FANNIE MAE 1 v. Kymberleigh LAMSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kymberleigh Lamson, appeals from an order issued by a Housing Court judge dismissing her notice of appeal of a summary judgment decision in favor of the plaintiffs, Fannie Mae, also known as Federal National Mortgage Association (Fannie Mae). Lamson argues that the judge erred in the underlying summary judgment decision, the judgment for possession, and the dismissal of her notice of appeal. The only issue preserved on the record before us is whether the judge erred in dismissing the notice of appeal. We affirm.
Background. This case arises from a foreclosure sale of a property located at 220 University Avenue in Lowell (property). At the time Lamson inherited the property, the mortgage on the property was in default. In October 2007, Lamson filed a complaint in the Middlesex Superior Court against the mortgagee, Chase Home Finance, LLC (Chase), to enjoin the foreclosure sale of the property (2007 action). After a trial, judgment entered in favor of Chase on February 10, 2010. Chase then initiated an action to foreclose the mortgage and, on June 6, 2011, judgment entered authorizing the foreclosure of the mortgage and the sale of the property. On July 19, 2011, Lamson filed a new complaint in the Middlesex Superior Court to enjoin the foreclosure sale (2011 action). After two successive temporary restraining orders were granted and lifted, foreclosure proceedings began and, on December 2, 2013, Fannie Mae acquired the property.3
On July 17, 2015, Fannie Mae commenced the instant summary process action in the Northeast Housing Court to recover possession of the property from Lamson (Housing Court action). Fannie Mae moved for summary judgment on September 21, 2017. On January 24, 2018, Lamson filed a motion “to remove the judgment, reverse foreclosure and convey ownership back to [Lamson]” in the 2011 action, alleging that she had newly discovered documents that proved the mortgage was satisfied and discharged in 2007.4 On January 26, 2018, a Superior Court judge denied the motion, concluding that the time to file such a motion had passed and, regardless, Lamson failed to demonstrate that she had newly discovered evidence or that Chase had perpetrated “some sort of fraud.” On January 29, 2018, Lamson opposed Fannie Mae's summary judgment motion in the Housing Court action, asserting that she had documents to prove the satisfaction and discharge of the mortgage.
On May 21, 2018, in the Housing Court action, the judge denied Fannie Mae's motion for summary judgment. On February 7, 2019, Lamson moved for partial summary judgment on the issue that the mortgage was satisfied. On May 7, 2019, Fannie Mae opposed Lamson's motion and filed a cross motion for summary judgment. Fannie Mae asserted that res judicata barred Lamson's claim, based on the “new evidence” that (1) Lamson's attorney in the 2007 action had in his possession at that time the alleged mortgage satisfaction documents and yet did not raise the issue, and (2) the judge in the 2011 action denied Lamson's rule 60 (b) motion premised on the same evidence presented in her motion for partial summary judgment.
On June 13, 2019, the judge allowed Fannie Mae's motion. On June 26, 2019, Lamson filed a notice of appeal. Fannie Mae moved to dismiss the notice of appeal on the basis that it was filed two days late. See G. L. c. 239, § 5 (a). On September 4, 2019, the judge allowed Fannie Mae's motion to dismiss the notice of appeal.
Discussion. Lamson contends that she filed her notice of appeal in a “timely fashion” because she mailed it within the appeal period and her appeal should not be denied due to an unexplained delay in delivery or docketing.
