DEUTSCHE BANK NATIONAL TRUST COMPANY v. NICHOLS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a bench trial on this postforeclosure summary process case, a judge of the Housing Court entered a judgment of possession in favor of defendants Hultin and Peterson.⁵ In so doing, the judge concluded that the plaintiff did not have title to the mortgage at the time of the foreclosure, based on a 2015 assignment. On this basis, the judge found that the plaintiff did not have standing to bring the summary process action.

The defendants did not file an answer or counterclaim in the Housing Court; at no point did they challenge the plaintiff's standing. In this context, we understand the judge's use of the term “standing” to mean that she was not convinced that the plaintiff was the proper holder of title, even though the plaintiff is the entity named as grantee on the foreclosure deed. Thus, the plaintiff argues on appeal that it had no notice that standing was at issue, did not therefore submit evidence on the point, and was surprised when the judge rested her decision on an issue she raised sua sponte and without first soliciting input from the parties. See generally Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569 (2012).

Because the issue was not raised below and we cannot consider it in the first instance without the necessary factual development that should have occurred below, we vacate the judgment and remand to the Housing Court for further proceedings on the issue of the plaintiff's title and right to bring the instant action.

So ordered.

vacated and remanded

FOOTNOTES

5.   Hultin, the mortgagee and Peterson, a tenant, were the only defendants who attended the trial. Neither of them participated in this appeal.