          United States Court of Appeals
                        For the First Circuit

No. 12-2275

                  REV. FR. EMMANUEL LEMELSON, f/k/a
                Gregory M. Lemelson; ANJEZA LEMELSON,

                       Plaintiffs, Appellants,

                                  v.

               U.S. BANK NATIONAL ASSOCIATION, Trustee,

                         Defendant, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                Before

                         Lynch, Chief Judge,
                 Howard and Kayatta, Circuit Judges.


     James T. Ranney for appellants.
     Peter Francis Carr, II, with whom Eckert Seamans Cherin &
Mellott, LLC, was on brief, for appellee.



                             July 1, 2013
           LYNCH, Chief Judge.            Petitioners Gregory and Anjeza

Lemelson filed this action under the Massachusetts try title

statute,   Mass.   Gen.    Laws   ch.    240,   §§   1-5,   seeking   an   order

invalidating a March 2011 assignment of the mortgage loan on their

Southborough, Massachusetts home to defendant U.S. Bank National

Association ("U.S. Bank"), and enjoining U.S. Bank from commencing

foreclosure proceedings pursuant to that assignment. The Lemelsons

have not made a mortgage payment since April 2010.

           After removing the action to federal court, U.S. Bank

moved to dismiss the complaint, pursuant to Fed. R. Civ. P.

12(b)(6), for failure to state a claim under the try title statute,

which the district court granted.               The dismissal was without

prejudice.   See Lemelson v. U.S. Bank Nat'l Ass'n, Civ. No. 12-

10677-PBS, 2012 WL 4527527, at *2 (D. Mass. Sept. 28, 2012).

Relying primarily on the decision of the Supreme Judicial Court of

Massachusetts ("SJC") in Bevilacqua v. Rodriguez, 955 N.E.2d 884

(Mass. 2011), the district court held that: (i) to state a claim

under the Massachusetts try title statute, a petitioner must

allege, inter alia, that an adverse claim clouds his record title,

Lemelson, 2012 WL 4527527, at *1; and (ii) U.S. Bank's mere efforts

to foreclose on the Lemelsons' home did not amount to an adverse

claim under Massachusetts law, id. at *2.

           The Lemelsons now appeal, saying that both determinations

were made in error.       We affirm.


                                        -2-
                                  I.

          On March 28, 2012, the Lemelsons jointly filed this try

title action in the Commonwealth of Massachusetts Land Court,

challenging the authority of U.S. Bank to foreclose on their home

pursuant to the March 2011 assignment.1      A try title petition is a

specialized form of action that seeks to compel an adverse claimant

to bring an action trying its title to the disputed property.      See

Mass. Gen. Laws ch. 240,   §§ 1-5.      In relevant part, section 1 of

the try title statute provides:

          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 . . . 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.




     1
       This was the second action filed by the Lemelsons seeking to
invalidate the March 2011 assignment. Previously, on November 7,
2011, Gregory Lemelson filed a different type of action, a quiet
title action, against U.S. Bank in the Massachusetts Land Court,
see Mass. Gen. Laws ch. 240, § 6, which was removed on the basis of
diversity jurisdiction, 28 U.S.C. § 1332. See Lemelson v. U.S.
Bank Nat'l Ass'n, Civ. No. 1:11-cv-12050-PBS (D. Mass. filed Nov.
18, 2011). On March 7, 2012, a magistrate judge determined that
Lemelson lacked standing to pursue a quiet title action in federal
court, and recommended that the case be remanded to the Land Court.
Before the district court could rule on the magistrate judge's
recommendation, Lemelson voluntarily dismissed the quiet title
complaint. One week later, the Lemelsons commenced this action.
See Lemelson v. U.S. Bank Nat'l Ass'n, Civ. No. 12-10677-PBS, 2012
WL 4527527, at *1 (D. Mass. Sept. 28, 2012).

                                  -3-
Id.       Additionally, if an adverse claimant is notified of the

petition and fails to file an action asserting its claims to the

property, the Land Court is authorized to "forever bar[] [the

defendant] from having or enforcing any such claim adversely to the

petitioner." Id. § 2; see 28 Mass. Prac., Real Estate Law § 31A.4.

Try title actions are subject to a number of limitations, see,

e.g., Bevilacqua, 955 N.E.2d at 888-91, which we take up later.

