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25-P-568 Appeals Court
MAIN STREET MORTGAGE GROUP, CORP. vs. SON B. TRAN & others.1
No. 25-P-568.
Suffolk. May 11, 2026. - September 10, 2026.
Present: Singh, Brennan, & Allen, JJ.
Mortgage, Foreclosure. Real Property, Mortgage, Registered
land, Certificate of title. Judicial Estoppel. Practice,
Civil, Summary judgment, Relief from judgment. Judgment,
Relief from judgment. Bankruptcy.
Petition filed in the Land Court Department on March 23, 2020.
The case was heard by Howard P. Speicher, J., on motions for summary judgment, and a motion for relief from judgment, filed on January 3, 2025, was considered by him.
Thomas B. Vawter for the petitioner.
John F. Willis for Son B. Tran & others.
ALLEN, J. In this case involving multiple parties and
spanning twenty-eight years, we consider whether the doctrine of
1 Ai T. Le; Caliber Home Loans, Inc.; and Mortgage Electronic Registration Systems, Inc.
2
judicial estoppel may preclude recognition of a mortgagee's
otherwise proper exercise of a foreclosure by entry on
registered land.
Main Street Mortgage Group, Corp. (Main Street), appeals
from a judgment entered in the Land Court on cross motions for
summary judgment on Main Street's subsequent petition filed
pursuant to G. L. c. 185, § 114 (S-petition). The S-petition
sought a new certificate of title to reflect Main Street's
ownership of a residential property in Randolph (property). The
judge ruled that although Main Street had satisfied the
procedural requirements of a foreclosure by entry, its sole
shareholder, Thomas Abate, had failed to disclose Main Street's
or his interest in the property on the schedule of assets
supporting his personal bankruptcy petition. The judge
therefore concluded that Main Street was estopped from asserting
its rights obtained by completing the foreclosure by entry and,
accordingly, declined to grant Main Street a certificate of
title. Following the denial of its motion for relief from
judgment pursuant to Mass. R. Civ. P. 60, 365 Mass. 828 (1974),
Main Street appealed from the judgment and from the denial of
its postjudgment motion.2 We affirm.
2 Main Street makes no separate argument on its appeal from the denial of its motion for relief from judgment.
3
Background. 1. Foreclosure by entry. While used
infrequently, foreclosure by entry occurs when, after default, a
mortgagee takes "possession by an open and peaceable entry on
the mortgaged premises, which if continued for three years [is]
effective to foreclose the mortgage." Joyner v. Lenox Sav.
Bank, 322 Mass. 46, 52 (1947). See G. L. c. 244, § 1.3 "[A]n
entry is peaceable if not opposed by the mortgagor or person
claiming the premises." Thompson v. Kenyon, 100 Mass. 108, 111
(1868). After making a peaceable entry, the mortgagee must file
a certificate of entry, signed by two witnesses, and, for
registered land, as is the case here, register it with an
assistant recorder within thirty days of the entry. G. L.
c. 244, § 2.4 See also G. L. c. 185, § 70 (recording requirement
3 In full, G. L. c. 244, § 1, provides,
"A mortgagee may, after breach of condition of a mortgage
of land, recover possession of the land mortgaged by an
open and peaceable entry thereon, if not opposed by the
mortgagor or other person claiming it, or by action under
this chapter; and possession so obtained, if continued
peaceably for three years from the date of recording of the
memorandum or certificate as provided in section two, shall
forever foreclose the right of redemption."
4 In full, G. L. c. 244, § 2, provides,
"If an entry for breach of condition is made without a
judgment, a memorandum of the entry shall be made on the
mortgage deed and signed by the mortgagor or person
claiming under him, or a certificate, under oath, of two
competent witnesses to prove the entry shall be made. Such
memorandum or certificate shall after the entry, except as
provided in section seventy of chapter one hundred and
4
for foreclosures of mortgages of registered land by entry and
possession satisfied by filing and registering certificate with
assistant recorder); Beaton v. Land Court, 367 Mass. 385, 393,
appeal dismissed, 423 U.S. 806 (1975) ("a certificate of entry
must be [registered] . . . within thirty days from the date of
entry"). Actual notice of the entry to the mortgagor or junior
lienholders is not required. See Ellis v. Drake, 8 Allen 161,
164 (1864) (mortgagor knows of existence and condition of
mortgage and that foreclosure by entry is possibility and is
bound to review public records for certificate of entry).
