COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT

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LAND COURT DEPARTMENT

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FRANCIS BEVILACQUA, III v. PABLO RODRIGUEZ

MISC 10-427157
ESSEX, ss.

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August 26, 2010

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Long, J.

MEMORANDUM AND ORDER DISMISSING PLAINTIFF’S COMPLAINT

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Introduction

Plaintiff Francis Bevilaqua holds no title to the property at 126-128 Summer Street in

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Haverhill. That title is held by defendant Pablo Rodriguez. What Mr. Bevilaqua has is a
quitclaim deed from US Bank, N.A., which conducted an invalid foreclosure sale on the
property (it was not the holder of the mortgage at the time the sale was noticed and
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conducted as required by G.L. c. 244, § 14) [Note 1] and thus acquired nothing from that
sale. See US Bank v. Ibanez, 17 LCR 202 (Mar. 26, 2009) & 17 LCR 679 (Oct. 14, 2009)
and cases cited therein. US Bank therefore had nothing to convey, and its purported
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conveyance to Mr. Bevilaqua was a nullity. See Bongaards v. Millen, 440 Mass. 10 , 15
(2003).

Despite this, Mr. Bevilaqua now seeks to create a full, fee simple title in himself — quite
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literally, something from nothing — through the “try title” procedure of G.L. c. 240, §§
1-5. He cannot do so, for the reasons set forth below. Accordingly, his complaint is
DISMISSED in its entirety, with prejudice.
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Analysis
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G.L. c. 240, §§ 1-5 — the so-called “try title” statute — reads in relevant part as follows:
If the record title of land is clouded by an adverse claim, or by the possibility thereof, a
person in possession of such land claiming an estate of freehold therein…may file a
petition in the land court stating his interest, describing the land, the claims and the
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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….If
the supposed claimants are residents of the commonwealth, the petition may be inserted
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like a declaration in a writ, and served by a copy, like a writ of original summons….

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If the petition is not so served, the court shall order notice thereof by publication to the
supposed claimants, whether residents or not residents of the commonwealth. Such notice
 shall bind all the world, but the court may also require personal or other notice, and if,
upon return of the order of notice duly executed, the parties notified do not appear within

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the time limited or, having appeared, disobey the lawful order of the court to try their
claim, the court shall enter a decree that they be forever barred from having or enforcing

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any such claim adversely to the petitioner, his heirs or assigns, in the land described, and
may require them to execute, within such time as the court orders, a conveyance, release
or acquittance duly relinquishing the same….

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If the persons notified or summoned appear and disclaim all right and title adverse to the
petitioner, they shall recover costs. If they claim title, they shall by answer show why
they should not be required to bring an action to try such title, and the court shall enter an
appropriate decree relative to bringing and prosecuting such action. If the party or parties

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against whom a judgment or decree for a conveyance, release or acquittance may be
rendered by any court in the commonwealth do not comply therewith, within the time
therein limited, such judgment or decree shall, subject to the following section, have the

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same effect as if the conveyance, release or acquittance had been executed conformably
thereto.
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G.L. c. 240, §§ 1-3. It is a procedural mechanism — broadly speaking, a way (there are
others) [Note 2] to bring all parties with legitimate claims to property into court to “try”
those claims — most often used when there is a genuine dispute as to which competing
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title chain (each with a plausible basis) is the correct one. Mr. Bevilaqua’s situation is far
different (he has no plausible claim — just a deed on record derived solely from an
invalid foreclosure sale), and his attempt to use this statute to create title in himself has
no merit.
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The first reason it has no merit is the most obvious. By its express terms, G.L. c. 240, § 1
et seq. only applies “if the record title of land is clouded by an adverse claim.” G.L. c.
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240, § 1 (emphasis added). Here, there is no cloud, and certainly none that would give
Mr. Bevilacqua standing to assert it. [Note 3] A cloud is not created simply on someone’s
say so. There must be, at the least, a plausible claim to title by the G.L. c. 240, § 1
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plaintiff. See Daley v. Daley, 300 Mass. 17 , 21 (1938) (“[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”) (emphasis added). Otherwise, in the classic
example, a litigant could go to the registry, record a deed to the Brooklyn Bridge,
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commence suit, hope that the true owners either ignored the suit or (as here, discussed
more fully below) could not readily be located and be defaulted, and secure a judgment.
As shown on the face of his complaint, Mr. Bevilacqua has no plausible claim to title
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since it derives, and derives exclusively, from an invalid foreclosure sale.

