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SJC-11638

   THOMAS C. ABATE     vs.   FREMONT INVESTMENT & LOAN & others.1



            Suffolk.    November 4, 2014. - March 9, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


Real Property, Record title, Mortgage. Mortgage, Assignment,
     Foreclosure. Jurisdiction, Land Court. Land Court,
     Jurisdiction. Practice, Civil, Parties, Standing,
     Dismissal.



     Civil action commenced in the Land Court Department on May
25, 2012.

    Motions to dismiss were heard by Robert B. Foster, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Thomas B. Vawter for the petitioner.
     James L. Rogal for Deutsche Bank National Trust Company &
another.


    1
       Mortgage Electronic Registration Systems, Inc. (MERS);
Deutsche Bank National Trust Company, as trustee for Carrington
Mortgage Loan Trust, Series 2005-FRE1, Asset Backed Pass-Through
Certificates (Deutsche Bank); and Carrington Mortgage Services,
LLC (Carrington).
                                                                      2


     Robert M. Brochin for Mortgage Electronic Registration
Systems, Inc.
     James P. Long, pro se, amicus curiae, submitted a brief.


     HINES, J.   In this appeal, we determine whether a

respondent in a try title action brought pursuant to G. L.

c. 240, §§ 1-5, may test the substantive merits of a

petitioner's claims in the "first step" of such an action.      The

issue arises because the try title statute, in keeping with its

purpose to allow a person holding record title to compel an

adverse claimant to prove the merits of the adverse claimant's

interest in the property, contemplates a two-step procedure in

which the substantive merits of the parties' claims are

determined at a trial.   Under our interpretation of the statute,

the "first step" requires that the petitioner must satisfy the

jurisdictional elements2 of the statute and, if satisfied, the

"second step" requires the adverse claimant either to bring an

action to assert the claim to title, or to disclaim an interest

in the property.   Bevilacqua v. Rodriguez, 460 Mass. 762, 766

(2011), citing G. L. c. 240, § 1.   Recognizing the potential


     2
       The petitioner must satisfy these three jurisdictional
elements: (1) that he holds "record title" to the property; (2)
that he is a person "in possession"; and (3) the existence of an
actual or possible "adverse claim" clouding his record title.
Blanchard v. Lowell, 177 Mass. 501, 504-505 (1901). Standing
encompasses the first two elements: "record title" and
"possession." Bevilacqua v. Rodriguez, 460 Mass. 762, 766-767 &
n.5 (2011).
                                                                   3


conflict between jurisdictional determinations and a

petitioner's right under the statute to compel an adverse

claimant to bring his or her own action to assert that claim, we

transferred the petitioner's appeal to this court on our own

motion.   For the reasons explained below, we affirm the Land

Court judgment dismissing his petition.

     Background.   1.   Procedural history.   The petitioner,

Thomas C. Abate, brought this action in the Land Court asserting

that a purported assignment of a mortgage was invalid and,

thereby, indirectly challenging a foreclosure by Deutsche Bank

National Trust Company, as trustee for Carrington Mortgage Loan

Trust, Series 2005-FRE1, Asset Backed Pass-Through Certificates

(Deutsche Bank).   At the time of filing, Deutsche Bank as the

assignee of the mortgage already had foreclosed on Abate's

mortgage.   The respondents filed motions to dismiss under Mass.

R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for failure to

state a claim on which relief could be granted.3    A Land Court

judge dismissed the petition after concluding that, as a matter

of law, none of the alleged grounds for invalidity of the



     3
       Fremont Investment & Loan (Fremont) did not file a motion
to dismiss; the claims against Fremont were dismissed without
prejudice by stipulation of the parties on January 9, 2013. For
purposes of this decision, reference to the respondents only
includes MERS, Deutsche Bank, and Carrington unless otherwise
noted.
                                                                   4


assignment could be sustained and that the foreclosure left

Abate without record title.4

     2.   Facts.   The following facts are taken from undisputed

facts in the record.5   On June 17, 2005, Abate granted a mortgage

to Mortgage Electronic Registration Systems, Inc. (MERS), as

nominee for Fremont Investment & Loan (Fremont).   On that same

date, Abate took title to the property at 14 Owatonna Street,

Newton, through a quitclaim deed.   The mortgage and quitclaim

deed were recorded in the Middlesex County registry of deeds.

An assignment of the mortgage, recorded on December 3, 2010,

purported to assign Abate's mortgage from MERS to Deutsche Bank

on November 16, 2010.

     Abate has been in possession of the property since 2005.

