POOLE v. BANK (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Stephen R. Poole, owns a residence in Spencer. The defendant, U.S. Bank N.A. (bank), sought to foreclose on that property. Without disputing the bank's contention that he long ago had defaulted on his mortgage, Poole filed an action in 2017 seeking to prevent foreclosure. A Superior Court judge ruled in the bank's favor, and on December 19, 2017, judgment entered dismissing Poole's action with prejudice. No appeal of that adverse judgment was taken, and the litigation that Poole brought seeking to prevent foreclosure therefore is over.

The appeal before us is of the order denying a motion through which Poole sought to vacate a judgment entered in a different, earlier action. The bank had brought that case, which was styled as a declaratory judgment action, in 2014. Through the 2014 action, the bank requested judicial approval to file in the Registry of Deeds photocopies of two of the assignments in its chain of title to the mortgage. Poole was not joined as a party to the 2014 action. Judgment in that case entered in 2015.

In 2018, after judgment had entered in both cases, Poole filed a motion through which he sought to vacate the judgment in the 2014 action on the basis that he was a necessary party to that case. See G. L. c. 231A, § 8 (“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding”). Poole did not seek to intervene in the 2014 action but instead filed his motion to vacate in the 2017 action. A different judge denied that motion on the ground that Poole lacked standing to attack the judgment in the 2014 action because he was not a party to that case. The denial of that motion is the sole subject of the appeal before us.

There is at least some force to Poole's argument that the bank should have joined him as a defendant in the 2014 action. See First Nat'l Bank of Cape Cod v. North Adams Hoosac Sav. Bank, 7 Mass. App. Ct. 790, 791 n.1 (1979) (borrower deemed necessary party in action to determine holder of note). There is also at least some force to Poole's argument that if he was a necessary party to the 2014 action, his absence implicated the court's jurisdiction to render a judgment in that action. See Service Employees Int'l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 338 (2014) (failure to join necessary party may be jurisdictional). Finally, there is force to Poole's claim that the motion judge erred by ruling that he lacked standing to challenge the judgment entered in the 2014 action simply because he was not a party to that action.³

Ultimately, however, we need not decide the merits of Poole's claims regarding the judgment entered in the 2014 action, because that issue has become moot. In the 2017 action, which Poole brought seeking to preempt the bank's foreclosure, he had the opportunity to raise the consequences of the bank's failure to join him in the earlier litigation and to argue that the bank was not in fact the holder of the mortgage. Poole took that opportunity but lost. His failure to appeal the judgment against him in the 2017 action renders the bank's failure to join him in the earlier action of mere academic interest. He does not get to start the process over by filing a motion pursuant to Mass. R. Civ. P. 60(b), 365 Mass. 828 (1974), with respect to the long-closed 2014 litigation. Cf. Jones v. Boykan, 464 Mass. 285, 291 (2013), quoting J.W. Smith & H.B. Zobel, Rules Practice § 60.1, at 364 (2d ed. 2006) (“Rule 60 is not a substitute for the normal appellate process”).

The order denying the motion to review and vacate or reverse the judgment is vacated, not on the merits but because it is moot.

So ordered.

Vacated.

FOOTNOTES

3.   We pass over the separate question whether one can seek to vacate a judgment without first intervening in the action.