             The relevant facts as alleged in the Lemelsons' petition

to try title were as follows.          On August 10, 2006, Gregory Lemelson

purchased a home, located at 4 Wyndemere Drive in Southborough,

Massachusetts,     where    he   and    his   wife   currently    reside    (the

"Property").      To   finance     that    purchase,   Lemelson    executed    a

mortgage loan, composed of a promissory note and a mortgage, in the

principal amount of $1.6 million.

             Initially, the mortgage was held by Mortgage Electronic

Registration     Systems,   Inc.    ("MERS"),    the   promissory    note    was

payable to Mortgage Master, Inc., and the mortgage loan servicer

was Thornburg Mortgage, Inc.           At some time after origination, the

promissory note and mortgage were sold.2             Additionally, on May 1,


      2
       In their petition to try title, and at various points
throughout the district court proceedings, the Lemelsons disclaimed
knowledge of to whom their mortgage loan was sold following
origination. However, it appears from U.S. Bank's submissions to
the district court, several of which the Lemelsons possessed before
filing this action, that the mortgage loan was conveyed to the
Thornburg Mortgage Securities Trust 2006-6 Mortgage Loan Pass-
Through Certificates, Series 2006-6, pursuant to a November 1, 2006
Pooling and Servicing Agreement. See, e.g., Culhane v. Aurora Loan

                                        -4-
2009, Thornburg's parent company filed for bankruptcy and the

mortgage loan servicer changed twice, first to Censlar, FSB, and

then, in June 2010, to Select Portfolio Servicing, Inc.

          The Lemelsons stopped making payments on their mortgage

loan in April 2010, and shortly thereafter, in November 2010, they

received a Notice of Default letter from Select Portfolio.           On

March 11, 2011, MERS filed a Corporate Assignment of Mortgage in

the   Worcester   County   Registry    of   Deeds   (the   "March   2011

assignment"), which purported to assign both the promissory note

and the mortgage to U.S. Bank.

          The petition to try title asserted that, by way of the

March 2011 assignment, U.S. Bank possessed a claim to the Property

adverse to the Lemelsons' record title.        Moreover, it alleged a

host of deficiencies in the execution and notarization of the March

2011 assignment, which were said to render it "fraudulent, invalid,

void and/or legally inoperative."3     As relief, the petition sought


Servs. of Neb., 708 F.3d 282, 286-88 (1st Cir. 2013) (describing
bundling and securitization practices for residential mortgage
loans).   In any event, we need not resolve the issue, as the
identity of the prior owner of the Lemelsons' mortgage loan does
not affect our disposition.
      3
       The petition alleged, inter alia, that the signatory to the
assignment had not appeared before a notary, as required under
Mass. Gen. Laws ch. 183, § 30, and that the corporate seal affixed
to the assignment was for a MERS entity that did not exist in March
2011.   But the petition's core allegation was that, due to the
supposed uncertainty surrounding the initial post-origination sale
of the mortgage loan, see note 2 above, U.S. Bank could not
establish "a complete and unbroken chain of title . . . which would
give [it] the lawful authority to assert any rights under the

                                 -5-
an   order   compelling   U.S.   Bank   to   bring    a   try    title   action,

expunging the March 2011 assignment from the land records, and

enjoining any party from proceeding with foreclosure during the

pendency of litigation.

             After removing the case to federal court, on May 11,

2012, U.S. Bank filed a motion to dismiss the petition under Fed.

R. Civ. P. 12(b)(6), which the Lemelsons opposed. In addition, the

Lemelsons filed a motion seeking leave to serve additional parties

and to amend their petition accordingly.             On September 28, 2012,

the district court issued a memorandum and order granting U.S.

Bank's   motion   to   dismiss   without     prejudice     and    denying   the

Lemelsons' motion to amend.       Lemelson, 2012 WL 4527527, at *2.

             Judgment of dismissal without prejudice was entered on

October 1, 2012, and this timely appeal followed.

                                    II.

             We review an order of dismissal for failure to state a

claim de novo, Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st

Cir. 2011), and may affirm on any basis apparent in the record,

Freeman v. Town of Hudson, 714 F.3d 29, 35 (1st Cir. 2013).                  In

conducting this review, we disregard "statements in the complaint

that merely offer 'legal conclusion[s] couched as . . . fact[ ]' or

'[t]hreadbare recitals of the elements of a cause of action.'"



mortgage or to enforce [the] note."


