffs amended their complaint, presumably as a matter of right, in the Superior Court. The defendant moved to dismiss that Amended Verified Complaint.

The plaintiffs have filed a Motion to Further Amend that Amended Verified Complaint, along with a proposed Second Amended Complaint. The plaintiffs have since requested leave to withdraw their proposed Second Amended Complaint and to submit a revised Second Amended Complaint to reflect evidence purportedly brought to light during discovery, and changes to the law. The Motion was argued before this court, although a revised Second Amended Complaint has not been filed with the court. This court will therefore address the proposed Second Amended Complaint as submitted.

The Order issued by this court on January 25, 2013 on Defendant’s Motion to Dismiss is largely dispositive of the issues in this case. Nonetheless, the court will address herein Plaintiffs’ Motion to Further Amend and Subsequent Motion to Amend.


Plaintiffs request that this court grant their Motion to Further Amend Complaint. Amended pleadings are governed by Mass. R. Civ. P. 15. Under that Rule “[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal . . . .” In light of the designation of the complaint in this matter as Amended Verified Complaint, it is presumed that a Rule 15 Amendment was previously entered in Superior Court.

Further Amending the Complaint

In the case of Mathis v. Mass. Electric Co., 409 Mass. 256 (1991), the Court had occasion to consider, among other matters, a denial by the trial judge of plaintiff’s motion to amend his complaint. The following quote is instructive:

The decision whether to grant a motion to amend is within the sound discretion of the judge, but leave should be granted unless there are good reasons for denying the motion. Such reasons include…futility of the amendment….” Id. at p. 264.

In the more recent case of Mancuso v. Kinchla, 60 Mass. App. Ct. 558 (2004), the Court expanded on the meaning of “futility” in a context somewhat similar to that of Mathis. In Mancuso, the Court concluded that the trial court did not abuse its discretion when it denied plaintiffs’ motion to amend their complaint, inasmuch as:

[t]hose allegations [as proposed] failed to state a viable claim because they would have been futilely raised, in that they would not have survived a motion to dismiss…for all of the reasons set forth above. Id at p. 572.

In the case at hand, this court is satisfied that the plaintiff’s Motion to Further Amend the Complaint must similarly be denied, owing to the futility of the proposed amendments. [Note 13]

Fraudulent and Negligent Misrepresentation

Plaintiffs raise claims [Note 14] of fraudulent misrepresentation in proposed Counts 1, 2, and 3, and a claim of negligent misrepresentation in Count 4 of their proposed Second Amended Complaint. This court is satisfied that such claims would not survive a motion to dismiss. It would be futile therefore, to permit an amendment so as to include these claims. [Note 15] As to arguments advanced by the plaintiff concerning the alleged lack of authority on the part of Mortgage Electronic Systems, Inc. (MERS), this court disagrees. See in this regard, the relevant discussion with which this court concurs in Abate v. Freemont Investment & Loan, Land Court Case No. 12 MISC 464855, p. 15 (Foster, J.)

Moreover, numerous allegations advanced by the plaintiffs are merely conclusory in nature, lacking supporting factual bases or otherwise fail “to raise a right to relief above a speculative level”. [Note 16] Consequently, as to Counts 1 through 4, inclusive of the proposed Second Amended Complaint, the Motion to Further Amend will be denied.

Breach of the Covenant of Good Faith and Fair Dealing, Failure of Condition Precedent, Breach of Contract

The Land Court Department of the Trial Court is a court of limited jurisdiction. See G.L. c. 185, § 1. The Land Court has sole jurisdiction over certain areas, including “[c]omplaints affecting title to registered land,” and shares jurisdiction with the Superior Court over “[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts.” G.L. c. 185, § 1. Although the Land Court may address damage requests that are ancillary to an underlying real property dispute, [Note 17] these proposed counts are independent contract claims of the sot that lie beyond the subject matter jurisdiction of the Land Court. As to proposed Counts 6 [Note 18] through 8 the motion to amend the proposed Amended Verified Complaint must therefore be denied.

Unfair Debt Collection Practices, Violation of Civil Rights, Collusion and Civil Conspiracy

Given the Land Court’s limited jurisdiction, [Note 19] none of the claims listed above fall within this court’s subject matter jurisdiction. See G.L. c. 185, § 1. Therefore, as to proposed Counts 9 through 11, the Motion to Further Amend must be denied.

Request for Declaratory Relief

The Land Court may “on appropriate proceedings make binding declarations of right, duty, status . . . either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings . . . .” G.L. c. 231A, § 1. In the case of Iannacchino v. Ford, 451 Mass. 623 , 636 (2008), the Court stated, as follows:

What is required at the pleading stage are factual “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief, in order to “reflect the threshold requirement… that the ‘plain statement’ possesses enough heft to show the pleader is entitled to relief. (internal citations omitted)

After due consideration, this court is unable to conclude that allegations set forth in proposed Count 12, such as they are, suggest an entitlement to relief or that they collectively possess he requisite “heft” of which the Court speaks in Iannacchino.


