Thе question we address in this case is whether the Housing Court has jurisdiction to decide the validity of a challenge to a title, raised by a former homeowner as a defense
*328
to a summary process eviction action by a party acquiring the property pursuant to a foreclosure sale. The plaintiff, Bank of New York (BNY), asserts that it acquired title tо the home of the defendant, KC Bailey, pursuant to foreclosure proceedings.
2
Seeking to evict Bailey, BNY filed an action for summary process pursuant to G. L. c. 239, § 1. Bailey’s answer to the complaint alleged, among other claims and defenses, that BNY was not the owner because the sale was not in compliance with the foreclosure statute, due to defective notice, and the deed was thus void. See
U.S. Bank Nat’l Ass’n
v.
Ibanez,
1. Background and prior proceedings. In 2005, Bailey obtained a mortgage on a home on West Selden Street in the Mattapan section of Boston, a home he had owned and in which he had lived since 1979. The mortgage was obtained from an entity identified as “Mortgаge Electronic Registration Systems, Inc. (‘MERS’), solely as nominee for the Lender (America’s Wholesale Lender)” (MERS as “nominee” 3 ). The record reflects *329 that on March 6, 2007, proceedings for foreclosure by sale were instituted by MERS as “nominee,” and that MERS as “nominee” was the highest bidder at the foreclosure sale. 4 Bailey asserts that on March 26, 2007, he discovered that a notice to evict had been affixed by duct tape to the fence surrounding his West Selden Street property. 5 He thereafter filed an action against MERS as “nominee” in the Superior Court seeking to set aside the foreclosure sale. That complaint eventually was dismissed without prejudice for failure to effect timely service. No further descriptiоn of the Superior Court proceedings is necessary to an understanding of the issues before us, or the context in which they arose.
Returning to the circumstances that led to this Housing Court action, Bailey asserts that he received no notice of, and was unaware of, the sale by foreclosure that took place on March 6, 2007. 6 On Decembеr 30, 2008, BNY served Bailey with a notice of its intention to terminate his occupancy. When Bailey failed to vacate the property, BNY instituted the underlying action in the Housing Court and, on January 9, 2009, served Bailey with a summary process (eviction) summons. Bailey answered the summary process complaint, alleging in part that his home was “foreclosed without legally sufficient notice under [G. L. c. 244, § 17B].” 7 Bailey asserted in his answer that he had received all personal, business, and legal correspondence for over thirty *330 years at his United States post office box, the same post office box to which all previous correspondence regarding his mortgage had been sent; but he had received at that рost office box no notice of an impending foreclosure. 8 Thereafter, BNY filed its motion for summary judgment, claiming that MERS as “nominee” had assigned to BNY the note and the mortgage; that on Bailey’s default BNY had, on March 6, 2007, foreclosed; that BNY was the highest bidder at the foreclosure sale; and that BNY had served Bailey with a notice to quit and a summary process complaint and summons. 9 In a memorandum *331 opposing the motion, Bailey contended that BNY’s “ownership” of Bailey’s home “remains in dispute, because notice of the foreclosure sale . . . was legally insufficient.” Concluding that Bailey’s challenge to the validity of the foreclosure was not within the Housing Court’s jurisdiction, the judge allowed BNY’s motion. The judge reasoned that “[t]he only issue before the [cjourt is whether the [pjlaintiff is entitled to possession,” and because BNY showed that “its deed was recorded prior to the service of the [njotice to [q]uit,” BNY had established a prima face case for possession.
2.
Discussion.
We review a decision to grant summary judgment de novo. See
Ritter
v.
Massachusetts Cas. Ins. Co.,
a.
Subject matter
jurisdiction.
10
That the Housing Court has jurisdiction over summary process actions pursuant to G. L. c. 239 is not in dispute. The Housing Court may hear summary process actions brought by those who acquire ownership of property via foreclosure by sаle. See G. L. c. 185C, § 3. See also
Bech
v.
Cuevas,
The question, as stated above, is whether, in the course of a summary process action brought in the Housing Court by a party acquiring the property pursuant to a foreclosure by sale, the judge may consider the former homeowner’s defense that the plaintiff’s title is invalid because the foreclosure was not conducted strictly according to the statute. See
U.S. Bank Nat’l Ass’n
v. Ibanez,
Although the Housing Court has only been in existence since 1972, see G. L. c. 185A, inserted by St. 1971, c. 843, §§ 1, 27, summary process is a long-standing cause of action. The current summary process statute, G. L. c. 239, § 1, derives from the “summary remedy” statute that has its roots in the beginning оf the Eighteenth Century in the Province Laws 1700-1701. See
Page
v.
Dwight,
The summary remedy statute was in force when the General Statutes were revised in 1835 and was retained through later revisions, to provide a cause of action to those not in a traditional landlord-tenant relationship. See Page v. Dwight, supra at 34 (statute revised in part so that “in all such cases the like proceedings might be had as if the relation of landlord and tenant had theretofore existed between them. St. 1835, c. 114”). The summary remedy statute, codified in Rev. St. (1836) c. 104, “gave the process only to a ‘person entitled to the premises,’ which required him tо prove that he was entitled to this possession, and which said that the defendant should have judgment if the plaintiff failed to prove his right to possession.” Id. at 37. In 1879, legislation was enacted specifically directed at those attempting to gain possession who had acquired property pursuant *333 to foreclosure of the mortgage by sale. See id., citing St. 1879, c. 237.
Challenging a plaintiff’s entitlement to possession has long been considered a valid defense to a summary process action for eviction where the property was purchased at a foreclosure sale. See
New England Mut. Life Ins. Co.
v.
Wing,
The Housing Court was established in order to provide “a specialized forum to handle criminal and civil matters regarding housing that arise in the city of Boston.”