                                    -6-
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)

(alterations in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)) (internal quotation marks omitted).                      The complaint's

"remaining,    non-conclusory           allegations         are   entitled     to    a

presumption    of   truth,      and   we    draw      all   reasonable    inferences

therefrom     in    the   pleader's          favor."          Rodríguez-Ramos       v.

Hernández-Gregorat,       685    F.3d      34,   40    (1st   Cir.    2012)   (citing

Ocasio-Hernández, 640 F.3d at 12).

            Dismissal for failure to state a claim is appropriate "if

the complaint does not set forth 'factual allegations, either

direct or inferential, respecting each material element necessary

to sustain recovery under some actionable legal theory.'"                      United

States ex rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377,

384 (1st Cir. 2011), cert. denied, 132 S. Ct. 815 (2011) (quoting

Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008)).                          In

other words, "[t]o survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to 'state a

claim to relief that is plausible on its face.'"                     Iqbal, 556 U.S.

at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

                                        III.

            The Lemelsons raise two challenges on appeal to the

district court's order granting U.S. Bank's motion to dismiss.

First, they argue that the district court erred in holding that an


                                           -7-
adverse claim is a necessary element in a cause of action under the

Massachusetts try title statute.          In the alternative, petitioners

argue that even if the district court's construction of the statute

was correct, it erred in concluding that the petition's allegations

concerning U.S. Bank's efforts to foreclose were insufficient to

show an adverse claim under Massachusetts law.            We consider and

reject these challenges in turn.

                                     A.

            We begin by disposing of the Lemelsons' contention that

the district court erred in construing the Massachusetts try title

statute to require the pleading of an adverse claim to survive a

motion to dismiss.        See Lemelson, 2012 WL 4527527, at *1.

Specifically, the Lemelsons argue that the SJC's decision in

Bevilacqua, 955 N.E.2d 884, establishes that a try title petitioner

need only allege "two jurisdictional facts at the pleading stage:

(1) possession; and (2) a record title."        And where, as here, these

facts have been conceded, see Lemelson, 2012 WL 4527527, at *2, the

petitioners argue that the burden shifts to the respondent (i.e.,

U.S. Bank) either to disclaim the interest alleged in the petition

or   to   bring   an   action   asserting    that   interest   against   the

petitioners.      See, e.g., Mass. Gen. Laws ch. 240, § 3 (providing

that respondents in a try title action may "appear and disclaim all

right and title adverse to the petitioner," or, "[i]f they claim




                                    -8-
title, . . . show why they should not be required to bring an

action to try such title"); Bevilacqua, 955 N.E.2d at 889.

            This argument rests on a mischaracterization of the SJC's

holding in Bevilacqua, which concerned the factual allegations

necessary to establish standing under the Massachusetts try title

statute.    In Bevilacqua, the petitioner was granted a quitclaim

deed to the respondent's home following an invalid foreclosure sale

and sought to compel the respondent to try his title to the

property.    955 N.E.2d at 886-88.     The Land Court dismissed the

petition sua sponte, apparently under Mass. R. Civ. P. 12(h)(3),

which authorizes dismissal "[w]henever it appears . . . that the

court lacks jurisdiction of the subject matter" (emphasis added),

finding that the petitioner "holds no title to the property . . .

and thus lacks standing to bring a try title action."    Bevilacqua,

955 N.E.2d at 887; see Bevilacqua v. Rodriguez, No. 10 MISC 427157

KCL, 2010 WL 3351481, at *1-2 (Mass. Land Ct. Aug. 26, 2010), aff'd

& remanded, 955 N.E.2d 884 (Mass. 2011).          In affirming that

determination on appeal, the SJC clarified that in order "to

establish standing under G.L. c. 240, § 1," a petitioner must show

that she is both "in possession of" and "hold[s] a record title to"

the disputed property. 955 N.E.2d at 889 (emphasis added) (quoting




                                 -9-
Mass. Gen. Laws ch. 240, § 1) (internal quotation marks omitted);

see Blanchard v. Lowell, 59 N.E. 114, 114-15 (Mass. 1901).4

               The trouble for the Lemelsons, of course, is that the

district court dismissed their petition for failure to state a

claim, not for lack of standing.           Lemelson, 2012 WL 4527527, at *2.

