Jepson v. Deutsche Bank National Trust Co.
969 F. Supp. 2d 202
D. Mass.2013Background
- Plaintiff Robert Jepson filed a try title petition in Massachusetts Land Court contesting the validity of an assignment of his mortgage to Deutsche Bank and alleging the assignment was fraudulent/invalid.
- Deutsche Bank removed the action to federal court and moved to dismiss, arguing mortgagor and mortgagee interests are complementary pre-foreclosure and thus not adverse under Mass. Gen. Laws ch. 240 § 1.
- This Court initially denied the motion to dismiss, reasoning that Deutsche Bank had twice initiated foreclosure and that initiation of foreclosure can make the parties adverse.
- Defendants sought reconsideration after the First Circuit decided Lemelson v. U.S. Bank, which held a mortgagor’s pre-foreclosure try title claim against a purported mortgagee is not sufficiently adverse.
- Following Lemelson, this Court granted reconsideration, held itself bound by the First Circuit, and dismissed Jepson’s try title action without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a mortgagor may bring a pre-foreclosure try title action against a purported mortgagee | Jepson: uncertainty whether Deutsche Bank actually holds the mortgage makes parties adverse; try title is proper to resolve clouded record title | Deutsche Bank: mortgagor and mortgagee interests are complementary pre-foreclosure, so no adversity required by the try title statute | Court held: bound by First Circuit in Lemelson — pre-foreclosure mortgagor try title claim not sufficiently adverse; dismissal granted |
| Whether initiation of foreclosure transforms complementary interests into adversity | Jepson: Deutsche Bank’s prior foreclosure actions demonstrate adversity | Deutsche Bank: mere initiation (or uncertainty) does not create adversity pre-foreclosure | Court: First Circuit precedent controls; initiation/uncertainty insufficient to confer adversity for try title in federal court |
| Whether federal court should certify the unsettled state-law question to the Massachusetts SJC | Jepson: urged distinction from Lemelson and requested different outcome | Defendants: relied on First Circuit controlling precedent | Court: declined to certify as an end-run around binding First Circuit authority; directed appeal to First Circuit and potential certification there |
| Whether dismissal should be with or without prejudice | Jepson: sought to preserve ability to challenge mortgage holder | Defendants: sought dismissal under Lemelson | Held: dismissal without prejudice, consistent with Lemelson allowing state-court challenge |
Key Cases Cited
- Bevilacqua v. Rodriguez, 460 Mass. 762 (Mass. 2011) (establishes possession, record title, and adversity requirements for try title actions)
- U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (Mass. 2011) (articulates chain-of-title principles for establishing mortgagee power to foreclose)
- Lemelson v. U.S. Bank Nat’l Ass’n, 721 F.3d 18 (1st Cir. 2013) (holds a mortgagor’s pre-foreclosure try title claim against a purported mortgagee lacks the required adversity)