Indeed, registration of the certificate of entry is sufficient
"notice of the mortgagee's intent to foreclose by entry and
possession." Wornat Dev. Corp. v. Vakalis, 403 Mass. 340, 346
(1988). See also Joyner, 322 Mass. at 53 ("There was no
statutory requirement that the bank notify the mortgagors or the
assignee of the subsequent mortgagee of the entry, which,
without more, was effective by reason of the recording of the
certificate").
"If the mortgagor wants to challenge a foreclosure by
entry, it is incumbent on him to do so before the three-year
eighty–five, be recorded in the registry of deeds for the
county or district where the land lies, with a note of
reference, if the mortgage is recorded in the same
registry, from each record to the other. Unless such
record is made, the entry shall not be effectual for the
purposes mentioned in the preceding section."
5
period has elapsed." Singh v. 207-211 Main St., LLC, 78 Mass.
App. Ct. 901, 902 (2010). If the mortgagor fails to do so, and
no opposition has been made within three years after the
certificate of entry is registered, the mortgagor's right of
redemption is forever foreclosed, see G. L. c. 244, § 1, and the
mortgagee may bring an S-petition5 seeking a new certificate of
title listing the mortgagee as the owner of the property. See
G. L. c. 185, § 114 (b).
2. The property and its registered title. On October 21,
1998, Suzanne C. Hutchinson and Clifton B. Hutchinson, who then
held title to the subject property, granted the mortgage at
issue in this case (the mortgage or Main Street mortgage) to
Mansfield Mortgage Services. The Main Street mortgage had a
stated maturity date of November 1, 2013, and was registered in
the Land Court6 and noted on the list of encumbrances on the
5 An S-petition, or subsequent petition, "is filed in the original registration case . . . . Many S cases are effectively addressed by the Land Court ex parte, because they seek an alteration of the certificate that is routine, ministerial, obvious, and not at all likely to affect the interests of other parties. . . . In some cases, S cases involve contested litigation, and in such cases a Land Court judge will be assigned to the case and will conduct the litigation similar to other Land Court case types." J.D. Masterman, Real Estate Title Practice in Massachusetts § 14.4.6, at 14-30 (Mass. Cont. Legal Educ. 5th ed. 2024).
6 Unless otherwise noted, all registered documents related to the property were registered in the Norfolk County registry district of the Land Court.
6
Hutchinsons' certificate of title. In 1998, the Main Street
mortgage was assigned to another entity, and on February 24,
2000, it was assigned to Main Street. Each assignment was duly
noted on the Hutchinson certificate of title.
On February 28, 2001, the Hutchinsons executed a quitclaim
deed conveying the property to Denise Bercy. The deed was
registered, and a certificate of title was issued to Bercy. The
Main Street mortgage and all the related assignments were noted
on the list of encumbrances on the Bercy certificate of title,
and there is no indication on the certificate that the Main
Street mortgage was discharged through this transaction.7
On November 28, 2016, over sixteen years after the Main
Street mortgage was registered and during Bercy's ownership,
Main Street registered two documents with the Land Court: the
first, a limited power of attorney appointing Michael Gaydos,
effective November 15, 2016, "as its true and lawful attorney
for the purpose of making entry on the [p]roperty to foreclose"
the Main Street mortgage," and the second, a certificate of
entry, signed by two individuals who attested that they
witnessed Gaydos "make an open, peaceable and unopposed entry on
7 Between 2002 and 2003, Bercy granted three mortgages to World Savings Bank, all noted on Bercy's certificate of title, and all subordinate to the Main Street mortgage. The first was discharged in 2003, and the other two were discharged in July 2017. The discharges were noted on Bercy's successor's certificate of title.
