Bevilacqua v. Rodriguez

• Decision Date: 18 October 2011
• Docket Number: SJC–10880.
• Citation: 955 N.E.2d 884,460 Mass. 762
• Parties: Francis J. BEVILACQUA, Thirdv.Pablo RODRIGUEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 762

955 N.E.2d 884

Francis J. BEVILACQUA, Third

v.Pablo RODRIGUEZ.

SJC–10880.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted May 2, 2011.Decided Oct. 18, 2011.

Jeffrey B. Loeb (David Glod with him), Boston, for the plaintiff.Richard A. Oetheimer (Natalie F. Langlois with him), Boston, for Mortgage Bankers Association.Max Weinstein for WilmerHale Legal Services Center of Harvard Law School.John M. Stephan & Amber Anderson Villa, Assistant Attorneys General, for the Commonwealth.The following submitted briefs for amici curiae:Mark B. Johnson, Andover, for American Land Title Association.Adam J. Levitin, of the District of Columbia, Christopher L. Peterson, of Utah, John A.E. Pottow, of Michigan, & Katherine Porter, pro se.Edward Rainen, North Reading, Carrie B. Rainen, & Ward P. Graham for Massachusetts Association of Bank Counsel, Inc.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.SPINA, J.

In this case we must determine whether a plaintiff has standing to maintain a try title action under G.L. c. 240, §§ 1–5, where he is in physical possession of real property but his chain of title rests on a foreclosure sale conducted by someone other than “the mortgagee or his executors, administrators, successors or assigns.” G.L. c. 183, § 21 (statutory power of sale). See G.L. c. 244, § 14 (procedure for foreclosure under power of sale). On his own motion, a Land Court judge determined that the plaintiff, Francis J. Bevilacqua, III, “holds no title to the property at 126–128 Summer Street in Haverhill” and thus lacks standing to bring a try title action. The judge dismissed the complaint with prejudice and Bevilacqua appealed. We granted Bevilacqua's application for direct appellate review and now affirm the dismissal of his complaint but conclude that such dismissal should have been entered without prejudice.¹

1. Procedural background. This case comes before us on a highly unusual procedural footing. The respondent, Pablo Rodriguez, has not been located and accordingly has not entered an appearance. As a result, it fell to the Land Court judge to raise the issue of Bevilacqua's standing under G.L. c. 240, § 1. See Mass. R. Civ. P. 12(h)(3), 365 Mass. 754 (1974) (“Whenever it appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action”); Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 99–100, 950 N.E.2d 40 (2011); Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 21, 858 N.E.2d 699 (2006); Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622, 420 N.E.2d 339 (1981). The procedures applicable to such a sua sponte motion in a try title action are unclear, and the judge did not specify the rule under which the dismissal was ordered. We have received no briefing on the issue from Bevilacqua, and those amici addressing the point note that the absence of precedent leads them to “presume[ ]” the applicable standard.

In considering the appropriate procedure, we note that a court's sua sponte motion to dismiss for lack of subject matter jurisdiction is analogous to a party's motion to dismiss under either Mass. R. Civ. P. 12(b)(1) or (6), 365 Mass. 754 (1974). Ordinarily, “[i]n reviewing a dismissal under rule 12(b)(1) or (6), we accept the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true.” Ginther v. Commissioner of Ins., 427 Mass. 319, 322, 693 N.E.2d 153 (1998). Cf. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting Bell Atl. Corp. v.Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (clarifying standards for dismissal under rule 12[b][6] ). The unusual mechanics of G.L. c. 240, §§ 1–5, however, suggest that the analogy may not be perfect and that a different standard may be appropriate.² We need not resolve the issue today, however, because we conclude that Bevilacqua's complaint must be dismissed even if we apply the most favorable of the possible standards of review. See Ginther v. Commissioner of Ins., supra (standards for motion to dismiss for lack of subject matter jurisdiction). We thus “accept the factual allegations in [Bevilacqua's petition], as well as any favorable inferences reasonably drawn from them, as true.” Id. Those facts are as follows.