Nevertheless,       the     Lemelsons    offer   no    authority,    either   from

Bevilacqua or from any other Massachusetts case, to support their

contention that a mere showing of possession and record title in a

try title action is enough to defeat a motion to dismiss for

failure to state a claim under Mass. R. Civ. P. 12(b)(6), which

imposes the same burden on a plaintiff as does Fed. R. Civ. P.

12(b)(6).       See Iannacchino v. Ford Motor Co., 888 N.E.2d 879, 890

(Mass. 2008).

               In   contrast,      the   district     court's   construction    is

consistent with the plain language of the Massachusetts try title

statute.       See Mass. Gen. Laws ch. 240, § 1 (providing that "[i]f

the record title of land is clouded by an adverse claim, or by the

possibility thereof, a person in possession of such land" may file

a petition to try title (emphasis added)).                   The construction is

also       supported   by    the    remainder    of    the   SJC's   decision   in

Bevilacqua, see 955 N.E.2d at 891-92, for reasons we soon describe,



       4
       The SJC's much earlier decision in Blanchard v. Lowell, 59
N.E. 114 (Mass. 1901), is entirely consistent with Bevilacqua v.
Rodriguez, 955 N.E.2d 884 (Mass. 2011), and for that reason,
petitioners' reliance on Blanchard is similarly misguided.

                                         -10-
and by the Massachusetts Land Court decisions interpreting and

applying the try title statute, see, e.g., Abate v. Freemont Inv.

& Loan, No. 12 MISC 464855(RBF), 2012 WL 6115613, at *12 (Mass.

Land Ct. Dec. 10, 2012) ("To state a claim under the try title

statute against [respondents] upon which relief can be granted,

[petitioner] was required to allege that he has possession of and

effective record title in the Property and that [respondents] are

claiming superior title." (emphasis added)); Seamen's Sav. Bank v.

Rogers, No. 175583, 1992 WL 12153317, at *2 (Mass. Land Ct. Dec. 1,

1992) ("Defendants' assertion of title to the disputed [property]

is the 'adverse claim' necessary under G.L. c. 240 § 1." (emphasis

added)); see also Bevilacqua, 2010 WL 3351481, at *2 ("By its

express terms, [the try title statute] only applies 'if the record

title of land is clouded by an adverse claim.'" (quoting Mass. Gen.

Laws ch. 240, § 1) (first emphasis added)).

                                B.

          Having determined that the petitioners were required to

allege an adverse claim to withstand U.S. Bank's motion to dismiss,

we turn to assessing whether the allegations in the petition

satisfied the Rule 12(b)(6) standard.   Like the district court, we

conclude that they did not.

          The only adverse claim alleged in the petition to cloud

the Lemelsons' record title to the Property was "U.S. Bank's




                               -11-
purported legal title" as its mortgagee.5             The petition made no

mention of any actions taken by U.S. Bank. Additionally, even when

the Lemelsons sought to amend, they did not plead or argue any

theory that a completed foreclosure would entitle them to proceed

with a try title claim, and we do not reach that issue.                Simply

put, as pled in the complaint, U.S. Bank's interest in the Property

as   mortgagee   was   not    adverse   to    the   Lemelsons'   interest   as

mortgagor under Massachusetts law.

           It is beyond dispute that Massachusetts subscribes to the

"title theory" of mortgage law.         See, e.g., U.S. Bank Nat'l Ass'n

v. Ibanez, 941 N.E.2d 40, 51 (Mass. 2011); Faneuil Investors Grp.

v. Bd. of Selectmen of Dennis, 933 N.E.2d 918, 922 (Mass. 2010).

As   the   SJC   explained     in    Bevilacqua,     this    means   that   in

Massachusetts a "mortgage splits the title [to a property] in two

parts: the legal title, which becomes the mortgagee's" and secures

the underlying debt, "and the equitable title, which the mortgagor

retains." 955 N.E.2d at 894 (quoting Maglione v. BancBoston Mortg.

Corp., 557   N.E.2d    756,    757   (Mass.    App. Ct.     1990))   (internal

quotation marks omitted); see Eaton v. Fed. Nat'l Mortg. Ass'n, 969



      5
       According to the petitioners' brief, "U.S. Bank conducted a
purported foreclosure sale on the Lemelsons' home" on April 30,
2012. Because the petitioners have not argued that the purported
foreclosure alters or affects the argument made in their petition
to try title -- namely, that U.S. Bank's efforts to foreclose on
the Property were sufficient to bring a try title claim -- this
allegation does not bear on our analysis.


