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18-P-486                                            Appeals Court

     WELLS FARGO BANK N.A., trustee,1   vs.   MARIA BOBADILLA.


                           No. 18-P-486.

           Essex.      February 4, 2019. - May 1, 2019.

           Present:   Maldonado, Singh, & Wendlandt, JJ.


Summary Process. Mortgage, Foreclosure. Real Property,
     Mortgage, Sale. Practice, Civil, Relief from judgment,
     Judicial discretion, Default, Summary process.



     Summary Process. Complaint filed in the Northeast Division
of the Housing Court Department on February 16, 2017.

     The case was heard by Fairlie A. Dalton, J.; a motion for
relief from judgment was heard by David D. Kerman, J., and a
motion to reinstate the original judgment was also heard by him.


     Lucas B. McArdle for the defendant.
     Brian Linehan for the plaintiff.


     WENDLANDT, J.    This appeal concerns a Housing Court judge's

(motion judge) discretionary decision to allow, on a limited

basis, a motion for relief from judgment pursuant to Mass. R.


     1 For Carrington Mortgage Loan Trust Series 2006-NC2 Asset-
Backed Pass-Through Certificates.
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Civ. P. 60 (b), 365 Mass. 828 (1974).     Specifically, after a

trial on the merits, at which the defendant, Maria Bobadilla,

appeared pro se, judgment entered in favor of the plaintiff,

Wells Fargo Bank N.A. (Wells Fargo) on its summary process

complaint (original judgment).    Bobadilla moved for relief from

the judgment on various grounds, including that a 2010 default

judgment entered in the Land Court (default judgment)

erroneously permitted Wells Fargo's predecessor in interest to

reform the mortgage to add her as comortgagor.    The motion judge

allowed the motion for the limited purpose of permitting

Bobadilla the opportunity to bring a motion in the Land Court to

vacate the default judgment.   After a Land Court judge denied

Bobadilla's motion to vacate and the time to appeal had expired,

the motion judge reentered judgment in favor of Wells Fargo.

Discerning no abuse of discretion in the motion judge's decision

to limit reopening of the summary process action to the

collateral Land Court issue, we affirm.

     Background.   Bobadilla and Carmelo Francisco acquired the

subject property as tenants by the entirety by quitclaim deed in

2004.   In 2006, Francisco executed a promissory note secured by

a mortgage to New Century Mortgage Corporation (New Century).

Bobadilla was not named on the mortgage.     In 2007, Francisco

defaulted on the loan payments.
                                                                      3


     In 2010, New Century filed an action in the Land Court to

reform the mortgage to add Bobadilla as a comortgagor.       Although

Bobadilla received notice of the Land Court action, she did not

appear.   The default judgment entered, and the mortgage was

reformed to include Bobadilla as comortgagor.     Bobadilla did not

appeal.

     In 2012, New Century assigned the mortgage to Wells Fargo

as trustee for Carrington Mortgage Loan Trust Series 2006-NC2

Asset-Backed Pass-Through Certificates.     In 2015, after

providing notice of the foreclosure sale, Wells Fargo conducted

a foreclosure sale, at which it was the highest bidder.

     Wells Fargo thereafter commenced the present summary

process action.     Bobadilla received notice of the action,2 and in

March 2017, a trial on the merits was held.     Bobadilla and

Francisco testified at the trial and presented various defenses.

Wells Fargo relied on an affidavit of sale, as well as the

default judgment.     Following the trial, a Housing Court judge

(trial judge) found the defenses raised to be without merit, and

the original judgment entered in favor of Wells Fargo.

     Subsequently, Bobadilla and Francisco obtained counsel and

filed a motion for relief from judgment.     The motion judge (who




     2 Wells Fargo dismissed the action against Francisco, who no
longer lives on the property; he is not a party to the present
appeal.
                                                                     4


was not the trial judge) allowed the motion.   The motion judge

subsequently clarified that the motion was allowed for the

limited purpose of permitting Bobadilla time to attempt to

vacate the default judgment.    Consistent with that scope of

relief, Bobadilla filed a motion in the Land Court to vacate the

default judgment.    The motion was denied and Bobadilla did not

appeal.