He filed bankruptcy on October 29, 2010, and represented during

     4
       Although the respondents filed their motions to dismiss
under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), as
explained below, the argument advanced in the motion was in
essence a challenge to Thomas C. Abate's standing, a requirement
of subject matter jurisdiction which may be considered under
either rule 12 (b) (1) or 12 (b) (6).
     5
       The record before the judge included the petition and
other materials from court filings and the Middlesex County
registry of deeds. Although the judge did not explicitly cite
rule 12 (b) (1), we consider his disposition of this case to be
a better fit under rule 12 (b) (1) than under rule 12 (b) (6).
The judge was properly allowed to review materials outside of
the petition in deciding subject matter jurisdiction. "A judge,
and logically a reviewing court, may consider documents and
other materials outside the pleadings when ruling on a rule 12
(b) (1) motion." Audoire v. Clients' Sec. Bd., 450 Mass. 388,
390 n.4 (2008).
                                                                   5


bankruptcy proceedings that he intended to surrender the

property.6   On December 9, 2010, the bankruptcy court ordered

that Deutsche Bank be released from an automatic stay so that it

could exercise its rights pursuant to the mortgage.   On March

28, 2012, Deutsche Bank conducted a nonjudicial foreclosure

auction in accordance with the statutory power of sale provision

in the mortgage and the nonjudicial foreclosure process set

forth in G. L. c. 244, §§ 11-17C.7    The foreclosure deed

conveying title from Deutsche Bank to itself was recorded on

October 5, 2012.8

     In May, 2012, Abate filed a petition to try title, pursuant

to G. L. c. 240, §§ 1-5, in the Land Court, claiming to hold

record title and to be in possession of the property.   The

petition named four possible adverse claimants:   (1) Fremont;

(2) MERS; (3) Deutsche Bank; and (4) Carrington Mortgage

     6
       Abate's Chapter 7 individual debtor's statement of
intention showed the creditor for the property as Carrington and
that Abate intended to surrender the property.
     7
       Deutsche Bank recorded a certificate of entry on October
5, 2012, pursuant to the statute governing foreclosure by entry
and possession, G. L. c. 244, §§ 1-2, asserting that Deutsche
Bank, through its agent, had made an open, peaceable, and
unopposed entry on the property on March 28, 2012.
     8
       At a September, 2012, hearing on the motion to dismiss
filed by Deutsche Bank and Carrington, Deutsche Bank explained
that the foreclosure deed had not been previously recorded
because the high bidder at the auction, a third party, did not
proceed when the contract expired because of this try title
action.
                                                                   6


Services, LLC (Carrington).   Abate claimed to have record title

"by virtue of a quitclaim deed dated June 17, 2005."   Abate

asserted that he had granted a mortgage to Fremont, as the

lender, and MERS, as the mortgagee, and that MERS had purported

to assign the mortgage to Deutsche Bank.   Abate asserted that

the defendants were potentially adverse claimants because the

assignment from MERS to Deutsche Bank was "fraudulent, invalid,

void and/or legally inoperative" for a variety of reasons.

Abate did not acknowledge in his petition that Deutsche Bank had

already foreclosed on the mortgage.

     On July 31, 2012, Deutsche Bank and Carrington filed a

motion to dismiss pursuant to rule 12 (b) (6).   The motion

asserted that the try title petition did not demonstrate a

plausible entitlement to the relief sought because Abate failed

to allege facts sufficient to prove that the assignment was

invalid.9   Abate contested the filing on procedural grounds,

arguing that a motion to dismiss for failure to state a claim is

not a proper response to a try title action and that once he

satisfied the threshold jurisdictional requirements for

     9
       In a supplemental memorandum in support of their motion to
dismiss, Deutsche Bank and Carrington also argued that Abate is
judicially estopped from proceeding with the try title action
because of the "contrary" assertion made in Abate's bankruptcy
case, where Abate indicated that he intended to surrender the
property. Like the Land Court judge, we decline to resolve this
claim because the petition against the defendants was properly
dismissed on other grounds.
                                                                   7


maintaining the action, the judge should have compelled Deutsche

Bank and Carrington either to disclaim their interests in the

property or to bring an action to try title.   Abate did not

offer a rebuttal to the substantive merits of the defendants'

motion to dismiss.

    After a hearing, and with the benefit of additional

briefing, the judge allowed the motion on December 10, 2012

(Deutsche Bank/Carrington Order), agreeing with the argument of

Deutsche Bank and Carrington that Abate failed to state a claim

on which relief can be granted.   Addressing separately each of

the claimed defects in the assignment, the judge ruled that

Abate's petition failed to sufficiently allege effective record

title because none of the allegations established any ground on

which the assignment could be found void or invalid.

    Subsequently, on January 16, 2013, MERS filed a motion to

dismiss the petition pursuant to rule 12 (b) (6), arguing that

the Deutsche Bank/Carrington Order rendered Abate's petition

moot and further asserting that MERS does not have a present

interest in the property because it validly assigned the

mortgage to Deutsche Bank.   Abate filed an opposition to MERS's

motion and a motion for reconsideration of the Deutsche

Bank/Carrington Order.   The judge allowed MERS's motion to

dismiss on the ground that the reasons supporting dismissal

against Deutsche Bank and Carrington also apply to MERS and that
                                                                    8


MERS no longer claims any title interest in the property.     The

judge denied Abate's motion for reconsideration.

