Posts tagged "1019813"

Bank of America, N.A. v. Rosa (and three consolidated cases) (Lawyers Weekly No. 10-198-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030;     SJC‑11330   BANK OF AMERICA, N.A.  vs.  CEFERINO S. ROSA (and three consolidated cases[1]). Essex.     September 9, 2013.  ‑  December 18, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Mortgage, Foreclosure.  Summary Process.  Housing Court, Jurisdiction.  Practice, Civil, Summary process, Affirmative defense, Counterclaim and cross‑claim.  Jurisdiction, Summary process, Housing Court, Equitable.  Uniform Summary Process Rules.  Rules of Civil Procedure.  Statute, Construction.       Summary process.  Complaints filed in the Northeast Division of the Housing Court Department, two on February 6, 2012, and one each on January 20, 2012, and April 2, 2012, respectively.   Motions to strike and to dismiss affirmative defenses and counterclaims were heard by David D. Kerman, J.   Proceedings for interlocutory review were heard in the Appeals Court by Mary T. Sullivan, J., and the cases were consolidated and reported by her to the Appeals Court.  The Supreme Judicial Court granted an application for direct appellate review.       Phoebe N. Coddington, of North Carolina (Jennifer E. Greaney & Stephen C. Reilly with her) for Bank of America, N.A., & another. Thomas J. Santolucito (Rachel B. Meisterman with him) for Federal Home Loan Mortgage Corporation. Richard M.W. Bauer (Eloise P. Lawrence with him) for Ceferino S. Rosa & others. Marylyn E. Flores (David S. Flores with her) for Gerard J. Cioffi. Benjamin O. Adeyinka, for The Real Estate Bar Association of Massachusetts, Inc., & another, amici curiae, submitted a brief. Arielle Cohen & Charles Delbaum, for National Consumer Law Center, amicus curiae, submitted a brief.     SPINA, J.  In each of these consolidated appeals the plaintiff bank brought a summary process action against the former homeowner-mortgagor in the Housing Court after foreclosure.  Each former homeowner raised various defenses and counterclaims in his or her answer to the complaint that challenged the bank’s right to both possession and title as derived through foreclosure sale, as well as other defenses and counterclaims.  In each case the bank filed a motion to strike the affirmative defenses and to dismiss the counterclaims on grounds that the only defenses and counterclaims available in summary process are (1) those allowed by G. L. c. 239, § 8A, which does not apply here because there was no landlord-tenant relationship between the parties, and (2) a challenge to title (and thereby possession) based only on a failure to comply […]


Posted by Massachusetts Legal Resources - December 19, 2013 at 12:07 am

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