In Bank of New York v. KC Bailey,1 the
Supreme Judicial Court undertook to answer the question of whether
or not the Housing Court has the authority to determine validity of
title as a defense in a summary process action after a mortgage
In 2005, Bailey had given a mortgage to the Mortgage Electronic
Registration System (MERS) as nominee for America's Wholesale
Lender.2 The mortgage (apparently) became part of a
group of mortgages securitized with Bank of New York as
trustee.3 In 2007, MERS, as nominee, foreclosed the
mortgage and was the highest bidder at the foreclosure sale and
assigned the deed to Bank of New York.4 Bank of New York
subsequently brought a summary process action seeking to evict
Bailey, among other defenses, raised the defense that Bank of New
York was not the owner because the sale was not in compliance with
the foreclosure statute, due to defective notice, and the deed was
The record indicates Bailey claimed to have not received any
notice of the foreclosure.7 Bank of New York submitted
to the court a copy of the foreclosure deed and of the legal notice
for the sale, but the date of publication was
illegible.8 Bank of New York filed a motion for summary
judgment, asserting that it was the owner as a result of the
The justice in the Housing Court action allowed Bank of New York's
motion, stating that the only issue before the court was whether
the plaintiff is entitled possession, and because the plaintiff
showed that its deed was recorded prior to the service of the
notice to quit, Bank of New York had established a prima facie
case for possession.10 Bailey appealed.
The SJC summarily found that the Housing Court has statutory
jurisdiction over summary process actions, but stated that the
issue was in this case whether or not the defense of an imperfectly
conducted foreclosure, and thus no standing, was within the scope
of the court's authority.11 Citing New England Mut.
Life Ins. Co. v. Wing,12 the court stated that a
challenge to the landlord's entitlement to possession has long been
considered a valid defense to summary process, particularly where
the property was purchased at a foreclosure sale.
The court further cited cases dating back to 1700, finding that
the "summary remedy" provided a remedy to those entitled to the
premises.13 This requires proof of the right to
possession and that legal title obtained by foreclosure may be
questioned.14 Indeed, it is incumbent upon a purchaser
at foreclosure sale to establish his right to possession in a
summary process action.15
The SJC applied the standard for summary judgment indicating that
Bank of New York had the burden of showing that when no material
facts in dispute regarding the legal title to the
property.16 The court stated that such a plaintiff is
required to make a prima facie showing that (1) it
obtained the deed to the property at issue and that (2) the deed
and affidavit of sale, showing compliance with statutory
foreclosure requirements, were recorded.17 As Bank New
York failed to submit the affidavit of sale, the Court vacated the
allowance of the motion for summary judgment and remanded the case
to the Housing Court.18
The practice note to be drawn from this is that legal title is a
predicate to standing for bringing a summary process action
following a foreclosure. In any such summary process action, the
best practice would be for plaintiff's attorney to introduce into
evidence a certified copy of the foreclosure deed and also a
certified copy of the affidavit of sale, showing compliance with
the statutory foreclosure requirements.
Alfred Geoffrion Jr. has practiced for 26 years in Springfield. He
concentrates in real estate law and conveyancing as well as probate
and estate law. A graduate of Western New England School of Law, he
currently is a member of the East Longmeadow Zoning Board of
1460 Mass. 327 (2011).
2Id. at 330.
6See U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637,
7KC Bailey, 460 Mass. at 329-30.
8Id. at 329 n.4.
9Id. at 329.
10Id. at 331.
11Id. at 331-32.
12191 Mass. 192, 195 (1906).
14Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966)
(citing Sheehan Constr. Co. v. Dudley, 299 Mass. 51, 53 (1937) and
New England Mut. Life Ins. Co. v. Wing, 191 Mass. at 195,
15Sheehan, 299 Mass. at 53.
16KC Bailey, 460 Mass. at 334.
17See Lewis v. Jackson, 165 Mass. 481, 486-87 (1896);
MASS. GEN. LAWS. c. 244 § 15 (2011).
18KC Bailey, 460 Mass. at 334-35.