N.G. LORING, INC., & Another v. MARY ANNE ANDREY.

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

24-P-1099

N.G. LORING, INC., & another1

vs.

MARY ANNE ANDREY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Mary Anne and Gaston Andrey2 took title to three parcels of

land in Millis, Massachusetts (the property) in 1968. In 1999,

the Andreys sought to divide one parcel, containing their

primary residence, and sell the newly created parcel.3 To convey

the new parcel, which had an existing structure, the Andreys

needed to install a septic system. They engaged N.G. Loring,

Inc. (NGL) for the installation but immediately fell into a

1 Nationstar Mortgage, LLC.

2Because Mary Anne and Gaston Andrey share a surname, we
refer to them by their first names.

3Before dividing the parcel, Gaston conveyed his interest
in it to Mary Anne so that she owned it individually. Gaston
subsequently died.
dispute that resulted in NGL's abandoning the installation

project and later suing the Andreys. This lawsuit resulted in a

settlement agreement and agreement for judgment that included

the issuance of an execution. When the Andreys did not pay

according to the agreement, NGL levied on the execution, and

ultimately obtained title to the property at a sheriff's sale in

2012. After the sheriff's sale, Mary Anne sought to undo the

sale or reach a settlement with NGL but could not. Mary Anne

then filed a civil action in the Norfolk Superior Court

challenging the sale. A judge of the Superior Court granted

summary judgment for NGL.

Meanwhile, in 2005, the Andreys had refinanced their

mortgage on the property. The new mortgage contained a

scrivener's error. It encumbered two unimproved smaller parcels

but did not include the larger parcel on which the Andreys'

house and other structures sit. Nationstar Mortgage, LLC

(Nationstar) is currently the mortgagee.

This appeal arises from a miscellaneous action that NGL

originally filed in the Land Court seeking a declaration that it

has the right to take possession of the property because of the

sheriff's sale. Mary Anne opposed the action on the grounds

that the sheriff's sale was invalid and title should be returned

to her. In 2019, after NGL filed the action, NGL reached an

agreement with Nationstar and conveyed its interest in the

2
property and the action to Nationstar. After a trial, a judge

of the Land Court (trial judge) found that NGL, and thus

Nationstar, had title to the property. The trial judge

concluded that the decision in the Norfolk Superior Court case

bars Mary Anne's defenses by claim and issue preclusion and, in

any event, the sheriff's sale was valid. Because Nationstar had

title to the property, the trial judge found that the claim to

reform the mortgage was moot. Mary Anne appealed. We affirm.

Background. The parties are well acquainted with the facts

and procedural history, as detailed in the trial judge's

thorough decisions and the parties' stipulated facts. We

describe here only those aspects of the record that are

necessary to our ruling.

1. Procedural history. Briefly, NGL filed this action in

the Land Court on December 6, 2017, naming Mary Anne as

defendant.4 On January 7, 2020, the trial judge allowed

Nationstar to be substituted as plaintiff. After a trial, the

4 A related subsequent action was originally filed as MERS
as Nominee for America's Wholesale Lender, 12 SBQ 02069 02 – 001
(S-case). The original petition in the S-case was filed
February 22, 2012. It named NGL as an interested party and
sought to register a mortgage on the property. On June 29,
2016, Nationstar filed an amended S-petition, substituting
itself as petitioner. Because we affirm the trial judge's
ruling that Nationstar has title to the property, rendering the
S-case moot, we do not address the original or amended S-
petition further.

3
trial judge found that NGL, and thus Nationstar, held title to

the property.

2. Facts. When NGL abandoned the septic system project,

it left gravel at the job site. It then sued the Andreys,

seeking to be made whole for it's partial performance of the

contract. On September 26, 2007, the Andreys and NGL reached a

settlement agreement which provided in relevant part that the

parties would immediately execute an agreement for judgment of

$17,803.58 without further interest and without costs, with

execution to issue forthwith. The settlement agreement provided

further that if, on or before March 26, 2008, the Andreys paid

NGL $12,000 plus interest at the rate of 6% per annum from

September 26, 2007, NGL would endorse the execution "Satisfied

in Full" and deliver it to the Andreys. The same day, the

Andreys and NGL executed the agreement for judgment,

memorializing the settlement agreement.

On February 21, 2008, the Andreys having paid nothing

toward the judgment, NGL obtained an execution (execution) from

the Wrentham District Court against the Andreys for $18,077.50,

representing judgment of $17,803.58, no court-calculated pre- or

post-judgment interest, and costs of $273.92. The Andreys never

paid NGL.

On May 2, 2008, a Norfolk County deputy sheriff levied and

seized all of Mary Anne’s right, title, and interest in the

4
property and registered the execution with the Land Court. The

same day, the deputy sheriff attempted to serve the Andreys

notice of the levies and the demand for payment. The execution

stated erroneously that the Andreys resided at 357 Orchard

Street. Copies of the demand and notice were left at that

address and mailed to the Andreys there as well. In fact, the

Andreys resided at 359 Orchard Street and did not receive the

notice.

More than four years later, on July 24, 2012, a Norfolk

County deputy sheriff prepared a written notice of sale

indicating that a sale of the property was scheduled for

September 20, 2012. On July 30, 2012, a copy of the notice of

sale was hand delivered to the Andreys and signed for by Gaston.

