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Appeals Court of Massachusetts.

U.S. BANK NATIONAL ASSOCIATION, trustee 1 v. Michele FAITH & others;2 Bank of America, N.A., & others,3 third-party defendants.


Decided: October 07, 2021

By the Court (Meade, Shin & Walsh, JJ.4)


The defendants, Michele Faith and others (collectively, Faiths), appeal from the Housing Court's grant of summary judgment in favor of the plaintiff, U.S. Bank National Association in its capacity as legal title trustee (USBNA), in the postforeclosure eviction action concerning the Faiths' home in New Bedford.4 On appeal, the Faiths argue, inter alia, that the trial court judges erred in (1) awarding USBNA summary judgment on the issue of possession of the home, and (2) improperly “reviving” the third-party claims against third-party defendants Bank of America, N.A.; Ocwen Loan Servicing, LLC; Fay Servicing, LLC; and U.S. Bank National Association, and entering separate and final judgment for them. We affirm.5

1. Mootness and judicial estoppel. The Faiths claim that the judge (first judge) erred in granting summary judgment in favor of USBNA because there existed a genuine issue of material fact as to USBNA's entitlement to possession of the Faiths' home in New Bedford. We disagree.

“Challenging a plaintiff's entitlement to possession has long been considered a valid defense to a summary process action for eviction where the property was purchased at a foreclosure sale.” Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011). However, where the defendant vacates the property, and transfers legal and physical possession of the property to the plaintiff, the issue of the plaintiff's right to possession becomes moot. See Hodge v. Klug, 33 Mass. App. Ct. 746, 749 (1992).

Here, the Faiths voluntarily surrendered legal and physical possession of the property to USBNA by mailing the keys to the home to USBNA's attorney. In the letter to USBNA's attorney that accompanied the keys to the home, the Faiths stated they are no longer using or occupying the property, and relinquished “custody of the property” to USBNA. USBNA, through its attorney, accepted the keys and took physical possession of the property. At bottom, the Faiths' act of mailing the keys and transferring “custody” of the property to USBNA constituted a surrender of possession of the premises as matter of law. See Caruso v. Shelit, 282 Mass. 196, 199 (1933) (giving up key to premises constituted permanent surrender of possession of premises). See also Talbot v. Whipple, 14 Allen 177 (1867) (abandoning control and physical possession of premises constitutes abandonment and surrender of right to possession of property). As such, the issue of possession is moot. See Hodge, 33 Mass. App. Ct. at 749.

Moreover, at a hearing before the first judge, in an attempt to seek waiver of the appeal bond required under G. L. c. 239, §§ 5-6, the Faiths claimed to have surrendered custody of the property to USBNA, which would excuse them from making any further payments for continued use and occupancy of the property.6 Where the judge found a lawful surrender of physical possession of the premises following entry of judgment, the Faiths were then relieved of their obligation to make use and occupancy payments following the date that they surrendered the key to USBNA.7

Under the doctrine of judicial estoppel, a party is precluded from asserting a position in one legal proceeding that is contrary to a successful position it had previously asserted in another proceeding. See Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 640-641 (2005). A party may not assert a directly inconsistent position, where the party succeeded in convincing the court to accept its prior position. See id. “The purpose of the doctrine [of judicial estoppel] is to prevent the manipulation of the judicial process by litigants” (citation omitted). Commonwealth v. Middlemiss, 465 Mass. 627, 637 (2013). Therefore, where the Faiths successfully argued that they surrendered possession of the premises to USBNA, to seek relief from their obligation to make continued use and occupancy payments, they are now estopped from undertaking the directly inconsistent position on appeal of contesting USBNA's lawful right to possession of the property.8 See Otis, supra at 640-641.

2. Entry of separate and final judgment on third-party claims. The Faiths claim that the first judge erred in her sua sponte attempt to “revive” their previously dismissed third-party claims against Ocwen Loan Servicing, LLC; Fay Servicing, LLC; U.S. Bank National Association; and Bank of America, N.A. Without any factual or legal support, the Faiths claim that it was error to “revive” these claims, and subsequently enter a separate and final judgment in favor of these third-party defendants. Arguments made on appeal in cursory and conclusory fashion, without any citation to legal authority, are not properly before us and do not constitute an appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See also Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 80 n.9 (2021).

However, even if the claims were properly before us, we would find no error. The record demonstrates that there was a clerical error in the entry of the summary judgment, which was later corrected. The Faiths are correct that the third-party claims had been dismissed earlier. A separate and final judgment had also been ordered by the first judge on November 5, 2019. The second judge merely remedied the failure to enter the judgment on these claims upon the request of the third-party defendants. Contrary to the Faiths' misrepresentation that the claims had been dismissed on jurisdictional grounds, these third-party claims were dismissed on the merits with prejudice, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).9 Due to a clerical error, however, judgment for the third-party defendants was not entered on such claims until months later. The second judge was entitled to correct the clerical mistake, and enter a separate and final judgment to dispose of these claims. See Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974). No part of the decisions by either judge constituted an improper “revival” of previously dismissed third-party claims. See Franchi Mgt. Co. v. Flaherty, 93 Mass. App. Ct. 418, 422 (2018) (mistake or error in judgment that arises merely from oversight or omission constitutes clerical mistake that judge may resolve). The second judge merely disposed of the third-party defendants as parties to the litigation, and entered a separate and final judgment on the docket, in accordance with the first judge's ruling, as permitted by Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974).10 Accordingly, there was no error.

