MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Mats A. Samuelsson,
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appeals from a Housing Court judgment granting possession of real property located in Norfolk to the plaintiff, HSBC Bank USA, N.A., as trustee (HSBC Bank), and dismissing each of Samuelssons defenses that challenged the validity of the underlying foreclosure. Samuelsson also appeals from the order denying his motion to reconsider. We hold that the underlying appeal from the judgment for possession is not properly before us, and we affirm the order denying the motion to reconsider.
1. Appeal from the judgment for possession. “A party seeking to appeal a judgment in a summary process action ‘shall file a notice of appeal with the court within 10 days after the entry of the judgment.’ ” Wells Fargo Bank, Natl Assn v. Mondi, 98 Mass. App. Ct. 280, 282 (2020), quoting G. L. c. 239, § 5 (a). The ten-day deadline “is fixed by statute and is jurisdictional.” Jones v. Manns, 33 Mass. App. Ct. 485, 489 (1992). “We have required strict adherence to the short period for claiming an appeal prescribed by G. L. c. 239, § 5.” Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 504-505 (1997). For example, this ten-day period cannot be extended by the court even if good cause or excusable neglect can be demonstrated. See Liberty Mobilehome Sales, Inc. v. Bernard, 6 Mass. App. Ct. 914, 915 (1978).
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Indeed, where an appellate period is set by statute, courts do not possess the authority to enlarge it. Mondi, supra at 283, citing Commonwealth v. Claudio, 96 Mass. App. Ct. 787, 793-794 (2020).
Here, final judgment in the summary process matter entered on October 30, 2019. The deadline to file a notice of appeal, following a weekend and legal holiday, was November 12, 2019. Samuelsson failed to file a notice of appeal by that date. Instead, he filed a motion for reconsideration on November 13, 2019, which was denied on December 18, 2019. Thereafter, he filed a notice of appeal on December 27, 2019, purportedly appealing from the October 30, 2019, underlying final judgment and the December 18, 2019, order denying the motion for reconsideration.
A motion for reconsideration filed pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), can toll the appeal period only if it is filed within ten days after entry of judgment. See Adjartey v. Central Div. of the Hous. Court Dept, 481 Mass. 830, 857 & n.20 (2019) (Appendix). However, as noted above, Samuelsson filed his motion for reconsideration one day late, putting it outside the ten-day appeal period. As a result, the motion for reconsideration did not toll the appeal period, and thereby rendered the December 27, 2019, notice of appeal untimely. This late filing cannot be cured with a showing of excusable neglect. See Mondi, 98 Mass. App. Ct. at 283. See also Jones v. Manns, 33 Mass. App. Ct. 485, 488-489 (1992). As a result, that appeal is not properly before us.
2. Appeal from the order denying the motion for reconsideration. We review the denial of a motion for reconsideration for an abuse of discretion. See Audubon Hill S. Condominium Assn v. Community Assn Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012). In other words, to prevail, Samuelsson must demonstrate that the motion judge “made a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.” Dubuque v. Cumberland Farms, Inc., 93 Mass. App. Ct. 332, 343 (2018), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
“Decisional law has developed several practical criteria for submission of a request for a second consideration. They apply with special force if the applicant has already received a written, reasoned explanation of a ruling. The applicant should specify (1) ‘changed circumstances’ such as (a) newly discovered evidence or information, or (b) a development of relevant law; or (2) a particular and demonstrable error in the original ruling or decision. See Peterson v. Hopson, 306 Mass. 597, 600 (1940); Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 622 (1989).”
Audubon Hill, supra. See Chase Precast Corp. v. John J. Paonessa Co., 409 Mass. 371, 379 (1991) (to be successful on motion for reconsideration, party must set forth new evidence not available at time of original motion, or demonstrate why information not presented before).
Although Samuelssons appeal from the order denying the motion for reconsideration is properly before us, he has failed to demonstrate any of the necessary elements for us to conclude that the motion judge abused his discretion. As the motion judge found, the motion for reconsideration simply reiterated the arguments Samuelsson previously made in opposition to summary judgment. He made no new legal arguments or new assertion of errors of law, and presented no new facts that were not previously available. Rather, Samuelsson argued that the judge failed to sufficiently consider his arguments related to whether HSBC Bank had established its prima facie case. These circumstances alone justified the denial of the motion.