7
the [property], . . . for the purpose . . . of foreclosing said
mortgage." The limited power of attorney and the certificate of
entry were noted on the list of encumbrances on the Bercy
certificate of title.
On May 8, 2017, Bercy executed a quitclaim deed, conveying
the property to appellees Son B. Tran and Ai T. Le as tenants by
the entirety. On June 14, 2017, a certificate of title was
issued to Tran and Le, and the Main Street mortgage, the prior
assignments, and the 2016 certificate of entry were listed as
encumbrances on it.8 On the same day, Tran and Le granted a
mortgage to Mortgage Electronic Registration Systems, Inc., as
nominee of the lender, Caliber Home Loans, Inc. (Caliber)
(together, MERS), which was noted on Tran and Le's certificate
of title. The proceeds of the Caliber loan were not applied to
the Main Street mortgage, and Main Street remained the first
mortgagee on the list of encumbrances, superior to the MERS
mortgage.
3. Main Street and Abate's bankruptcy case. On December
31, 2001, Abate, in his capacity as president, treasurer, clerk,
8 Both the S-petition and the judge's findings of fact state that the power of attorney and the certificate of entry appeared on the list of encumbrances on the Tran title. However, the Tran certificate of title, as appearing in the appellate record, does not list the power of attorney. Additionally, the power of attorney was not included in the record appendix on appeal. As neither party raises this issue on appeal, we do not address it further.
8
and director, voluntarily dissolved Main Street by filing
articles of dissolution with the Secretary of the Commonwealth.
On December 31, 2004, following the statutory three-year period
during which Main Street remained in existence to allow it to
close its affairs, see G. L. c. 156B, § 102, Main Street's
remaining assets, including the Main Street note and mortgage,
passed to its sole shareholder, Abate. See Pagounis v.
Pendleton, 52 Mass. App. Ct. 270, 276 (2001).
On October 29, 2010, Abate filed a Chapter 7 voluntary
bankruptcy petition in the bankruptcy court (bankruptcy case).9
With his petition, Abate filed numerous required schedules,
including Schedule B -- Personal Property (asset schedule),
which required the petitioner to "list all personal property of
the debtor of whatever kind." 2 Collier Pamphlet Edition F-32
(A.N. Resnick & H.J. Sommer eds., 2010). In section 13 of the
asset schedule - "stock and interests in incorporated and
unincorporated businesses," Abate disclosed "none." In section
19, "Equitable or future interests, life estates, and rights or
powers exercisable for the benefit of the debtor other than
those listed in Schedule A -- Real Property," Abate also
disclosed "none." On Schedule A, he listed a single-family
residence in another town but he did not list the property at
9 Abate's voluntary bankruptcy petition was filed jointly with his spouse.
9
issue or his mortgage interest in it. Abate signed the
schedules "under penalty of perjury that" his filings were "true
and correct."
On December 14, 2010, while the bankruptcy case was
pending, a title insurance company (First American) sent a
letter to Abate informing him that a recent title examination of
the property revealed a missing discharge related to the Main
Street mortgage and requested that Abate forward the discharge
with the original note. Abate did not file any amendment to his
asset schedule disclosing the mortgage or note after receiving
the correspondence from First American. On February 8, 2011,
his bankruptcy case concluded, and his liabilities were
discharged pursuant to 11 U.S.C. § 727.
In October 2013, Abate contacted First American stating
that he had located the original note and mortgage in the Main
Street "archives," and asked for payment to be made to him
personally.10 In 2015 and 2016, respectively, Abate's attorney
contacted First American and Bercy seeking payment pursuant to
the note and mortgage.11 As set forth above, on November 28,
10Abate wrote in an e-mail message to First American on October 23, 2013, that after receipt of the correspondence, he contacted First American to request payment but was told that he "could not be paid off without the original note."
11It can be inferred from the record that Bercy did not respond to the inquiries.
10
2016, Main Street registered the certificate of entry on the
property
On September 21, 2018, upon Abate's application, the
Secretary of the Commonwealth granted a limited revival of Main
Street, not to exceed one year, to "[enforce] an existing lien
and its subsequent collection and payoff/release documentation."
