HSBC BANK USA, N.A. v.

NORRIS
HSBC BANK USA, N.A., trustee,
1
vs.
PAUL L. NORRIS & another.
2
No. 11-P-191.
Appeals Court of Massachusetts.
Entered: February 28, 2013.
By the Court Cypher, !ub"n # $oloho%"an, &&.'


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (here referred to as HSBC as a convenient shorthand) brought the
underlying summary process action in the Housing Court, pursuant to G. . c. !"#, $
%, to evict the defendants, and summary &udgment 'as entered in its favor. (n
appeal, the defendant )aul *orris (*orris) argues that (%) summary &udgment 'as
improperly granted for a number of reasons and (!) the &udge abused his discretion in
denying additional discovery and denying the defendants+ motion for reconsideration.
,e vacate the &udgment.
Discussion.
*orris argues that the summary &udgment record 'as not sufficient to establish that
HSBC had a superior right to possession. -The purpose of summary process is to
enable the holder of the legal title to gain possession of premises 'rongfully 'ithheld.
.ight to possession must be sho'n and legal title may be put in issue. . . . egal title
is established in summary process by proof that the title 'as ac/uired strictly
according to the po'er of sale provided in the mortgage0 and that alone is sub&ect to
challenge.+ Bank of N.Y. v. Baile! 123 4ass. "!5, """ (!3%%), /uoting from "ane
#n$. %o&'. v. A((o))! "63 4ass. 556, 556 (%#22). -To prevail on its motion for
summary &udgment, 7HSBC8+ had the burden of sho'ing that there are no material
facts in dispute regarding its legal title to the property.9 Bank of N.Y.! su'&a at ""1,
/uoting fromMe)&o'oli)an %&e*i) Union $. Ma))+es! 12 4ass.:pp.Ct. "!2, ""3 (%###).
,e revie' a decision to grant summary &udgment de novo. -The standard of revie'
of a grant of summary &udgment is 'hether, vie'ing the evidence in the light most
favorable to the nonmoving party, all material facts have been established and the
moving party is entitled to a &udgment as a matter of la'.+Au,a)! #nc. v. Li(e&) Mu).
#ns. %o.! 1%3 4ass. %%5, %!3 (%##%). Here, the summary &udgment record sho'ed
that *orris obtained a home mortgage loan from ;irst *ational Ban< of :ri=ona and,
as security for the loan, granted a mortgage to 4ortgage >lectronic .egistration
Systems, ?nc. (4>.S). *orris defaulted on the mortgage payments. (n 4arch @,
!3%3, the mortgage 'as assigned to HSBC, 'hich then ac/uired a foreclosure deed to
the property through a foreclosure sale that too< place on September !#, !3%3. :n
attorney+s affidavit filed 'ith the registry of deeds, pursuant to G. . c. !11, $ %6,
stated that the re/uirements of the po'er of sale and of G. . c. !11 had been
satisfied. Ho'ever, the summary &udgment record did not establish that HSBC held
the note at the time of foreclosure or that it 'as the authori=ed agent of the note
holder.
Ander Ea)on $. -e*e&al Na)l. Mo&). Assn.! 12! 4ass. 62#, 65%, 6@1B6@2 (!3%!),
foreclosure by sale pursuant to G. . c. !11, $ %1, re/uires that the mortgagee also
hold the mortgage note or be the authori=ed agent of the note holder. The fact that
HSBC had been assigned the mortgage is not enough to effect a valid foreclosure by
sale pursuant to G. . c. !11, $ %1. :s noted above, HSBC did not present any
evidence in the summary &udgment record as to 'ho held the note at the time of the
foreclosure by sale, or 'hether it 'as acting as the authori=ed agent of the note
holder.
"
:s a result, the motion &udge in this case should have denied HSBC+s motion
for summary &udgment and also re/uired that *orris receive the discovery he sought
concerning the note and the servicing and pooling agreement.
HSBC argues, ho'ever, that 'e should affirm the motion &udge+s ruling
because Ea)on applies only prospectively to mortgage foreclosure sales for 'hich the
mandatory notice of sale 'as given after Cune !!, !3%!. See Ea)on!12! 4ass. at 62#,
6@@B6@#. ,e are not persuaded. *orris is factually and procedurally in the identical
situation as 'as >aton at the time of the Supreme Cudicial Court+s decision
in Ea)on. :mong other things, *orris advanced the same arguments to this court at
the same time those arguments 'ere being considered by the Supreme Cudicial Court.
?t is certainly not *orris+s fault that the issue 'as first decided favorably in >aton+s
case rather than in his, and it 'ould be ine/uitable to deprive him of its same
resolution. See S+a'i&o $. "o&ces)e&! 121 4ass. !2%, !2@B!2# (!3%"). ;or the same
reason that the Supreme Cudicial Court applied its ruling retroactively to >aton
himself, 'e apply it to *orris. Ea)on! 12! 4ass. at 6@# (-:lthough 'e apply the rule
articulated in this case prospectively, 'e nonetheless apply it to 7this8 appeal because
it has been argued to this court by >aton+). To do other'ise 'ould re/uire us to
conclude that the Supreme Cudicial Court+s retroactive application to >aton 'as
arbitrary. This, 'e are naturally loath to do.
The summary &udgment is vacated and the case is remanded for further proceedings
consistent 'ith this decision, including permitting discovery regarding the holder of
the note at the time of the foreclosure sale and regarding the servicing and pooling
agreement. Deciding as 'e do, 'e need not (and do not) reach any of *orris+s other
arguments on appeal.
(o )rdered.
%. ;or *omura :sset :cceptance Corporation 4ortgage )ass Through Certificates Series !336B:.".
!. :nnette *orris, the 'ife of )aul . *orris. )aul . *orris proceeds on appeal pro se0 :nnette *orris has
not participated on appeal.
". HSBC+s arguments on appeal regarding foreclosure by entry have been 'aived because HSBC+s only
argument made belo' 'as that it had established its superior right of possession as a result of a valid
foreclosure by sale. See %a&e $. Ne. En,lan* O&,an Bank! 112 4ass. !53, !@6 (!332).