     A judgment entered dismissing the petition against Deutsche

Bank, Carrington, and MERS with prejudice.10   Abate timely

appealed the judgment of dismissal.

     While the appeal was pending, Abate filed a motion for

relief from judgment pursuant to Mass. R. Civ. P. 60 (b) (1),

(5), and (6), 365 Mass. 828 (1974), arguing that the judge erred

in allowing the motions to dismiss and that a subsequent Land

Court decision, which denied a motion to dismiss and held that a

try title action properly may lie before a foreclosure, rendered

the judgment inequitable.11   The judge denied Abate's motion,

reasoning that the subsequent decision was not binding precedent

and the ruling allowing a try title action to be brought before

a mortgage foreclosure had no bearing on the issues before him.

It was undisputed that Abate's try title action was brought


     10
       Earlier in the litigation, MERS and Deutsche Bank were
defaulted pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 828
(1974). The judge did not abuse his "sound discretion" in
removing the defaults. Burger Chef Sys., Inc. v. Servfast of
Brockton, Inc., 393 Mass. 287, 289 (1984), quoting Silkey v. New
England Tel. & Tel. Co., 9 Mass. App. Ct. 816, 816 (1980).
     11
       Unlike the respondents in this case, the respondents in
Varian vs. Bank of N.Y. Mellon, Mass. Land Court, No. 12-MISC-
462971 (Aug. 23, 2013), did not attack the merits of the
petitioners' arguments claiming that the assignment of their
mortgage was invalid and thus the judge in that case did not
consider the motion to dismiss on that ground.
                                                                     9


after foreclosure, and in any event, the decision would not have

changed the outcome in Abate's case where the complaint was

dismissed for failure to state a claim, a ground independent of

the timing of the foreclosure.

    Discussion.   In this appeal, Abate argues that in allowing

the respondents to bring a motion to dismiss under rule 12 (b)

(6), the judge vitiated his right under the statute to compel

the respondents to "disclaim all right and title adverse to the

petitioner" or "show cause why they should not bring an action

to try such claim."   G. L. c. 240, §§ 1, 3.   In particular,

Abate argues that in considering and allowing the motions, the

judge erroneously obliterated the distinction between

jurisdiction and the merits of a try title action.    We disagree.

The judge properly considered the substantive merits of Abate's

claim that the assignment was invalid because the issue was

determinative of Abate's standing to bring a try title action

and ultimately the Land Court's subject matter jurisdiction.

Therefore, we affirm the decision of the Land Court allowing the

motions to dismiss.   In doing so, we also resolve a conflict in

Land Court decisions by concluding that a petitioner claiming a

defect in the legal title of a purported mortgagee may only meet
                                                                  10


the jurisdictional element of "adverse claim" after that

mortgagee has foreclosed.12

     1.   Statutory background.   A try title action is one of

several judicial avenues available to a property owner who seeks

to challenge a claimed adverse property interest.13   See e.g.,

G. L. c. 231A, §§ 1-9 (declaratory judgment); G. L. c. 240,

§§ 1-5 (try title action); G. L. c. 240, §§ 6-10 (action to


     12
       Compare Varian vs. Bank of N.Y. Mellon, Mass. Land Court,
No. 12-MISC-462971 (Aug. 23, 2013) ("uncertainty as to the
holder of a mortgage" provides required adversity for mortgagor
to bring try title action prior to foreclosure), with Abate vs.
Freemont Inv. & Loan, Mass. Land Court, No. 12-MISC-464855 (Dec.
10, 2012) ("try title act may be used to challenge a party's
claim to hold a mortgage only after that party has foreclosed,
because it is only after foreclosure that the mortgagee has a
claim of superior title"). See Mitchell vs. United States Bank
Nat'l Ass'n, Mass. Land Court, No. 12-MISC-473427 (Mar. 21,
2014) (following Abate decision analysis); Stephens-Martin vs.
Bank of N.Y. Mellon Trust Co., N.A., Mass. Land Court, No. 12-
MISC-465277 (Oct. 1, 2013) (following Abate decision analysis).
Federal court decisions addressing the try title statute have
noted the disparity in our Land Court decisions. See, e.g.,
Lemelson v. U.S. Bank Nat'l Ass'n, 721 F.3d 18, 23-24 (1st Cir.
2013) (citing Abate decision favorably, "efforts to foreclose"
prior to foreclosure not "adverse claim" sufficient to
demonstrate subject matter jurisdiction over try title action);
Jepson v. Deutsche Bank Nat'l Trust Co., 969 F. Supp. 2d 202,
207 (D. Mass. 2013) (dismissing preforeclosure try title action
in accordance with Lemelson, while noting as persuasive
conflicting conclusion reached in Varian decision).
     13
       As noted in Bevilacqua, 460 Mass. at 766 n.3, the "try
title statute may now be something of an anachronism" when
considered in light of modern statutes that allow a landowner to
bring various actions to determine title. The statute is still
in effect, however, and we therefore analyze the contours of a
try title action in light of the subsequently enacted
Massachusetts Rules of Civil Procedure.
                                                                    11


