MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this appeal we review a judgment, by the Land Court, dismissing an action to quiet title brought by the plaintiff, Thomas E. Sheedy, trustee of Liberty Trust (Sheedy), against the defendant, Goshen Mortgage LLC, separate trustee of GDBT Trust 2011-1 (Goshen). Sheedy contends Goshens claim to title on the subject property is invalid because it was based on a flawed foreclosure. On review, we affirm.
Background. The property at issue was purchased by Allan Brown in 1995, and it was later mortgaged by Brown in 2005 to secure a $302,900 loan from Freemont Investment & Loan; those mortgage documents named Mortgage Electronic Registration Systems, Inc. (MERS), as the mortgagee. The 2005 note and mortgage changed hands numerous times before eventually becoming possessed by Goshen. In 2006, Brown also received a mortgage on the same property, to secure a nearly $44,000 loan from Sheedy.
In 2016, Sheedy foreclosed on the 2006 junior mortgage and transferred the property to itself. However, in 2018, Goshen secured declaratory relief against an intermediate holder of the 2005 mortgage, GMAC Mortgage, LLC (GMAC), via a default judgment
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; the issued declaration stated that the 2005 mortgage served as an encumbrance on the property and that GMAC was deemed to have assigned the 2005 mortgage to Goshen through intermediaries. Subsequently, Goshen foreclosed on the 2005 mortgage and transferred the property to itself, after which Sheedy instituted an action to quiet title.
Sheedys quiet title action challenged Goshens claim to superior title contending that Goshen improperly exercised its right to foreclose on the subject property. At the close of discovery, Goshen filed for summary judgment. In its motion for summary judgment Goshen contended that where it is undisputed that its foreclosure on the 2005 mortgage was proper Sheedys claim fails and judgment should enter in its favor. In support of its summary judgment motion Goshen argued that it met all the requirements on its foreclosure of the 2005 mortgage. As the motion judge pointed out, it was implicit in Goshens summary judgment argument that its foreclosure of the senior 2005 mortgage extinguished Sheedys interest obtained by foreclosure of the junior 2006 mortgage.
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Following a hearing, the judge allowed the motion and judgment entered dismissing Sheedys action with prejudice. The motion judge determined that the summary judgment record, considered in the light most favorable to Sheedy, established that Goshen had superior title as a result of its proper foreclosure on the 2005 mortgage and since Sheedy did not offer evidence sufficient to raise a genuine issue of material fact its quiet title claim failed.
Discussion. We review the allowance of a motion for summary judgment de novo to determine whether, “viewing the evidence in the light most favorable to the opposing party, ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law’ ” (citation omitted). Scarlett v. Boston, 93 Mass. App. Ct. 593, 596-597 (2018). When viewing the evidence in the light most favorable to the nonmoving party, we draw all reasonable inferences in their favor. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016).
It is well settled that “a valid foreclosure terminates a mortgagors claim of title.” Abate v. Fremont Inv. & Loan, 470 Mass. 821, 832 (2015). “It is [also] firmly established, however, that a buyer at a foreclosure sale initiated by a junior mortgagee takes the land subject to any senior mortgage or lien.” Murphy v. Wachovia Bank of Del., N.A., 88 Mass. App. Ct. 9, 13 (2015), citing G. L. c. 244, § 14. As such, it follows that Sheedys foreclosure of its 2006 mortgage terminated Browns claim of title but Sheedy took the property subject to the 2005 mortgage. For Goshen to validly foreclose on the 2005 mortgage, it needed to satisfy three requirements: (1) Goshen had the right to possession, see Federal Natl Mtge. Assn v. Hendricks, 463 Mass. 635, 642 (2012); (2) Goshen held the 2005 mortgage at the time of the foreclosure notice and sale, see United States Bank Natl Assn v. Ibanez, 458 Mass. 637, 650-651 (2011); and (3) Goshen held the 2005 note at the time of the foreclosure notice and sale. See Eaton v. Federal Natl Mtge. Assn, 462 Mass. 569, 586, 589 n.28 (2012).
