Federal National Mortgage Association v. Rego , 474 Mass. 329 ( 2016 )

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SJC-11927
FEDERAL NATIONAL MORTGAGE ASSOCIATION vs. EDWARD M. REGO &
another.1
Essex. November 3, 2015. - May 24, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Summary Process, Appeal. Mortgage, Foreclosure. Real Property,
Mortgage. Practice, Civil, Summary process, Counterclaim
and cross-claim. Consumer Protection Act, Unfair act or
practice. Housing Court, Jurisdiction. Jurisdiction,
Housing Court.
Summary Process. Complaint filed in the Northeast Division
of the Housing Court Department on August 31, 2012.
Motions for partial summary judgment were heard by Timothy
F. Sullivan, J., and a motion to dismiss counterclaims was also
heard by him.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Michael Weinhold for the defendants.
Richard E. Briansky for the plaintiff.
Thomas J. Santolucito & Danielle C. Gaudreau, for Real
Estate Bar Association for Massachusetts, Inc., & another, amici
curiae, submitted a brief.
1
Emanuela R. Rego.
2
Daniel Bahls & Amanda Winalski, for Community Legal Aid,
amicus curiae, submitted a brief.
DUFFLY, J. The plaintiff, Federal National Mortgage
Association (Fannie Mae), filed a complaint for summary process
in the Housing Court to establish its right to possession of a
house that had been owned by Edward M. Rego and Emanuela R. Rego
(Regos) that Fannie Mae purchased at a foreclosure sale. In
response, the Regos argued that the foreclosure sale conducted
by the bank that held the mortgage on the property, GMAC
Mortgage, LLC (GMAC), was void because GMAC's attorneys had not
been authorized by a prior writing to undertake the actions set
forth in G. L. c. 244, § 14 (§ 14). The Regos also asserted an
equitable defense and counterclaims pursuant to G. L. c. 93A. A
Housing Court judge allowed Fannie Mae's motion for summary
judgment "as to possession only," and scheduled a bench trial on
the Regos' counterclaims under G. L. c. 93A. Thereafter, Fannie
Mae moved to dismiss the counterclaims for lack of subject
matter jurisdiction; that motion was allowed. Final judgment
for possession entered in favor of Fannie Mae, and the Regos
appealed. We transferred the case to this court on our own
motion.
We are confronted with two issues in this appeal.2 First,
2
We reject as without merit the Regos' claim that the
affidavit of sale submitted by Fannie Mae to establish its prima
3
we consider the meaning of the language in § 14, authorizing
"the attorney duly authorized by a writing under seal" to
perform acts required by the statutory power of sale. We
conclude that the expression is a term of art that refers to a
person authorized by a power of attorney to act in the place of
the person granting that power. At the time the provision was
enacted by amendment in 1906, the phrase "power of attorney" had
the same meaning as a "power under seal." Here, because no
person purported to act under a power of attorney, but only as
legal counsel acting on behalf of a client, the statutory
language on which the Regos rely to challenge the validity of
the foreclosure is inapplicable. We conclude also that legal
counsel may perform the acts at issue in this case without
written authorization, as the "person acting in the name of such
mortgagee." G. L. c. 244, § 14. The foreclosure therefore
suffers no defect on the asserted ground that GMAC failed to
provide such authorization to its attorneys.
Second, we consider whether, in a postforeclosure summary
facie case of possession did not comply with the requirement of
G. L. c. 244, § 15, that "the attorney" must be "duly authorized
by a writing" to sign and record the affidavit. Assuming
without deciding that § 15 requires such written authorization,
the record on appeal reflects that on November 28, 2011, GMAC
provided written authorization to its attorney, who then was
properly authorized to sign the affidavit of sale on April 24,
2012, and record it on May 9, 2012. See Federal Nat'l Mtge.
Ass'n v. Hendricks, 463 Mass. 635, 642 (2012) ("where the
affidavit of sale . . . meets the particular requirements of
§ 15, a plaintiff has made a prima facie case").
4
process action, the Housing Court may consider defenses and
counterclaims seeking relief pursuant to G. L. c. 93A, and
conclude that the Housing Court has limited authorization to
entertain such claims. To the extent that the Regos appear to
assert an equitable defense to the foreclosure sale and seek, in
addition to damages, the relief of voiding the sale, the judge
properly could have addressed those claims in the summary
process action. It is not apparent from the judge's decision
that he considered these claims when deciding the parties' cross
motions for summary judgment. We therefore vacate the judgment
and remand for further proceedings consistent with this opinion.
Background. The Regos purchased a house on Green Street in
Billerica in 1976. In 1995, they refinanced the home mortgage
loan by borrowing $122,000 from Empire of America Realty Credit
Corporation, and executed a promissory note and mortgage in its
favor. Empire of America Realty Credit Corporation assigned the
mortgage to Wells Fargo Bank, and the following year, Wells
Fargo Bank assigned the mortgage to GMAC Mortgage Corporation.
Eventually, GMAC Mortgage Corporation assigned the mortgage to a
related entity, GMAC, which ultimately foreclosed on the
property.