quiet title).    A try title action is an action at law14 brought

by a person in possession of property and who claims to hold

"record title" clouded by an actual or possible adverse claim.15

Bevilacqua, 460 Mass. at 766, 767 n.5.    The Land Court has

exclusive original jurisdiction over try title actions, which,

as we have noted, involve two steps.    G. L. c. 185, § 1 (d).     A

petitioner must establish three jurisdictional elements in the

"first step" of a try title action:    (1) that he holds "record

title" to the property; (2) that he is a person "in possession";

and (3) the existence of an actual or possible "adverse claim"

     14
       In comparison, an action to quiet title, G. L. c. 240,
§ 10, is an in rem action brought under the court's equity
jurisdiction. See Bevilacqua, 460 Mass. at 767 n.5, citing
G. L. c. 185, § 1 (k). See also First Baptist Church of Sharon
v. Harper, 191 Mass. 196, 209 (1906). The try title action, in
contrast, is based in law instead of equity and allows a
petitioner to defeat a potentially adverse claim through default
or by showing title that is merely superior to that of the
respondent. Bevilacqua, supra. A try title action, where the
petitioner sets forth a sufficient petition, places the burden
on the respondent either to bring an action to try title or to
disclaim his interest in the property. G. L. c. 240, § 3.
     15
          The relevant portion of G. L. c. 240, § 1, is as follows:

     "If the record title of land is clouded by an adverse
     claim, or by the possibility thereof, a person in
     possession of such land claiming an estate of freehold
     therein or an unexpired term of not less than ten years,
     and a person who by force of the covenants in a deed or
     otherwise may be liable in damages, if such claim should be
     sustained, may file a petition in the land court stating
     his interest, describing the land, the claims and the
     possible adverse claimants so far as known to him, and
     praying that such claimants may be summoned to show cause
     why they should not bring an action to try such claim."
                                                                    12


clouding the plaintiff's record title.16   Blanchard v. Lowell,

177 Mass. 501, 504 (1901) (jurisdictional facts are "[the

petitioner's] interest, a description of the premises, the

claims and the possible adverse claimants, so far as known").

The failure to satisfy all of the elements of G. L. c. 240,

§§ 1-5, nullifies the court's subject matter jurisdiction.

Bevilacqua, supra at 766, citing Riverbank Improvement Co. v.

Chapman, 224 Mass. 424, 425 (1916).    Standing is based on the

first two jurisdictional elements.    See Bevilacqua, supra.   If

these requirements are satisfied, the "second step" requires the

adverse claimant either to "disclaim the relevant interest in

the property or to bring an action to assert the claim in

question."   Id., citing G. L. c. 240, § 1.

     2.   Motions to dismiss in try title actions.   Abate's main

contention in this appeal flows from our prior case law

explaining the two steps of a try title action and noting that

the question who "has a better title . . . does not arise, and

is not to be determined in [the first step], but in the actions

which the respondents may be ordered to bring."    Blanchard, 177

Mass. at 504-505.   The rule that "better title" is to be

     16
       Abate's argument that only the first two elements are
required for jurisdiction is unavailing in light of the language
of the try title statute and our prior case law that also
requires an "adverse claim." See G. L. c. 240, § 1 (action may
be brought "[i]f the record title of land is clouded by an
adverse claim"); Blanchard, 177 Mass. at 504-505.
                                                                  13


determined in the second step, however, does not preclude

consideration of the issue presented in the defendants' motions

to dismiss.   At issue in the defendants' motions to dismiss was

the threshold question of jurisdiction, or more specifically

Abate's standing to bring the try title action.   Where, as here,

the determination of standing, and ultimately jurisdiction,

necessarily reaches and effectively negates the merits of a

petitioner's claim, the two-step procedure is not abrogated.

Indeed, dismissal of a try title petition for lack of standing

on a motion to dismiss is a procedural disposition we expressly

approved in Bevilacqua, 460 Mass. at 763-764.17   Standing may be

considered under either rule 12 (b) (1) or rule 12 (b) (6).

Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998).    As

a component of subject matter jurisdiction, a party may

challenge, or a judge may consider, sua sponte, standing under

rule 12 (b) (1) at any time.   See Mass. R. Civ. P. 12 (h) (3),


     17
       To the extent that Abate argues that the rules of civil
procedure do not apply to a try title action, we decline to
adopt that view. A try title action, like any other civil
action, is subject to the rules of civil procedure. See Mass.
R. Civ. P. 1, as amended, 450 Mass. 1403 (2008) (rules of civil
procedure apply to proceedings in Land Court); Mass. R. Civ. P.
81 (a) (1), as amended, 450 Mass. 1405 (2008) (rules applicable
to all proceedings not specifically excluded). See also G. L.
c. 185M, § 1 (d) (granting exclusive jurisdiction of try title
actions to Land Court). Although the try title action predates
the rules of civil procedure, we have never recognized an
exception for try title actions. Nor have we encountered a case
where a party claims such an exception.
                                                                     14


365 Mass. 754 (1974); Maxwell v. AIG Domestic Claims, Inc., 460

Mass. 91, 99-100 (2011).

    In Bevilacqua, 460 Mass. at 764, the judge was compelled to

act where he correctly perceived legal impediments to subject

matter jurisdiction and the respondent had not appeared to

challenge the issue.     Here, because standing is a requirement of

subject matter jurisdiction, that issue was properly considered

by the Land Court judge even though not expressly cited by the

respondents in their motions to dismiss.     As we indicated in

Bevilacqua, to the extent that subject matter jurisdiction

generally, or standing in particular, is raised by a respondent,

the judge may consider the issue by way of a motion to dismiss

under either rule 12 (b) (1) or rule 12 (b) (6).

    a.   Standard of review of a motion to dismiss in the "first

step" of a try title action.     In a typical case, a plaintiff is

required to prove jurisdictional facts if those facts are

challenged by an opposing party through evidence accompanying a

motion to dismiss.     Callahan v. First Congregational Church of

Haverhill, 441 Mass. 699, 710-711 (2004) ("factual challenge" to

subject matter jurisdiction, made through presentation of

extrapleadings material, "gives no presumptive weight to the

averments in the plaintiff's complaint, and requires the court

to address the merits of the jurisdictional claim by resolving

the factual disputes between the plaintiff and the defendants").
                                                                  15


In Bevilacqua, 460 Mass. at 764 n.2, we recognized some of the

difficulties of applying the procedure and standards of rule 12

(b) (1) or rule 12 (b) (6) to try title actions.   We noted, for

example, that it may be appropriate in try title actions to

place the burden on the petitioner to prove jurisdictional facts

even where the potentially adverse party does not challenge

jurisdictional facts because a property owner who has not

received notice of the action may "be forever barred from having

or enforcing any such [title] claim" after a default.     Id.,

quoting G. L. c. 240, § 2.   We recognized, on the other hand,

that requiring the petitioner to prove all jurisdictional facts

by a preponderance of the evidence standard might result in the

two steps of a try title petition being collapsed into one.18

Id.   We then observed that "it may be necessary to adopt a

unique standard of review in future try title actions."     Id.

      We now set forth the standard applicable to the

consideration of a motion to dismiss brought in the first step

of a try title action.   As previously discussed, a petitioner


      18
       The preponderance of the evidence standard is used in
other jurisdictional challenges. See Miller v. Miller, 448
Mass. 320, 328 (2007) ("in deciding motion to dismiss for lack
of personal jurisdiction, court has discretion to determine
personal jurisdiction by preponderance of evidence without
waiting for trial on merits"). See also McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (preponderance
of evidence standard appropriate for contested facts in subject
matter jurisdiction).
                                                                   16


must allege three jurisdictional elements in the first step of a

try title claim:   (1) record title, (2) possession, and (3) an

actual or possible adverse claim.    The jurisdictional facts

required for standing -- record title and possession -- are

subject to challenge through the introduction of other evidence

negating the petitioner's claim.    If the jurisdictional facts

required for standing are factually challenged by an adverse

party or by the court, the petitioner bears the burden to prove

those facts by a preponderance of the evidence.    Conversely,

allegations regarding the third jurisdictional fact, adverse

claim, are entitled to a presumption of truth regardless of a

factual challenge because determining the merits of an adverse

claim in the first step would compress the two-step structure of

the try title statute.   In this way, we harmonize the two-step

try title procedure with the traditional use of the rules of

civil procedure as a device for raising jurisdictional issues

before a court.

    This approach is also consistent with that taken in try

title actions before the rules of civil procedure were adopted.

This court has historically reviewed the factual accuracy of a

petitioner's claimed jurisdictional facts required for standing,

i.e., record title and possession -- but not necessarily the

third nonstanding jurisdictional fact, i.e., adverse claim, in

the first step of a try title action.    See Arnold v. Reed, 162
                                                                       17


Mass. 438, 440 (1894) (determining record title in first step of

try title action based on "examination of the records of the

Probate Court"), cited with approval in Bevilacqua, 460 Mass. at

769 n.6.   See also Blanchard, 177 Mass. at 505 (determining

possession in first step of try title action after review of

petitioner's testimony and respondents' competing arguments).