On September 20, 2012, the sheriff held an auction of the

property. Mary Anne's son, Roger, placed a bid of $30,874.91,

which the sheriff accepted as the highest bid. But Roger then

refused to tender payment. A deputy sheriff then offered the

property to NGL, as the next highest bidder, and NGL tendered

payment. On December 14, 2012, the Sheriff's office registered

a deed with the registry, stating that the property was sold to

the high bidder, NGL, for $30,784.91 (sheriff’s deed).

Mary Anne filed a complaint in the Norfolk Superior Court

on March 19, 2014 (Norfolk Superior Court action), seeking a

declaratory judgment that the sheriff’s sale and sheriff’s deed

5
were null and void and ordering NGL to convey the property back

to Mary Anne. A judge of the Superior Court granted NGL's

motion for summary judgment on June 10, 2016.5

On October 23, 2019, NGL and Nationstar executed a

confidential settlement agreement and release (Nationstar

settlement). Under the Nationstar settlement, NGL conveyed its

interest in the property to Nationstar by quitclaim deed dated

October 23, 2019 (2019 deed).

Discussion. On review of a judgment, we accept the trial

judge's findings of fact unless clearly erroneous and review the

rulings of law de novo. See South Boston Elderly Residences,

Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462 (2017). We review

discretionary decisions for an abuse of discretion. That occurs

only if "the judge made a clear error of judgment in weighing

the factors relevant to the decision, such that the decision

falls outside the range of reasonable alternatives" (quotation

and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

The trial judge found that the judgment in the Norfolk

Superior Court action barred Mary Anne's claims to title to the

property pursuant to the doctrine of res judicata. We agree.

5 Mary Anne filed a notice of appeal from this judgment, but
we dismissed the appeal for lack of prosecution.

6
Res judicata is a term that includes both claim preclusion

and issue preclusion. See Santos v. U.S. Bank Nat'l Ass'n, 89

Mass. App. Ct. 687, 692 (2016). "[I]ssue preclusion 'prevents

relitigation of an issue determined in an earlier action where

the same issue arises in a later action, based on a different

claim, between the same parties or their privies'" (citation

omitted). Petrillo v. Zoning Bd. Of Appeals of Cohasset, 65

Mass. App. Ct. 453, 457 (2006). Before precluding the party

from relitigating an issue, a court must determine that

"(1) there was a final judgment on the merits in the prior

adjudication; (2) the party against whom preclusion is asserted

was a party (or in privity with a party) to the prior

adjudication; and (3) the issue in the prior adjudication was

identical to the issue in the current adjudication" (citation

omitted). Id. "Additionally, the issue decided in the prior

adjudication must have been essential to the earlier judgment[,

and i]ssue preclusion can be used only to prevent relitigation

of issues actually litigated in the prior action" (citation

omitted). Id. at 458. Applying those factors here, we conclude

that the trial judge correctly ruled that Mary Anne was

precluded from relitigating the validity of the sheriff's sale

because that same issue was determined in the Norfolk Superior

Court action.

7
First, the summary judgment decision in the Norfolk

Superior Court action was a final judgment on the merits of Mary

Anne's claim that the sheriff's sale was invalid because the

sheriff sought an excessive payment to satisfy the execution and

that title was not vested in NGL. The Superior Court judge

found that Mary Anne (1) knew the amount the sheriff sought to

avoid a sale of the property, (2) knew she could seek redemption

of the property within one year after the sale to NGL, pursuant

to G. L. c. 236, § 33, including her right to challenge the

amount due on redemption at a hearing before a panel of three

justices of the peace, G. L. c. 236, § 34, and (3) was aware of

the right under G. L. c. 236, § 39, to bring a civil action for

redemption, but had failed to do so. Accordingly, the Superior

Court judge granted summary judgment for NGL, finding that the

sheriff's sale was valid. Mary Anne did not appeal that

decision. See note 5 supra.

Second, Mary Anne was a party to the prior action, as was

NGL. Although NGL was dismissed as a party from this action in

2019, NGL conveyed its interest in the property to Nationstar by

the 2019 deed. That conveyance and the settlement agreement

between NGL and Nationstar assigned all of NGL's rights against

the Andreys and its rights in the property to Nationstar.

Third, the issue here is identical to the issue in the

Norfolk Superior Court action: whether the sheriff's sale was

8
valid. Mary Anne asserted in the prior action that the sale was

invalid because the debt she owed on the Judgment from the

Wrentham District Court was $18,077.50 "without interest and

costs" and the sheriff had demanded more than that to satisfy

the execution. Mary Anne raised the same claim in this case.

Finally, the validity of the sheriff's sale was essential

to the resolution of both the Norfolk Superior Court action and

the Land Court action. Accordingly, the trial judge correctly

concluded that relitigation of the issue in the Land Court was

precluded by the decision and judgment in the Norfolk Superior

Court action.6

Judgment affirmed.

By the Court (Singh,
Hershfang & Wood, JJ.7),

Clerk

Entered: March 19, 2026.

6 Because issue preclusion applies here, we do not address
the trial judge's alternative reliance on claim preclusion or
his independent determination that the sheriff's sale was valid.

7 The panelists are listed in order of seniority.

9