On March 18, 2005, Pablo Rodriguez granted a mortgage on the property to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Finance America, LLC. The mortgage was recorded at the Southern Essex registry of deeds (registry). As of June 29, 2006, MERS had not assigned the mortgage to U.S. Bank National Association (U.S.Bank), but on that date, U.S. Bank executed a foreclosure deed referencing the mortgage and purporting to transfer the property pursuant to a foreclosure sale from U.S. Bank (as trustee under a trust that is not further described) to U.S. Bank “as Trustee under the securitization Servicing Agreement dated as of July 1, 2005 Structured Asset Securities Corporation Structure Asset Investment Loan Trust Mortgage Pass Through Certificates, Series 2005–HEI.” Nearly one month later, on July 21, 2006, MERS assigned the mortgage to U.S. Bank in an assignment of mortgage recorded at the registry. A “confirmatory foreclosure deed” was then granted on October 9, 2006, by U.S. Bank to U.S. Bank as trustee under the servicing agreement. Eight days later, on October 17, 2006, U.S. Bank “as Trustee” granted a quitclaim deed to Bevilacqua.

On April 12, 2010, Bevilacqua filed a petition to compel Rodriguez to try title to the property. In his complaint, Bevilacqua claimed to reside at the property and to hold record title. Because of the fact that MERS had not assigned the mortgage to U.S. Bank at the time of the foreclosure, Bevilacqua alleged that there is a cloud on his title in the form of “the possibility of an adverse claim by Rodriguez against Bevilacqua's title to the [p]roperty.”

2. Statutory background. Bevilacqua seeks an order that either compels Rodriguez to bring an action to try his title or forever bars him from enforcing his adverse claims to the property. Try title actions under G.L. c. 240, §§ 1–5, are within the exclusive original jurisdiction of the Land Court. G.L. c. 185, § 1 ( d ). If Bevilacqua cannot satisfy the jurisdictional requirements of the statute, then the Land Court is without subject matter jurisdiction and the petition must be dismissed. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 46, 371 N.E.2d 728 (1977); Riverbank Improvement Co. v. Chapman, 224 Mass. 424, 425, 113 N.E. 215 (1916) (“The Land Court is a statutory court, not of general but of strictly limited jurisdiction”).

The statute states, in relevant part:

“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. There are thus 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.³

Id. See Blanchard v. Lowell, 177 Mass. 501, 504–505, 59 N.E. 114 (1901). The establishmentof jurisdictional facts, although essential in all cases, is thus a matter of particular salience in the initial stage of a try title action.

There appear to be two jurisdictional facts that must be shown to establish standing under G.L. c. 240, § 1. First, it is clear on the face of the statute that only “a person in possession” of the disputed property may maintain a try title action. Id. Second, although less obviously clear, a plaintiff must hold a “record title” to the land in question. Blanchard v. Lowell, supra at 504, 59 N.E. 114. Arnold v. Reed, 162 Mass. 438, 440–441, 38 N.E. 1132 (1894). Here, Bevilacqua has alleged that he resides on the property, a factual assertion that we accept as true and from which we draw the favorable inference that he is “a person in possession” as required by G.L. c. 240, § 1.⁴ Bevilacqua also claims to hold record title to the property as required to support standing. See Blanchard v. Lowell, supra. In dismissing the petition, the judge concluded that the facts alleged by Bevilacqua did not support his claim of record title and that, as a result, Bevilacqua lacked standing. This is the controversy presented on appeal.

Before analyzing whether Bevilacqua has demonstrated the existence of record title, and in light of the fact that it has been more than a century since this court last examined standing under G.L. c. 240, §§ 1–5, we first consider the history and purposes of the statute.⁵ The initial try title statute was enacted in 1851 and provided:

“Any person in possession of real property, claiming an estate of freehold ... may file a petition in the supreme judicial court, setting forth his estate ... and averring that he is credibly informed and believes, that the respondent makes some claim adverse to the estate of the petitioner, and praying that he may be summoned to show cause, why he should not bring an action to try the alleged title, if any.”St. 1851, c. 233, § 66. Prior to enactment of this statute, the principal means of trying title to land was the writ of entry, which permitted a plaintiff to “obtain possession of real estate from a disseisor who is in possession and holds the...