WELLS FARGO BANK, N.A., Trustee v. MARY EARLE & 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

24-P-1440

WELLS FARGO BANK, N.A., trustee,1

vs.

MARY EARLE & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants, Mary Earle and Joseph M. O'Hare, appeal

from a Housing Court judge's grant of summary judgment for the

plaintiff, Wells Fargo Bank, N.A., in this summary process

action. On appeal, the defendants assert, inter alia, that

because the Housing Court lacked subject matter jurisdiction

over actions affecting title to registered land, the judge had

no authority to decide this matter. We affirm.

1For the benefit of Certificateholders of Asset Backed
Securities Corporation Home Equity Loan Trust, Series OOMC 2005-
HE6.

2 Joseph M. O'Hare.
Background. We summarize the facts in the summary judgment

record in the light most favorable to the defendants, the

nonmoving parties. In April of 2005, the defendants executed

and delivered a mortgage to Option One Mortgage Corporation

(Option One), secured by property located in Sandwich

(property). The mortgage was registered in the Barnstable

County registry district of the Land Court and recorded in the

Barnstable County registry of deeds.

In June of 2007, Option One assigned the mortgage to the

plaintiff in trust for the benefit of Certificateholders of

Asset Backed Securities Corporation Home Equity Loan Trust,

Series OOMC 2005-HE6, and the assignment was also registered in

the Land Court and recorded in the registry of deeds.

Thereafter, the defendants defaulted on the mortgage. In

February of 2021, an officer of the PHH Mortgage Corporation

(PHH), as loan servicer for the plaintiff, executed affidavits

of compliance with G. L. c. 244, § 35B, concerning good faith

efforts to avoid foreclosure; and with G. L. c. 244, § 35C,

concerning authorization to act on behalf of the note holder.3

3 As an authorized agent of the loan servicer PHH, the
officer was a proper party to submit the affidavits of
compliance with §§ 35B and 35C, both of which include mortgage
servicer, its agents, and its employees in the definition of
creditor. See G. L. c. 24, § 35B (a), fifth par.; § 35C (a),
third par.

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On three dates in 2022, the plaintiff published a notice of a

foreclosure sale, and at the public auction the property was

sold to the plaintiff. The foreclosure deed was then registered

and noted in the Land Court, and a new certificate of title was

issued and then recorded in the registry of deeds.

On September 11, 2023, the plaintiff served the defendants

with a notice to quit. Also in September of 2023, the plaintiff

served the defendants with a summary process summons and

complaint for possession of the premises, and on January 26,

2024, the plaintiff moved for summary judgment. Earle, who had

submitted a written answer to the plaintiff's complaint,

appeared at the motion hearing and also submitted exhibits in

opposition to the motion. O'Hare did not appear at the hearing

on the plaintiff's motion for summary judgment and was

defaulted.

On May 9, 2024, a Housing Court judge granted summary

judgment in favor of the plaintiff. The defendants appeal.4

Discussion. 1. Summary judgment standard. On appeal,

Earle contends that the judge, in allowing the plaintiff's

4 O'Hare filed a motion to remove the default judgment,
which was denied. Because O'Hare may not appeal from the
summary process judgment, see Rule 12 of the Uniform Summary
Process Rules (2004); Adjartey v. Central Div. of the Hous.
Court Dep't, 481 Mass. 830, 856 (2019), and makes no argument
that his motion to remove the default was erroneously denied, we
affirm the judgment as to him.

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motion for summary judgment, applied "an incorrect standard" to

her as the nonmoving party under Mass. R. Civ. P. 56, 365 Mass.

824 (1974). We review the judge's grant of summary judgment de

novo. See Galenski v. Erving, 471 Mass. 305, 307-308 (2015).

While we view the evidence in the light most favorable to the

opposing party, "the opposing party cannot rest on his or her

pleadings and mere assertions of disputed facts to defeat the

motion for summary judgment." LaLonde v. Eissner, 405 Mass.

207, 209 (1989), citing Community Nat'l Bank v. Dawes, 369 Mass.

550, 554 (1976).

In a postforeclosure summary process case, a plaintiff "may

make a prima facie showing of its right to possession by

producing an attested copy of the recorded foreclosure deed and

affidavit of sale under G. L. c. 244, § 15." Federal Nat'l

Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012) (Hendricks).

