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Federal National Mortgage Association v. Gordon

Appeals Court of Massachusetts, Suffolk

May 17, 2017

HEATHER GORDON & another. [1]

          Heard: March 8, 2016.

         Civil action commenced in the City of Boston Division of the Housing Court Department on June 24, 2013. The case was heard by MaryLou Muirhead, J., on a motion for summary judgment.

          Thomas B. Vawter for the defendants.

          Danielle C. Gaudreau (Thomas J. Santolucito also present) for the plaintiff.

          Present: Hanlon, Sullivan, & Massing, JJ.

          HANLON, J.

         The defendants in this trespass action, Heather Gordon and her granddaughter, Kaire Holman, challenge the validity of a judgment for possession entered by the Housing Court in favor of the plaintiff, the Federal National Mortgage Association (Fannie Mae), on its motion for summary judgment. Fannie Mae claims ownership, through foreclosure, of the residential condominium at issue, known as Unit 2 at 7 Valentine Street, in the Roxbury section of Boston (the property). Gordon claims that she and Holman occupy the property pursuant to a lease from Carolyn Grant, who held record title to the condominium as a joint tenant with Gilbert R. Emery prior to the foreclosure. The lease on which Gordon and Holman rely, however, is dated after both (i) the date of the foreclosure, and (ii) the date on which Fannie Mae began a summary process action against Emery, Grant, and another occupant [2] to obtain possession of the property.

         When Fannie Mae learned that Gordon and others had moved into the property as ostensible lessees, Fannie Mae brought a new action (separate from the summary process case) for common law trespass, which is the case now before us.[3]

         After review, we reverse the final judgment, holding as follows: (i) the Housing Court has jurisdiction pursuant to G. L. c. 185C, § 3, to hear trespass claims; (ii) the teaching of Attorney Gen, v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 288 (1992) (Dime Savings), with respect to whether G. L. c. 184, § 18, bars trespass actions by postforeclosure owners against tenants with actual possession, applies with equal force in the circumstances of this case; and (iii) the summary judgment record does not establish Fannie Mae's actual or constructive possession of the subject property, a prerequisite for a trespass claim.


         The following facts are taken from the record and, essentially, are undisputed. In 2007, Emery granted a mortgage on the property to Wells Fargo Bank, N.A. (Wells Fargo) to secure a loan. On or about August 15, 2007, Emery deeded his interest in the property to himself and Grant as joint tenants with the right of survivorship.

         By July, 2010, Emery was in arrears on his loan payments. Acting pursuant to the statutory power of sale contained in its mortgage, Wells Fargo[4] conducted a foreclosure auction on August 27, 2010, at which it submitted the high bid. Thereafter, Wells Fargo executed an assignment of its bid to Fannie Mae, and executed and recorded a foreclosure deed of the property to Fannie Mae. Shortly thereafter, Fannie Mae filed a summary process action in Boston Housing Court against Emery and the Grants.

         Almost two years later, on July 27, 2012, Grant and Gordon executed a document entitled "Residential Lease." The purported lease names Gordon as "Tenant" and Grant as "Landlord" and provides for a three-year rental term beginning on August 1, 2012, and concluding on August 1, 2015, at a rental rate of $1, 300 per month.[5] It appears from the record that Gordon began paying rent to Grant in July, 2012.[6] Gordon's affidavit states that the March and April, 2013, rent payments were discounted because Grant was "behind thousands of dollars in her utility bills, " which had to be paid before the utilities could be placed in Gordon's name.[7] Gordon's affidavit further states that she was to move into the unit in August of 2012, but that there was a delay in Grant's moving out, and Gordon did not actually move in until December 16, 2012, the same day Grant moved to Florida.

         The Housing Court docket indicates that, on or about October 1, 2012 -- after execution of the lease on which Gordon relies, but before Grant left the property -- one or more parties to Fannie Mae's summary process action reported that matter settled, and the Housing Court issued a sixty-day nisi order. The record includes an unsigned "Agreement for Judgment" for possession stating that Emery and the Grants would move out of the property by December 15, 2012, and that no other occupants would reside therein. However, after the report of a settlement to the Housing Court, a disagreement apparently arose between Fannie Mae and the defendants in the summary process action about whether they had actually perfected a deal. Consequently, a stipulation of dismissal was never filed in that matter, and the summary process action retained "active" status on the Housing Court's docket throughout the course of the proceedings in the present case.[8]

         Meanwhile, on December 16, 2012, Grant moved out of the property and, on that same date, Gordon moved in.[9] At some time thereafter, Fannie Mae learned that Gordon had moved in to the property, and, on or about June 24, 2013, Fannie Mae began the instant action in the Boston Housing Court, filing a complaint against Gordon in two counts, for trespass and injunctive relief, respectively. After amending the complaint to name other occupants as defendants, Fannie Mae then brought a motion for summary judgment on June 27, 2014.

         The motion judge allowed the motion on or about October 21, 2014. In so doing, the judge focused on the question whether Fannie Mae had obtained possession of the property, a prerequisite for maintaining a common-law trespass action. See Dime Savings, 413 Mass. at 288 ("An action of trespass, being a possessory action, cannot be maintained, unless the plaintiff had the actual or constructive possession of the property trespassed upon at the time of the trespass"). The judge determined that Fannie Mae's constructive possession of the property was established during the period of time, however short, between when Grant moved out of the property and Gordon moved in.

          The judge ordered that "judgment . . . enter for the Plaintiff as prayed for in the complaint." In a further order dated December 31, 2014, she dismissed Fannie Mae's claim for money damages and ordered that "final judgment for possession shall enter and the execution shall issue in the usual course."[10]

         Gordon appeals, arguing that the Housing Court's judgment should be vacated on the following grounds: (i) the Housing Court lacks subject matter jurisdiction pursuant to G. L. c. 185C, § 3, over a common-law trespass claim; (ii) a trespass claim is unavailable to Fannie Mae here because it is barred by G. L. c. 184, § 18; and (iii) Fannie Mae failed substantively to demonstrate its entitlement to judgment because it did not show that ...

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