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SJC-12684

        ROBERT P. MARLEY   vs.   BANK OF NEW YORK1 & others.2


                           January 9, 2020.


Supreme Judicial Court, Superintendence of inferior courts.
     Mortgage, Foreclosure. Notice, Foreclosure of mortgage.
     Massachusetts Soldiers' & Sailors' Civil Relief Act.


     The petitioner, Robert P. Marley, filed a petition in the
county court, pursuant to G. L. c. 211, § 3, challenging orders
issued by the Land Court in connection with a servicemember
proceeding under the Massachusetts Soldiers' and Sailors' Civil
Relief Act (MSCRA). Marley also asserted affirmative defenses
to foreclosure of his property and claims against the
respondents under various statutes, rules of professional

    1  The Bank of New York Mellon (bank), formerly known as The
Bank of New York, appeared and moved to dismiss the petition and
counterclaim. The bank represents that it is the trustee for
the certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through
Trust 2004-29, Mortgage Pass Through Certificates, Series 2004-
29.

    2  Korde & Associates, P.C., and Shellpoint Mortgage
Servicing. Korde & Associates, P.C., has appeared for itself
and two attorneys associated with the firm and moved to dismiss
the petition and counterclaim. NewRez LLC, formerly known as
New Penn Financial, LLC, doing business as Shellpoint Mortgage
Servicing (Shellpoint), also has appeared and moved to dismiss
the petition and counterclaim.

     The petitioner also named the Land Court as a respondent.
The court is a nominal party only. See S.J.C. Rule 2:22, 422
Mass. 1302 (1996).
                                                                   2


conduct, and the common law. A single justice of this court
dismissed the petition, including all requests for relief. We
affirm.3

     Background. This case arises out of a promissory note and
mortgage that Marley signed in 2004 encumbering property in
Lynnfield. In 2018, The Bank of New York Mellon (bank) filed a
complaint in equity in the Land Court under the MSCRA to
determine whether Marley is entitled to foreclosure protections
under the Federal Servicemembers Civil Relief Act (SCRA), 50
U.S.C. §§ 3901-4043. See St. 1943, c. 57, as amended through
St. 1998, c. 142. The bank also filed a mortgagee's affidavit.
See HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 197 n.7 (2013)
(Matt) ("Land Court requires all parties filing a servicemember
complaint to submit a mortgagee's affidavit").

     In accordance with the MSCRA, the Land Court issued an
order of notice to Marley and "to all persons entitled to the
benefit of the [SCRA]" that, according to the docket, was to be
served, recorded, and published in the Lynnfield Villager, the
Lynnfield Weekly News, and The Daily Item. The notice
instructed Marley that if he is or recently has been in active
military service, and if he objects to the foreclosure on that
basis, he should appear and file an answer. As the MSCRA
provides:

     "The publication of a copy of said notice once not less
     than twenty-one days before the return day in a newspaper
     designated by the court, and the mailing of a copy thereof
     by registered mail not less than fourteen days before the
     return day to each defendant named in the [servicemembers
     complaint], shall be sufficient service of said notice,
     unless the court otherwise orders, provided however that
     prior to the return day fixed in said notice a copy thereof
     shall be recorded in each registry of deeds and city or
     town clerk's office in which such mortgage is recorded."

St. 1943, c. 57, § 1. The SCRA protects both servicemember
mortgagors and mortgagees. "As to foreclosures involving
nonservicemember mortgagors, the [SCRA] contemplates a benefit
to mortgagees through the issuance of a judicial decree that
such a mortgagor is not entitled to the protections of the

     3 After the case was argued, the court received an amicus
brief from Grace C. Ross, together with a motion to file her
brief late, which was opposed by Shellpoint. Nothing in the
amicus brief changes our analysis.
                                                                   3


SCRA[,] . . . ensuring that a foreclosure will not subsequently
be rendered invalid for failure to provide the protections of
the SCRA to anyone so entitled." Matt, 464 Mass. at 201.

