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Banks Getting Royalty Fees

for Use of Their Names in foreclosures They know Nothing About

SEE Roberson Probate Judgment of Dismissal

SEE roberson second motion to dismiss[1]

SEE ATTORNEY WILEY WEBSITE: www.foreclosurelawllc.com

A Missouri judge in probate court got down to brass tacks. It is always in the details at the very beginning where mistakes are made. This Judge made no mistakes. He started at the beginning and that’s where it ended. It seems like it is the probate judges and the bankruptcy judges that actually read the documents in front of them and who apply the law. The number of other judges in civil cases is rising, but most of them are going by the seat of the their pants.

Simple situation repeated millions of times so far in our great country with its judiciary mostly asleep at the wheel. They start by naming a Bank as though it was acting as a bank, thus coloring the water already. Most Judges read no further. They see HSBC and they think “BANK.” We’ve already pointed out that Deutsch Bank has a robust Trust Department, and yet the “trusts” that are run through their name in foreclosures don’t seem to be anywhere near their trust department, employ no trust officers and are basically treated as an asset management fee-based service where the Bank is actually getting paid a royalty for the use of its name, with no work or responsibility.

This Judge in Missouri, Mark Stephens is wide awake — and raised an issue that I have been saying for 3 years but he said it better and more simply. His analysis consisted of just reading the name of the would-be forecloser, word by word and arriving at the only possible legal conclusion: HSBC and the Trust were a crock. Certificates are not people nor are they legal persons. They can’t sue or be sued and they can’t perform any legal act.

Here is how he did it: HSBC Bank USA, N.A. is a bank, but it wasn’t being named as a bank or for performing any function of a depository or lending institution. So the question is why mention HSBC? The answer is that the Banks are playing word games inside the heads of most Judges and it is working. Not with this Judge though.

So the “answer” is that HSBC appears as “Trustee” which makes it appear even more sacrosanct and important. It implies the existence of a trust and that HSBC is the trustee and therefore must discharge its very important fiduciary duties. But there is no trust, there is no trustor, there are no beneficiaries, and there is no “res” (anything in the trust). In fact, the trust does not exist and cannot exist because it lacks the elements of being a trust which could be a legal person under the law.

So the answer to THAT problem is that HSBC is appearing as Trustee for Nomura Home Equity Loan, Inc.. Another Bank! Boy this is sounding really important. I mean we have a big bank appearing as Trustee for a smaller bank right? Not really. And the Judge wasn’t impressed. he recognized that not only was Nomura not making an appearance here as a depository or lending institution, it was NOT making any appearance at all! HSBC was implying a trust for Nomura but what it was saying was something entirely different.

It turns out that Nomura is the first name of Nomura Home Equity Loan, Inc., Asset-Backed Certificates, Series HE1. So in the end HSBC was appearing as Trustee for a fictitious non-entity whose first name was Nomura and whose last name is HE1. Judge Stephens didn’t need to go any further because there was nothing further. Normally, there would be something like “a New York Corporation,” or a “Delaware common law trust” or a “Florida General Partnership”. Here there was nothing.

So the Judge said he wasn’t impressed and there was no proffer of amending to read anything different. You want to know why? It is because there is nothing else. It is all a fiction. He ruled that HSBC was nothing since it wasn’t appearing in its own right, and that Nomura…HE1 was nothing but paper which is not a person under the law. And THAT was the end.

Why is this important? Take a look at the millions of litigation cases where they played with the wording of who was being proffered as being in Court and shame on the lawyers who misled the Judges. Most follow the HSBC-Nomura model of saying nothing but some get more creative. Like US Bank as trustee “relating to” first name….he1… In the end they all say nothing.

When this blows up (and it will), you can bet that HSBC, Nomura and US Bank along with all their cohorts and the lawyers who “represented” them (how do you represent a fictional character and keep a straight face?) — when THEY get sued by people, class actions and government agencies for civil and criminal penalties, they will THEN say they don’t exist and that the entity was a legal fiction in which on advice of counsel it would provide asset protection that is recognized as allowable by law. They will say their names were used but it wasn’t really them acting and they will be right —– except that the laws of perjury and suborning perjury might have a bit more pinch to them than they realized when they started this scam.

30 Responses

  1. If this is Judge Mark Stephens of Stone County, your assessment is wrong. He is a very bad Judge that allows fraud, false information, and false identities to pollute his courtroom and all proceedings…I hope you never have a real case involving this bad man…

  2. Dale Wiley is the best attorney to help us fight illegal bank foreclosures in Missouri. As a soon-to-be client, we are grateful to have his analytic mind, legal knowledge and persistence. Good job !

  3. This was a probate case where the “certificates” were seeking to open up an estate, so it was a big deal. The statute of limitations has now run.

    This is a strange case. A woman and her sister owned the house. The sister lived there. There was a mortgage for $30,000 that had been paid to local people and was down to about $6,000. The sister who lived there went to H&R Block Mortgage and borrowed $51,000 when the house was never worth more than $40K, and didn’t tell the sister. The title company failed to catch that the house already had a mortgage and failed to have my client sign.

    The following year, the owner of the true first called my client and told her that he was going to have to foreclose if he wasn’t paid, so my client paid $6,000 and believed she was paying off the house.

    In 2008, Linda Green “transferred” the mortgage to the certificates, and no one ever noticed that no trust was mentioned. The title company tried to cover up their mistake and had my client come in to sign a single page, telling her that it wouldn’t cost her anything. She assumed this related to the $6,000 that she had paid two years before, and did so. They had her sign the back page of the deed of trust, with no markings about how much was owed. Trouble is, they weren’t even very good at this, and the deed of trust was to a company that hadn’t claimed to hold the mortgage for three and a half years.

    This is a $35,000 upon which $51,000 was lent. I took them a quit claim deed when they filed and asked them to just sign it. They did not. Now they send two law firms each 440 miles round trip to make each court appearance. They never caught that the “certificates” were not an entity, so they are suing my client in one file, and tried to claim an interest in the estate in the other. That’s the one we got thrown out this week.

    Can anyone tell me how much they think the law firms are billing? I almost want to start a website and try to figure out how much two St. Louis law firms are billing to fight two battles on a house which would not bring more than $40,000 if it were plated with gold and had ruby doorknobs.

    I countersued for filing forged documents in the public record and other fun theories. I am now mad because if the judge dismisses them in the other case I will have to refile against God knows who.

    But it’s going to be a fun case.

    Dale Wiley
    Foreclosure Law LLC

  4. Attorney Dale Wiley is my attorney and I believe in what he is doing very strongly. He puts his heart and soul into defending someone and he is doing a great job for me.

    thank you

  5. hman

    MERS cannot give you the ledgers — they do not have them.

  6. Stupendous Man: But is the relief sought really for the benefit of “the certificate holders?” Who are “the certificate holders” and are the “certificate holders” even aware of the litigation??

    Rather than dismiss this decision outright, ask ourselves why thousands upon thousands of foreclosures are filed as styled in the referenced case, and why, in the referenced case the petitioner didn’t simply do as you suggest, and “correct” a “scrivenor’s error?”

    Methinks there are other, perhaps serious implications relating to adding the word “holders” to the name of the “party.”

  7. A renaming of plaintiff and refile can overcome this pretty easily. For example, merely referring to “Certificate Holders” instead of “Certificates.”

    There may be other upon which to base a dismissal but the decision does not elaborate upon them.

    This ain’t no silver bullet folks.

  8. hman

    Boy, talk about a run-around—so typical!
    Don’t give up! Just keep telling them they you need a ledger—a balance sheet—from THEM–the “servicer”—tell them you can’t find those things on the MERS website OR Edgar database—tell them you have the legal right for PROOF of where your payments are going—forget everything else—it’s all made up—just keep hounding and demanding that you want proof—proof that you are not just handing over your money to a servicer—where’s the ledger??? Show me an actual MORTGAGE. That’s what I would do, anyway—try to get a letter from a lawyer demanding this—it is your RIGHT!!!


