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17-P-1518                                            Appeals Court

 PROPERTY ACQUISITION GROUP, LLC vs. KENNETH IVESTER, THIRD, &
                another1 (and a companion case2).


                           No. 17-P-1518.

          Essex.     September 11, 2018. - April 18, 2019.

                Present:   Vuono, Agnes, & Henry, JJ.


Mortgage, Foreclosure. Real Property, Mortgage, Bona fide
     purchaser. Appraisal. Damages. Bona Fide Purchaser.
     Summary Process. Practice, Civil, Summary judgment,
     Summary process.



     Civil action commenced in the Superior Court Department on
January 19, 2016.

     The case was heard by James F. Lang, J., on motions for
summary judgment.

     Summary process. Complaint filed in the Peabody Division
of the District Court Department on March 7, 2016.

     After transfer to the Northeast Division of the Housing
Court Department, the case was heard by Timothy F. Sullivan, J.,
on a motion for summary judgment.


     1   Susan Ivester.

     2 Kenneth R. Ivester, Third, & another    vs.   Federal
National Mortgage Association & another.
                                                                 2



     Kristin L. Thurbide (Josef C. Culik also present) for
Kenneth Ivester, III, & another.
     Brady Hermann for Federal National Mortgage Association.
     Edward J. Fallman for Property Acquisition Group, LLC.


    HENRY, J.   The primary issue in this case is whether the

mortgagee, Federal National Mortgage Association (Fannie Mae),

exercised good faith and reasonable diligence to protect the

interests of the mortgagors, Kenneth Ivester and Susan Ivester

(Ivesters), by obtaining the highest possible price at an

auction sale.   We hold that on this summary judgment record,

which contains evidence of an inadequate price as well as

evidence that Fannie Mae (1) failed to take any steps to

determine the current fair market value of the property before

the auction sale and (2) did not take any steps other than

compliance with statutory mandates, the mortgagors raised

material disputes of fact as to whether the mortgagee complied

with its duty to exercise good faith and reasonable diligence.

    1.   Background.   These consolidated cases arise from the

foreclosure of the Ivesters' property.   The winning bidder at

that foreclosure auction was Property Acquisition Group, LLC

(PAG).   The Ivesters appeal from a Superior Court judgment

dismissing their claim that the mortgagee, Fannie Mae, did not

exercise good faith and reasonable diligence in conducting the

foreclosure sale.   That appeal has been consolidated with the
                                                                   3


Ivesters' appeal from the amended judgment entered against them

on PAG's summary process action in the Housing Court.     Both

cases were resolved against the Ivesters on summary judgment.

We summarize the undisputed facts drawn from the summary

judgment record; to the extent the record includes disputed

evidence, we consider that evidence in the light most favorable

to the Ivesters, against whom summary judgment entered.    See

Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215

(2003).

     a.   Purchase, mortgage, and foreclosure.   The Ivesters

purchased the property located at 245 Salem Street, Lynnfield

(property) for $399,000 in October, 2003.   They refinanced in

2006 with a $302,000 loan from CitiMortgage, Inc., secured by a

mortgage on the property, and a second loan for $50,000 from

Citibank Federal Savings Bank.3

     The Ivesters admit that they stopped making payments on

their $302,000 loan in 2013 and that, as of July, 2015, were in

arrears in the amount of $65,228.38.   They also concede that

Fannie Mae, the assignee of the mortgage, was both authorized

and justified in exercising its right under the mortgage to sell

the property for nonpayment and that Fannie Mae satisfied all of




     3 No issues pertaining to the second loan have been raised
in this appeal.
                                                                    4


the statutory requirements pertaining to foreclosure by sale

contained in G. L. c. 244, §§ 11-17B.4

     On behalf of PAG, Richard Damiano attended the foreclosure

auction, which was conducted by Fannie Mae's agent.5   The opening

bid price was set at $329,000.    Damiano and two other bidders

entered bids.   Damiano's bid prevailed at $355,000, and the

foreclosure deed was recorded on January 8, 2016.

     b.   Property description.   The property consists of 4.57

acres, approximately 103,000 square feet (2.36 acres) of which

is buildable.   At the time of the foreclosure auction, the

property was improved with a single family home.    The Ivesters

contend that facts existed that might have alerted Fannie Mae

and did alert bidders to the development potential of the

property.   At the time of the foreclosure, local zoning bylaws

required 30,000 square feet per lot and continuous frontage of

150 feet.   Although the property had only noncontinuous frontage


     4 On October 14, 2015, Fannie Mae gave the required notice
to the Ivesters that a foreclosure sale would be conducted by
auction on November 13, 2015. In addition, for three
consecutive weeks, Fannie Mae advertised the foreclosure sale in
the Lynn Daily Evening Item, a newspaper with a general
circulation in Lynnfield.