     Only mortgagors who assert that they are entitled to rights
under the SCRA may appear in servicemember proceedings. See
Matt, 464 Mass. at 194. Marley does not assert such rights.
Nonetheless, he informed the Land Court of his claim that the
bank is not the lawful holder of the promissory note or
mortgage, that the bank lacked standing to file the
servicemember complaint, and that the Land Court therefore
lacked subject matter jurisdiction of the matter. In response,
a Land Court judge issued an order providing that the
"Mortgagee's Affidavit filed with the Servicemembers Complaint
is sufficient to establish the plaintiff's standing. See [G. L.
c. 244, § 35B (f)]. The defendant's letter is not sufficient to
put standing at issue in the face of the affidavit. For the
foregoing reasons, the defendant's submission is not accepted
for filing." See Matt, 464 Mass. at 199 (in servicemember
proceeding, error to accept nonservicemember's filings or to
permit nonservicemember to appear).

     Marley next filed a petition in the county court, pursuant
to G. L. c. 211, § 3. As he did in the Land Court, he claimed
generally that the bank lacked standing to bring the
servicemember complaint, and that the Land Court therefore
exceeded its jurisdiction in issuing an order for notice of the
impending foreclosure proceeding. In addition, the petition
raised various defenses to foreclosure and asserted a multicount
complaint, denominated as a "counterclaim," against the
respondents. The single justice neither erred nor abused her
discretion in dismissing the petition.

     Discussion. A request for extraordinary relief, under
G. L. c. 211, § 3, properly is denied where, as here, a
petitioner fails to demonstrate "both a substantial claim that a
violation of the party's substantive rights occurred below, and
that this error cannot be corrected through the ordinary
appellate process." Commonwealth v. Clerk of the Boston Div. of
the Juvenile Court Dep't, 432 Mass. 693, 697 (2000). It is well
established that, "[w]here a petitioner can raise his claim in
the normal course of trial and appeal, relief will be denied."
Foley v. Lowell Div. of the Dist. Court Dep't, 398 Mass. 800,
802 (1986).

     As we said in Matt, "a servicemember proceeding cannot
affect the rights or interests of nonservicemembers," and so
                                                                  4


nonservicemembers have "no interest in the proceeding." Matt,
464 Mass. at 199. Such proceedings are not part of the
foreclosure process and "are not determinative of any issue
beyond the extent of such defendants' rights under the SCRA, if
any." Id. at 204. The order of notice issued by the Land Court
in this case is largely identical to the statutory form of
notice, and identifies the bank only as one "claiming to be the
holder of a mortgage." See id. at 202. With respect to
Marley's claim that publication of the notice in local
publications was improper, the statute authorizes service,
publication, and recording of the notice. St. 1943, c. 57, § 1.
Marley did not establish a substantial claim that the Land Court
violated his substantial rights in connection with the
servicemember proceeding.

     With respect to the myriad of other claims and affirmative
defenses to foreclosure and the eight-count "counterclaim"
asserted against the respondents, Marley failed to demonstrate
the absence of adequate alternative remedies. See Planned
Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass.
701, 706 (1990). Although we recognize that the claims he
raises could not be asserted as "counterclaims" in the
servicemember proceeding, see Matt, 464 Mass. at 204, Marley's
principal remedy is to litigate the claims and affirmative
defenses in the trial court, "in any separate action challenging
a foreclosure or a mortgagee's right to foreclose," id.4 General
Laws c. 211, § 3, does not provide an alternative route to the
ordinary course of trial and appeal, and the single justice
properly dismissed the claims and defenses.

                                   Judgment affirmed.


     Robert Marley, pro se.
     Thomas O'Neill for Shellpoint Mortgage Servicing LLP &
another.
     Joseph P. Calandrelli, for Korde & Associates, was present
but did not argue.
     Grace C. Ross, pro se, amicus curiae, submitted a brief.




     4 The record indicates that Marley has commenced two actions
in the Superior Court, both of which were removed to the United
States District Court for the District of Massachusetts,
challenging various aspects of the bank's authority to foreclose
on his mortgage.