                                     -12-
N.E.2d 1118, 1124 (Mass. 2012).             Moreover, the legal title vested

in the mortgagee is defeasible, and the "mortgagor can redeem or

reacquire     legal title      by paying       the   debt   which     the   mortgage

secures."     Abate, 2012 WL 6115613, at *4 (citing Eaton, 969 N.E.2d

at 1124-25).        This right to redeem, or the mortgagor's "equity of

redemption," see Restatement (Third) of Property: Mortgages, ch. 3,

intro.   note,      "endures    so   long   as   the   mortgage       continues    in

existence," Bevilacqua, 955 N.E.2d at 894.

              The    upshot    of    this   arrangement      is     that,   in    the

circumstances pled, the parties' "estates" (or interests) in the

mortgaged property "are prima facie consistent with each other."

Dewey v. Bulkley, 67 Mass. (1 Gray) 416, 417 (1854); see Eaton, 969

N.E.2d   at     1124-25    (collecting       cases).        Quoting    again     from

Bevilacqua, "[t]he crucial point," for present purposes, "is that

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."               955 N.E.2d at 895

(emphasis added).

              Consequently, because Lemelson concedes that he conveyed

all legal title to the property,6 he cannot now commence a try


     6
       The district court did not improperly credit as true U.S.
Bank's contention that it was a valid mortgagee to the Property.
In fact, the district court merely acknowledged that "U.S. Bank
claims to be the mortgagee in possession of legal title."
Lemelson, 2012 WL 4527527, at *2 (emphasis added). That claim was
the basis alleged in the Lemelsons' petition for bringing this try
title action, R. App. at 11 ("U.S. Bank's purported legal title to

                                        -13-
title action against one asserting ownership of only that legal

title.7   Indeed, the SJC in Bevilacqua considered and rejected a

similar argument when raised by a mortgagee to establish standing

under the Massachusetts try title statute:

           To assert that he holds legal title as
           mortgagee, Bevilacqua must necessarily accept
           that Rodriguez has a complementary claim to
           either equitable title (if there has been no
           default) or an equity of redemption (if
           default has occurred). In either case, and
           although their economic interests may diverge,
           Bevilacqua cannot be heard to argue that
           Rodriguez's claim is adverse to his own.

955 N.E.2d at 895 (emphasis added); see also Bevilacqua, 2010 WL

3351481, at *2 (granting respondent's motion to dismiss petition on

the ground that, "[b]y its express terms, G.L. c. 240, § 1 et seq.

only applies 'if the record title of land is clouded by an adverse




the premises . . . represents a claim of title adverse to that of
[the petitioners]." (emphasis added)), and in their oral argument
during the district court's motion hearing, see, e.g., R. App. at
48 ("[T]here is an adverse party, we claim, U.S. Bank through this
MERS assignment, claiming legal title to this property, so we
brought a try title action." (emphasis added)).
     7
       This is precisely the conclusion reached recently by the
Massachusetts Land Court in Abate v. Freemont Investment & Loan,
No. 12 MISC 464855 (RBF), 2012 WL 6115613 (Mass. Land Ct. Dec. 10,
2012). There the court stated that "[i]f all [the petitioner] was
alleging in the complaint was that there is uncertainty over who
holds the Mortgage, he would not have a try title claim." Id. at
*4; see Bevilacqua, 955 N.E.2d at 894-95. Uncertainty as to who
holds a valid mortgage does not provide the requisite adversity to
cloud a mortgagor's claim of equitable title.

                               -14-
claim,'" and "[h]ere, there is no cloud" (quoting Mass. Gen. Laws

ch. 240, § 1)).8

            Because   the   petitioners   alleged   only   that   they   may

maintain this try title action on the basis of U.S. Bank's efforts

to foreclose, we defer to the reasoning in Bevilacqua and Abate and

affirm the district court's dismissal of the petition to try title.

                                   IV.

            The order granting the respondent's motion to dismiss is

affirmed.

            So ordered.




     8
       We are aware that the district court's opinion in Jepson v.
Deutsche Bank National Trust Co., Civ. No. 12-11226-WGY, 2012 WL
4341061 (D. Mass. Sept. 20, 2012), could be read as reaching a
different outcome. It is of course subject to this opinion.

                                   -15-