    Massachusetts Supreme Court rules that thousands of home foreclosures are invalid because banks do not have promissory notes

    by Ethan A. Huff

    Global Research, October 25, 2011

    More than five million US homeowners and counting have had their homes foreclosed upon by banks since the “economic crisis” first began several years ago. But the Massachusetts Supreme Court recently ruled that the vast majority of the foreclosures that took place in the Commonwealth (and likely in most other states) within the past five years are illegitimate because the banks did not, and do not, actually hold the promissory notes for the properties.

    This means that all mortgage payments made to banks for illegitimately foreclosed upon properties are fraudulent since such banks do not technically own the properties in question. It also means that anyone who purchased a foreclosed property, or who is threatened currently with potential foreclosure, does not necessarily have a legal obligation to continue paying their mortgage.

    Even homeowners who do not face foreclosure are not necessarily required to continue paying their mortgages — if their lenders are unable to produce valid promissory notes showing true ownership of the property. Then those who follow through with mortgage payments to such lenders are technically participating in fraud because there is no way to verify whether or not mortgage payments are going to the true note holders, or even who the true note holders are in the first place.

    “In essence, the ruling [upholds] that those who had purchased a foreclosure property that had been illegally foreclosed upon (which is virtually all foreclosure sales in the last five years), did not in fact have title to the property,” writes The Daily Bail. “Given the fact that more than two-thirds of all real estate transactions in the last five years have also been foreclosed properties, this creates a small problem.”

    Recognizing that the federal government’s bailout plan was beneficial only to banks and not homeowners, Rep. Marcy Kaptur of Ohio told those facing foreclosure back in 2009 to “be squatters in [their] own home” (http://articles.sfgate.com/2009-02-…). Now that these foreclosures have been exposed as largely fraudulent, it turns out that her advice was sound.

    “Radical though it may seem, we believe the only way to stop the chaos of fraud and the breakdown of the rule of law in our courts, and most importantly to ensure that we ourselves are not participants in the fraud, is for homeowners who can afford their mortgage to stop paying it,” says The Daily Bail. http://dailybail.com/home/bombshell

    Global Research Articles by Ethan A. Huff

  10. @Carrie,

    Yes, I asked them for exactly that. In addition they advised I researched the Edgar database where information I seek maybe available.
    I also asked for chain of assignment. Which they responded that I had agreed to a MERS. They said I had knowledge of this by signing my DOT. They advised I go to the MERs website for additional information

  11. hman:

    Did you ask them for proof that your payments are and have been going to an actual “mortgage”, that is supposedly in some “trust”? With a ledger and a balance sheet?

    These are not “vague” questions…they don’t have this proof—they know it—and we have to attack them on the accounting however we can…

  12. Nice article. I wrote my servicer a Debt Validation letter. I got a response from a law firm. The Trustee is DBTCA for Rali Series 2006….Anyway it also states DBTCA is the current creditor.

    I wrote them a second letter requesing several things. I asked to see the wet ink copy of the note, a schedule of mortgage loans, to identify the creditor under the FDCPA definition etc…Most of the responses I got said my requests were vague and unintelligible. However they did send me a copy of the note.

    It is endorsed to DBTCA. There is also an “undated” allonge attached to the note. Although their is no reason to be one. Also, they responded that DBTCA accuried my loan about a year and a half after it closed. Which is a violation of what is required in their PSA document.

    Yes I think it’s a big scam.

  13. Oh, by the way. I tenativley researched Sarah Jacobson, a reference
    this web site. The male person who answered the phone said some i
    things in our contact conversation. He said they just blog sites like this,
    business. That does not make them credible. Be careful. We must
    research for ourselves before we assume that because someone
    bombards blog sites with their name and practice we can’t just believe
    know something and want to assist. They use our pain and agony to
    own advantage. Remember it’s business as usual for that firm.

  14. Dale Wiley, attorney, has spent numerous hours and research on this case. And he is the one that raised the issue of the certificate to the judge. Thank God this was a judge who understood the law.
    Dale Wiley is not afraid to fight for the homeowners. And Dale is moving forth in this mission.

  15. Exactly, these faux entities keep getting cred in corrupt courts….. meanwhile another information battle continues under obfuscation:

    Mortgage-related Freedom of Information Requests with Martha Coakley and U.S. Bankruptcy Trustee Larry Sumski:


    Martha Coakley/Massachusetts Division of Banks issues, background:
    1. How much money in mortgage fines did you take in 2006 to present?
    2. What did you do with it, where was it allocated?
    3. Did the AG’s office approve a 12% rate for Bank of America to charge to cash a $50 check?

    Outstanding FOIA request: For U.S. Bankruptcy Trustee Larry Sumski to determine if or when his office has EVER challenged a proof of claim in the manner that many responsible Trustees are so doing….

    Also under the Law Neil and I are clearly journos who should get this information free of charge:

    s849 Open Government Act — 552(a)(4)(A)(ii) of title 5, United States Code, is amended by adding at the end the following…..

  16. The reason why the judge threw it out was because or jurisdiction. The court lacked control of the res. I have been saying this for a long time and some people on here try to muddle the waters when I talk about it. People this is why DBNTC got kicked out of probate court in California trying to dismiss its duties for the Indymac trusts. The court lacked jurisdiction to hear anything it said in court because DBNTC is empty, all the so called trust are not an legal entity, thus court had no control over the res. This is why you do not sue but instead when they file suit against you file for dismissal based on jurisdiction. The court must address this issue and show how they have it.

  17. answer” is that HSBC appears as “Trustee” which makes it appear even more sacrosanct and important. It implies the existence of a trust and that HSBC is the trustee and therefore must discharge its very important fiduciary duties. But there is no trust, there is no trustor, there are no beneficiaries, and there is no “res” (anything in the trust). In fact, the trust does not exist and cannot exist because it lacks the elements of being a trust which could be a legal person under the law.

    M. Soliman – The rules for gaining certain tax concessions, the sponsors entitlement “TRS ” do in fact qualify the assets to be delivered into a corpus and trustee statutory scheme .

    What you have with HSBC is an argument that is laid out before you in the most illogical representation the collaborates could ever arrive at. I will show in my testimony (Chancy V Washington Mutual JP Morgan Chase Cs 2010 OR Fed District Court ) whereby the HSBC structured financing scheme is in fact the recourse in deal ; one in the same to administering the trust assets as a beneficiary. Its no less an argument (see an attorney) towards a right of action that may not help a consumer household with an equitable claims for avoiding foreclosure .


  18. how did we miss this one?

    Florida Man Allowed to File Legal Action Against Investors in Appraisal and Origination Fraud Suit
    Mon, 2011-10-03 15:07 — NationalMortgag…

    In Florida, a Miami-Dade Circuit Court Judge has granted Pelayo Duran permission to include investors in his lawsuit charging Wells Fargo, Greenpoint Mortgage Funding and others with mortgage appraisal and origination fraud. This development comes days after the Federal Housing Finance Agency (FHFA), conservator of both Fannie Mae and Freddie Mac, sued 17 large banks and financial institutions over losses on about $200 billion of sub-prime bonds, as well as, AIG’s lawsuit against the Bank of America claiming that it lost $10 billion.

    “It’s believed the defendants, just like in the other high-profile cases, fraudulently induced others to invest in mortgage-backed securities supported by scores of defective loans,” said Duran. “Basically the defendants generated or acquired any loan, no matter how risky, that could be sold to third party investors. I was an unsuspecting victim who applied for a loan, but was duped into something else.”

    Duran alleges in his suit that the fraud began when he tried to refinance his primary residence in 2005. He purchased the home in 2004 with an initial downpayment of $100,000. Shortly after the purchase, Duran needed to access some of the downpayment money to pay for a few personal and business obligations. Duran alleges that the Wells Fargo mortgage broker baited and switched him into a sub-prime home mortgage with Greenpoint.

    “She created my loan by adjusting the value of my home to my debt-to-income ratio,” said Duran. “They never considered my ability to repay the loan while the hired appraiser dramatically overinflated the value. All they cared about was that appraised value and my good credit score. What I also discovered was that the Wells Fargo representative was actually originating a loan for Greenpoint Mortgage Funding. After closing my loan, Greenpoint sold it right back to Wells Fargo as trust administrator for a pool of loan.”