    In addition, our case law requires the plaintiff to bear

the burden of establishing sufficient facts on which

jurisdiction can be found.   See Droukas v. Divers Training

Academy, Inc., 375 Mass. 149, 151 (1978) (personal

jurisdiction).   See also Williams v. Episcopal Diocese of Mass.,

436 Mass. 574, 577 n.2 (2002) (subject matter jurisdiction).       In

Cepeda v. Kass, 62 Mass. App. Ct. 732, 736-738 (2004), the

Appeals Court held that a reviewing court shall accept as true

all prima facie evidence of personal jurisdiction unless

contradictory evidence is introduced, in which case the

plaintiff must "establish jurisdiction by a preponderance of the

evidence at an evidentiary hearing or at trial."     As with

personal jurisdiction, a judge has discretion to hold a hearing

prior to trial to determine subject matter jurisdiction.       Mass.

R. Civ. P. 12 (d), as amended, 451 Mass. 1401 (2008).

Similarly, there is no impediment to a judge holding a hearing

to determine the accuracy of alleged jurisdictional facts in the

first step of a try title action.   If a judge holds a hearing to
                                                                   18


determine the facts necessary for the petitioner to establish

record title and possession in the first step of a try title

action, the petitioner is required to establish those elements

by a preponderance of the evidence standard.19

     Although the judge's decision ostensibly resolved the

respondents' claim that the petition failed to state a claim

under rule 12 (b) (6), the issue before the judge was

essentially a challenge to subject matter jurisdiction or, more

specifically, Abate's standing.    The respondents' challenge to

Abate's record title, based on their argument that the

assignment was indeed valid, was in effect a challenge to

Abate's standing.   We now address the judge's disposition of the

matter insofar as it rested on a determination that Abate failed

to demonstrate record title, which in turn resulted in a lack of

standing.

     b.   Abate's standing.20   Abate asserted that he held record

title and acknowledged his grant of a mortgage to MERS and the


     19
       Requiring the petitioner to establish record title and
possession by a preponderance of the evidence satisfies the
"Brooklyn Bridge" problem identified in Bevilacqua, 460 Mass. at
770-771.
     20
       The respondents do not dispute that Abate is in fact in
possession of the property. There is therefore no dispute that
he satisfies the second requirement of standing to maintain a
try title action, i.e., that he be a "person in possession."
G. L. c. 240, § 1.
                                                                  19


purported assignment of that mortgage to Deutsche Bank.     Without

acknowledging in his petition that Deutsche Bank had already

foreclosed on the mortgage, Abate merely claimed that the

assignment was invalid.   Deutsche Bank responded in its motion

to dismiss that it had foreclosed on Abate's equity of

redemption under the mortgage, thus challenging Abate's claim of

record title.   Abate did not dispute that Deutsche Bank

purported to foreclose on Abate's equity of redemption prior to

Abate filing his try title action.21   The judge concluded that

Abate lacked record title based on the absence of any viable

claim that the mortgage assignment, and by extension the

subsequent foreclosure, was invalid.

     Although it is correct that "better title" is typically

determined in the second step of a try title action if the

petitioner sufficiently alleges all jurisdictional facts, a try

title action brought by a mortgagor against a foreclosing

mortgagee may sometimes require a determination of better title

     21
       Although the foreclosure deed was not recorded before
Abate filed his try title action, it was recorded before the
judge issued the order dismissing Abate's complaint. The
foreclosure deed was not produced as part of the record, but we
may take judicial notice of the deed where Abate did not contest
the occurrence of the foreclosure auction. See Mass. G. Evid.
§ 201(b)(2) (2014). Judicial notice may be taken by a trial
court or an appellate court. Commonwealth v. Grinkley, 44 Mass.
App. Ct. 62, 69 n.9 (1997). The foreclosure deed was not a
necessary requirement to finding the absence of record title,
but its presence on record prior to disposition of this case
further supports the conclusion that Abate lacked record title.
                                                                  20


in the first step.   In circumstances such as this, where the

mortgagor's claim of record title is predicated on a

determination that a foreclosure auction held by a mortgagee was

void because of a flaw in the mortgagee's chain of title, the

petitioner must demonstrate "better title" than the mortgagee in

order to show that the foreclosure was invalid and, thus, that

the mortgagor retained title after the foreclosure auction

occurred.   If a valid foreclosure did not occur, the mortgagor

and mortgagee have complementary claims to title; however, a

valid foreclosure terminates a mortgagor's claim of title.22

Bevilacqua, 460 Mass. at 775 ("a mortgage, by its nature,

necessarily implies the simultaneous existence of two separate

but complementary claims to the property that do not survive the

mortgage or each other").    See Blanchard, 177 Mass. at 504-505.