On September 6, 2019, Main Street received a general corporate
revival from the Secretary of the Commonwealth.
4. Land Court proceeding. On March 23, 2020, Main Street
filed its S-petition pursuant to G. L. c. 185, § 114, requesting
a new certificate of title reflecting its ownership of the
property in fee simple. Main Street alleged that it was
entitled to the same as a matter of law because, "[a]s a matter
of record, [Main Street] has openly, peaceably, and unopposed
been in possession of the property since November 28, 2016," and
therefore has "become the fee simple owner" of the property,
completing the foreclosure by entry requirements and terminating
the mortgagor's right of redemption. After discovery and motion
practice,12 the parties filed cross motions for summary judgment,
Tran, Le, Caliber, and MERS (together, the respondents) filing a
12Tran and Le filed a motion for judgment on the pleadings, which Main Street opposed, and MERS and Caliber filed a motion to dismiss. The judge denied both motions.
11
joint summary judgment motion and a joint opposition to Main
Street's motion for summary judgment.
Although the respondents advanced three arguments in the
Land Court, we focus on the contention central to this appeal:
that the doctrine of judicial estoppel applies because Abate, in
his personal bankruptcy case, omitted the mortgage and note from
his asset schedule and obtained a bankruptcy discharge in
reliance on that disclosure, and therefore, could not claim to
own these assets in support of the foreclosure by entry and the
Land Court S-petition proceeding. In its cross motion, Main
Street argued that the undisputed facts were not subject to
judicial discretion: the mortgage was in default, Main Street
had registered an unopposed certificate of entry, and the three
years required by statute to complete a foreclosure by entry had
elapsed, and therefore, the judge was required to issue Main
Street a new certificate stating it owned the property in fee
simple.13
13Quoting In re Na-Mor, Inc., 437 B.R. 482, 487 (Bankr. D. Mass. 2010), the judge held that Main Street's revival "automatically [transferred] its former assets from its shareholders back to the corporation," and that the certificate of entry was a valid exercise by Main Street's agent. The judge also held that the registration of a certificate of entry constituted a valid entry and therefore terminated the limitations period set forth in the obsolete mortgage statute.
12
The judge held that although a "mortgagor [who] wants to
challenge a foreclosure by entry . . . [must] do so before the
three-year period has elapsed," Singh, 78 Mass. App. Ct. at 902,
the passage of the three-year period does not bar the equitable
defense of judicial estoppel. The judge concluded that Main
Street was judicially estopped from obtaining a certificate of
title for the property because Abate failed to disclose the
mortgage as an asset during his 2010 bankruptcy case.14
Discussion. 1. Discretion in issuing certificates of
title on S-petitions. Main Street first argues that the judge
did not have discretion to decline to issue the certificate of
title as requested in its S-petition. Main Street suggests that
because the procedural steps of the foreclosure by entry were
met, the ownership of the property passed to it by operation of
law, and that because "[j]udges of the Land Court serve as
administrators for the registered land system," "the Land
Court's function is limited to issuing a new certificate of
title."15 Because Main Street's argument turns on a question of
14In addition, the judge held that even if Main Street was entitled to a certificate of title, he would limit its recovery based on principles of equity and justice.
15We acknowledge Main Street's argument that if the property were recorded land instead of registered land, the foreclosure would have been completed and Main Street would own the property upon recording. However, the property has "heightened protection . . . by virtue of the status of the land as registered land [and] the [petitioner] ought not be allowed
13
statutory interpretation, our review is de novo. See Concord v.
Rasmussen, 496 Mass. 450, 459 (2025).
Main Street's argument relies exclusively on G. L. c. 185,
§ 114, as in effect during the relevant period, which provided
that "[n]o erasure, alteration or amendment shall be made upon
the registration book after the entry of a certificate of title
or of a memorandum thereon . . . except by order of the court."