    According to the lawsuit, Wells Fargo eventually placed Duran’s loan in a trust called Credit Suisse First Boston Mortgage Securities Corp. Adjustable Rate Mortgage Trust 2005-5, Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2005-5, Trust and Investors 1-1000. Duran’s attorneys say it’s not clear if this entity is the true holder of his note because Greenpoint has concealed the details and hasn’t complied with demands to determine the rightful owner.

    Through a jury trial, Gonzalo R. Dorta and other members of Duran’s legal team will represent Duran and hope to rescind the note and mortgage, to obtain restitution for wrongful acts, and to recover significant punitive damages.

  19. Cubed, you’re exactly right as usual. People give up when they don’t really have to. There is a quote I read recentlt from Thomas Edison: “Our greatest weakness lies in giving up. The most certain way to succeed is always to try just one more time.” The banks know this, and we should all learn it!

  20. the attorney is dale wiley… check out his website

  21. I typed into google search my name on livinglies here, which is cubed2k,

    I post here is one of my findings.

    “They have nothing to lose by going after your house because nobody is stopping them and nobody is holding them accountable. They don’t even lose anything if they lose the case because the number of cases lost (3%) is less than the normal default rate on valid mortgages. They will use ridicule and outright fabrication and forgery of documents combined with lying in court and introducing witnesses that don’t know a thing about your case. OBJECT!”



    ok, doesn’t matter what I say.

    but from above what Neil says. You got to get this and wake up

    “They have nothing to lose by going after your house because nobody is stopping them”


    I believe this is still what is happening……………………..and planned, since time goes by……………..and people give up…………..

  22. I was the lawyer on this case. There is a companion case in one of the best factual situations you can imagine … Linda Green, an owner who didn’t borrow a penny … I offered them six months ago to just give us the house and avoid what’s about to happen.

    We’ll see what happens. But I would love to help other homeowners who want to save their homes.

  23. Wow! Great news! Keep fighting–resistance is victory.

  24. The attorney for this case is representing us well, and it is wonderful to see his effort and hard work bring results in the court system. My wife and and I are very confident that we are in good hands with this attorney that possess an analytical mind and with his perseverance in this field we will prevail.

  25. Please keep this to ourselves.

    Never forget the words of George Orwell, “During times of universal deceit, telling the truth becomes a revolutionary act.”

    This article is huge. Pass it to at least 20 people you know and let them pass it to 20 folks they know. In three (3) days this will be nationwide. Think of every single person, every single sick and, old people these crooks have stolen houses from them or even you. The time has come to claim what was taken from you thru deceipt and, lies.

    Here the court case.

    On Oct. 18th, 2011 the Massachusetts Supreme Judicial Court handed down their decision in the FRANCIS J. BEVILACQUA, THIRD vs. PABLO RODRIGUEZ – and in a moment, essentially made foreclosure sales in the commonwealth over the last five years wholly void

    This Just In – Mass Supreme Ct Ruling: All Previous Foreclosures Illegal, Invalid, Legal Title NOT Transferred

    Before you read on – consider how many STATE BAR UNION MEMBERS have profited on this fraud on the court & how many alleged judges signed off on the fraud?

    Further consider how many families’ lives have been wronged by the STATE BAR.

    Would you be surprised that > 1.5M homes have been lost.
    Can you imagine how many FRNs the STATE BAR UNION MEMBERS have
    accepted for STEALING the homes of the uninformed.

    The case follows the article

    Thursday, October 20, 2011
    Calling ALL Class Action Lawyers – GET GOING! Here is your ruling – Mass. Supreme Court Ruling: ALL PREVIOUS FORECLOSURES ILLEGAL AND NOT VALID, No legal title transferred! DO NOT BUY A FORECLOSURE!
    I have said this a few times here! DO NOT BUY A FORECLOSURE! They have not been legal, due to the Banks foreclosing on them ILLEGALLY!

    I wrote about the Mass. Supreme Court to rule on previous foreclosures back in January of this year.

    Here is a portion of that post:

    Now they are going to rule on another case of a buyers right to the property, that was illegally foreclosed on by a MERS bank.

    A lower Massachusetts court had already ruled against the buyer of a foreclosure, saying they had no right to the property, due to being foreclosed on fraudulently by a MERS bank.

    That court case is now going to the Supreme Court, as the buyer is trying to keep the property he purchased 3 years ago from the bank.

    Imagine if the Supreme Court rules against the buyer, as the lower court has done……. I can see a whole new area of law suits, when buyers start losing their money and property of foreclosures they have purchased. Besides that, I can’t imagine there will be much of a market for foreclosures, as they may become impossible to sell, as no title insurance company will touch them.

    Bloomberg is the one even carrying the story, which is amazing they would let people know they may have a huge problem if they have purchased a foreclosure in the past.

    This ruling from Massachusetts will be important all around the country. There are already class actions that have started in a few states for previous foreclosures. If the Massachusetts Supreme Court rules the buyer of the home has no right to the property fraudulently foreclosed on, we can expect a whole rush of class actions throughout the country against the banks.


    Portion from post:

    I believe we will be seeing Class Action Suits in All the States against MERS and ALL MERS Servicers and Banks this year! Once that happens, you can be assured ALL Title Insurance companies will not even touch insuring the title of ANY foreclosure!

    What does that mean to investors who buy foreclosures? Means you may possibly be out money and a house after it is all said and done (then you can start your own lawsuits)! But besides that banks will have trouble even selling foreclosures in the future, if Class Actions start! Who in their right mind would buy a foreclosure, if there are lawsuits and the all MERS foreclosures were done through FRAUD?!

    So………… Just something for all the investors to think about! I would not touch a foreclosure with a 10 foot pole, even if it was 1/4 the price of the market value!

    Yesterday they ruled and have upheld THE BUYER of a piece of property from 3 years ago, has NO RIGHTS TO THE PROPERTY!

    Zerohedge has a great article on it and explains it all.


    On Oct. 18th, 2011 the Massachusetts Supreme Judicial Court handed down their decision in the FRANCIS J. BEVILACQUA, THIRD vs. PABLO RODRIGUEZ – and in a moment, essentially made foreclosure sales in the commonwealth over the last five years wholly void.

    In essence, the ruling upheld that those who had purchased foreclosure properties that had been illegally foreclosed upon (which is virtually all foreclosure sales in the last five years), did not in fact have title to those properties.

    Given the fact that more than two-thirds of all real estate transactions in the last five years have also been foreclosed properties, this creates a small problem.

    The Massachusetts SJC is one of the most respected high courts in the country, other supreme courts look to these decisions for guidance, and would find it difficult to rule any other way in their own states. It is a precedent. It’s an important precedent.

    Here are the key components of the Bevilacqua case:

    1. In holding that Bevilacqua could not make “something from nothing” (bring an action or even have standing to bring an action, when he had a title worth nothing) the lower land court applied and upheld long-standing principles of conveyance.

    2. A foreclosure conducted by a non-mortgagee (which includes basically all of them over the last five years, including the landmark Ibanez case) is wholly void and passes no title to a subsequent transferee (purchasers of foreclosures will be especially pleased to learn of this)

    3. Where (as in Bevilacqua) a non-mortgagee records a post-foreclosure assignment, any subsequent transferee has record notice that the foreclosure is simply void.

    4. A wholly void foreclosure deed passes no title even to a supposed “bona fide purchaser”

    5. The Grantee of an invalid (wholly void) foreclosure deed does not have record title, nor does any person claiming under a wholly void deed, and the decision of the lower land court properly dismissed Bevilacqua’s petition.

    6. The land court correctly reasoned that the remedy available to Bevilacqua was not against the wrongly foreclosed homeowner but rather against the wrongly foreclosing bank and/or perhaps the servicer (depending on who actually conducted the foreclosure)

    When thinking about the implications of Bevilacqua – the importance of point six cannot be overstated.







    Francis J. BEVILACQUA, Third vs. Pablo RODRIGUEZ.


    May 2, 2011. – October 18, 2011.