     5 There is a dispute of fact as to the number of registered
bidders present at the auction, fueled in part by Fannie Mae's
refusal to answer an interrogatory requesting the identity of
all persons who attended. While those individuals may have
discoverable information, this dispute is not material to our
decision.
                                                                   5


of 143.41 feet and 42.26 feet on Salem Street, the Ivesters

contend that installation of a new road could open the property

to further development, as demonstrated by conceptual plans

created for PAG shortly after it acquired the property.

Moreover, while the property is located in a single-family

residential district, there are restaurants and businesses in

the immediate neighborhood, including adjacent to the property.

The property, however, does contain wetlands, and any

development proposals likely would require an order of

conditions from the Lynnfield conservation commission.

    c.   Value of the property.   The parties dispute the fair

market value of the property at the time of the auction.     Fannie

Mae admits it did not obtain any appraisals, evaluations, or

expert opinions to determine the value of the property prior to

the auction.   Fannie Mae did not answer an interrogatory asking

what amount it had authorized as the starting bid for the

foreclosure auction.   The record does not otherwise reflect how

Fannie Mae or its auctioneer valued the property or arrived at a

minimum or opening bid for the auction.   Indeed, Fannie Mae

answered interrogatories inquiring as to "every effort [Fannie

Mae] engaged in . . . to determine the . . . fair market value"

of the property prior to the foreclosure auction by stating only
                                                                    6


that it did not obtain any appraisals.6   In response to an

interrogatory inquiring as to each action that would demonstrate

reasonable diligence to protect the interests of its mortgagors,

Fannie Mae answered, in relevant part, that "after providing the

required notices to Plaintiffs, a foreclosure auction was held

on November 13, 2015 and the . . . [p]roperty was sold to PAG

for $355,000."   There is no suggestion in the record that Fannie

Mae considered the property's development potential in

establishing the opening bid or in advertising the property for

auction.

     Fannie Mae's discovery responses do not suggest it was

aware of or relied on the property's 2015 assessed value for tax

purposes (assessed value).   On appeal, however, Fannie Mae

relies on the property's 2015 assessed value, which was

$361,900.   The Ivesters and PAG rely on appraisals valuing the

property as of the date of the auction.   The Ivesters' expert

appraised the property at $975,000,7 and PAG submitted an expert




     6 In an interrogatory, the Ivesters asked Fannie Mae to
describe generally its policies and procedures for conducting
foreclosure auctions, including how Fannie Mae determines the
fair market value of a property and its starting bid amount.
Fannie Mae, after stating its objections, referred to Fannie Mae
guidelines "available on the internet," without offering a
specific website or other identifying features.

     7 In addition, the Ivesters submitted a market valuation of
$900,000, dated the day they brought suit against Fannie Mae.
This valuation did not indicate that it reflected the value on
                                                                   7


appraisal valuing the property at $385,000.   All of the

valuations concluded that the highest and best use of the

property was as vacant land, developable into two to four single

family residences.

     d.   Litigation.   The Ivesters commenced this action in

Superior Court.   In count I of their amended complaint, they

asserted that Fannie Mae failed to act in good faith and use

reasonable diligence to protect the Ivesters' interests; in

count III they sought a declaration that the foreclosure sale

was invalid and that they have superior title to PAG; and in

count IV, they asserted that Fannie Mae violated G. L. c. 93A.8

A Superior Court judge allowed separate motions for summary

judgment brought by Fannie Mae and PAG.   The judge concluded

that Fannie Mae was entitled to summary judgment because the

Ivesters had not put forth sufficient evidence to meet their

burden of proving that Fannie Mae breached its duty to exercise

good faith and reasonable diligence to protect the Ivesters'

interests in the foreclosure sale of the property.   The judge

reasoned that, "in setting its initial foreclosure bid price,"




the date of the auction. It does not appear that the Superior
Court judge considered this valuation.

     8 The Ivesters have not appealed from the dismissal of count
II, which asserted that Fannie Mae failed to comply with the
requirements of G. L. c. 244, § 15A.
                                                                    8


Fannie Mae had no obligation "to consider anything other than

the value of the property as it was presently zoned and used."