The argument does not account for other language in the same
statute describing the process for requesting a new certificate
of title and expressly conferring discretionary authority on
Land Court judges to order the entry of an S-certificate "on
such terms as equity and justice may require."16 G. L. c. 185,
§ 70. See Cuticchia v. Andover, 95 Mass. App. Ct. 121, 125
(2019), quoting Commonwealth v. Hanson H., 464 Mass. 807, 810
(2013) (when interpreting statutes, "we look to the language of
to exclude self-selected portions of the registration system from the definition of its scope." Duddy v. Mankewich, 75 Mass. App. Ct. 62, 69 n.12 (2009). The registered and recorded land systems are, by definition, different, and thus the process and results of foreclosure proceedings may also differ.
16 In relevant part, G. L. c. 185, § 70, provides,
"After possession has been obtained by the mortgagee or his
assigns, by entry or by action, . . . he or his assigns may
request the land court for the entry of a new certificate,
and the court, after notice to all parties in interest,
shall have jurisdiction to hear the case, and may order the
entry of a new certificate on such terms as equity and
justice may require" (emphasis added).
14
the entire statute, not just a single sentence, and attempt to
interpret all of its terms 'harmoniously to effectuate the
intent of the Legislature'"). The process and exercise of
judicial discretion contemplated by the statute's plain language
applies equally to circumstances where possession is obtained by
entry or action; in neither instance does the statute
contemplate that the judge acts simply as an administrator who
is required to issue a new certificate of title if the mortgagee
has met certain criteria. Here, the judge acted pursuant to
G. L. c. 185, § 70, in examining the facts and issues raised and
properly exercising his discretion in determining whether to
issue a new certificate of title to Main Street.
2. Judicial estoppel. "The doctrine of judicial estoppel
seeks to prevent the manipulation of the judicial process by
litigants" (quotation and citations omitted). Mullins v.
Corcoran, 488 Mass. 275, 286 (2021). The doctrine is one of
equity, that "precludes a party from asserting a position in one
legal proceeding that is contrary to a position it had
previously asserted in another proceeding" (quotation and
citation omitted). Otis v. Arbella Mut. Ins. Co., 443 Mass.
634, 639-640 (2005). "[T]he position being asserted in the
litigation must be directly inconsistent, meaning mutually
exclusive of, the position asserted in a prior proceeding, and
the party must have succeeded in convincing the court to accept
15
its prior position" (quotations and citations omitted).
Mullins, supra at 287. No "inflexible prerequisites or . . .
exhaustive formula" dictates its application (alteration
omitted). Otis, supra at 640, quoting New Hampshire v. Maine,
532 U.S. 742, 751 (2001). Rather, the doctrine is invoked to
stop a party from "playing fast and loose with the courts."
Otis, supra at 642, quoting Patriot Cinemas, Inc. v. General
Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987). In applying
judicial estoppel to debtors that have failed to reveal assets
in bankruptcy proceedings, it is no defense that a windfall to
even an undeserving party invoking the doctrine might occur --the integrity of the bankruptcy process is that important. See
In re Blanchette, 582 B.R. 819, 824 (Bankr. D. Mass. 2018), and
cases cited.
We review a judge's "application of the equitable principle
of judicial estoppel" for an abuse of discretion. See Otis, 443
Mass. at 640. "Where, as here, application of judicial estoppel
has resulted in the entry of summary judgment, abuse of
discretion remains the appropriate standard . . . ." Id.
Main Street first argues that judicial estoppel is
unavailable in this case because the claims in the bankruptcy
court and the Land Court were advanced by different entities --Abate, as an individual petitioner who signed the asset schedule
in the bankruptcy action, and Main Street, as a corporate
16
petitioner in the Land Court. However, the distinction in legal
identity is neither dispositive nor preclusive of a judicial
estoppel analysis where, as here, the underlying party in
interest in both cases is the same. See Sandman v. McGrath, 78
Mass. App. Ct. 800, 802-805 (2011) (judicial estoppel applied
where real party in interest claimed directly inconsistent
positions in two lawsuits). The application of judicial
estoppel to cases in which the named parties differ but the
parties in interest are the same is also supported by case law
from other jurisdictions. See Milton H. Greene Archives, Inc.
v. Marilyn Monroe LLC, 692 F.3d 983, 996 (9th Cir. 2012) ("nonparty may be bound by a judgment if one of the parties to the
earlier suit is so closely aligned with the non-party's
interests as to be its virtual representative . . . [;] the
identity of parties is not a mere matter of form but of
substance" [alteration, quotations, and citations omitted]).