“A party seeking to appeal a judgment in a summary process action ‘shall file a notice of appeal with the court within [ten] days after the entry of the judgment.’ ” Wells Fargo Bank, Nat'l Ass'n v. Mondi, 98 Mass. App. Ct. 280, 282 (2020), quoting G. L. c. 239, § 5 (a). This “period is fixed by statute and is jurisdictional.” Jones v. Manns, 33 Mass. App. Ct. 485, 489 (1992). A notice of appeal “shall be deemed to have been filed as of the date of receipt” by the clerk. Mass. R. Civ. P. 77 (c), 365 Mass. 841 (1974). See Rule 1 of the Uniform Summary Process Rules (1980) (“Procedures in [summary process] actions that are not prescribed by these rules shall be governed by the Massachusetts Rules of Civil Procedure”); Wells Fargo Bank, Nat'l Ass'n, supra at 284-285 (applying Mass. R. Civ. P. 77 [d], as appearing in 476 Mass. 1402 , to summary process action). If a “party disputes the fact of such filing, the court shall determine the question.” Mass. R. Civ. P. 77 (c).
At the hearing on September 4, 2019, Lamson's attorney stated that, although the notice of appeal should have been timely filed as it was mailed ahead of the deadline, he was unable to “bring more light to the mailing and the dates involved.” Lamson also concedes that she was unable to produce proof of the postmark or transit information for the notice of appeal. Because Lamson was unable to show that the notice of appeal was “received by [the clerk]” and thus filed within the ten-day appeal period, the judge did not err in finding that the appeal was not timely. Mass. R. Civ. P. 77 (c). See Garrett v. Director of Div. of Employment Sec., 394 Mass. 417, 420 (1985) (mailing and filing are distinct concepts); Wells Fargo Bank, Nat'l Ass'n, 98 Mass. App. Ct. at 282.
Lamson nonetheless contends that this court should extend the period for filing for good cause pursuant to Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626 (2019). However, the statutory appeal period “cannot be overridden by a contrary rule of court” (citation omitted), nor can it “be overridden or enlarged by a judge acting pursuant to ․ general equitable principles.” Wells Fargo Bank, Nat'l Ass'n, 98 Mass. App. Ct. at 282-283. See U.S. Bank Trust, N.A. v. Johnson, 96 Mass. App. Ct. 291, 294 (2019) (“It is settled that the ten-day period established by [G. L. c. 239,] § 5[,] for filing a notice of appeal is jurisdictional and ineligible for enlargement”). As such, we are constrained by the appeal period set out in G. L. c. 239, § 5 (a), and affirm the judge's dismissal of Lamson's notice of appeal.5
Order allowing motion to dismiss appeal affirmed.
3. Final judgment in the 2011 action entered in January 2014.
4. The motion was treated as a motion for relief from judgment pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). For consistency, we refer to this as a rule 60 (b) motion.
5. Lamson advances several arguments related to the underlying summary judgment decision. Even assuming they were not waived on appeal, they are unavailing. The judge found that both claim preclusion and issue preclusion “prevent [Lamson] from relitigating the same claims and issues in this case” where “this is not the first case, rather this is the sixth case, involving the same parties and the same claims and issues in this matter.” See Bagley v. Moxley, 407 Mass. 633, 636-637 (1990). The record supports this conclusion. Lamson's argument that the dismissal of the rule 60 (b) motion in the 2011 action did not have a preclusive effect on the issue regarding the alleged mortgage satisfaction in the Housing Court action is misguided. See Jarosz v. Palmer, 436 Mass. 526, 530-531 (2002), quoting Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983) (issue preclusion applies “when an issue has been ‘actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim’ ”). The rule 60 (b) order was (1) actually litigated where there was a hearing, opportunity for “adversary presentation,” and the judgment was not “a product of the parties’ consent” (citation omitted); (2) the issue concerning the mortgage satisfaction was essential to the judgment where the judge determined that Lamson had not demonstrated that she had “newly discovered evidence”; and (3) it was a final judgment subject to appeal -- indeed Lamson did appeal. Jarosz, supra at 531-534. See Air Purchases, Inc. v. Mechanical Coordinators Corp., 21 Mass. App. Ct. 632, 634-636 (1986) (rule 60 [b] order had preclusive effect on issues in independent action where, although both actions were pending simultaneously, rule 60 [b] order entered prior to consideration of independent action). We have reviewed Lamson's remaining claims. Although comprehensively briefed, they do not merit appellate relief.
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