LeBlanc
v.
Sherwin Williams Co.,
*334
Our conclusion that the Housing Court may consider the defense promotes the legislative goal of “just, speedy, and inexpensive” resolution of summary process cases. See Rule 1 of the Rules of Summary Process,
supra.
The pursuit of “speedy and inexpensive” summary process actions is compromised if the Housing Court must stay summary process proceedings while litigation on the validity of the foreclosure proceedings continues in another court. This creates precisely the type of unnecessary delay and inefficiency that the Legislature intended to eliminate when it reorganized the trial courts in the Commonwealth. See G. L. c. 211B;
Konstantopoulos
v.
Whately,
b. Proof of possession. Having determined that the Housing Court has jurisdiction to decide Bailey’s defense to the summary process action, we now address BNY’s contention that it nevertheless established possession and that the grant of summary judgment in its favor was appropriate.
To prevail on its motion for summary judgment, BNY “had the burden of showing that there are no material facts in dispute regarding its legal title to the property.”
Metropolitan Credit Union
v.
Matthes,
In a summary process action for possession after foreclosure by sale, the plaintiff is required to make a prima facie showing that it obtained a deed to the property at issue and that the deed and affidavit of sale, showing compliance with statutory foreclosure requirements, were recorded. See
Lewis
v.
Jackson,
Because BNY failed to make out a prima facie showing of possession, and the issues are disputed, the motion for summary judgment should not have been granted.
Conclusion. The decision granting summary judgment for the plaintiff is vacated. The case is remanded to the Housing Court for further proceedings consistent with this opinion.
So ordered.
Notes
We acknowledge the amicus brief of City Life/Vida Urbana, and the amicus brief of the Chelseа Collaborative, Lynn United for Change, and the Merrimack Valley Project, both in support of the defendant.
Mortgage Electronic Registration Systems (MERS) acts as nominee and as mortgagee of record for its members and appoints itself nominee, as mortgagee, for its members’ successors and assigns. See
Mortgage Elec. Registration Sys.
v.
Saunders,
A copy of the notice placed in the newspaper is in the record, but the date is illegible. MERS as “nominee” noticed the foreclosure in the newspapеr. In its appellate brief, the Bank of New York (BNY) included a copy of an affidavit from MERS as “nominee,” which states that MERS as “nominee” provided notice of the foreclosure to Bailey via certified mail. The affidavit was not included in the summary judgment record that was before the motion judge, and we do not consider it in our analysis on appeаl. See
Tetrault
v.
Mahoney, Hawkes & Goldings,
The notice was not included in the record.
BNY had previously filed a summary process action against Bailey in the Housing Court. On May 10, 2007, however, that action was dismissed without prejudice by agreement of the parties. That action, and the notice preceding it, is dated several months before the June 29, 2007, date of an “assignment of bid for value” purporting to transfer to BNY, as trustee for the certificate-holders CWABS, Inc., Asset-Backed Certificates, Series 2005-13, all of the interests of MERS as “nominee” in the West Selden Street property.
BNY makes much of the fact that Bailey, in his original answer and on appeal, cited G. L. c. 244, § 17B, in support of his claim that notice of the foreclosure was deficient. This statute governs the manner in which notice *330 must be provided in an action for deficiency. It is apparent from his pleadings and arguments that Bailey’s intended reference was to G. L. c. 244, § 14, which sets forth the requirements of notice in connection with a foreclosure by sale. That statute provides, in relevant part:
“The mortgagee or person having his estate in the land mortgaged, or a pеrson authorized by the power of sale, or the attorney duly authorized by a writing under seal, or the legal guardian or conservator of such mortgagee or person acting in the name of such mortgagee or person, may, upon breach of condition and without action, do all the acts authorized or required by the power; but no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been published once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper, if any, published in the town where the land lies or in а newspaper with general circulation in the town where the land lies and notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed at least fourteen days prior to the date of sale to said owner оr owners to the address set forth in [G. L. c. 185, § 61], if the land is then registered or, in the case of unregistered land, to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage ...” (emphasis added).
Because we look to the substance, rather than the form, of Bailey’s asserted defense, his incorreсt citation is not fatal to his claim. See
Quinn
v.
Walsh,
Bailey’s answer also set forth various counterclaims which were dismissed and are not a subject of this appeal.
As earlier stated, the record reflects that MERS as “nominee,” not BNY, was the holder of the mortgage on March 6, 2007, and that the foreclosure was conducted by MERS as “nominee,” which was the highest bidder at the foreclosure sale.
During oral argument, BNY contended that the case might be moot because BNY had foreclosed the mortgage by entry pursuant to G. L. c. 244, § 2, and Bailey therefore could no longer contest BNY’s title based on defective notice of the foreclosure sale. See
Grabiel
v.
Michelson,
In order to foreclose on a mortgage by entry, BNY must have been the mortgagee at the time of entry. See
U.S. Bank Nat’l Ass’n
v.
Ibanez,
In support of its motion for summary judgment, BNY submitted only the foreclosure deed and the eviction notice.
General Laws c. 244, § 15, provides: “The person selling, or the attorney duly authorized by a writing or the legal guardian or conservator of such person, shall, after the sale, cause a copy of the notice and his affidavit, fully and particularly stating his acts, or the acts of his principal or ward, to be recorded in the registry of deeds for the county or district where the land lies, *335 with a note or reference thereto on the margin of the record of the mortgage deed, if it is recorded in the same registry. If the affidavit shows that the requirements of the power of sale and of the statute have in all respects been complied with, the affidavit or a certified copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed.”
We do not consider the affidavit submitted by BNY on appeal, which it conceded was not part of the record before the judge. See
Tetrault
v.
Mahoney, Hawkes & Goldings,