See also Patriot Mfg. LLC v. Hartwig, Inc., 996 F. Supp. 2d
1120, 1127-1128 (D. Kan. 2014) ("Privity requires a showing that
the parties in the two actions are really and substantially, in
interest, the same. Generally, a sole owner of a company is in
privity with the company. . . . Therefore, [the company] may be
bound by inconsistent statements made by [the owner] in his
bankruptcy for the purpose of determining judicial estoppel"
[footnotes omitted]).
17
Here, it is undisputed that on December 31, 2001, Abate
voluntarily dissolved Main Street, and as of December 31, 2004,
Main Street's remaining assets, including the interest in the
property, passed to Abate as its sole shareholder. See G. L.
c. 156B, § 102. See also Pagounis, 52 Mass. App. at 276 ("upon
the dissolution of a corporation, all debts having been paid and
no receiver having been appointed, the property of a dissolved
corporation passes to its former shareholders"). Thus, in 2010,
when Abate filed for bankruptcy protection, he personally held
the note, secured by the property, as an asset. In 2019, after
reviving Main Street as a corporation, Abate remained its sole
shareholder and stood to enjoy any benefit awarded to Main
Street, including the relief Main Street sought in its Land
Court action, to wit, issuance of a title reflecting its fee
simple interest in the property. Additionally, Main Street
relied on its close relationship with Abate -- as its president,
clerk, treasurer, and sole shareholder -- in performing the
duties required to dissolve and then revive the business. We
conclude therefore that Abate was the real party in interest in
both the bankruptcy case and the present Land Court action, and
the positions taken in both are subject to scrutiny under the
doctrine of judicial estoppel. See Sandman, 78 Mass. App. Ct.
at 802-803. See also Milton H. Greene Archives, Inc., 692 F.3d
at 996.
18
Having established that the doctrine of judicial estoppel
is available here, we address what we discern as Main Street's
substantive argument. Main Street contends that judicial
estoppel is inapplicable here because Abate did not make a
statement or take a position about the "legal title" to the
property in either the bankruptcy proceeding or the Land Court
action. Main Street argues that, because the bankruptcy court
does not have subject matter jurisdiction over determining title
to registered land, Abate did not take a position on the status
of the title to the property within his bankruptcy filings. It
further contends that its filing in the Land Court relies solely
on certificates of title and lists of encumbrances in support of
its S-petition, and therefore, it did not make any "statement"
to the Land Court regarding title. These arguments fail to
grasp the core elements of judicial estoppel and, in particular,
what actions constitute "taking a position in litigation."
Judicial estoppel has two essential elements. "First, the
position being asserted in the litigation must be directly
inconsistent, meaning mutually exclusive of, the position
asserted in a prior proceeding" (quotations and citations
omitted). Otis, 443 Mass. at 640-641. Here, in his 2010
bankruptcy case, Abate submitted what he attested was a complete
schedule of assets to the bankruptcy court, and by extension, to
19
the bankruptcy trustee.17 As discussed above, three years after
the dissolution of Main Street, Abate personally held Main
Street's remaining assets, including the note and mortgage.