    Jurisdiction, Land Court. Land Court, Jurisdiction. Practice, Civil, Parties, Standing, Dismissal. Real Property, Ownership, Record title, Mortgage, Bona fide purchaser. Mortgage, Real estate, Foreclosure, Assignment, Equity of redemption.

    CIVIL ACTION commenced in the Land Court Department on April 12, 2010.

    The case was heard by Keith C. Long, J.

    The Supreme Judicial Court granted an application for direct appellate review.

    Jeffrey B. Loeb (David Glod with him) for the plaintiff.

    Richard A. Oetheimer (Natalie F. Langlois with him) for Mortgage Bankers Association.

    Max Weinstein for WilmerHale Legal Services Center of Harvard Law School.

    John M. Stephan & Amber Anderson Villa, Assistant Attorneys General, for the Commonwealth.

    The following submitted briefs for amici curiae:

    Mark B. Johnson for American Land Title Association.

    Adam J. Levitin, of the District of Columbia, Christopher L. Peterson, of Utah, John A.E. Pottow, of Michigan, & Katherine Porter, pro se.

    Edward Rainen, Carrie B. Rainen, & Ward P. Graham for Massachusetts Association of Bank Counsel, Inc.

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

    SPINA, J.

    In this case we must determine whether a plaintiff has standing to maintain a try title action under G.L. c. 240, §§ 1-5, where he is in physical possession of real property but his chain of title rests on a foreclosure sale conducted by someone other than “the mortgagee or his executors, administrators, successors or assigns.” G.L. c. 183, § 21 (statutory power of sale). See G.L. c. 244, § 14 (procedure for foreclosure under power of sale). On his own motion, a Land Court judge determined that the plaintiff, Francis J. Bevilacqua, III, “holds no title to the property at 126-128 Summer Street in Haverhill,” and thus lacks standing to bring a try title action. The judge dismissed the complaint with prejudice and Bevilacqua appealed. We granted Bevilacqua’s application for direct appellate review and now affirm the dismissal of his complaint but conclude that such dismissal should have been entered without prejudice. [FN1]

    1. Procedural background. This case comes before us on a highly unusual procedural footing. The respondent, Pablo Rodriguez, has not been located and accordingly has not entered an appearance. As a result, it fell to the Land Court judge to raise the issue of Bevilacqua’s standing under G.L. c. 240, § 1. See Mass. R. Civ. P. 12(h)(3), 365 Mass. 754 (1974) (“Whenever it appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action”); Maxwell v. AIG Domestic Claims, Inc., ante 91, 99-100 (2011); Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 21 (2006); Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981). The procedures applicable to such a sua sponte motion in a try title action are unclear and the judge did not specify the rule under which the dismissal was ordered. We have received no briefing on the issue from Bevilacqua, and those amici addressing the point note that the absence of precedent leads them to “presume[ ]” the applicable standard.

    In considering the appropriate procedure, we note that a court’s sua sponte motion to dismiss for lack of subject matter jurisdiction is analogous to a party’s motion to dismiss under either Mass. R. Civ. P. 12(b)(1) or (6), 365 Mass. 754 (1974). Ordinarily, “[i]n reviewing a dismissal under rule 12(b)(1) or (6), we accept the factual allegations in the plaintiffs’ complaint, as well as any favorable inferences reasonably drawn from them, as true.” Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). Cf. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (clarifying standards for dismissal under rule 12[b] [6] ). The unusual mechanics of G.L. c. 240, §§ 1-5, however, suggest that the analogy may not be perfect and that a different standard may be appropriate. [FN2] We need not resolve the issue today, however, because we conclude that Bevilacqua’s complaint must be dismissed even if we apply the most favorable of the possible standards of review. See Ginther v. Commissioner of Ins., supra (standards for motion to dismiss for lack of subject matter jurisdiction). We thus “accept the factual allegations in [Bevilacqua’s petition], as well as any favorable inferences reasonably drawn from them, as true.” Id. Those facts are as follows.

    On March 18, 2005, Pablo Rodriguez granted a mortgage on the property to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Finance America, LLC. The mortgage was recorded at the Southern Essex registry of deeds (registry). As of June 29, 2006, MERS had not assigned the mortgage to U.S. Bank National Association (U.S.Bank) but, on that date, U.S. Bank executed a foreclosure deed referencing the mortgage and purporting to transfer the property pursuant to a foreclosure sale from U.S. Bank (as trustee under a trust that is not further described) to U.S. Bank “as Trustee under the securitization Servicing Agreement dated as of July 1, 2005 Structured Asset Securities Corporation Structure Asset Investment Loan Trust Mortgage Pass Through Certificates, Series 2005-HEI.” Nearly one month later, on July 21, 2006, MERS assigned the mortgage to U.S. Bank in an assignment of mortgage recorded at the registry. A “confirmatory foreclosure deed” was then granted on October 9, 2006, by U.S. Bank to U.S. Bank as trustee under the servicing agreement. Eight days later, on October 17, 2006, U.S. Bank “as Trustee” granted a quitclaim deed to Bevilacqua.

    On April 12, 2010, Bevilacqua filed a petition to compel Rodriguez to try title to the property. In his complaint Bevilacqua claimed to reside at the property and to hold record title. Because of the fact that MERS had not assigned the mortgage to U.S. Bank at the time of the foreclosure, Bevilacqua alleged that there is a cloud on his title in the form of “the possibility of an adverse claim by Rodriguez against Bevilacqua’s title to the [p]roperty.”

    2. Statutory background. Bevilacqua seeks an order that either compels Rodriguez to bring an action to try his title or forever bars him from enforcing his adverse claims to the property. Try title actions under G.L. c. 240, §§ 1-5, are within the exclusive original jurisdiction of the Land Court. G.L. c. 185, § 1 (d ). If Bevilacqua cannot satisfy the jurisdictional requirements of the statute, then the Land Court is without subject matter jurisdiction and the petition must be dismissed. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 46 (1977); Riverbank Improvement Co. v. Chapman, 224 Mass. 424, 425 (1916) (“The Land Court is a statutory court, not of general but of strictly limited jurisdiction”).

    The statute states, in relevant part:

    “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.”

    G.L. c. 240, § 1. There are thus two steps to a try title action: the first, which requires the plaintiff to establish jurisdictional facts such that the adverse claimant might be “summoned to show cause why [he] should not bring an action to try [his] claim,” and the second, which requires the adverse claimant either to disclaim the relevant interest in the property or to bring an action to assert the claim in question. [FN3] Id. See Blanchard v. Lowell, 177 Mass. 501, 504-505 (1901). The establishment of jurisdictional facts, although essential in all cases, is thus a matter of particular salience in the initial stage of a try title action.

    There appear to be two jurisdictional facts that must be shown to establish standing under G.L. c. 240, § 1. First, it is clear on the face of the statute that only “a person in possession” of the disputed property may maintain a try title action. Id. Second, although less obviously clear, a plaintiff must hold a “record title” to the land in question. Blanchard v. Lowell, supra at 504. Arnold v. Reed, 162 Mass. 438, 440-441 (1894). Here, Bevilacqua has alleged that he resides on the property, a factual assertion that we accept as true and from which we draw the favorable inference that he is “a person in possession” as required by G.L. c. 240, § 1. [FN4] Bevilacqua also claims to hold record title to the property as required to support standing. See Blanchard v. Lowell, supra. In dismissing the petition the judge concluded that the facts alleged by Bevilacqua did not support his claim of record title and that, as a result, Bevilacqua lacked standing. This is the controversy presented on appeal.

    Before analyzing whether Bevilacqua has demonstrated the existence of record title, and in light of the fact that it has been more than a century since this court last examined standing under G.L. c. 240, §§ 1-5, we first consider the history and purposes of the statute. [FN5] The initial try title statute was enacted in 1851 and provided:

    “Any person in possession of real property, claiming an estate of freehold … may file a petition in the supreme judicial court, setting forth his estate … and averring that he is credibly informed and believes, that the respondent makes some claim adverse to the estate of the petitioner, and praying that he may be summoned to show cause, why he should not bring an action to try the alleged title, if any.” St. 1851, c. 233, § 66.

