Abate v. Fremont Investment & Loan
26 N.E.3d 695
Mass.2015Background
- Petitioner Thomas C. Abate filed a try title petition in Land Court after a mortgage assignment from MERS to Deutsche Bank and a nonjudicial foreclosure by Deutsche Bank; he claimed record title by quitclaim and alleged the assignment was void.
- Deutsche Bank (assignee), Carrington (servicer), and MERS moved to dismiss under Mass. R. Civ. P. 12(b)(6), effectively contesting Abate's standing and the validity of his claimed record title.
- The Land Court allowed the motions, finding Abate failed to show any viable defect in the assignment and concluding the foreclosure left Abate without record title; the petition was dismissed with prejudice.
- Abate argued the court should not resolve substantive merits in the try title "first step" and that respondents should have been compelled to disclaim or sue; the court treated the motion as a standing/subject-matter-jurisdiction challenge.
- The Supreme Judicial Court affirmed, holding a petitioner must prove the jurisdictional elements (record title, possession, adverse claim) in the first step, and where those facts are contested the petitioner must prove record title and possession by a preponderance; adverse-claim allegations remain presumptively true unless foreclosure already occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May respondents raise a 12(b) motion in the first-step of a try title action to test the petitioner's claims? | Abate: No — first step only tests jurisdictional form; respondents must disclaim or file a separate action. | Respondents: Yes — a motion may challenge standing/jurisdiction and thus the petition's viability. | Held: Yes — judge may consider 12(b)(1)/(6) motions to resolve standing and jurisdictional defects. |
| What standard applies to contested jurisdictional facts in the first step? | Abate: Not specified as different; argued merits should await second step. | Respondents: Where standing is challenged, petitioner must prove jurisdictional facts. | Held: If record title/possession are factually challenged, petitioner must prove them by preponderance; adverse-claim allegations get a presumption of truth. |
| Does a mortgagor challenging an impending foreclosure allege an "adverse claim" for try title jurisdiction? | Abate: Alleged the assignment was invalid and thus an adverse claim existed even preforeclosure. | Respondents: No — mortgagor and mortgagee hold complementary (not adverse) title until foreclosure. | Held: Generally no — an adverse claim exists only after foreclosure (except where mortgage’s existence itself is disputed as in Brewster). |
| Was dismissal with prejudice appropriate for lack of jurisdiction/standing? | Abate: Dismissal on 12(b)(6) improperly eliminated his statutory right to force respondents to disclaim or sue. | Respondents: Dismissal proper because Abate failed to prove record title; merits necessarily tested to resolve jurisdiction. | Held: Dismissal with prejudice is appropriate because the court necessarily adjudicated merits to resolve record-title lack and jurisdiction. |
Key Cases Cited
- Bevilacqua v. Rodriguez, 460 Mass. 762 (recognizing two-step structure of try title actions and standing elements)
- Blanchard v. Lowell, 177 Mass. 501 (describing first-step jurisdictional requirements in try title petitions)
- Arnold v. Reed, 162 Mass. 438 (permitting review of record/title at first step)
- Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569 (discussing strict compliance in power-of-sale foreclosures)
- U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 (mortgage title principles and foreclosure validity)
- Faneuil Investors Group, Ltd. P'ship v. Selectmen of Dennis, 458 Mass. 1 (explaining legal title remains in mortgagee under title theory)