Under Massachusetts law, which subscribes to the "title theory"

for mortgages, the title interests are split between the

mortgagor and mortgagee.    The legal "'title' to the mortgaged

real estate remains in the mortgagee until the mortgage is

satisfied or foreclosed."    Faneuil Investors Group, Ltd.

Partnership v. Selectmen of Dennis, 458 Mass. 1, 6 (2010),

     22
       A petitioner may hold record title without having good
title or may have good title without record title. See Arnold
v. Reed, 162 Mass. 438, 440 (1894) (noting that forged deed
creates record title but not good title and that adverse
possession and deed executed through unrecorded power of
attorney create good title, but not record title).
                                                                  21


quoting Restatement (Third) of Property (Mortgages) § 4.1

comment a (1997).    Equitable title remains in the mortgagor.

Bevilacqua, supra at 774.    See Eaton v. Federal Nat'l Mtge.

Ass'n, 462 Mass. 569, 575-576 (2012) (collecting cases and

discussing common-law roots of separation of legal and equitable

title between mortgagor and mortgagee); U.S. Bank Nat'l Ass'n v.

Ibanez, 458 Mass. 637, 649 (2011).

     Because Abate asserted that he granted a mortgage to MERS

and did not dispute that Deutsche Bank, MERS's purported

assignee, foreclosed Abate's equitable title under the mortgage,

the judge was required to determine whether the assignment, and

thus the foreclosure auction, was valid in order to determine

whether Abate had the record title necessary to survive the

first step of a try title action.    In so doing, the judge

reviewed the merits of each legal argument alleged by Abate to

support his claim that the assignment to Deutsche Bank was

invalid or void.23   As previously mentioned, Abate had the burden


     23
       Abate pleaded the following allegations in support of his
claim that the assignment was void or invalid: (1) the
assignment "fails to identify the principal that MERS was
purportedly acting for"; (2) MERS had no lawful authority from
Fremont to assign the mortgage; (3) lack of consideration; (4)
noncompliance with G. L. c. 183, § 6D, because the mortgage
broker and originator were not listed; (5) lack of MERS's
corporate seal; (6) the assignment violated the terms of the
Carrington trust; (7) the assignment was not lawfully executed
because the signatory allegedly did not sign in the presence of
the notary; (8) the signatory was not "duly authorized" to
                                                                     22


to prove record title after that jurisdictional fact was

challenged, and Abate failed to demonstrate that the assignment

was invalid for any of the reasons asserted in his petition.

Consequently, the judge determined that Abate failed to

demonstrate the record title required to maintain the action

because none of the alleged defects in the assignment could

withstand review under rule 12 (b) (1) and negate the validity

of the foreclosure.    The judge, therefore, dismissed the

petition against Deutsche Bank, Carrington, and MERS.

    Apart from his contention that the judge could not test the

sufficiency of his claims under rule 12 (b) (6), Abate does not

argue error in the judge's rulings on the merits of the

respondents' claims.   Abate's failure to address this issue on

appeal waives his right to appellate review of the judge's

ruling on the merits of the motions.     See Mass. R. A. P. 16 (a)

(4), as amended, 367 Mass. 921 (1975).    See also Galiastro v.

Mortgage Elec. Registration Sys., 467 Mass. 160, 174 (2014)

(claim waived where appellant made no appellate argument

concerning improper dismissal under rule 12 [b] [6]).

Accordingly, we need not, and therefore do not, decide whether

the judge properly concluded that none of the claimed



execute the assignment; (9) the signatory was an employee of
Carrington, not MERS; and (10) the assignment fraudulently
attempts to conceal the actual date of securitization.
                                                                    23


infirmities in the assignment plausibly sets forth any basis on

which the assignment could be found to be void or invalid.

     c.    The adverse claim element of jurisdiction.   Where we

have characterized the judge's decision as being premised on

Abate's lack of standing based on the lack of record title, the

remaining jurisdictional fact, adverse claim, has no bearing on

the outcome of this appeal.     It is undisputed that Abate filed

his try title petition after the foreclosure occurred, which

conclusively establishes the existence of an adverse claim.

Nonetheless, because the issue may arise in future try title

actions between a mortgagor and a mortgagee, we take this

opportunity to resolve the conflict in the Land Court try title

decisions on the adverse claim element of subject matter

jurisdiction.24   We conclude that where a mortgagor challenges

the right of the mortgagee to foreclose, the "adverse claim"

element of a try title action is sufficiently alleged only if

the foreclosure already has occurred.

     Our view that an adverse claim arises only after

foreclosure is dictated by application of well-settled mortgage

law principles to the jurisdictional requirement of an adverse

claim.    In this regard, the analysis in Bevilacqua, 460 Mass. at

776, where we held that "a necessary element of [a] try title


     24
          See note 12, supra.
                                                                     24


action [is] the existence of an adverse claim" is instructive.