    Prior to enactment of this statute, the principal means of trying title to land was the writ of entry, which permitted a plaintiff to “obtain possession of real estate from a disseisor who is in possession and holds the demandant out.” Mead v. Cutler, 208 Mass. 391, 392 (1911). See Black’s Law Dictionary 472 (6th ed. 1990) (disseisor is “[o]ne who puts another out of the possession of his lands wrongfully. A settled trespasser on the land of another”). See also Black’s Law Dictionary 541 (9th ed. 2009). The writ was limited, however, by the fact that it could only be brought where the plaintiff was “held out.” See Mead v. Cutler, supra. As a result, there were “cases where a party in possession of real estate would be obliged to abandon his accustomed possession and use, in order to [bring a writ of entry and] try the right of an adverse claimant.” Munroe v. Ward, 4 Allen 150, 151 (1862). In recognition of the fact that such abandonment “would be unreasonable and contrary to sound policy,” the try title statute was enacted so that property owners might remain in possession while requiring that adverse claims be either asserted or disavowed rather than lingering indefinitely. Id.

    Under the early versions of the try title statute the sole jurisdictional requirement was “actual possession and taking of profits” from the land. Id. at 152. See St. 1873, c. 178; St. 1852, c. 312, § 52; St. 1851, c. 233, § 66. Pursuant to these statutes, record or legal title to the property was irrelevant. See Orthodox Congregational Soc’y v. Greenwich, 145 Mass. 112, 113 (1887) (“[M]ost of the facts … bear only upon the question of title. These we need not consider”); Leary v. Duff, 137 Mass. 147, 149- 150 (1884) (“not of importance that the title asserted by the petitioner rests upon an alleged … adverse possession,” rather than on legal title).

    These early enactments were repealed in 1893, however, and the modern form of the statute was adopted. St. 1893, c. 340. One of the principal amendments was the addition of an opening clause, referring to “the record title of real property.” St. 1893, c. 340, § 1. Contrast Pub. Sts. (1882), c. 176, §§ 1, 2. Almost immediately following the 1893 amendment, this court was required to consider the meaning of the new statutory language. In the case of Arnold v. Reed, 162 Mass. 438 (1894), a putative property owner filed a try title action alleging possession and relying on a recorded deed purporting to convey good title to the property. Id. at 439-440. The court held that mere possession was no longer sufficient and that, under the new statute, title appearing on “the record” was also necessary. [FN6] Id. at 440. The court thus read the new introductory clause as limiting the types of disputes– i.e., only claims based on record title–that might be resolved in a try title action. See St. 1893, c. 340, § 1 (“When the record title of real property is clouded by an adverse claim”). The limitation added by the Legislature in 1893 remains operative in the present statute and the jurisdictional requirement of “record title” is thus applicable to Bevilacqua’s claim. Compare G.L. c. 240, § 1 (“If the record title of land is clouded by an adverse claim …”), with St. 1893, c. 340, § 1. We turn, then, to consider Bevilacqua’s various claims to record title.

    3. Standing as owner of the property. [FN7] Bevilacqua alleges that he has record title to the property because he is the owner by virtue of a quitclaim deed granted to him by U.S. Bank. There appear to be two theories that underpin this argument. First, the quitclaim deed may be sufficient by itself to support record title to the property. Second, if the quitclaim deed itself does not constitute record title, then that instrument coupled with the chain of grants on which it relies is sufficient as a whole to demonstrate record title. The first theory is incorrect as a matter of law. The second theory is unpersuasive in light of the facts alleged by Bevilacqua.

    In addressing the first theory, that a single recorded deed purporting to transfer title is sufficient to establish record title, the Land Court judge made the trenchant observation that such a doctrine would render the “Brooklyn Bridge” problem insoluble. Specifically, the judge wrote that “in the classic example, a litigant could go to the registry, record a deed to the Brooklyn Bridge, commence suit, hope that the true owners ignored the suit or … could not be readily located and [would thus] be defaulted, and secure a judgment.” Leaving aside the fact that public property cannot be the subject of a try title action, see G.L. c. 240, § 5, an interpretation of the try title statute permitting such a result cannot be the law.

    We are not persuaded by this “single deed” theory for a number of reasons, not least of which is the fact that there is nothing magical in the act of recording an instrument with the registry that invests an otherwise meaningless document with legal effect. See S & H Petroleum Corp. v. Register of Deeds for the County of Bristol, 46 Mass.App.Ct. 535, 537 (1999) (“The function of a registry of deeds is to record documents. It is essentially a ministerial function …”). Recording may be necessary to place the world on notice of certain transactions. See, e.g., G.L. c. 183, § 4 (leases and deed); G.L. c. 203, §§ 2-3 (trust documents). Recording is not sufficient in and of itself, however, to render an invalid document legally significant. See Arnold v. Reed, 162 Mass. 438, 440 (1894); Nickerson v. Loud, 115 Mass. 94, 97-98 (1874) (“mere assertions … whether recorded or unrecorded, do not constitute a cloud upon title, against which equity will grant relief”). As a result, it is the effectiveness of a document that is controlling rather than its mere existence. See Bongaards v. Millen, 440 Mass. 10, 15 (2003) (where grantor lacks title “a mutual intent to convey and receive title to the property is beside the point”). The effectiveness of the quitclaim deed to Bevilacqua thus turns, in part, on the validity of his grantor’s title. Accordingly, a single deed considered without reference to its chain of title is insufficient to show “record title” as required by G.L. c. 240, § 1.

    The second theory supporting Bevilacqua’s ownership claim addresses this point by asserting that the chain of deeds recorded at the registry is sufficient to demonstrate record title. Under this theory Bevilacqua may trace his chain of title back from the quitclaim deed, through the foreclosure deed, and ultimately to the mortgage granted by Rodriguez to MERS as nominee for Finance America. Bevilacqua has alleged, however, that U.S. Bank was not the assignee of the mortgage at the time that it purported to foreclose on the property and conduct a sale pursuant to the power of sale contained in the mortgage. [FN8]

    As we recently held in the Ibanez case, Massachusetts “adhere[s] to the familiar rule that ‘one who sells under a power [of sale] must follow strictly its terms’ ” so, where a foreclosure sale occurs in the absence of authority, “there is no valid execution of the power, and the sale is wholly void.” U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011), quoting Moore v. Dick, 187 Mass. 207, 211 (1905). “One of the terms of the power of sale that must be strictly adhered to is the restriction on who is entitled to foreclose.” U.S. Bank Nat’l Ass’n v. Ibanez, supra at 647. See Bongaards v. Millen, supra. By alleging that U.S. Bank was not the assignee of the mortgage at the time of the purported foreclosure, Bevilacqua is necessarily asserting that the power of sale was not complied with, that the purported sale was invalid, and that his grantor’s title was defective. See U.S. Bank Nat’l Ass’n v. Ibanez, supra. In light of its defective title, the intention of U.S. Bank to transfer the property to Bevilacqua is irrelevant and he cannot have become the owner of the property pursuant to the quitclaim deed. See Bongaards v. Millen, supra. Bevilacqua’s theory based on the chain of title is thus unpersuasive.

    In this regard we note that Bevilacqua’s try title action based on ownership of the property faces an insurmountable obstacle. A try title action may be brought only where record title is “clouded by an adverse claim, or by the possibility thereof.” G.L. c. 240, § 1. However, the very fact that raises the possibility of an adverse claim–U.S. Bank’s lack of authority to foreclose at the time it purported to foreclose–is fatal to Bevilacqua’s claim to “own” the property. The basic problem is that, instead of presenting a potentially viable claim and seeking to test it against the claims of a rival, Bevilacqua effectively admits that he does not presently have record title and seeks a declaration, if Rodriguez were to default, that the defect is cured. In light of the pleaded facts it is thus impossible for us to conclude that Bevilacqua’s ownership theory demonstrates the jurisdictional facts necessary to maintain a try title action. See G.L. c. 240, § 1.