The judge also concluded that PAG was entitled to summary

judgment because it was a bona fide purchaser for value that had

no knowledge of any potential title infirmity.

     After PAG took title, it commenced a summary process action

against the Ivesters in the Housing Court.     That action was

stayed until judgment entered in the Superior Court case.

Ultimately, the Housing Court judge vacated the stay of PAG's

summary process action and entered judgment for possession in

favor of PAG.9   We consolidated the appeals from both judgments.

     2.   Discussion.   a.   The Superior Court judgment.   The

Ivesters argue that summary judgment was erroneously granted to

Fannie Mae because it failed to exercise good faith and

reasonable diligence in conducting the foreclosure sale.

     i.   Foreclosure standards.   "[T]he power of sale [in a

foreclosure] is a substantial power that permits a mortgagee to

foreclose without judicial oversight . . . [and] is to be




     9 In an amended judgment, the Housing Court also ordered the
Ivesters to pay $29,750 in damages, comprised of a monthly use
and occupation fee agreed to by the parties and paid by the
Ivesters to their attorney in escrow while the actions were
pending. With interest, fees, and costs, the Ivesters were
ordered to pay $35,349. The Ivesters make no argument as to the
damages award against them and have waived any argument as to
that award.
                                                                     9


exercised with careful regard to the interests of the mortgagor"

(quotations and citations omitted).     Federal Nat'l Mtge. Ass'n

v. Marroquin, 477 Mass. 82, 86 (2017).     "It has become

elementary by repeated decisions that a mortgagee attempting to

execute a power of sale contained in a mortgage must exercise

good faith and use reasonable diligence to protect the interests

of the mortgagor or of the one holding the title to the equity

of redemption."     Krassin v. Moskowitz, 275 Mass. 80, 82 (1931).

See Pehoviak v. Deutsche Bank Nat'l Trust Co., 85 Mass. App. Ct.

56, 61-62 (2014).     The duty to exercise good faith and

reasonable diligence is not met by "a mere literal compliance

with the terms of the power [of sale]" or with the requirements

of G. L. c. 244, § 14.     Pehoviak, supra at 61, quoting Cambridge

Sav. Bank v. Cronin, 289 Mass. 379, 382 (1935).     "Therefore,

compliance with G. L. c. 244, § 14, and the duty to act with

good faith and reasonable diligence are two distinct issues."

Pehoviak, supra.

    The mortgagee must "get for the property as much as it can

reasonably be made to bring . . . [and] do what a reasonable

[person] would be expected to do to accomplish that result."

Clark v. Simmons, 150 Mass. 357, 360 (1890).    See Williams v.
                                                                       10


Resolution GGF Oy, 417 Mass. 377, 383 (1994).10      It is equally

well settled, however, that mere inadequacy of a foreclosure

sale price, alone, does not necessarily prove an absence of good

faith or reasonable diligence.    See Sher v. South Shore Nat'l

Bank, 360 Mass. 400, 402 (1971).     See also Seppala & Aho Constr.

Co. v. Petersen, 373 Mass. 316, 328 (1977).       There are any

number of reasons that a foreclosure sale might bring a price

below the fair market value.     "[I]nadequacy of price," however,

may "be considered in connection with other evidence to support

a finding of fraud," or, in this case, lack of reasonable

diligence (citations omitted).     Id.    See Union Mkt. Nat'l Bank

v. Derderian, 318 Mass. 578, 582 (1945).

     ii.   Good faith and reasonable diligence.      At trial, the

Ivesters would have the burden to prove that Fannie Mae failed

to exercise good faith and reasonable diligence to protect the

interests of the mortgagors.     See West Roxbury Coop. Bank v.

Bowser, 324 Mass. 489, 492 (1949).       Accordingly, for Fannie Mae

to successfully move for summary judgment, it could meet its

burden by either affirmatively negating an essential element of

the Ivesters' claim or by showing that they had no reasonable

expectation of proving an essential element of their case at


     10For example, if a reasonable person would adjourn a sale
because of an absence of bidders or other reasons, a mortgagee
must do so. Clark, 150 Mass. at 360.
                                                                   11


trial.   See Kourouvacilis v. General Motors Corp., 410 Mass.

706, 716 (1991).

