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Appeals Court of Massachusetts.



Decided: February 08, 2021

By the Court (Wolohojian, Henry & Singh, JJ.1)


The defendant, Edward Flaherty, appeals from an order of the Eastern Division of the Housing Court granting summary judgment in favor of Wells Fargo Bank, N.A. (Wells Fargo) in this summary process action. Flaherty contends that he purchased and moved into the property in good faith in 2017. He denies that he is a tenant.2 We affirm.

Discussion. As a preliminary matter, we need not consider Flaherty's claims as he failed to comply with Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975), by failing to cite any legal authority in his brief. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 86 (1995) (brief that “does not contain a single citation to a case or statute ․ does not rise to the level of acceptable appellate argument”). While we are sympathetic to Flaherty's situation, it is well established that pro se litigants are “held to the same standards as litigants who are represented by counsel.” Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996). See Mains v. Commonwealth, 433 Mass. 30, 35 (2000). Flaherty's brief contains only “a myriad of unsupported factual allegations.” Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 184 (1994).

On the merits, Flaherty's claims fare no better. “We review a grant of summary judgment de novo.” Deutsche Bank Nat'l Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). On appeal, the issue is “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 129 (1991).

Wells Fargo presented facts that it obtained legal title to the premises through a valid foreclosure sale executed in compliance with the mortgage and applicable law, as demonstrated in the foreclosure deed and the affidavit of sale. Flaherty filed no materials in opposition to Wells Fargo's motion for summary judgment. Flaherty also did not present any evidence at the motion hearing other than what he claimed was a deed to the subject property. That purported deed is not in the record before us.3 On the record before her, the trial judge found that Flaherty failed to meet his burden in opposing Wells Fargo's motion for summary judgment, namely, to “set forth specific facts showing that there is a genuine issue for trial.” Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). See Godbout v. Cousens, 396 Mass. 254, 261-263 (1985). The trial judge found that all relevant material facts were undisputed, including that Flaherty is not a former owner of the subject property, does not have a written lease, did not pay rent, and that Wells Fargo has valid, properly recorded, legal title to the subject property. We discern no error.

Flaherty also argues that the matter should have been stayed pending resolution of Federal proceedings between the same parties challenging Wells Fargo's title. At the time of his request for a stay, Flaherty and others were appealing from an order of the United States District Court for the District of Massachusetts dismissing the Federal action. See Estate of Junior vs. Wells Fargo Bank, N.A., D. Mass., No. 17-10460 (March 30, 2017). We discern no error in the motion judge's decision not to stay this matter while that case was appealed. Commerce Ins. Co. v. Szafarowicz, 483 Mass. 247, 256 (2019), quoting Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985) (“a motion to stay proceedings is ordinarily a matter addressed to the sound discretion of the trial judge”). Moreover, the Federal matter has now been decided against Flaherty and his coplaintiffs.

Flaherty raises several other issues, none of which is material to resolution of this appeal. Flaherty is correct that the judge mischaracterized him as a “former mortgagor” and “former owner” of the property in a postjudgment order regarding an appeal bond. That order, however, was not appealed. In the order granting summary judgment (which is the only order before us in this appeal), the motion judge correctly recognized that Flaherty was not a former owner. Moreover, the requirements of an appeal bond and use and occupancy payments were waived and, accordingly Flaherty suffered no prejudice from the mistaken references. Flaherty also complains that the judge failed to act on a motion filed on March 30, 2018. Because this motion related to the issue of an appeal bond and use and occupancy payments, Flaherty suffered no prejudice for the lack of action on this motion. Flaherty also alleges that Wells Fargo “postponed service” and “withheld evidence.” Even if this argument were not waived by its underdevelopment, Flaherty fails to demonstrate that this was relevant to the motion for summary judgment or that he was prejudiced.

Judgment dated February 9, 2018, affirmed.


2.   We accept Flaherty's argument that he is not a tenant, though we note that his answer asserts that Wells Fargo “did not terminate my tenancy properly.”

3.   We note that it is the appellant's burden to present us with a record sufficient to permit us to review his claims. See E.H.S. v. K.E.S., 424 Mass. 1011, 1012 (1997); Commonwealth v. Montanez, 388 Mass. 603, 604-605 (1983). If the deed was not filed in the Housing Court, it was Flaherty's duty to modify the record. Mass. R. A. P. 8 (e) (1), as amended 378 Mass. 932 (1979). See also Arch Med. Assocs. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 406 (1992) (“The burden is on the appellant in the first instance to furnish a record that supports his claims on appeal․ Errors that are not disclosed by the record afford no basis for reversal”). In any event, Flaherty claims to have purchased the property in 2017 and his interest therefore would have been subordinate and subject to the rights of the recorded mortgage on which Wells Fargo foreclosed. East Boston Sav. Bank v. Ogan, 428 Mass. 327, 329-330 (1998) (basic principle determining priority of interests in real property is “first in time, first in right”).

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Docket No: 18-P-1057

Decided: February 08, 2021

Court: Appeals Court of Massachusetts.

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