    4. Standing as assignee of the mortgage. As an alternative to the claim that he owns the property in fee simple, Bevilacqua argues that he holds record title because he is the assignee of the mortgage granted by Rodriguez to MERS as nominee for Finance America. Bevilacqua does not develop the argument at length but it is an intriguing one given that Massachusetts is a “title theory” State in which “a mortgage is a transfer of legal title in a property to secure a debt.” U.S. Bank Nat’l Ass’n v. Ibanez, supra at 649. If a mortgagee’s legal title suffices to establish “record title” under G.L. c. 240, § 1, then Bevilacqua may be able to demonstrate standing to proceed with this try title action. We conclude, however, that Bevilacqua’s claim to record title as mortgagee is inconsistent with the relief he seeks, namely, that Rodriguez be compelled either to “show cause why he should not be required to bring an action to try title” or to “be forever barred from having or enforcing any claim in the property.” Accordingly, we conclude that Bevilacqua’s theory of record title as mortgagee is untenable and cannot support standing under G.L. c. 240, § 1.

    We begin our analysis of this question by noting that Bevilacqua’s claim to be holder of the mortgage has at least a plausible basis despite the fact that he has never taken an express assignment. This court has held that it is possible for a foreclosure deed, ineffective due to noncompliance with the power of sale, to nevertheless operate as an assignment of the mortgage itself. See Holmes v. Turner’s Falls Co., 142 Mass. 590, 591 (1886); Dearnaley v. Chase, 136 Mass. 288, 290 (1884); Brown v. Smith, 116 Mass. 108 (1874). The theory is that “where a deed of real estate shows by its language that it was intended to pass title by one form of conveyance, by which however title could not pass, courts have made the deed effective by construing it as a deed of some other form, notwithstanding the inappropriateness of the language.” Kaufman v. Federal Nat’l Bank, 287 Mass. 97, 100-101 (1934). Bevilacqua argues in his brief that “the foreclosure deed constituted an assignment of the mortgage on the [p]roperty to Bevilacqua.” As stated, this proposition cannot be correct because Bevilacqua was not a party to the foreclosure deed. Further, Bevilacqua has alleged that U.S. Bank was not the assignee of the mortgage at the time it executed the foreclosure deed so it is impossible for that instrument to be construed as an assignment of mortgage. See U.S. Bank Nat’l Ass’n v. Ibanez, supra at 654 (“Because an assignment of a mortgage is a transfer of legal title, it becomes effective … only on the transfer; it cannot become effective before the transfer”). We assume without deciding, however, that Bevilacqua might be able to establish a chain of assignments passing from his quitclaim deed, through the “Confirmatory Foreclosure Deed,” through the recorded assignment from MERS, and thus ultimately back to Rodriguez’s original deed of mortgage. See supra at [2-3] (regarding drawing of favorable inferences). We may thus assume, without deciding, that there is a factual basis on which Bevilacqua may claim to be the assignee of the mortgage.

    The title that Bevilacqua might claim as mortgagee, however, would be inconsistent with the relief that might be provided under G.L. c. 240, §§ 1-5. The problem, from Bevilacqua’s perspective, arises from the nature of a mortgage. In Massachusetts, a “mortgage splits the title in two parts: the legal title, which becomes the mortgagee’s, and the equitable title, which the mortgagor retains.” Maglione v. BancBoston Mtge. Corp., 29 Mass.App.Ct. 88, 90 (1990). The purpose of the split is “to give to the mortgagee an effectual security for the payment of a debt [while] leav[ing] to the mortgagor … the full control, disposition and ownership of the estate.” Santiago v. Alba Mgt., Inc., 77 Mass.App.Ct. 46, 49 (2010), quoting Charlestown Five Cents Sav. Bank v. White, 30 F.Supp. 416, 418-419 (D.Mass.1939). The title held by a mortgagee is defeasible and “upon payment of the note by the mortgagor … the mortgagee’s interest in the real property comes to an end.” Maglione v. BancBoston Mtge. Corp., supra.

    Inherent in this concept of the mortgagee’s defeasible title is the mortgagor’s equity of redemption:

    “[T]he mortgagor’s equity of redemption [is] the basic and historic right of a debtor to redeem the mortgage obligation after its due date, and ultimately to insist on foreclosure as the means of terminating the mortgagor’s interest in the mortgaged real estate.”

    Restatement (Third) of Property (Mortgages) c. 3, Introductory Note at 97 (1996) (addressing common law applicable in both title theory and lien theory States). “[A]n equity of redemption is inseparably connected with a mortgage,” Peugh v. Davis, 96 U.S. 332, 337 (1877), and endures so long as the mortgage continues in existence:

    “When the right of redemption is foreclosed, the mortgage has done its work and the property is no longer mortgaged land. Instead, the former mortgagee owns the legal and equitable interests in the property and the mortgage no longer exists.”

    Santiago v. Alba Mgt., Inc., supra at 50. See G.L. c. 244, § 18 (mortgagor holds equity of redemption until mortgagor forecloses); Maglione v. BancBoston Mtge. Corp., supra (“upon payment of the note by the mortgagor … the mortgagee’s interest in the real property comes to an end”). Following default, therefore, a mortgagee may enter and possess the property but his or her title remains subject to the mortgagor’s equity of redemption. See G.L. c. 244, §§ 1, 2; Joyner v. Lenox Sav. Bank, 322 Mass. 46, 52-53 & n. 1 (1947); Maglione v. BancBoston Mtge. Corp., supra at 91 (this right of entry and possession distinguishes title and lien theory States). This state of affairs persists until either the mortgagee brings a proceeding to foreclose on the equity of redemption, see Negron v. Gordon, 373 Mass. 199, 205 n. 4 (1977) (listing four methods of foreclosing equity of redemption), or until the mortgagor redeems the property and brings the mortgagee’s interests in the property to an end. See Maglione v. BancBoston Mtge. Corp., supra at 90. See also G.L. c. 260, § 33 (limitations period for foreclosure proceedings). The crucial point 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.

    This point controls the present case because a litigant who asserts that he or she is the holder of a mortgage necessarily asserts that the mortgage continues to exist and that the mortgagor’s claims to the property remain valid. For this reason, a plaintiff in a try title action may be heard to claim that a mortgage no longer exists, that claims to the contrary are adverse, and that the putative mortgagee should be required to bring an action trying the claim. See, e.g., Brewster v. Seeger, 173 Mass. 281 (1899). For a plaintiff to both claim record title as holder of a mortgage and to dispute the respondent’s continuing equitable title or equity of redemption would be oxymoronic, however, because the only circumstances in which the respondent’s rights would not be upheld are circumstances in which there is no mortgage for the plaintiff to hold. This is the circumstance in which Bevilacqua finds himself.

    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. This fact necessarily precluded Bevilacqua from establishing a necessary element of his try title action–the existence of an adverse claim. [FN9] See G.L. c. 240, § 1 (action may be brought “[i]f the record title of land is clouded by an adverse claim …”). The legal title possessed by a mortgagee is not, therefore, a basis of standing that would be consistent with maintenance of Bevilacqua’s action against Rodriguez. Accordingly, we conclude that it is not open to Bevilacqua to rely on such title in attempting to demonstrate the necessary jurisdictional facts. [FN10]

    5. Standing as bona fide purchaser for value. In concluding his arguments, Bevilacqua asserts that he “could not have known, when he purchased the [p]roperty, that this title problem existed” and that as a result he must be permitted to proceed under the try title statute or be left without an adequate remedy. Certain of the amici expand on this point, arguing that Bevilacqua is a bona fide purchaser for value and without notice such that he holds good title to the property. Under this theory, Bevilacqua’s quitclaim deed transferred good title to the property that, in addition to his possession, satisfies the standing requirements of the try title statute. [FN11] G.L. c. 240, § 1. We need not address the legal merits of the argument because Bevilacqua is not a bona fide purchaser without notice of the defects in his grantor’s title.

