965 N.E.2d 875
Mass. App. Ct.2012Background
- Defendants occupied a Dorchester dwelling for over 28 years; ownership transferred to Quinton Gabriel in 2006 who mortgaged the property to Wells Fargo; Wells Fargo foreclosed in 2009 and Deutsche Bank acquired title by foreclosure deed; Deutsche Bank sued in Housing Court for summary possession and obtained judgment; defendants challenged (i) use of a certified deed copy instead of the original and (ii) availability of a conditions defense under G. L. c. 239, § 8A; court affirmed summary judgment on both grounds.
- Deutsche Bank acquired title after foreclosure and proceeded under summary process to recover possession from post-foreclosure occupants.
- The deed in record was certified; authenticity and admissibility were contested but upheld due to statutory regime favoring certified copies.
- An affidavit of sale was submitted; it largely followed the model statutory form and satisfied the statutory requirements for execution and notice.
- Occupants argued they were tenants at sufferance; court held § 8A defenses are not available where premises were never rented or leased by the plaintiff or anyone, and the defendants were occupants only.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a certified copy of the deed suffices for summary judgment | Deutsche Bank relied on §79A to admit certified copies | Samuels rule required original deed for some deeds | Yes; certified copy admissible and supersedes Samuels rule |
| Whether the affidavit of sale complied with the power-of-sale requirements | Affidavit largely tracked the model form and satisfied both ch. 183 and ch. 244 | Affidavit failed to reference the particular mortgage | Affidavit sufficient under G. L. ch. 183 and ch. 244 |
| Whether occupants may raise a conditions defense under §8A when not tenants | Defendants not entitled to §8A as no tenancy; Deutsche Bank sought possession | Occupants at sufferance should qualify for §8A defenses | No; §8A defense not available where premises were never leased or rented |
Key Cases Cited
- Samuels v. Borrowscale, 104 Mass. 207 (Mass. 1870) (rule on original deed vs. certified copy overridden by statute later on)
- Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284 (Mass. 1992) (summary process burden on holder of title to show no material facts in dispute)
- Bank of N.Y. v. Bailey, 460 Mass. 327 (Mass. 2011) (title evidenced by proper foreclosure mechanics may be challenged only on title issues)
- Wayne Inv. Corp. v. Abbott, 350 Mass. 775 (Mass. 1966) (title proof at summary judgment governed by power of sale)
- Hodge v. Klug, 33 Mass. App. Ct. 746 (Mass. App. Ct. 1992) (§8A defenses can be available to occupants, not limited to acknowledged tenants)
- Canton v. Commissioner of the Mass. Hy. Dept., 455 Mass. 783 (Mass. 2010) (statutory construction to harmonize related schemes)
- Federal Natl. Mort. Assn. v. Nunez, 460 Mass. 511 (Mass. 2011) (context for §8A and lodging of defenses in summary process)
- Commonwealth v. Harris, 443 Mass. 714 (Mass. 2005) (supersession principle of statute over common law evidentiary rules)
- Thomes v. Meyer Store, Inc., 268 Mass. 587 (Mass. 1929) (principle of statutory supersession over common law)
- Stockwell v. Silloway, 105 Mass. 517 (Mass. 1870) (early reference to Samuels rule)