Abate v. Fremont Investment & Loan, et al. (Lawyers Weekly No. 10-040-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us SJC-11638 THOMAS C. ABATE vs. FREMONT INVESTMENT & LOAN & others.[1] Suffolk. November 4, 2014. – March 9, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Real Property, Record title, Mortgage. Mortgage, Assignment, Foreclosure. Jurisdiction, Land Court. Land Court, Jurisdiction. Practice, Civil, Parties, Standing, Dismissal. Civil action commenced in the Land Court Department on May 25, 2012. Motions to dismiss were heard by Robert B. Foster, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Thomas B. Vawter for the petitioner. James L. Rogal for Deutsche Bank National Trust Company & another. Robert M. Brochin for Mortgage Electronic Registration Systems, Inc. James P. Long, pro se, amicus curiae, submitted a brief. HINES, J. In this appeal, we determine whether a respondent in a try title action brought pursuant to G. L. c. 240, §§ 1-5, may test the substantive merits of a petitioner’s claims in the “first step” of such an action. The issue arises because the try title statute, in keeping with its purpose to allow a person holding record title to compel an adverse claimant to prove the merits of the adverse claimant’s interest in the property, contemplates a two-step procedure in which the substantive merits of the parties’ claims are determined at a trial. Under our interpretation of the statute, the “first step” requires that the petitioner must satisfy the jurisdictional elements[2] of the statute and, if satisfied, the “second step” requires the adverse claimant either to bring an action to assert the claim to title, or to disclaim an interest in the property. Bevilacqua v. Rodriguez, 460 Mass. 762, 766 (2011), citing G. L. c. 240, § 1. Recognizing the potential conflict between jurisdictional determinations and a petitioner’s right under the statute to compel an adverse claimant to bring his or her own action to assert that claim, we transferred the petitioner’s appeal to this court on our own motion. For the reasons explained below, we affirm the Land Court judgment dismissing his petition. Background. 1. Procedural history. The petitioner, Thomas C. Abate, brought this action in the Land Court asserting that a purported assignment of a mortgage was invalid and, thereby, indirectly challenging a foreclosure by Deutsche Bank National Trust Company, as trustee for Carrington Mortgage Loan Trust, […]