    We begin analysis of this bona fide purchaser theory by noting that “[t]he law goes a great way in protecting the title of a purchaser for value without notice or knowledge of any defect in the power of the vendor to sell….” Rogers v. Barnes, 169 Mass. 179, 183 (1897). For that reason, the purchaser’s “title is not to be affected by mere irregularities in executing a power of sale contained in a mortgage, of which irregularities he has no knowledge, actual or constructive.” Id. at 183-184. There are limits to the protections provided to bona fide purchasers, however, and “[t]he purchaser of an apparently perfect record title is not protected against all adverse claims.” Brewster v. Weston, 235 Mass. 14, 17 (1920). Where the bona fide purchaser is not protected against an adverse claim the purchaser “must rely upon the covenants of his deed” rather than dispossession of the true owner– that is, there are situations in which it is the purchaser rather than the original owner who must seek recovery from a third person rather than being awarded possession of the property itself. Id. See 3 J. Palomar, Land Titles § 677, at 374-375 (3d ed. 2003) (listing circumstances in which actual facts may rebut presumption of record title and true owner will prevail over innocent purchaser).

    Generally, the key question in this regard is whether the transaction is void, in which case it is a nullity such that title never left possession of the original owner, or merely voidable in which case a bona fide purchaser may take good title. See Brewster v. Webster, supra. Cf. Restatement (Second) of Contracts § 7 comment a (1981). Here, the dispute as to title revolves around the validity of the unauthorized foreclosure sale conducted by U.S. Bank. Certain of the amici argue that the category in which such a transaction belongs, void or merely voidable, has not been addressed definitively in Massachusetts. Our recent decision in the case of U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 647 (2011), however, concluded that “[a]ny effort to foreclose by a party lacking ‘jurisdiction and authority’ to carry out a foreclosure under [the relevant] statutes is void.” We decline the invitation to revisit this issue. In any event, a factual prerequisite–purchase by Bevilacqua without notice of the defects in U.S. Bank’s title–does not exist.

    Bevilacqua’s petition alleges that a number of documents were recorded with the registry, provides the book and page number applicable to each document, but fails to provide the dates on which recording occurred. We take judicial notice, however, of the fact that the registry assigns book and page numbers to recorded instruments in a sequential manner. See Mass. G. Evid. § 201(b) (2011). We therefore may conclude that instruments with lower book and page numbers were recorded prior to instruments with higher book and page numbers. [FN12] Here, the book and page numbers demonstrate recording of documents in the following order: (i) the mortgage from Rodriguez to MERS (executed on March 18, 2005); (ii) the assignment of mortgage from MERS to U.S. Bank (executed on July 21, 2006); (iii) the purported foreclosure deed from U.S. Bank “as Trustee” to U.S. Bank as trustee under the servicing agreement (executed on June 29, 2006); (iv) the “Confirmatory Foreclosure Deed” from U.S. Bank “as Trustee” to U.S. Bank as trustee under the servicing agreement (executed on October 9, 2006); and (v) the quitclaim deed from U.S. Bank to Bevilacqua (executed on October 17, 2006). We cannot be sure of the precise date on which the foreclosure deed became a matter of public record, but we do know that this occurred after the assignment of mortgage had been recorded. As a result, Bevilacqua must have attempted to purchase the property from U.S. Bank (in some capacity) either when the registry’s records showed the bank to be a complete stranger to title, when the registry’s records showed the bank to be no more than an assignee of the mortgage, or when the registry’s records showed that the bank conducted the foreclosure sale before receiving assignment of the mortgage. In none of these circumstances could we conclude that Bevilacqua is a bona fide purchaser for value and without notice that U.S. Bank’s title was doubtful. See Demoulas v. Demoulas, 428 Mass. 555, 577 (1998) (parties may not “establish themselves as bona fide purchasers simply by claiming that they were ‘blissfully unaware’ of” facts to which they closed their eyes). We therefore are unconvinced by Bevilacqua’s claim to record title based on the theory that he is a bona fide purchaser for value and without notice.

    6. Dismissal with prejudice. As a final matter we consider whether the Land Court judge properly specified that Bevilacqua’s complaint be dismissed with prejudice. As discussed above, the precise procedural mechanism under which the judge decided the sua sponte motion to dismiss is unclear. What is clear, however, is that the judge’s dismissal was based on lack of standing and thus want of subject matter jurisdiction. See Mass. R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action”); Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 21 (2006), and cases cited (“The issue of standing is one of subject matter jurisdiction”).

    A complaint that is dismissed for lack of jurisdiction is not an adjudication on the merits. See Mass. R. Civ. P. 41(b)(3), as amended, 454 Mass. 1403 (2009) (involuntary dismissal or “any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction … operates as an adjudication upon the merits”). It is thus inappropriate to attach preclusive effects to the dismissal beyond the matter actually decided–the absence of subject matter jurisdiction. See Restatement (Second) of Judgments § 11, at 108 (1982) (“A judgment may properly be rendered against a party only if the court has authority to adjudicate the type of controversy involved in the action”). The obvious rationale for this rule is that a court without subject matter jurisdiction over a controversy is without authority to issue a binding judgment regarding that controversy. See id. at comment a. The conclusion that Bevilacqua lacks standing to bring a try title action is thus binding on him in future actions but dismissal of this action for want of subject matter jurisdiction does not bar him from bringing other actions regarding title to the property.

    7. Conclusion. The Land Court judge properly raised the question whether Bevilacqua has record title to the property such that he has standing to bring a try title action. Bevilacqua has identified no basis on which it might be concluded that he has record title to the property such that a try title action may be sustained. As a result, the Land Court was without jurisdiction to hear the try title action. Dismissal of the petition was therefore proper. The dismissal should have been entered without prejudice, however, and we therefore remand to the Land Court for entry of judgment consistent with this opinion.

    So ordered.

    FN1. We gratefully acknowledge the amicus briefs submitted by the American Land Title Association; the Attorney General of the Commonwealth; the Massachusetts Association of Bank Counsel, Inc.; the Mortgage Bankers Association; Professors Adam J. Levitin, Christopher L. Peterson, Katherine Porter, and John A.E. Pottow; and the WilmerHale Legal Services Center of Harvard Law School.

    FN2. It may not be desirable merely to assume the accuracy of a plaintiffs’s factual assertions. If a plaintiff brings a try title action and the respondent defaults, “the court shall enter a decree that [the respondent] be forever barred from having or enforcing any such claim adversely to the petitioner.” G.L. c. 240, § 2. As a result, a property owner whose whereabouts are unknown and who is not reached through publication notice might be divested by a plaintiff who is put to no greater evidentiary test than having pleaded facts that the court is obliged to accept as true. See Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). But see G.L. c. 240, § 4 (remedies for those dispossessed by default judgment). Here, for instance, there are no recorded instruments in evidence and Bevilacqua merely has alleged their existence and contents.

    A better approach, consistent with the procedure followed in the case of a motion to dismiss due to lack of subject matter jurisdiction, may be to place the burden of proof on the nonmoving party (here, Bevilacqua) to prove jurisdictional facts. See, e.g., Caffyn v. Caffyn, 441 Mass. 487, 491 (2004). As discussed further, infra at–, the existence of record title is a requirement for standing under G.L. c. 240, § 1, and thus a jurisdictional fact. That said, application of a preponderance of the evidence standard may be inappropriate at this stage of a try title proceeding if it is indistinguishable from “the question whether [the plaintiff] has a better title [than the respondent]”–a matter that “is not to be determined in these proceedings, but in the actions which the respondents may be ordered to bring” as a result of the try title action. Blanchard v. Lowell, 177 Mass. 501, 504-505 (1901). Given these difficulties, it may be necessary to adopt a unique standard of review in future try title actions.

    FN3. As discussed further, infra, the structure of the try title statute is a direct reflection of the limitations inherent in the common-law writ of entry. The try title statute may now be something of an anachronism when it is considered that modern statutes are far more flexible than the common-law writ, see G.L. c. 237; that Massachusetts courts are now vested with equity jurisdiction, see, e.g., G.L. c. 185, § 1 (k ); and that declaratory judgment is now available to litigants in this Commonwealth, see G.L. c. 231A inserted by St.1945, c. 582, § 1.