Even if we examined the merits of the motion to reconsider, we would reach the same result. As the motion judge properly held, HSBC Bank established a prima facie case for its claim for possession through the foreclosure deed and statutory form affidavit of sale under G. L. c. 244, § 1. See Federal Natl Mtge. Assn v. Hendricks, 463 Mass. 635, 642 (2012); Bank of N.Y. v. Bailey, 460 Mass. 327, 334 (2011). Samuelsson offered nothing in rebuttal.
Furthermore, HSBC Bank recorded two affidavits, reviewed and executed by a person after review of the business records, attesting that HSBC Bank held the note prior to foreclosure. Both were recorded. Each affidavit recited in detail that the affiant has access to all relevant business records and confirms that HSBC Bank holds the note.
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Samuelsson also challenges the assignment of the mortgage. He claims that a discrepancy in the date of the assignment, i.e., September 26, 2006, instead of May 14, 2009, renders it void, and thus, HSBC Bank was not the mortgagee prior to foreclosure. We disagree. As the motion judge properly found, the discrepancy amounts to a scriveners error that was properly corrected. Moreover, any challenge to a defect as to the time of the execution was required to be brought within ten years. G. L. c. 184, § 24. That did not occur here. In any event, the assignment was executed after the mortgage was signed and recorded, before the assignment was recorded, and many years prior to the foreclosure. Thus, the date itself is immaterial and does not void the transfer of the interest from Mortgage Electronic Registration Systems, Inc. (MERS), to HSBC Bank.
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Where Samuelsson failed to demonstrate that the motion judge “made ‘a clear error of judgment in weighing’ the factors relevant to the decision” (citation omitted), and instead where the decision fell comfortably within “the range of reasonable alternatives,” L.L., 470 Mass. at 185 n.27, Samuelsson has failed to establish that the judge abused his discretion by denying the motion to reconsider.
The appeal from the judgment is dismissed. The order denying the motion for reconsideration is affirmed.
So ordered.
Dismissed in part; affirmed in part
FOOTNOTES
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. Although Samuelssons brief purports to be filed on behalf of the “Appellants,” the docket reflects that only defendant Mats A. Samuelssons appeal was entered. Also, according to the docket, Samuelsson was informed that to “the extent that other defendants seek to proceed in this appeal as appellants, they must seek leave to late docket their appeals.” No such request for leave was filed.
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. Samuelssons claim that Liberty Mobilehome Sales is no longer good law is belied by our recent decision in Mondi. Also, Samuelssons reliance on U.S. Bank Trust, N.A. v. Johnson, 96 Mass. App. Ct. 291 (2019), for the proposition that the ten-day appeal period is not jurisdictional, is misplaced. In Johnson, we held that the ten-day period prescribed by G. L. c. 239, § 5, for filing a motion to waive the appeal bond is not a jurisdictional prerequisite to consideration of such a motion, and we reaffirmed that the ten-day period to notice an appeal was jurisdictional. Id. at 294-296. Also in Johnson, we expressly declined to address whether the strict jurisdictional rule established by Liberty Mobilehome Sales, 6 Mass. App. Ct. at 914, should be relaxed. Johnson, supra at 294 n.7.
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. Samuelsson claims that the note was not admissible as a business record. We disagree. The affiant of both noteholder affidavits averred that she reviewed the relevant business records and ascertained that the mortgagee held the note. Also, both documents were recorded in the registry of deeds and were admissible evidence. See Federal Home Loan Mtge. Corp. v. Bartleman, 94 Mass. App. Ct. 800, 807 (2019). Samuelsson also claims that he could not test the sufficiency of the noteholder affidavits because they did not contain a copy of the note itself. However, Samuelsson submitted a copy of the note, which he received in discovery, in his attorneys affidavit supporting his opposition to summary judgment.
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. Also contrary to Samuelssons claim, MERS had the authority to assign a mortgage on its own without further documentation from the lender. See Haskins v. Deutsche Bank Natl Trust Co., 86 Mass. App. Ct. 632, 640 (2014). There is similarly no merit to Samuelssons claim that the mortgage is obsolete because the acceleration of his loan changed the maturity date of the mortgage. See Nims v. Bank of N.Y. Mellon, 97 Mass. App. Ct. 123, 126 (2020) (“nothing suggests that the statute is designed to shorten the period during which a mortgage is enforceable”).