GUSTIN v. DEUTSCHE BANK NATIONAL TRUST COMPANY (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs appeal from an order denying their motion to reconsider whether a petition they filed in the Land Court should have been reopened. The Land Court petition requested the expungement of two mortgage assignments from the plaintiffs’ certificate of title to registered land.⁵ The petition was dismissed on December 7, 2018, and the judgment of dismissal was affirmed by a panel of this court in an unpublished memorandum and order on April 10, 2020. See Gustin v. Deutsche Bank Nat'l Trust Co., 97 Mass. App. Ct. 1110 (2020). The Supreme Judicial Court denied further appellate review on October 1, 2020.

On August 13, 2021 -- that is, almost three years after judgment initially had entered -- the plaintiffs filed a motion to reopen their petition.⁶ That motion was denied on August 25, 2021. On September 16, 2021, the plaintiffs filed a motion to reconsider the denial of their motion to reopen that petition, which was denied on September 17, 2021. On appeal from the denial of the motion to reconsider, we affirm.

The plaintiffs claim that because the notarization of the assignment of the mortgage from H & R Block Mortgage Corporation (H & R Block) to Option One Mortgage Corporation (Option One) was not recorded in the notary journal, this assignment was void. However, the plaintiffs raised the very same issue in their prior appeal. In that case, a panel of this court stated that the notary's failure to properly record the assignment rendered the assignment at most voidable, not void, and that the plaintiffs had no standing to challenge such a defect. Gustin, Mass. App. Ct., No. 19-P-264, slip op. at 5 (Apr. 10, 2020). The plaintiffs had a full and fair opportunity to litigate this issue, and they have demonstrated no cause to reopen it almost three years after judgment entered. In any event, the plaintiffs have not demonstrated how the judge abused his discretion in denying their motion to reopen the proceedings, much less that he abused it in denying their motion to reconsider.⁷ See, e.g., Blake v. Hometown Am. Communities, Inc., 486 Mass. 268, 278 (2020) (no abuse of discretion in denial of motion to reconsider where, among other things, “there was no plain error of fact or law in the original ruling” and the motion “presented no evidence or argument that could not have been presented [in the prior motion]” because such consideration would allow a “second bite at the apple” [quotation and citation omitted]).

The defendants’ requests for attorney's fees, which were not made in their briefs but were instead made in a separate joint motion, are denied. See Fabre v. Walton, 441 Mass. 9, 10 (2004). See also Lowell v. Massachusetts Comm'n Against Discrimination, 65 Mass. App. Ct. 356, 358 (2006) (“a party who fails to make a request for fees in her brief waives entitlement, as a matter of right, to those fees”).

Order denying motion for reconsideration affirmed.

FOOTNOTES

5.   The plaintiffs’ arguments in this appeal pertain to only one of those assignments.

6.   As the judge recognized, that motion effectively was a motion for relief from judgment. See Mass. R. Civ. P. 60, 365 Mass. 828 (1974).

7.   In support of their argument on the merits, the plaintiffs cite to Allen v. Allen, 86 Mass. App. Ct. 295 (2014), and they claim that their recent discovery of the case warrants reopening the proceedings. They have not demonstrated how that case, which arose in a markedly different context, actually assists their argument on the merits. Even had the case provided them substantive support, they have not shown how their late discovery of it would have justified reopening the long-closed proceedings.