This court agrees with the motion judge that the summary judgment record established that Goshen met these requirements, and that Sheedy failed to adequately rebut Goshens evidence. In support of its motion Goshen proffered the foreclosure deed, and affidavits thereby presenting prima facie evidence of its right to possession. See Bank of N.Y. v. Bailey, 460 Mass. 327, 334 (2011). Additionally the summary judgment record established that Goshen secured the 2005 mortgage via an equitable assignment in the Land Court. Lastly, Goshens counsel asserted in a 2021 affidavit that either he, or predecessor counsel, had possessed the 2005 note at all times relevant to the process of foreclosure. On this summary judgment record, Sheedy has provided nothing that would create a genuine issue of material fact with respect to the assignment to Goshen of the 2005 mortgage and note. Instead Sheedy makes conclusory statements and general denials. See Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Assn, 399 Mass. 886, 890 (1987) (“Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment”). Sheedy further invites us to interpret aspects of the 2005 mortgage, using “[a]pplicable [l]aw,” that would result in finding that MERS could not autonomously assign the mortgage.
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We find no merit in Sheedys claims that Goshen was not the holder of the 2005 mortgage and note at the requisite time. The summary judgment record provided the documentary support for a chain of assignments of the mortgage from MERS to Goshen. In particular the record established assignments from MERS to GMAC, and also established that thereafter, Goshen initiated a separate Land Court action in which Goshen obtained a default judgment that equitably assigned the 2005 mortgage from GMAC to Goshen.
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We reject Sheedys contention that the judge erred in relying on the default judgment assigning the mortgage to Goshen. That equitable assignment was proper, because Goshen established that it was the holder of the mortgage note. Ibanez, 458 Mass. at 652. Sheedy failed to present any evidence, in the summary judgment record that would cause the default judgment to be vacated. Further, Sheedy did not establish that it would have standing to challenge the assignments from MERS to GMAC in 2007 or 2008 where it has not shown that the assignments were void. See Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. Ct. 827, 832 (2017). As such, Sheedys challenge to Goshen being the holder of the mortgage fails.
Next Sheedy claims that Goshen failed to establish that it was in possession of the 2005 note on the date of first publication of the notice of foreclosure. Although Goshens G. L. c. 183, § 8 affidavit did not specify that it held the note at the time of the publication, Goshens attorneys subsequent affidavit in 2021 attests that he or predecessor counsel possessed the note at all requisite times. Sheedy failed to proffer admissible evidence to rebut the affidavit put forward by Goshens counsel. As such, we determine that the motion judge was correct in deciding that Goshen was the holder of the 2005 note. “If the opposing party fails properly to present specific facts establishing a genuine, triable issue, summary judgment should be granted.” Cullen Enters., Inc., 399 Mass. at 890.
Sheedy also contests certain evidentiary rulings contained in the judges summary judgment decision. First, Sheedy asserts that the admission of Goshens statement of facts was an error because Sheedy failed to cite to page or paragraph references in its own statement of facts. According to Rule 4 of the Rules of the Land Court (2021),
“[a]ny response other than ‘admitted’ to a statement of fact made by the moving party, and any statement of additional material fact, must include page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits, or else the facts described by the moving party as undisputed shall be deemed to have been admitted.”
Goshens facts were properly admitted in all instances where Sheedy failed to provide page or paragraph references in its statement of facts.
Second, Sheedy asserts that the Land Court judge prejudiced its case by disregarding Goshens interrogatories and thereby eliminating Sheedys access to materially relevant evidence. However, the Land Court judge disregarded Goshens interrogatories because they were not properly executed according to Mass. R. Civ. P. 33 (a) (3), as appearing in 436 Mass. 1401 (2002).
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To the extent we do not discuss other arguments made by the parties, they have not been overlooked. “We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
FOOTNOTES
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. Sheedy was not a party to Goshens declaratory relief action.
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. The motion judge cited to Murphy v. Wachovia Bank of Del., N.A., 88 Mass. App. Ct. 9, 15 (2015), where this court explained:“If the senior mortgagee is the foreclosing party, it will be paid first; and, if a junior mortgagee is the foreclosing party, the senior mortgage will remain attached to the property․ If the buyer at a foreclosure sale fails to pay off the remaining debt on the senior mortgage, the senior mortgagee may foreclose.”
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. We reject this invitation. See Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. 827, 831 n.8 (2017); Haskins v. Deutsche Bank Natl Trust Co., 86 Mass. App. Ct. 632, 642 (2014).
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. “[A] judge may take judicial notice of the courts records in a related action.” Jarosz v. Palmer, 436 Mass. 526, 530 (2002).
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. “Each interrogatory shall be answered separately and fully in writing under the penalties of perjury ․ The answers are to be signed by the person making them, the objections by the person or attorney making them.” Mass. R. Civ. P. 33 (a) (3).