Heard: March 8, 2016.
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.
B. Vawter for the defendants.
Danielle C. Gaudreau (Thomas J. Santolucito also present) for
Present: Hanlon, Sullivan, & Massing, JJ.
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  to obtain
possession of the property.
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.
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.
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.
July, 2010, Emery was in arrears on his loan payments. Acting
pursuant to the statutory power of sale contained in its
mortgage, Wells Fargo 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.
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. It appears
from the record that Gordon began paying rent to Grant in
July, 2012. 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.
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
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.
on December 16, 2012, Grant moved out of the property and, on
that same date, Gordon moved in. 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.
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.
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."
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 ...