Moreover, where, as here, the mortgage contained a power of

sale, "[l]egal title is established in summary process by proof

that the title was acquired strictly according to the power of

sale provided in the mortgage; and that alone is subject to

challenge." Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011)

(Bailey), quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775

(1966).

Earle correctly states that, as the nonmoving party, she

was not "required" to introduce any materials in opposition to

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the plaintiff's motion. See Reporter's Notes to Mass.

R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002) ("[a

nonmovant] may decline to introduce his [or her] own materials

and may instead fight the motion on entirely legal [as opposed

to factual] grounds"). However, where, as here, the plaintiff

made a prima facie case of its right to possession, the burden

shifted to Earle to factually contest the plaintiff's compliance

with G. L. c. 244, § 14. "If a plaintiff makes a prima facie

case, it is then incumbent on a defendant to counter with his

[or her] own affidavit or acceptable alternative demonstrating

at least the existence of a genuine issue of material fact to

avoid summary judgment. . . ." Hendricks, 463 Mass. at 642.

"If a defendant fails to show the existence of a genuine issue

of material fact . . . by contesting factually a prima facie

case of compliance with G. L. c. 244, § 14, such failure

generally should result in judgment for the plaintiff."

Hendricks, supra.

Here, the plaintiff properly presented a prima facie case

of its right to possession by providing an attested copy of its

recorded and registered foreclosure deed and the statutory

affidavit of sale. See Hendricks, 463 Mass. at 637.

Additionally, the plaintiff submitted a detailed affidavit of

continuing note holder status and strict compliance with the

mortgage terms. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226,

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240 (2015) (foreclosing party must strictly comply with

mortgage's power of sale provisions). Thus, the burden shifted

to Earle to show a genuine issue of material fact regarding the

plaintiff's right to possession. See Hendricks, supra at 642.

Although Earle submitted an answer with exhibits in response to

the plaintiff's prima facie case, the judge stated, and we

agree, that the "allegations in her affirmative defenses [were]

conclusory and unsupported by any admissible evidence." The

judge then properly concluded that "there [were] no genuine

issues of material fact in dispute on the issue of possession of

the premises," and thus, "the plaintiff [was] entitled to the

entry of summary judgment in its favor as a matter of law."

Based on our independent review of the summary judgment record,

we agree that the plaintiff was entitled to summary judgment.

2. Subject matter jurisdiction. Earle contends that the

Housing Court lacked subject matter jurisdiction to "opine on

issues of 'title' in defense to a summary process complaint

regarding [r]egistered [l]and," and that the judge should have

dismissed the plaintiff's complaint sua sponte on that basis.

Earle primarily relies on G. L. c. 185, § 1 (a 1/2), which

grants the Land Court "exclusive original jurisdiction" over

"[c]omplaints affecting title to registered land" (emphasis

added), and Bailey, and argues that because the judge

"necessarily had to make [a] finding that [the p]laintiff

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possessed superior title" in granting the motion for summary

judgment, the Housing Court lacked jurisdiction.

However, the Supreme Judicial Court stated in Bailey, 460

Mass. at 333, "There is nothing in th[e] jurisdictional scheme

that supports a conclusion that the Legislature intended to give

the Housing Court concurrent jurisdiction over summary process

actions, yet preclude its consideration of the long-recognized

validity of title defense to summary process." While Earle

recognizes that Bailey "definitively held . . . that a defendant

in a summary process matter may raise issue(s) of superior title

in defense of an eviction action," she nonetheless argues that

the court "was remiss in its failure to discuss the obvious

remaining issue of how this finding would affect future cases

involving title to Registered Land." However, nothing in Bailey

suggests that the Housing Court would not have subject matter

jurisdiction over a summary process action involving registered

land even if a defendant challenges the plaintiff's standing by

claiming a defective foreclosure. Instead, Bailey suggests that

a defendant would be entitled to raise the question of the

plaintiff's standing by challenging the propriety of the sale or

the plaintiff's legal title to the foreclosed property. See

Bailey, supra. We note that the Land Court does not have

jurisdiction over summary process actions. See Commentary to

Rule 1 of the Uniform Summary Process Rules (1980) ("Four

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Departments of the Massachusetts Trial Court have jurisdiction

over summary process actions [Superior Court, District Court,

Boston Municipal Court, and Housing Court]"). Earle has not

provided contrary authority.