3. Attorney's fees. Finally, we allow the request of USBNA, Fay Servicing, LLC; and U.S. Bank National Association for attorney's fees in relation to the Faiths' filing of this frivolous appeal.11 Whether an appeal is frivolous is left to the sound discretion of this court. See Avery v. Steele, 414 Mass. 450, 455 (1993). Mere unpersuasive arguments do not render an appeal frivolous. See id. However, where each of the Faiths' above arguments concerned settled law, where there was no reasonable expectation of a reversal, and where the Faiths' briefs contain several mischaracterizations of the record and case law, we determine their appeal to be frivolous.12 See id. at 455-456. “A frivolous appeal imposes costs not only upon the party forced to defend it, but also upon the public whose taxes supporting this court and its staff are wasted on frivolous appeals” (quotation and citation omitted). Id. at 456. As such, we grant USBNA's request for attorney's fees.

USBNA, Fay Servicing, LLC, and U.S. Bank National Association may submit, within fourteen days of the date of issuance of this decision, a petition for fees and costs, together with supporting documentation, as discussed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The Faiths shall have fourteen days thereafter to respond.

Judgment entered November 22, 2019, affirmed.

Order entered March 31, 2020, affirmed.

Judgment entered July 28, 2020, nunc pro tunc to January 16, 2020, affirmed.


4.   The Faiths also appeal from an order striking their second notice of appeal, and from a separate and final judgment entered in favor of third-party defendants Bank of America, N.A.; Ocwen Loan Servicing, LLC; Fay Servicing, LLC; and U.S. Bank National Association.

5.   We acknowledge the amicus brief submitted by City Life/Vida Urbana and National Consumer Law Center.

6.   Under G. L. c. 239, § 6, the Faiths were required to make payment to USBNA “of all costs and of a reasonable amount as rent of the land from the day when the mortgage was foreclosed until possession of the land is obtained by the plaintiff.”

7.   On appeal, the Faiths claim that $2,200 was an excessive award for use and occupancy payments. In making such claim, the Faiths rely upon the affidavit of Michael Faith, which alleged numerous code violations as to the interior of the property. However, this affidavit is not properly before us, as it was struck by the judge for both speculation and lack of a proper foundation of competency. The judge awarded use and occupancy in the amount of $2,200 based upon the uncontested affidavit of Deborah Gaffney, a licensed real estate broker in the Commonwealth for approximately eight years, who testified that $2,200 was the property's fair market rental value in comparison with five similar properties. Such a valuation is a question of fact that will not be disturbed on appeal absent a showing it is clearly erroneous. See Sarrouf v. New England Patriots Football Club, Inc., 397 Mass. 542, 550-551 (1986). The Faiths have failed to make such a showing that the valuation of $2,200 per month was clearly erroneous.

8.   Where the issue of possession has become moot, and the Faiths are judicially estopped from challenging USBNA's right to possession, we need not address the Faiths' arguments that USBNA's prima facie case for possession at summary judgment was insufficient.

9.   The Faiths' third-party claims against U.S. Bank National Association and Fay Servicing, LLC, were dismissed pursuant to a motion for judgment on the pleadings.

10.   Where there was no just reason for delay, the judge was entitled to exercise her discretion in directing the entry of a separate and final judgment on these third-party claims because they bore no relation to the underlying summary process action still being litigated. See rule 54 (b). See also Long v. Wickett, 50 Mass. App. Ct. 380, 386 (2000).

11.   The Faiths, in a one-paragraph, conclusory section of their brief, also challenge the imposition of sanctions by the first judge for the filing of a third motion to dismiss that was identical to their first motion to dismiss, which was previously denied on the very same grounds. As explained above, arguments made on appeal in cursory and conclusory fashion, without any citation to legal authority, are not properly before us and do not constitute an appellate argument. See Mass. R. A. P. 16 (a) (9) (A). See also Gaughan, 99 Mass. App. Ct. at 80 n.9. Nonetheless, even if we were to reach the merits of the Faiths' argument, we find no abuse of discretion in the trial judge's order for sanctions. See Mass. R. Civ. P. 11 (a), as amended, 456 Mass. 1401 (2010) (attorney's signature certifies belief that there is good ground to support pleadings). See also von Schönau-Riedweg v. Continuum Energy Techs., LLC, 98 Mass. App. Ct. 535, 538 (2020) (court reviews judge's decision to award rule 11 [a] sanctions under abuse of discretion standard); Cahaly v. Benistar Prop. Exch. Trust Co., 85 Mass. App. Ct. 418, 429 (2014) (rule 11 [a] requires that pleadings be filed in absence of bad faith and only after attorney's reasonable inquiry that there exists factual and legal basis to support pleading).

12.   We have reviewed all of the arguments in the Faiths' brief, none of which contain merit that would warrant reversal, and many of which were raised in a conclusory fashion that constituted insufficient appellate argument and need not be considered by this court. See Mass. R. A. P. 16 (a) (9) (A). See also Avery, 414 Mass. at 456 (presence of a few nonfrivolous arguments does not necessarily prevent appeal from being deemed frivolous).

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