Other familiar rules of statutory interpretation lead to the same conclusion. Statutes are to
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be construed “in harmony with one another, recognizing that the Legislature did not
intend internal contradiction.” Water Dept of Fairhaven v. Dept. of Environ. Protection,
455 Mass. 740 , 744-45 (2010) (citing DiFiore v. American Airlines, Inc., 454 Mass. 486
 , 491 (2009)). “[W]hen two statutes (or provisions within those statutes) conflict…the
more specific provision, particularly where it has been enacted subsequent to a more

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general rule, applies over the general rule.” Doe v. Attorney Gen., 425 Mass. 210 , 215
(1997). Here the more specific and later statute is G.L. c. 244, § 14 [Note 4] which sets

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forth the requirements for a valid foreclosure sale. A “strict compliance” with those
requirements is “essential to the valid exercise of the [foreclosure] power,” and failure to
do so makes the sale “a nullity; it is as if no such sale had been made.” Bottomly v.
Kabachnick, 13 Mass. App. Ct. 480 , 484 (1982). If Mr. Bevilacqua’s view of G.L. c.

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240, § 1 prevailed, the protections of G.L. c. 244, § 14 could be circumvented in the
default situation likely to occur here. [Note 5] Title would be created in Mr. Bevilacqua

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not only out of nothing, but out of a wrongful act. This cannot be so. Moreover, it would
be a judgment not obtainable under G.L. c. 240, § 6 (see n. 2, supra), and this cannot be
so since a “harmonious” reading of statutes addressing the same issues should lead to the
same substantive result. See Water Dept of Fairhaven, supra. Lastly, it cannot be so since

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it would circumvent the requirements of adverse possession (inter alia, twenty year
occupation) and G.L. c. 244, § 1 et seq. (foreclosure by entry) (inter alia, three year
occupation).

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Conclusion
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For the foregoing reasons, the plaintiff’s claims are dismissed in their entirety, with
prejudice. Judgment shall enter accordingly. [Note 6] I have great sympathy for Mr.
Bevilacqua’s situation — he was not the one who conducted the invalid foreclosure, and
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presumably purchased from the foreclosing entity in reliance on receiving good title —
but if that was the case his proper grievance and proper remedy is against that wrongfully
foreclosing entity on which he relied.
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SO ORDERED.

By the court (Long, J.)

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Attest:
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Deborah J. Patterson, Recorder

Dated: 26 August 2010

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FOOTNOTES
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[Note 1] The mortgage at issue was granted by Mr. Rodriguez to Mortgage Electronic
Registration Systems, Inc. (“MERS”) as nominee for Finance America, LLC. At the time
of US Bank’s foreclosure, MERS has not assigned the mortgage to US Bank. Complaint
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at 2, ¶¶ 7-8 (Apr. 8, 2010).

 [Note 2] The more common procedure is to file an action pursuant to G.L. c. 240, § 6 “to
quiet or establish the title to land situated in the commonwealth, or to remove a cloud

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from the title thereto” (commonly known as “clear title” or “cloud” cases). In § 6 cases,
parties are identified, served and, if they fail to respond, entry of default and default

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judgment are then sought. Default judgment, however, is not automatic. As in all default
situations, a § 6 plaintiff must prove entitlement to judgment (i.e. that he has proper title)
before such judgment may enter. See Bright v. American Felt Co., 343 Mass. 334 , 336
(1961) (“The decree taking the petition for confessed did not ensure a decree for the

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petitioner. It only established as true the facts properly pleaded, and required the entry of
whatever decree those facts demanded”).

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Mr. Bevilacqua asserts that § 1 and § 6 produce different substantive outcomes in default
situations — in his case, allowing him to obtain title to property without any substantive
basis for that title merely by employing the § 1 procedure. For the reasons set forth

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below, this is incorrect.

[Note 3] I need not and do not decide if Mr. Rodriguez could use the statute to rid the

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registry records of Mr. Bevilacqua’s invalid deed.

[Note 4] G.L. c. 240, § 1 et seq. was first enacted in 1851. St. 1851, c. 233 § 66. G.L. c.
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244, § 14, in original form, was enacted six years later in 1857. St. 1857, c. 229, § 1.

[Note 5] Mr. Bevilacqua has left his property, presumably as a result of the wrongful
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foreclosure sale. According to the plaintiff, he cannot presently be located. If true, service
would likely be by publication in Haverhill (where this property is located) and in two
other localities where Mr. Rodriguez last owned property over two years ago.
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[Note 6] Given this result, I need not and do not decide plaintiff’s motion for service on
the defendant by publication.
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