    FN4. One of the amici has appended to its brief a number of deeds referring to the property at 126-128 Summer Street in Haverhill that were recorded between the time Bevilacqua purchased the property and the date on which he filed his petition. Specifically, Bevilacqua recorded a master deed establishing a condominium that consists of four units. Bevilacqua also recorded three deeds transferring units to various third-party purchasers. These deeds and the conveyances they represent are not matters properly before the court and do not factor into our analysis. Although nonevidentiary, the deeds are nevertheless noteworthy in that they explain why Bevilacqua’s complaint is drafted to imply possession rather than pleading the matter directly, see Connolley, petitioner, 168 Mass. 201, 203 (1897) (“the only question … is whether the petitioner has a record title to the whole estate”), and in that they highlight the concerns addressed, see note 2, supra, regarding the proper standards of review and evidentiary burdens in a try title action.

    FN5. In determining that a plaintiff under G.L. c. 240, §§ 1-5, must possess both record title and possession, the motion judge quoted Daley v. Daley, 300 Mass. 17, 21 (1938), to the effect that “[a] petition to remove a cloud from the title to land affected cannot be maintained unless both actual possession and the legal title are united in the petitioner.” The Daley case is inapposite, however, because it involves a bill to quiet title pursuant to G.L. c. 240, §§ 6-10, rather than an action to try title pursuant to G.L. c. 240, §§ 1-5. See generally R.W. Bishop, Prima Facie Case § 48.5, at 601-602 (5th ed.2005) (intermingling discussion of both try title and quiet title cases in section entitled “Actions to Try Title”).

    An action to quiet title is an in rem action, G.L. c. 240, § 10, brought under the court’s equity jurisdiction. See G.L. c. 185, § 1 (k ); First Baptist Church of Sharon v. Harper, 191 Mass. 196, 209 (1906) (“in equity the general doctrine is well settled, that a bill to remove a cloud from the land … [requires that] both actual possession and the legal title are united in the plaintiff”). In contrast, an action to try title is an action at law brought against the respondent as an individual. See G.L. c. 240, § 2 (“the court shall enter a decree that [specified adverse claimants] be forever barred from having or enforcing any such claim adversely to the petitioner”); Clouston v. Shearer, 99 Mass. 209, 211, 212-213 (1868) (at time try title statute was enacted in 1851, Massachusetts courts did not yet possess general equity jurisdiction that would permit actions to remove cloud from title [not until 1852] ).

    The distinction is critical because the plaintiff in a try title action may defeat the specified adverse claims through a default or by showing title that is merely superior to that of the respondent. See G.L. c. 240, §§ 2-3; Blanchard v. Lowell, 177 Mass. 501, 504-505 (1901). In contrast, a quiet title action requires the plaintiff “not merely to demonstrate better title to the locus than the defendants possess, but requires the plaintiff to prove sufficient title to succeed in its action.” Sheriff’s Meadow Found., Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267, 269 (1987). See U.S. Bank, Nat’l Ass’n v. Ibanez, 458 Mass. 637, 645 (2011); Loring v. Hildreth, 170 Mass. 328 (1898). Precedent applicable to one statute, although potentially persuasive, does not control cases brought under the other statute.

    FN6. Interestingly for purposes of this proceeding, in Arnold v. Reed, 162 Mass. 438 (1894), the court was presented with a try title action where the plaintiff relied on a recorded deed reciting that the grantor possessed good title. Id. at 440. “[T]he recitals [were] not true [however], and this would appear by an examination of the records of the Probate Court.” Id. Accordingly, the mere recording of an instrument with the registry of deeds that purports to transfer ownership was insufficient to create standing under the try title statute. Id. But see Connolley, petitioner, 168 Mass. 201, 203-204 (1897) (petitioner had sufficient record title where his grantor had only 255/264th ownership according to registry records, 246/264th ownership according to wills and registry records, and complete but unrecorded ownership due to adverse possession).

    FN7. We refer in Part 3 to Bevilacqua as the owner of the property, using the term “owner” in a colloquial sense, to distinguish this analysis from our later consideration of Bevilacqua’s claim to hold record title as assignee of the mortgage or as a bona fide purchaser without notice.

    FN8. One amicus appended to its brief a copy of the foreclosure deed and the legal notice announcing the foreclosure sale. That foreclosure deed recites that “U.S. Bank National Association [U.S. Bank] as Trustee [is the] holder of a mortgage from Pablo Rodriguez” while the notice, recorded with the foreclosure deed, states that “[U.S. Bank as trustee] is the present holder” of the mortgage. Neither of these documents is in evidence and, whether he relied on such representations or not, Bevilacqua’s petition directly contradicts the accuracy of the quoted statements. We rely on the facts pleaded in the petition for purposes of this appeal. See supra at–.

    FN9. In addition, it is difficult, if not impossible, to imagine what kind of action Rodriguez might bring to try his title as mortgagor. Presumably Rodriguez would assert that the purported foreclosure sale was ineffective, that no foreclosure has occurred, and that he thus retains an equity of redemption. Bevilacqua necessarily would agree with these claims, having asserted that he is the mortgage holder, so judgment could enter on the pleadings declaring that Rodriguez enjoys an equity of redemption. Such an action would be nonsensical.

    FN10. Bevilacqua asserts that foreclosure is not an adequate remedy in these circumstances because, he argues with emphasis, if he “is required to foreclose on the mortgage … to clean up his title, this will delay his sale or refinance for a minimum of about seven to nine months.” Foreclosure, however, is the appropriate remedy for a mortgagee seeking to resolve an outstanding equity of redemption. See Negron v. Gordon, 373 Mass. 199, 205 n. 4 (1977) (listing four methods of foreclosing equity of redemption). Nothing contained herein is intended to limit Bevilacqua’s right, if he can show himself to be mortgagee of the property, to pursue foreclosure under the appropriate statutes. The record does not disclose if Bevilacqua presently holds the promissory note secured by Rodriguez’s mortgage. Whether the holder of a mortgage may foreclose the equity of redemption without also holding the note is a question that is not before us.

    FN11. Bevilacqua’s chain of title as a bona fide purchaser necessarily begins with his quitclaim deed from U.S. Bank. In some States, “[i]t is well settled … that one who has only a quitclaim deed to land cannot claim protection as a bona fide purchaser without notice.” Polhemus v. Cobb, 653 So.2d 964, 967-968 (Ala.1995), quoting Gordon v. Ward, 221 Ala. 173, 174 (1930). “In this Commonwealth, [however,] such a deed is as effectual to transfer whatever title the grantor has in the premises, as a deed with full covenants of warranty. The conveyance in either form is voidable, and not void, if fraudulent as to creditors; and, until defeated by a creditor, the title of the grantor passes.” Mansfield v. Dyer, 131 Mass. 200, 201 (1881). See Boynton v. Haggart, 120 F. 819, 822-823 (8th Cir.1903) (history and evolution of decisions regarding quitclaim deeds, recording statutes, and bona fide purchasers). If a grantor has voidable title to a Massachusetts property, therefore, that title may pass through a quitclaim deed to a bona fide purchaser in whose hands the title is no longer voidable.

    FN12. A registry of deeds may employ several assistant registers who process documents. It is thus possible, although irrelevant for purposes of this decision, that documents presented to different assistant registers at nearly the same time may have book and page numbers that do not reflect the precise order of such overlapping presentations.


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  26. Why don’t your links above take the reader to the actual judgment or 2nd motion? They just loop back to this article.

  27. ha…thats exactly what i raised in my trial brief ..hsbc bank na was not the hsbc THE bank but a piece of paper named after a trust that ceased to exist in 2007 when it stop reporting to the irs..
    funny …she agreed with everything i said except – i was not allowed to raise the black letter law of standing or even raising an argument of the 2924 statutorily deficient void sale brought by a trustee with no authority or a credit bid of a nonexistent creditor right in a ud , WTF?… what an ignorant person… oh yea ,did i mention the cuisp # on the court case?? hmm…. dont think the courts like this being mentioned, er..unregistered securities or something or other!!
    fukem..i’m not through with these criminals!!

  28. Neil- now can you do a piece on the millions of “Bank Owned” real estate for sale signs in front yards all over the country? I posited this theory 2 years ago, it is nothing short of false advertising, to say that a property is ” bank owned” , when the only ” bank” involved is the same as HSBC in your post, as trustee for a nonexistent trust, backed by nonexistent loans, in many cases taken out by nonexistent borrowers, using the SS#s of deceased persons. So do a short article on that please.

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