    In an effort to meet their burden, the Ivesters sought

discovery to determine what steps Fannie Mae took to protect the

Ivesters' interests in the foreclosure sale.   Aside from

compliance with the statutory mandates, which our cases have

established is insufficient to satisfy a mortgagee's duty of

good faith and reasonable diligence, see Pehoviak, 85 Mass. App.

Ct. at 61-62, discovery revealed that, strikingly, Fannie Mae

did nothing.

    Where Massachusetts statutory and case law allows

foreclosure sales without judicial oversight, see Marroquin, 477

Mass. at 86, citing Pinti v. Emigrant Mtge. Co., 472 Mass. 226,

232-233 (2015); G. L. c. 183, § 21; G. L. c. 244, §§ 1, 14, it

is imperative that the foreclosing mortgagee know or ensure that

efforts are taken to ascertain the value of the property prior

to sale in order to protect the interests of the mortgagor.

Compare Price v. Bassett, 168 Mass. 598, 600-601 (1897) (sale by

life tenant).   Awareness of the fair market value of the

property factors into decisions such as establishing an opening

bid or even whether to postpone an auction to protect the

interests of the mortgagor.   Indeed, the Supreme Judicial Court

as long ago as 1897 held that a party owing a duty of good faith

and reasonable diligence to another in the sale of property
                                                                     12


violates that duty by selling the property at an inadequate

price without having made any effort to determine "whether the

price for which she sold was reasonable, or was the fair market

value, or whether she could get more."    Id. at 601.11   See Edry

v. Rhode Island Hosp. Trust Nat'l Bank, 201 B.R. 604, 607-608

(D. Mass. 1996) (Bankruptcy Court judge concluded that bank did

not make good faith, diligent effort to protect interests of

debtor where foreclosure sale price was forty-five percent of

fair market value and bank made no effort to ascertain fair

market value of property or enhance bidding and chose to give

only "bare notice required by statute" despite common practice

to use larger, more detailed "display ads" in real estate

section).   See also Strayton v. Champion Mtge., 360 B.R. 8, 10-

11 (D. Mass. 2007) (where mortgagee failed to conduct marketing,

obtain current appraisal, contact a real estate broker for

valuation or market information, or seek permission for property

inspection by interested parties, Bankruptcy Court judge

rejected what he characterized as "somewhat lordly 'custom and

practice' defense" [citation omitted]).    Here, by its own




    11 Price involved the rights of a remainderman where a party
with a life estate (Price) had permission to sell the property
for her own maintenance and support. The duty Price owed the
remainderman is the same that a mortgagee owes a mortgagor: a
duty of good faith and reasonable diligence. See Price, 168
Mass. at 600-601.
                                                                     13


admission, Fannie Mae took no steps to determine the fair market

value of the property before the auction.   No diligence is not

reasonable diligence.

    Fannie Mae insists that a mortgagee has no duty to obtain

an expert appraisal for every foreclosure sale.     It may well be

that a mortgagee may determine the fair market value of a

property by using reasonably reliable sources other than a

formal real estate appraisal.   We hold only that prior to

conducting a foreclosure sale, the mortgagee must in some way

ascertain the fair market value of the property in order to

satisfy its duty of good faith and reasonable diligence in

selling the property.

    While Fannie Mae does not contend it either was aware of or

relied on the assessed value of the property for tax purposes

prior to the foreclosure auction, Fannie Mae argues nonetheless

that it satisfied its duty because the auction concluded in a

sale price within $6,900 of that assessed value.    However, the

Ivesters, by offering evidence of a substantially higher

property value, have raised a material dispute of fact as to

whether the assessed value accurately reflected the fair market

value.   See WB&T Mtge. Co. v. Board of Assessors of Boston, 451

Mass. 716, 726 (2008) (although "[t]ax assessors are obliged to

. . . assess all real property at its full and fair cash value,

. . . that determination is inherently inexact").
                                                                   14


     The duty of the mortgagee is to do what a reasonable person

would do to achieve the highest price possible to protect the

interests of the mortgagor.   When reasonable efforts to value

the property reveal potential for development that could enhance

the price of the property, the mortgagee should consider that

potential and share it with prospective bidders.    For example,

in the context of determining fair market value for purposes of

ascertaining damages in eminent domain cases, it is well settled

that it is proper to consider potential uses of land a

reasonable buyer would find significant in deciding how much to

pay for a property.    See Rodman v. Commonwealth, 86 Mass. App.