However, he failed to include these instruments on the asset
schedule submitted to the bankruptcy court on November 23, 2010,
and took no action to notify the bankruptcy court or bankruptcy
trustee that he retained the instruments after receiving the
First American correspondence on December 14, 2010. By failing
to disclose the note and mortgage, Abate took the position in
the bankruptcy court that these instruments were not among the
assets of the bankruptcy estate. See Keathley v. Buddy Ayers
Constr., Inc., 608 U.S. 647, 654 (2026) ("courts that apply
judicial estoppel to claims in the bankruptcy context view the
debtor's failure to disclose a particular claim as an implicit
representation that the claim does not exist" [quotations and
citation omitted]). See also Davis v. Wakelee, 156 U.S. 680,
689 (1895) ("It may be laid down as a general proposition that,
where a party assumes a certain position in a legal proceeding,
and succeeds in maintaining that position, he may not
thereafter, simply because his interests have changed, assume a
17"The trustee of a Chapter 7 debtor . . . has the general duties of marshalling all available property, reducing it to money, distributing it to creditors, and closing up the estate." Koch Refining v. Farmers Union Cent. Exch., Inc., 831 F.2d 1339, 1342 (7th Cir. 1987), cert. denied, 485 U.S. 906 (1988). See also 11 U.S.C. § 704(a)(1).
20
contrary position . . ."). The asset schedule did not function
to determine title in the property, as argued by Main Street;
rather, it functioned to inform the bankruptcy trustee of the
value of the estate assets so that the trustee, in turn, could
evaluate whether to pursue them for the benefit of the estate's
creditors. See 11 U.S.C. § 541(a).
Main Street then advanced a contrary position in the Land
Court. By filing a certificate of entry, and thereafter, the Spetition, Main Street represented to the Land Court that it had
the authority to complete the foreclosure by entry and gain
title to the property by virtue of holding an interest in the
note and mortgage -- the same instruments that Abate had
implicitly represented were not a part of his bankruptcy estate.
The second element of judicial estoppel is that "the party
must have succeeded in convincing the court to accept its prior
position." Otis, 443 Mass. at 641. Because Abate omitted his
interests in the property from his asset schedule, the
bankruptcy trustee was deprived of the opportunity to
investigate the value of this asset for the benefit of the
creditors of the bankruptcy estate. Thereafter, the bankruptcy
court granted Abate's discharge. See Guay v. Burack, 677 F.3d
10, 18 (1st Cir. 2012) ("A bankruptcy court 'accepts' a position
taken in the form of omissions from bankruptcy schedules when it
grants the debtor relief, such as discharge, on the basis of
21
those filings"). See also Spinosa v. Tufts, 98 Mass. App. Ct.
1, 6 n.6 (2020).18
Here, the facts support both elements of judicial estoppel.
Yet, application of judicial estoppel is a discretionary
decision by the judge. "In deciding whether a party should be
judicially estopped, we . . . look to see whether that party is
seeking to use the judicial process in an inconsistent way that
courts should not tolerate." East Cambridge Sav. Bank v.
Wheeler, 422 Mass. 621, 623 (1996). Abate represented that he
held no interest in the mortgage in one case and then used the
mortgage as the basis for Main Street's foreclosure by entry.
Where issuing a new certificate of title to Main Street would
raise "the specter of inconsistent determinations and [endanger]
the integrity of the judicial process," Otis, 443 Mass. at 643,
quoting Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374
F.3d 23, 33 (1st Cir. 2004), the judge was within his discretion
to determine that Main Street should not reap the benefit of the
18In the Land Court, Main Street did not argue that Abate's omission of the note and mortgage from the asset schedule was inadvertent or a mistake. Examining the record evidence demonstrating "the totality of the circumstances surrounding [the] failure to report" Abate's interest in the Main Street mortgage or the property, Keathley, 608 U.S. at 656, we discern no indication of inadvertence.
22
mortgage, and we see no error in the judge's well-reasoned
allowance of the appellees' motion for summary judgment.19
Conclusion. We conclude that, because Main Street's
S-petition requesting a certificate of title for the property
and Abate's omission within his bankruptcy schedules took
inconsistent positions, the judge acted within his discretion in
applying the doctrine of judicial estoppel, and in entering
summary judgment for the appellees and denying Main Street's
motion for relief from judgment. We affirm the judgment and the
order denying Main Street's motion for relief from judgment.20
So ordered.
19Because we affirm the Land Court's application of judicial estoppel, we need not reach Main Street's remaining arguments.
20In view of our conclusion, Main Street's request for attorney's fees is denied.