3. Good faith and reasonable diligence. Next, Earle

asserts that, in foreclosing on the property, the plaintiff

failed to protect her interests. See U.S. Bank Nat'l Ass'n v.

Ibanez, 458 Mass. 637, 647 n.16 (2011), citing Williams v.

Resolution GGF OY, 417 Mass. 377, 382-383 (1994) (recognizing

mortgage holder's responsibility to "act in good faith and . . .

use reasonable diligence to protect the interests of the

mortgagor" is "more exacting" where holder becomes buyer at

foreclosure sale). Earle alleges on appeal that upon the

defendants' default in 2007, they were "wrongfully[,] forcibly

removed" from the property, and then, upon learning of the

eviction's invalidity in 2012, the defendants returned to the

property to find it abandoned and neglected. Despite these

allegations, Earle produced no evidence in the record to

establish these events; we are thus unable to assess this aspect

of Earle's appeal. See Mass. R. A. P. 18 (a) (1) (A), as

appearing in 481 Mass. 1637 (2019). To the extent that Earle

contends that a prior invalid attempt to foreclose on the

property precluded the plaintiff from foreclosing at a later

date, she has failed to provide any legal support for her

8
position. Thus, we conclude that Earle failed to raise a

genuine issue of material fact related to the plaintiff's good

faith or reasonable diligence.

4. Constitutional challenges. Lastly, Earle raises

arguments aimed at challenging the constitutionality of the

statutory scheme underlying this summary process action. First,

she argues that G. L. c. 239 and G. L. c. 185C, § 3, as applied,

create an unconstitutional disparity between "the same class of

property owners" based on whether the owner challenges the

validity of the foreclosing party's title in the Housing Court -

- where an appeal is conditioned on posting an appeal bond5 -- or

in the Superior Court, where a party is entitled to an appeal as

of right. We discern no such disparity; General Laws c. 239,

§§ 5 and 6, condition an appeal from a judgment of either the

Superior Court or the Housing Court for possession of land after

foreclosure on the appellant's posting of a bond.

Even if that were not the case, however, we would not reach

the question. This is because as a general matter, "[w]e do not

decide constitutional questions unless they must necessarily be

reached" (citation omitted), Dinkins v. Massachusetts Parole

Bd., 486 Mass. 605, 616 (2021), and "constitutional question[s]

should be addressed as applied to the facts in the instant case,

5 See Rule 12 of the Uniform Summary Process Rules.

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and not as an abstract question of law." Frechette v. D'Andrea,

494 Mass. 167, 178 (2024).6 Here, the judge waived the appeal

bond, finding that Earle was indigent and had raised a

nonfrivolous defense on appeal. Earle was, therefore, on equal

footing with the "class of property owners" in the Superior

Court, and we need not address her constitutional claim.

Second, Earle asserts that the plaintiff's reliance on a

G. L. c. 244, § 35C, affidavit to satisfy its burden to show

that it "physically possessed the borrower's note" at the time

of notice of sale, in compliance with G. L. c. 244, § 14, was

unconstitutional, as it violated her procedural due process

rights. We are not persuaded. Earle had the opportunity to

place facts in dispute concerning the note at the time of the

foreclosure, see Khalsa v. Sovereign Bank, N.A., 88 Mass. App.

Ct. 824, 830-831 (2016), but did not. Thus, where the plaintiff

submitted a recorded and registered affidavit, executed by an

authorized agent, that states that the plaintiff was "the holder

of the promissory note secured by the above mortgage," its

showing was sufficient. See Eaton v. Federal Nat'l Mtge. Ass'n,

462 Mass. 569, 584-586 (2012) (foreclosing mortgagee not

6 To the extent Earle also argues that these statutes are
facially unconstitutional, that argument is similarly without
merit.

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required to "have physical possession of the mortgage note in

order to effect a valid foreclosure").

Judgment affirmed.

By the Court (Massing, Hand &
Allen, JJ.7),

Clerk

Entered: April 28, 2026.

7 The panelists are listed in order of seniority.

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