Ct. 500, 506 (2014).   "Because the determination of fair market

value is based on what a reasonable buyer would believe the

property to be worth, the highest and best use of the property

is not limited to the present use . . . but includes potential

uses of land that a reasonable buyer would consider significant

in deciding how much to pay."   Boston Edison Co. v.

Massachusetts Water Resources Auth., 459 Mass. 724, 731 (2011).12




     12We acknowledge that "undeveloped properties are [not to
be] valued as if the reasonably likely future uses already
exist. Nor is the fact that potential uses may be considered a
license to speculate as to improbable future uses. Potential
uses must be 'reasonably likely' to be considered and 'discounts
for the likelihood of their being realized and for their
futurity' are applied" (citation omitted). Rodman, 86 Mass.
App. Ct. at 505.
                                                                  15


While the experts in this case disagreed as to whether the

property is dividable into two, three, or more lots, they all

agreed that the highest and best use of the foreclosed property

is as vacant land to be developed.

    Finally, while it is true that in Pemstein v. Stimpson, 36

Mass. App. Ct. 283, 287 (1994), this court held that the

mortgagee's fiduciary duty to the mortgagor is not violated

unless the failure of diligence is "of an active and conspicuous

character," we have no difficulty concluding that the Ivesters

have demonstrated that there is a material dispute of fact as to

whether that criterion was satisfied here.   In this case,

viewing the evidence in the light most favorable to the

Ivesters, where evidence of a marked disparity between the fair

market value and the price obtained at the foreclosure sale is

combined with Fannie Mae's own admission that it (1) made no

effort to ascertain the fair market value of the property prior

to the foreclosure auction, (2) did not consider the development

potential of the property or share that potential with potential

bidders or in advertising, and (3) took no action that went

beyond mere compliance with the statutory mandates, we conclude

that the Ivesters have presented sufficient evidence to defeat

Fannie Mae's motion for summary judgment on the Ivesters' claim
                                                                   16


that Fannie Mae failed to exercise good faith and reasonable

diligence.13

     iii.   Damages.   Although the Ivesters' complaint sought a

declaration that the foreclosure sale is void (see part iv,

infra), it also contained a claim for money damages.   It will be

for the trier of fact to determine whether the Ivesters were

damaged by any breach of duty by Fannie Mae.   As noted above,

the Ivesters have raised a dispute of material fact as to the

value of the property at the time of the foreclosure sale and

whether they suffered damages from any lack of good faith and

reasonable diligence in Fannie Mae's exercise of the power of

sale.14   If the Ivesters prove at trial that Fannie Mae breached

its duty to exercise good faith and reasonable diligence, the




     13During oral argument, counsel for Fannie Mae suggested
that Fannie Mae relied on the auctioneer to set the opening bid,
but that assertion is not supported by the summary judgment
record. Moreover, the summary judgment record does not reveal
how the auctioneer set the opening bid. In any event, that
Fannie Mae relied on an agent does not absolve Fannie Mae from
liability. See Merrimack College v. KPMG LLP, 480 Mass. 614,
619-621 (2018) (principal vicariously liable for agent's
negligence). We do not hold that the opening bid must equal the
mortgagee's views regarding the actual value of the property.

     14While Fannie Mae points to flaws in the Ivesters'
experts' analyses, it did not move to strike the appraisals.     In
the absence of a motion to strike, there was no error in the
judge's discretionary decision not to excise the appraisal
valuing the property at $975,000 at the time of foreclosure.
See Baptiste v. Sheriff of Bristol County, 35 Mass. App. Ct.
119, 126 (1993).
                                                                 17


correct measure of damages will not be the difference between

the fair market value and the price obtained at auction; that

measure fails to account for the fact that the sale was

conducted in the context of a foreclosure.   Instead, the measure

of damages must discount the fair market value to account for

the fact that the sale was a foreclosure sale.   See Seppala &

Aho Constr. Co., 373 Mass. at 328, quoting Austin v. Hatch, 159

Mass. 198, 199 (1893) ("It is a notorious fact that, when land

is sold by auction under a power contained in a mortgage, it

seldom, if ever, brings a price which reaches its real value").

