Kevin F. MacDonald v. Jp Morgan Chase Bank, N.A.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-687

KEVIN F. MACDONALD

vs.

JP MORGAN CHASE BANK, N.A.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a Superior Court judge's entry

of summary judgment in favor of the defendant on the plaintiff's

claims stemming from the defendant's foreclosure on and sale of

a home owned by the estate of the plaintiff's mother. The

plaintiff's complaint alleged that the foreclosure sale was not

noticed properly and must be rescinded and that the foreclosure

sale was unlawful because the plaintiff had adversely possessed

portions of the property. The judge dismissed the complaint,

ruling that the plaintiff had no standing to bring the action.

We affirm.

Background. In 2005, the plaintiff's mother granted a

mortgage on her home to the defendant bank as security for a
home equity line of credit. The plaintiff's mother died in

2013. She left a will in which she designated the plaintiff and

his brother as joint executors of her estate. A petition for

informal probate was filed in 2016, pursuant to which the

plaintiff and his brother were approved as co-personal

representatives. The will provided the plaintiff, who had lived

in his mother's home for decades, a limited-time option to

purchase the house. The plaintiff did not exercise the option.

In that event, the will provided that the house was to be sold

and any proceeds contributed to the residue of the estate, which

was to be distributed equally between the plaintiff and his

brother. The defendant initiated foreclosure proceedings in

November 2019 with notice to the plaintiff and his brother. The

plaintiff filed the instant complaint two years later in

November 2021 to stop the ensuing foreclosure sale, arguing that

he adversely possessed the property and also that the

foreclosure sale had not been properly noticed.

Discussion. On appeal, the plaintiff argues that the judge

erred as a matter of law in dismissing the suit because he had

standing both as a personal representative of his mother's

estate and individually as owner of the property by adverse

possession.

1. Standing as personal representative. A personal

representative has the authority to sue on behalf of the estate,

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G. L. c. 190B, § 3-703 (c), in furtherance of the

representative's fiduciary obligations thereto. G. L. c. 190B,

§ 703 (a). However, where there are joint personal

representatives:

"unless the will provides otherwise, the concurrence of all
is required on all acts connected with the administration
and distribution of the estate. This restriction shall not
apply . . . when the concurrence of all cannot readily be
obtained in the time reasonably available for emergency
action necessary to preserve the estate, or when a co-
representative has been delegated to act for the others."

G. L. c. 190B, § 3-717. Here, the plaintiff brought the action

alone without the co-personal representative. He does not argue

that he did not have time to obtain his brother's concurrence

prior to filing suit. Rather, he argues that his brother was in

favor of the foreclosure going forward and did not consent to

the lawsuit. Yet, the plaintiff contends that he falls within

the exception to the "concurrence of all" requirement because

the situation called for "emergency action necessary to preserve

the estate."

Although these terms appear not to have been previously

construed in the case law, a plain reading of the statute shows

that the exception to "concurrence of all" is triggered when

consent "cannot readily be obtained in the time reasonably

available for emergency action." G. L. c. 190B, § 3-717. See

Mack v. District Attorney for the Bristol Dist., 494 Mass. 1, 12

(2024) (statutory interpretation begins with plain language of

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statute). Here, the plaintiff had ample time, at least two

years since foreclosure proceedings began, to obtain his

brother's consent. Nor can the lawsuit filed on the eve of the

foreclosure sale be considered "emergency action" necessary to

preserve the estate, given the lengthy notice of foreclosure

proceedings. See Black's Law Dictionary 660 (11th ed. 2019)

(emergency is "sudden and serious event or an unforeseen change

in circumstances that calls for immediate action to avert,

control, or remedy harm").

The plaintiff's view that his brother's refusal to concur

justified his unilateral action cannot be sustained. Such an

interpretation would have the exception swallow the rule. See

Adoption of Daphne, 484 Mass. 421, 424 (2020) (statute must be

interpreted according to intent of Legislature so as to render

law effective, consonant with sound reason and common sense).

Personal representatives act as fiduciaries. G. L. c. 190B,

§ 3-703 (a). As such, they are required to act prudently and

reasonably to preserve the estate's value for the beneficiaries.

See Taylor v. Jones, 242 Mass. 210, 215, cert. denied, 260 U.S.

742 (1922). The "emergency action" exception to the usual

requirement that co-personal representatives act together

safeguards this principle by freeing co-personal representatives

from having to obtain permission when swift action is sensible

and necessary. By contrast, allowing personal representatives

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to circumvent longstanding differences of opinion by claiming

the unilateral right to act on behalf of the estate would

undermine the statute's central purpose of requiring

concurrence. We conclude that the plaintiff did not fall within

the exception allowing unilateral action. As a result, he did

not have standing to bring suit on behalf of the estate.

2. Standing as owner by adverse possession. To establish

that he adversely possessed his mother's former home, the

plaintiff was required to show "nonpermissive use which is

actual, open, notorious, exclusive and adverse for twenty

years." Lawrence v. Concord, 439 Mass. 416, 421 (2003), quoting

Kendall v. Selvaggio, 413 Mass. 619, 621-622 (1992). "The

burden of proving adverse possession is on the person claiming

title thereby and 'extends to all of the necessary elements of

such possession.'" Id., quoting Mendonca v. Cities Serv. Oil

Co. of Pa., 354 Mass. 323, 326 (1968). "[T]he purpose of the

various requirements of adverse possession . . . is to put [the

owner] on notice of the hostile activity of the possession so

that he, the owner, may have an opportunity to take steps to

vindicate his rights by legal action." Air Plum Island, Inc. v.

Society for the Preservation of New England Antiquities, 70

Mass. App. Ct. 246, 252 (2007), quoting Ottavia v. Savarese, 338

Mass. 330, 332-333 (1959).

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Here, there are no facts in the summary judgment record

raising a material dispute whether the plaintiff exclusively

occupied the subject premises for twenty years or did so without

permission. The plaintiff claims adverse possession in his

complaint, but has mustered no evidence to show that he has met

the elements of that claim. See LaLonde v. Eissner, 405 Mass.

207, 209 (1989) ("[T]he opposing party cannot rest on his or her

pleadings and mere assertions of disputed facts to defeat the

motion for summary judgment"). In fact, the plaintiff says in

his brief that he has occupied two rooms of the home, which

suggests that his use of the property has not been exclusive.

The plaintiff failed to establish his standing as owner by

adverse possession.

Judgment affirmed.

By the Court (Singh, Hand &
D'Angelo, JJ.1),

Clerk

Entered: September 23, 2024.

1 The panelists are listed in order of seniority.

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