DEUTSCHE BANK NATIONAL TRUST COMPANY v. MICHAEL FEWTRELL (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On September 25, 2023, appellant Deutsche Bank National Trust Company, as trustee for the Registered Holders of Morgan Stanley ABS Capital I Inc., Trust 2006-HE8, Mortgage Pass-Through Certificates, Series 2006-HE8 (Deutsche Bank), commenced a summary process action against appellees Michael and Frederick D. Fewtrell (Fewtrells) in regard to the Fewtrells’ possession of unit 1 of the subject property.

Eventually, Deutsche Bank filed a motion for summary judgment. Frederick D. Fewtrell filed an opposition and cross-motion for summary judgment.³ After a hearing, the court denied Deutsche Bank's motion for summary judgment and granted the Fewtrells judgment for possession on Frederick D. Fewtrell's cross motion for summary judgment. Judgment entered on the docket in the trial court on December 5, 2024.

The ten-day period to appeal from the judgment expired on December 15, 2024. That deadline is statutory, jurisdictional, and cannot be extended. See G. L. c. 239, § 5 (a); Liberty Mobilehome Sales, Inc. v. Bernard, 6 Mass. App. Ct. 914, 914 (1978). Deutsche Bank did not appeal.

Forty-eight days after judgment, on January 22, 2025, Deutsche Bank filed a motion for reconsideration of the judgment. On March 23, 2025, the Housing Court denied Deutsche Bank's motion for reconsideration. On April 7, 2025, Deutsche Bank filed a notice of appeal from the order denying its motion for reconsideration of the summary judgment.

On appeal, Deutsche Bank raises only claims of factual and legal error in the underlying judgment, which are all that were raised in the motion for reconsideration. Although the details are not important, it argues specifically that it was error for the judge to conclude that the original mortgagee sold the loan at issue after declaring bankruptcy, and that the judge erred in failing to hold as a matter of law that a default judgment entered in a prior action is not entitled to preclusive effect under the doctrine of res judicata.

Discussion. Deutsche Bank made no reference to any rule in its motion, which is captioned only “Motion for Reconsideration.” As this motion was filed more than ten days after judgment, it is necessarily a motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974) (rule 60 [b]). Muir v. Hall, 37 Mass. App. Ct. 38, 41 (1994).

In Commonwealth v. Clark, 67 Mass. App. Ct. 832, 834 (2006), we said, “[t]he filing of a motion for reconsideration after a statutory appeal period has expired can have no revivifying effect on a defunct appeal.” See Commonwealth v. Rodriguez, 443 Mass. 707, 708–709 (2005); Commonwealth v. Hernandez, 441 Mass. 1014, 1015 (2004); Curly Customs, Inc. v. Pioneer Financial, 62 Mass. App. Ct. 92, 97 (2004). Although a judge ordinarily has discretion to reconsider a prior order upon an appropriate motion for reconsideration (i.e., one that is not a mere rehash of prior arguments), it is a precondition that “the request [be] made within a reasonable time.” Commonwealth v. Gonsalves, 437 Mass. 1022, 1022 (2002), S.C., 441 Mass. 1007 (2004). Here, Deutsche Bank, having failed to appeal from the judgment on the merits, did nothing more in its motion than ask the court to change its mind. It presented nothing that was not available to it during the time it could have appealed. But the judgment is final. Deutsche Bank appeals, arguing only that the judge erred on the merits (and therefore should have allowed the motion). But Deutsche Bank cannot use a rule 60 (b) motion to avoid the deadline for filing an appeal and to get the merits of a case before the appellate court long after the judgment is final. “It should be axiomatic that such a motion filed after the statutory appeal period has expired cannot be deemed to have been made within a reasonable time.” Clark, supra.

Deutsche Bank argues that this is not correct because the courts expressly discuss the filing of motions for reconsideration beyond ten days after the judgment. See Muir, 37 Mass. App. Ct. at 41. But this is sophistry. Most cases have a thirty-day appeal period; ten days is discussed in Muir because under the law at the time, it was the outside limit for tolling the appeal period by filing a motion for reconsideration under Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), after which any such motion was treated as a motion under rule 60. See Mass. R. A. P. 4 (a), as amended, 395 Mass. 1110 (1985); Muir, supra at 40. The discussion of that ten-day period had nothing to do with the appeals period. Indeed, the court said that a motion for reconsideration cannot “be used as a substitute for the regular appeal procedure.” Id. at 41. In that case, there was a “thirty-day appeal period.” Id. In summary process cases that period is a deliberately short ten days.

Deutsche Bank argues that it could not have known that the factual issue related to the timing of the mortgage sale would be dispositive of the case and so this motion for reconsideration was the first “practicable” time at which it could have raised it. To whatever extent Deutsche Bank intends to argue that this might affect the timeliness of their motion, we agree with the Fewtrells that there was no surprise. But even if there was, it occurred when the judge's decision entered, such that Deutsche Bank could have filed a timely notice of appeal or motion for reconsideration, which it did not do.

In light of our conclusion, we need not decide whether, as Deutsche Bank argues, the word “mistake” in rule 60 (b) (1) includes ordinary, appealable errors of fact or law. Nor do we need to decide whether, as the Fewtrells argue, a contemporaneously issued judgment in a related case is res judicata to the claims of error made in Deutsche Bank's motion for reconsideration. We express no opinion on those issues.

Order denying motion for reconsideration affirmed.

FOOTNOTES

3.   It is unclear why this pleading only identified Frederick D. Fewtrell. Both Fewtrells answered the summons and complaint, and they were represented by the same attorney.