DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee, vs. MICHAEL FEWTRELL & another.

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
25-P-637
DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,1
vs.
MICHAEL FEWTRELL & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On September 25, 2023, appellant Deutsche Bank National
Trust Company, as trustee for the Registered Holders of Morgan
Stanley ABS Capital I Inc., Trust 2006-HE8, Mortgage Pass-
Through Certificates, Series 2006-HE8 (Deutsche Bank), commenced
a summary process action against appellees Michael and Frederick
D. Fewtrell (Fewtrells) in regard to the Fewtrells' possession
of unit 1 of the subject property.
Eventually, Deutsche Bank filed a motion for summary
judgment. Frederick D. Fewtrell filed an opposition and cross-
1 For the Registered Holders of Morgan Stanley ABS Capital I
Inc., Trust 2006-HE8, Mortgage Pass-Through Certificates, Series
2006-HE8.
2 Frederick D. Fewtrell.

2
motion for summary judgment.3 After a hearing, the court denied
Deutsche Bank's motion for summary judgment and granted the
Fewtrells judgment for possession on Frederick D. Fewtrell's
cross motion for summary judgment. Judgment entered on the
docket in the trial court on December 5, 2024.
The ten-day period to appeal from the judgment expired on
December 15, 2024. That deadline is statutory, jurisdictional,
and cannot be extended. See G. L. c. 239, § 5 (a); Liberty
Mobilehome Sales, Inc. v. Bernard, 6 Mass. App. Ct. 914, 914
(1978). Deutsche Bank did not appeal.
Forty-eight days after judgment, on January 22, 2025,
Deutsche Bank filed a motion for reconsideration of the
judgment. On March 23, 2025, the Housing Court denied Deutsche
Bank's motion for reconsideration. On April 7, 2025, Deutsche
Bank filed a notice of appeal from the order denying its motion
for reconsideration of the summary judgment.
On appeal, Deutsche Bank raises only claims of factual and
legal error in the underlying judgment, which are all that were
raised in the motion for reconsideration. Although the details
are not important, it argues specifically that it was error for
the judge to conclude that the original mortgagee sold the loan
3 It is unclear why this pleading only identified Frederick
D. Fewtrell. Both Fewtrells answered the summons and complaint,
and they were represented by the same attorney.

3
at issue after declaring bankruptcy, and that the judge erred in
failing to hold as a matter of law that a default judgment
entered in a prior action is not entitled to preclusive effect
under the doctrine of res judicata.
Discussion. Deutsche Bank made no reference to any rule in
its motion, which is captioned only "Motion for
Reconsideration." As this motion was filed more than ten days
after judgment, it is necessarily a motion under Mass. R.
Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 [b]). Muir v.
Hall, 37 Mass. App. Ct. 38, 41 (1994).
In Commonwealth v. Clark, 67 Mass. App. Ct. 832, 834
(2006), we said, "[t]he filing of a motion for reconsideration
after a statutory appeal period has expired can have no
revivifying effect on a defunct appeal." See Commonwealth v.
Rodriguez, 443 Mass. 707, 708–709 (2005); Commonwealth v.
Hernandez, 441 Mass. 1014, 1015 (2004); Curly Customs, Inc. v.
Pioneer Financial, 62 Mass. App. Ct. 92, 97 (2004). Although a
judge ordinarily has discretion to reconsider a prior order upon
an appropriate motion for reconsideration (i.e., one that is not
a mere rehash of prior arguments), it is a precondition that
"the request [be] made within a reasonable time." Commonwealth
v. Gonsalves, 437 Mass. 1022, 1022 (2002), S.C., 441 Mass. 1007
(2004). Here, Deutsche Bank, having failed to appeal from the

4
judgment on the merits, did nothing more in its motion than ask
the court to change its mind. It presented nothing that was not
available to it during the time it could have appealed. But the
judgment is final. Deutsche Bank appeals, arguing only that the
judge erred on the merits (and therefore should have allowed the
motion). But Deutsche Bank cannot use a rule 60 (b) motion to
avoid the deadline for filing an appeal and to get the merits of
a case before the appellate court long after the judgment is
final. "It should be axiomatic that such a motion filed after
the statutory appeal period has expired cannot be deemed to have
been made within a reasonable time." Clark, supra.
Deutsche Bank argues that this is not correct because the
courts expressly discuss the filing of motions for
reconsideration beyond ten days after the judgment. See Muir,
37 Mass. App. Ct. at 41. But this is sophistry. Most cases
have a thirty-day appeal period; ten days is discussed in Muir
because under the law at the time, it was the outside limit for
tolling the appeal period by filing a motion for reconsideration
under Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), after which
any such motion was treated as a motion under rule 60. See
Mass. R. A. P. 4 (a), as amended, 395 Mass. 1110 (1985); Muir,
supra at 40. The discussion of that ten-day period had nothing
to do with the appeals period. Indeed, the court said that a

5
motion for reconsideration cannot "be used as a substitute for
the regular appeal procedure." Id. at 41. In that case, there
was a "thirty-day appeal period." Id. In summary process cases
that period is a deliberately short ten days.
Deutsche Bank argues that it could not have known that the
factual issue related to the timing of the mortgage sale would
be dispositive of the case and so this motion for
reconsideration was the first "practicable" time at which it
could have raised it. To whatever extent Deutsche Bank intends
to argue that this might affect the timeliness of their motion,
we agree with the Fewtrells that there was no surprise. But
even if there was, it occurred when the judge's decision
entered, such that Deutsche Bank could have filed a timely
notice of appeal or motion for reconsideration, which it did not
do.
In light of our conclusion, we need not decide whether, as
Deutsche Bank argues, the word "mistake" in rule 60 (b) (1)
includes ordinary, appealable errors of fact or law. Nor do we
need to decide whether, as the Fewtrells argue, a
contemporaneously issued judgment in a related case is res

6
judicata to the claims of error made in Deutsche Bank's motion
for reconsideration. We express no opinion on those issues.
Order denying motion for
reconsideration affirmed.
By the Court (Rubin, Henry &
Wood, JJ.4),
Clerk
Entered: October 14, 2026.
4 The panelists are listed in order of seniority.