    Wells Fargo notified the motion judge of the Land Court

judge's denial of the motion to vacate, and moved to reinstate

the original judgment.    Following a hearing at which the parties

were present, judgment reentered in favor of Wells Fargo.

Bobadilla now appeals.

    Discussion.     On appeal, Bobadilla asserts that the motion

judge abused his discretion in allowing her motion for relief

from the original judgment for only the limited purpose of

permitting her to attempt to vacate the Land Court's default

judgment; instead, she contends that she is entitled to reopen

discovery and to a new trial on the merits on Wells Fargo's

summary process complaint.

    A judge has substantial discretion when ruling on a motion

for relief from judgment.    See Cullen Enters., Inc. v.

Massachusetts Prop. Ins. Underwriting Ass'n, 399 Mass. 886, 894

(1987), quoting Chu-Kun Woon v. Moy, 17 Mass. App. Ct. 949, 949

(1983) (judge's ruling on rule 60 [b] motion should be given
                                                                    5


"marked deference").    The motion judge did not abuse his

discretion by tailoring the relief from judgment to the issue of

the default judgment.   Once Bobadilla's efforts to challenge the

default judgment were exhausted -- after the Land Court judge

had denied her motion, and she declined to appeal from that

denial -- the motion judge was not required to reopen the case

for further discovery and a new trial on the merits, where a

trial already had occurred in March 2017.    At the trial,

Bobadilla and Francisco presented defenses, including squarely

raising issues regarding the veracity of some of the statements

in the affidavit of sale.   The trial judge found against

Bobadilla on these defenses.

     Bobadilla asserts that a new trial is required to allow her

to raise additional arguments regarding the affidavit of sale.

Specifically, Bobadilla maintains that the affidavit was

facially defective because the date entered by the signatory

precedes the date of sale (by two days).3   Similarly, she

contends that a new trial is required to afford her the

opportunity to challenge the default judgment reforming the

mortgage to add her as a mortgagor.    These arguments could have

been raised at the March 2017 trial, during which Wells Fargo


     3 Bobadilla's argument ignores the fact that the notary's
signature acknowledging the Wells Fargo representative's
signature sets forth that the date of the affidavit (September
22, 2016,) is after the date of sale (September 24, 2015).
                                                                     6


relied on both the affidavit of sale and the default judgment.

Indeed, Bobadilla raised several challenges to the affidavit at

the trial; there was no abuse of discretion in the motion

judge's decision declining her relief from judgment to raise

these additional arguments.     See Cullen Enters., 399 Mass. at

894.

       Furthermore, the issue of the propriety of the mortgage

reformation was the subject of the 2010 Land Court action that

resulted in the default judgment as well as Bobadilla's motion

to vacate that judgment.   In denying the motion to vacate, the

Land Court judge specifically addressed some of the same

arguments that Bobadilla now seeks to relitigate.     Accordingly,

the doctrine of issue preclusion bars Bobadilla's desired third

bite at the proverbial apple.    See Heacock v. Heacock, 402 Mass.

21, 23 n.2 (1988) (issue preclusion "prevents relitigation of an

issue determined in an earlier action where the same issue

arises in a later action, based on a different claim, between

the same parties or their privies").4




       Bobadilla also asserts that her due process rights were
       4

violated because, by denying a new trial on the merits, the
motion judge deprived her of the opportunity to raise arguments
that the default judgment was improper. Due process affords a
litigant the right to notice and the opportunity to be heard.
See Strange v. Powers, 358 Mass. 126, 135 (1970). Here, because
Bobadilla received notice and had several opportunities to be
heard, as outlined supra, her due process claims are
unsupportable.
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Judgment affirmed.