As to proposed Count 13, the plaintiffs fail to state a claim for estoppel. “Circumstances that may give rise to an estoppel are (1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission." Anzalone v. Admin. Office of the Trial Court , 457 Mass. 647 , 661 (2010) (quoting Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court , 448 Mass. 15 , 27-28(2006)). Plaintiffs do not specify with any degree of particularity which representations were made to them, and the manner in which such representations were intended to induce reliance. In addition, plaintiffs’ vague allegation that they relied on this unspecified representation to their detriment fails to meet the standard enunciated in Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (to survive a motion to dismiss “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions.”). Accordingly, as to plaintiffs’ claim of estoppel as set forth in Count 13, the court can discern no basis for relief.


In light of the foregoing discussion, this court is satisfied that the proposed Second Amended Complaint would be subject to dismissal were plaintiffs’ Motion to Further Amend be allowed.

Accordingly, on grounds that it would be futile to permit further amendment to the Amended Verified Complaint, it is hereby

ORDERED that the Plaintiffs’ Motion to Further Amend its Complaint is hereby DENIED. It is further

ORDERED that the Plaintiffs’ Motion to Withdraw the Proposed Second Amended Complaint and to Submit a Revised Second Amended Complaint is hereby DENIED.


By the court (Grossman, J.)


[Note 1] There is significant overlap between claims advanced in the plaintiffs’ Amended Verified Complaint and in the plaintiffs’ proposed Second Amended Complaint. Consequently, this court will incorporate herein by reference, to the extent relevant, its Order of even date on the Defendant’s Motion to Dismiss the Amended Verified Complaint.

[Note 2] Amended Verified Complaint and Prayer for Injunctive and Declaratory Relief (“Complaint I”) ¶ 7; Complaint I, Exhibit (“Ex.”) 1.

[Note 3] Complaint I, Ex. 2.

[Note 4] Id.

[Note 5] Complaint I ¶ 11.

[Note 6] Complaint I, Ex. 3.

[Note 7] Complaint I ¶ 17.

[Note 8] Complaint I, Ex. 4.

[Note 9] Memorandum of Law in Support of Motion to Dismiss and Dissolve Lis Pendens (Memorandum I), Ex. C.

[Note 10] The plaintiffs were represented by counsel at the time.

[Note 11] Memorandum I ¶ 5; Memorandum I, Ex. D.

[Note 12] Id.

[Note 13] It would not, in the view of this court, survive a motion to dismiss for the reasons which follow. Moreover, the Count 2 claim is at best, premature, owing to the failure to exhaust the available administrative remedies.

[Note 14] The court notes that unlike the Amended Verified Complaint, the proposed Second Amended Complaint, is not verified. Numerous allegations are predicated solely upon “information and belief.”

[Note 15] The court notes that all three counts of fraudulent misrepresentation are based upon alleged irregularities in the assignments of the mortgage and the “mortgagee’s affidavit” submitted pursuant to the Servicemembers Civil Relief Act (SCRA). This court is of the view that any challenge to the Superior Court Judgment in the SCRA case, may not now be raised in the Land Court. Further, as discussed in this Court’s Order of even date on Defendant’s Motion to Dismiss (the “Order”), Plaintiffs lack standing to challenge the assignments. See, e.g.,Oum v. Wells Fargo, 842 F.Supp.2d. 407 (2012) (Stearns, D.J.) (mortgagor suffered no injury as result of assignment of mortgage); Wenzel v. Sand Canyon Corp., 841 F. Supp. 2d 463 (2012) (Boal, M.J.) (plaintiffs have no standing to seek a declaration that the assignment of their mortgage was invalid); Culhane v. Aurora Loan Servs. of Nebraska, 826 F. Supp. 2d 3 52 (2011) (Young, J.) (“homeowner-mortgagor, as non-parties to the assignments of their mortgages, are left with little recourse where they suspect impropriety”); Peterson v. GMAC Mortg., LLC, 2011 WL 5075613 (D. Mass. Oct. 25, 2011) (Zobel, J.) (“plaintiffs have no legally protected interest in the Mortgage assignment from MERS to GMAC and therefore lack standing to challenge it.”).

[Note 16] See, for example, p. 17, para. (f) of the proposed Second Amended Complaint.

[Note 17] See Essex Co. v. Goldman, 357 Mass. 427 , 434 (1970) (“This [Land Court] jurisdiction may, in a proper case, include the award of damages.”).

[Note 18] The court notes that in the proposed Second Amended Complaint, there is no Count 5.

[Note 19] See supra Part III.