As between a mortgagor and a mortgagee, the title interests are

not, as a matter of law, adverse.    Because a mortgagor and

mortgagee hold complementary claims of title, the law fashions a

relationship that is in equipoise, which stands until either the

mortgagor satisfies the debt or the mortgagee forecloses.      See

Bevilacqua, supra at 775, citing Negron v. Gordon, 373 Mass.

199, 205 n.4 (1977).   Following the logic of Bevilacqua, neither

is superior or inferior to the other.25

     Our conclusion that the requisite adverse claim does not

exist where a mortgagor challenges an impending foreclosure does

not, however, preclude a try title action in circumstances where

the very existence of a mortgage is called into question.      In

this regard, we recognize the continuing vitality of our holding

in Brewster v. Seeger, 173 Mass. 281, 282 (1899), where we

recognized the petitioner's right, under the try title statute,

to challenge an imminent foreclosure.     The petitioner alleged

record title, possession, and an adverse claim by the respondent

having entered to foreclose.   Id.   We reviewed the merits of the


     25
       Although the judge insisted that Abate demonstrate "a
claim of superior title," we do not interpret the statute to
require such a showing. A property owner need only show record
title to establish standing under the try title statute. As
discussed supra, however, in certain actions between a mortgagor
and purported mortgagee, a showing of record title may require a
determination of superior title.
                                                                     25


case and determined that the respondent had no legal right to

enter to foreclose.   Id. at 282-283.    Our holding in Brewster,

however, does not govern this case.     The result in Brewster is

explained by the fact that the petitioner's claim did not arise

from the mortgagor-mortgagee relationship.     To the contrary, the

petitioner claimed that the mortgage had been discharged and

that, therefore, it no longer existed.     Thus, the adverse claim

element alleged in Brewster rested on a completely different and

legally sustainable footing.   The rules regarding separate but

complementary title interests did not in that case preclude the

necessary showing of an adverse claim.    Where a try title action

is, as in Brewster, based on facts consistent with an adverse

claim as we have defined it here, or otherwise recognized in our

law, we leave it to the judge to determine the sufficiency of

the adverse claim allegation.26

     Fidelity to the requirement of an adverse claim does not

place unreasonable or unnecessary limits on the remedies

available to a property owner seeking to prevent the obvious

harm that may result when a foreclosure proceeds without

challenge.   We are mindful that in Massachusetts, a nonjudicial

foreclosure State, a mortgagee may foreclose without prior

     26
       We do not think that the facts in the Varian case, see
note 12, supra, meet this test inasmuch as the existence of the
mortgage was not in dispute. The petitioners argued only that
the respondents did not hold the mortgage.
                                                                    26


judicial intervention.    As we have noted, however, a property

owner has other, and perhaps more suitable, remedies available

to him or her.   See, e.g., G. L. c. 231A, §§ 1-9 (declaratory

judgment); G. L. c. 240, §§ 6-10 (action to quiet title); Mass.

R. Civ. P. 65, 365 Mass. 832 (1974) (injunction as remedy).       In

addition, a property owner in a foreclosure is protected by our

requirement of strict adherence to the law in each of the

nonjudicial foreclosure procedures available to a mortgagee.

See, e.g., Eaton, 462 Mass. at 571 (foreclosure sale conducted

pursuant to power of sale must comply with all applicable

statutory provisions); U.S. Bank Nat'l Ass'n, 458 Mass. at 646-

647 (failure to comply strictly with power of sale renders

foreclosure sale void).    We discern no prejudice to a party's

rights under this interpretation of the try title statute.27

     3.   Dismissal with prejudice.   The Land Court judge

dismissed Abate's complaint against Deutsche Bank, Carrington,

and MERS with prejudice.    As noted supra, the judge's dismissal

was essentially based on Abate's failure to meet one of three

threshold jurisdictional requirements for a try title action,

namely, the standing requirement of record title.    Mass. R. Civ.


     27
       We are cognizant of the concerns expressed by the court
in Jepson, 969 F. Supp. 2d at 207. However, as we have already
said, a petitioner challenging a mortgage foreclosure may seek
the available and adequate remedies available in other
procedures.
                                                                     27


P. 12 (h) (3).     Dismissals for lack of subject matter

jurisdiction are ordinarily without prejudice because dismissal

for lack of jurisdiction is typically not an adjudication on the

merits.     See Bevilacqua, 460 Mass. at 780, citing Mass. R. Civ.

P. 41 (b) (3), as amended, 454 Mass. 1403 (2009).     In this case,

however, as we have explained, the judge correctly considered

the merits of Abate's claims as a necessary step in determining

the absence of his record title.     Accordingly, dismissal with

prejudice was proper.

    Conclusion.     The judgment dismissing Abate's petition

against Deutsche Bank, Carrington, and MERS with prejudice is

affirmed.

                                      So ordered.
