Wells Fargo Bank, Nat'l Ass'n v. Trocki

• Decision Date: 07 May 2021
• Docket Number: 20-P-28
• Parties: WELLS FARGO BANK, NATIONAL ASSOCIATION v. Scott M. TROCKI & others.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 1124

168 N.E.3d 380 (Table)

WELLS FARGO BANK, NATIONAL ASSOCIATION¹

v.Scott M. TROCKI & others.²

20-P-28

Appeals Court of Massachusetts.

Entered: May 7, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this postforeclosure summary process action, the defendant Scott M. Trocki, a former coowner (with Denise M. Trocki) of the property located at 188 Wareham Street in Middleboro (property), appeals from summary judgment ordered by a judge of the Housing Court in favor of the plaintiff, Wells Fargo Bank, National Association, as trustee of Option One Mortgage Loan Trust 2004-2, Asset-Backed Certificates, Series 2004-2 (Wells Fargo), and against Scott M. Trocki, Denise M. Trocki, Danielle R. Trocki, Lindsey L. Trocki, Travis Trocki, and Zachary C. Trocki (collectively, the defendants). We affirm summary judgment in favor of Wells Fargo on all claims and counterclaims, except for Scott's⁴ and Denise's foreclosure-related counterclaims alleged under G. L. c. 93A.⁵ As to those counterclaims, we reverse the judgment and remand the matter to the Housing Court for further proceedings consistent with this decision.

Background. We summarize the undisputed facts drawn from the summary judgment record. Scott and Denise purchased the property in 1991. On March 10, 2004, Scott and Denise executed a promissory note in the amount of $232,000 (note) to Option One Mortgage Corporation (Option One), secured by a mortgage on the property (mortgage). The mortgage was duly recorded on March 15, 2004, with the Plymouth County Registry of Deeds.

On March 9, 2011, Option One, then operating as Sand Canyon Corporation, assigned the mortgage to Wells Fargo, and the assignment was recorded. Option One assigned (by way of two separate allonges) the note, which was subsequently made payable to Wells Fargo.

By December 2015, Scott and Denise had fallen behind in their mortgage payments. In November 2016, Wells Fargo advised them of its intent to foreclose by issuing the preforeclosure notices required under the terms of the note, mortgage, and relevant statutes, and then scheduled and noticed a foreclosure sale of the property for December 22, 2016. See G. L. c. 244, §§ 14, 15. Wells Fargo was the high bidder at the auction sale, following which it received and duly recorded a foreclosure deed for the property. An affidavit of sale,⁶ see G. L. c. 244, § 15, as well as affidavits confirming that Wells Fargo held the note at the times relevant to the foreclosure, and had complied with G. L. c. 244, §§ 35B and 35C, were recorded with the Registry of Deeds.

Neither Scott nor Denise vacated the property after the foreclosure or the March 23, 2017 notice to quit sent by Wells Fargo. On May 30, 2017, Wells Fargo filed a summary process complaint against Scott and Denise in the Housing Court.⁷ They answered the complaint, challenging "the landlord[’s]" superior right of possession in the property and raising counterclaims and defenses for discrimination based on an unspecified disability;⁸ defective conditions at the property; utility payments made in the absence of a written agreement with "the landlord"; and "foreclosure-related" G. L. c. 93A violations regarding unfair treatment in Wells Fargo's handling of Scott's and Denise's attempts at loan modifications, its issuance of preforeclosure notices, and its predatory loan practices.⁹

Wells Fargo moved for summary judgment against the defendants on its complaints for possession, and on the majority of Scott's and Denise's counterclaims; the motion did not, however, address Scott's and Denise's foreclosure-related G. L. c. 93A counterclaims. None of the defendants filed an opposition to Wells Fargo's motion.¹⁰ All of the defendants other than Zachary Trocki attended the hearing on the motion; Scott argued on their behalf.¹¹ After the hearing, in a detailed written memorandum of decision, the judge allowed Wells Fargo's motion, and summary judgment entered for Wells Fargo on all claims and counterclaims. Only Scott appealed.