The correct measure of damages, therefore, will be the

difference between what the property would have brought at

auction had the mortgagee met its duty of good faith and

reasonable diligence and what the property brought at the

auction Fannie Mae held.

    iv.   Bona fide purchaser/superior title.    We agree with the

Superior Court judge that the summary judgment record does not

support the Ivesters' claim that they have superior title to PAG

because PAG is not a bona fide purchaser for value.   This action

was commenced after the sale to PAG had been completed and the

foreclosure deed had been recorded.   The Ivesters have not come

forward with any evidence that PAG knew or should have known of

Fannie Mae's alleged failure to exercise good faith and

reasonable diligence.   The Ivesters' suggestion that PAG was
                                                                  18


sophisticated enough to know that the fair market value of the

property was substantially higher than the foreclosure price

does not mean PAG was aware or should have been aware that

Fannie Mae had failed to exercise good faith and reasonable

diligence in conducting the foreclosure sale.15   Our cases are

replete with instances in which foreclosure sales substantially

below fair market value have been upheld.   See Pehoviak, 85

Mass. App. Ct. at 62, quoting Sher, 360 Mass. at 402 ("mere

inadequacy of price alone does not necessarily show bad faith or

lack of due diligence").   PAG had no duty to the Ivesters to pay

a higher price for the property even if it suspected the price

it paid was below market value.

     Moreover, even if Fannie Mae failed to exercise good faith

and reasonable diligence, its lapses did not affect its right to

foreclose or impair the Ivesters' knowledge of the foreclosure

sale or their right to redeem or otherwise participate in the

foreclosure sale.   "[I]f everything is done upon which


     15While Edry and Strayton support the Ivesters' theory that
Fannie Mae failed to exercise good faith and reasonable
diligence, as to the rights of PAG, those cases are
distinguishable because the foreclosure sales were never
completed and the rights of a bona fide purchaser were not at
issue. In Edry, the highest bidder was not a purchaser because
he had not completed the sale and he was a sophisticated party
who knew of the mortagee's departure from custom. Edry, 201
B.R. at 608. In Strayton, a preliminary injunction prevented
the mortgagee from completing its previously commenced
foreclosure sale. Strayton, 360 B.R. at 10.
                                                                    19


jurisdiction and authority to make a sale depend, irregularities

in the manner of doing it . . . which may affect injuriously the

rights of the mortgagor, do not necessarily render the sale a

nullity" (citation omitted).   Pinti, 472 Mass. at 241.     Here,

the foreclosure sale is voidable, not void, and PAG's title

cannot be disturbed.   See Bevilacqua v. Rodriguez, 460 Mass.

762, 778 (2011).    Accordingly, the Superior Court judge

correctly granted summary judgment to PAG on count III of the

amended complaint, which asserted the Ivesters' claim of

superior title.16

     b.   The Housing Court judgment.   The only argument the

Ivesters make regarding the Housing Court action is that the

judge erred in vacating a stay of the summary process action

upon entry of judgment against the Ivesters in Superior Court.

     "An appellant seeking a stay pending appeal must ordinarily

meet four tests:    (1) the likelihood of appellant's success on

the merits; (2) the likelihood of irreparable harm to appellant

if the court denies the stay; (3) the absence of substantial

harm to other parties if the stay issues; and (4) the absence of




     16Although we affirm the court's disposition on count III
of the amended complaint (for declaratory judgment), on remand
the judgment must be amended to declare the rights of the
parties. See McDermott v. Watertown Hous. Auth., 25 Mass. App.
Ct. 995, 996 (1988), citing Boston v. Massachusetts Bay Transp.
Auth., 373 Mass. 819, 829 (1977).
                                                                    20


harm to the public interest from granting the stay" (citation

omitted).   C.E. v. J.E., 472 Mass. 1016, 1017 (2015).    The

Ivesters have shown no likelihood of irreparable harm because

even if they are successful in their Superior Court action, they

cannot regain title to or possession of their property.    Should

judgment enter in favor of the Ivesters in the Superior Court,

they can be made whole by money damages.    We therefore discern

no error in the Housing Court judge's decision to vacate the

stay of the summary process action.

     3.   Conclusion.   The amended judgment of the Housing Court

is affirmed.   So much of the Superior Court judgment as entered

judgment in Fannie Mae's favor on counts I and IV of the amended

complaint is vacated.17   In all other respects, the judgment is

affirmed, and the matter is remanded to the Superior Court for

further proceedings consistent with this opinion.

                                      So ordered.




     17The Superior Court judge granted summary judgment on
count IV of the amended complaint, the c. 93A claim, on the
basis that it was "anchored to [count I, Fannie Mae]'s alleged
breach of the duty of good faith and reasonable diligence."
Having reinstated count I of the amended complaint, we likewise
reinstate the c. 93A claim. We express no opinion on the merits
of a c. 93A claim in these circumstances.