Discussion. 1. Standard of review. We review a grant of summary judgment de novo, relying on the record before the motion judge. See Lynch v. Crawford, 483 Mass. 631, 641 (2019). Where the party moving for summary judgment bears the burden of proof at trial, as was the case here with respect to Wells Fargo's claims against the defendants, "[t]he standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Where the party opposing summary judgment bears the burden of proof at trial, as Scott and Denise did on their counterclaims, the moving party may prevail "if he [or she] demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), [as amended, 436 Mass. 1404 (2002),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "In deciding a motion for summary judgment the court may consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits." Niles v. Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18 (2017).

2. Claims relating to possession. Moving for summary judgment on its claims for possession, Wells Fargo produced, among other things, an attested copy of its recorded foreclosure deed for the property, and an affidavit of sale under G. L. c. 244, § 15. In doing so, it made out its prima facie claim for possession of the property. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637–638 (2012), citing Lewis v. Jackson, 165 Mass. 481, 486–487 (1896). The burden then shifted to the defendants to rebut that showing by "submit[ting] evidence sufficient to create a triable issue of fact." Rosenfeld v. Zoning Bd. of Appeals of Mendon, 78 Mass. App. Ct. 677, 681 (2011). They did not do so, and thus, summary judgment properly entered against them.^{12 ,13}

We likewise conclude that Wells Fargo was entitled to summary judgment for which it moved on Scott's and Denise's defense and counterclaims for disability discrimination and failure to make reasonable accommodation; violations of G. L. c. 239, § 8A, and the implied warranty of habitability; and breach of quiet enjoyment pursuant to G. L. c. 186, § 14, and G. L. c. 93A.

As the judge correctly noted, as holdover occupants after the foreclosure, the defendants were tenants at sufferance, and so, specifically, Scott and Denise were not entitled to assert defenses or counterclaims under G. L. c. 239, § 8A. See Bank of New York Mellon v. Morin, 96 Mass. App. Ct. 503, 514 (2019), citing Singh v. 207-211 Main St., LLC, 78 Mass. App. Ct. 901, 903 (2010) ("After an entry to foreclose, a mortgagor becomes a tenant at sufferance"); Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 572 (2012) (where defendants did not allege that premises were ever rented or leased, or that defendants were ever tenants, defendants not entitled to assert conditions defense under G. L. c. 239, § 8A ).

In the same vein, Scott provides no authority in his brief for the proposition that a tenant at sufferance is entitled to raise the record owner's failure to accommodate his or her disability as a defense to a postforeclosure eviction, and we are aware of none. See G. L. c. 151B, § 4 (6) (prohibiting discrimination by "refus[ing] to rent or lease or sell ... or otherwise to deny to or withhold from any person ... such accommodations because of ... any ... handicap"). Cf. Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306-307 (2005) (Fair Housing Act and G. L. c. 151B prohibit discrimination in housing); Moretalara v. Boston Hous. Auth., 99 Mass. App. Ct. 1, 8 (2020) (plaintiff's entitlement to reasonable accommodation requires showing of disability, causal link between disability and lease violation, reasonableness of accommodation, and that proposed plan reasonably likely to be effective).

Similarly, the protections of G. L. c. 186, § 14, which form the basis of Scott's and Denise's G. L. c. 93A counterclaim for improper billing for utilities, do not apply to holdover occupants after a foreclosure, at least in the absence of evidence of a tenancy relationship between them. Cf. G. L. c. 186, § 14 (prohibiting certain acts by "lessor or landlord").

3. Foreclosure-related G. L. c. 93A counterclaims. We disagree, however, that Wells Fargo was entitled to summary judgment on Scott's and Denise's counterclaims under G. L. c. 93A (which, according to Scott's brief, were based on Wells Fargo's handling of Scott's and Denise's efforts to modify the loan and to seek alternatives to foreclosure). Wells Fargo's motion for summary judgment did not address the viability of these counterclaims; Wells Fargo did not make any argument about them at the summary judgment hearing; the judge did not mention those counterclaims at the hearing; and as far as we can discern from the record, no party sought to address those issues or was invited to do so. Cf. ...