In 2008, GMAC notified the Regos by mail that they were in
default under the terms of the mortgage loan because they had
missed one monthly payment in the amount of $1,723.12, and that,
5
in addition, they owed $77.52 in late charges and $11.25 in
fees. In April, 2010, GMAC notified the Regos that they were
eligible for the Federal Home Affordable Modification Program,
12 U.S.C. § 5219 (HAMP), and offered modified terms of payment.3
The Regos rejected the offer, explaining that they could not
afford the modified terms and requesting a more affordable
modification. The next month, GMAC sent a second HAMP
modification offer, proposing terms similar to the first offer,
which the Regos also apparently rejected. On March 15, 2011,
GMAC notified the Regos that GMAC was now due a total of
$35,803, including mortgage loan payments, late charges, and
fees, and informed them that they had thirty days in which to
cure the default.
On May 4, 2011, the law firm of Orlans Moran, on behalf of
its client, GMAC, sent the Regos a "Notice of Intention to
Foreclose." The notice was in letter form, on Orlans Moran
letterhead, and was signed, "GMAC Mortgage, LLC, By its
Attorneys, Orlans Moran PLLC." Orlans Moran attached to the
letter a copy of the mortgagee's notice of sale of real estate,
which it published in the Billerica Minuteman on May 5, 12, and
19, 2011. The notice identified the property and contained
information concerning a public auction to be held on May 27,
3
The proposed monthly payment amount in the modification
offer was $1,240.84.
6
2011. The following information was set forth at the end of the
notice of sale: "GMAC Mortgage, LLC, Present Holder of said
Mortgage, By its Attorneys, Orlans Moran PLLC."
On May 23, 2011, the Regos sent GMAC a facsimile
transmission requesting a "negotiated pay-off" to avoid the
pending foreclosure, scheduled for May 27, 2011. The Regos
explained that they were attempting to obtain a reverse mortgage
loan, but that the new loan amount would still leave them
$10,000 short of the pay-off amount. They asked GMAC for
"compassion" in negotiating a pay-off agreement to help them
stay in their home. On May 25, 2011, GMAC acknowledged the
Regos' request, informed them that the request was being
processed, and stated that GMAC would not "conduct a foreclosure
sale" while the request was under review. The next day, GMAC
denied the loan modification request. GMAC proceeded with the
foreclosure auction the following day, where it was the highest
bidder. GMAC eventually assigned its bid to Fannie Mae, and
executed a foreclosure deed.4
Fannie Mae served the Regos with a notice to quit and
subsequently filed a summary process complaint for possession.
This litigation followed.
Discussion. We review a decision on a motion for summary
4
The foreclosure deed, assignment of bid, and affidavit of
sale were recorded in the Middlesex North registry of deeds on
May 9, 2012.
7
judgment de novo. Pinti v. Emigrant Mtge. Co., 472 Mass. 226,
231 (2015). Summary judgment is appropriate where there are no
material facts in dispute and the moving party is entitled to
judgment as a matter of law. Id.
1. Whether GMAC's attorneys had authority to act under
G. L. c. 244, § 14. General Laws c. 244, § 14, is one of the
principal statutory provisions regulating foreclosures conducted
under the statutory power of sale.5 See U.S Bank Nat'l Ass'n v.
Ibanez, 458 Mass. 637, 647-648 (2011). That section provides in
part:
"The mortgagee or person having estate in the land
mortgaged, or a person authorized by the power of sale, or
the attorney duly authorized by a writing under seal or the
legal guardian or conservator of such mortgagee or person
acting in the name of such mortgagee or person, may, upon
breach of condition and without action, perform all acts
authorized or required by the power of sale . . ."
(emphasis added).
G. L. c. 244, § 14. The statute further provides "that no sale
under such power shall be effectual to foreclose a mortgage,
unless, previous to such sale, notice of the sale has been
published once in each of [three] successive weeks . . . and
5
The requirements for a "statutory power of sale," set
forth in G. L. c. 183, § 21, provide that "if a mortgage
provides for a power of sale, the mortgagee, in exercising the
power, may foreclose without obtaining prior judicial
authorization 'upon any default in the performance or
observance' of the mortgage, . . . including, of course,
nonpayment of the underlying mortgage note." See Eaton v.
Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 579-580 (2012),
quoting G. L. c. 183, § 21.
8
notice of the sale has been sent by registered mail." Id.
These requirements, establishing those who are entitled to
foreclose and the notices that must be given, "must be strictly
adhered to." U.S Bank Nat'l Ass'n v. Ibanez, supra at 647.
The Regos argue that the provision requires prior written
authorization from a mortgagee before its attorney may perform
the statutory acts necessary to conduct a foreclosure sale. In
their view, the foreclosure conducted by GMAC was defective
because GMAC had not provided the requisite written
authorization before its attorneys published and mailed the
notices required by § 14.6
Whether § 14 requires a mortgagee to provide written
authorization to its attorney to perform the acts required by
the statute is a question of statutory interpretation. When the
meaning of a statute is not clear from its plain language, well-
established principles of statutory construction guide our
interpretation. See DiFiore v. American Airlines, Inc., 454
Mass. 486, 490 (2009). We seek to "ascertain the intent of a
statute from all its parts and from the subject matter to which
6
Neither party claims that written authorization must be
"under seal" as required by the statute, G. L. c. 244, § 14.
This is likely a consequence of the Legislature's nullification
of the seal requirement for all instruments relating to an
interest in land. See G. L. c. 183, § 1A, inserted by St. 1977,
c. 152. As we explain, infra, the statutory language requiring
a "writing under seal," G. L. c. 244, § 14, remains relevant to
our interpretation of the statutory language used by the
Legislature at the time the provision was enacted.
9
it relates, and must interpret the statute so as to render the
legislation effective, consonant with sound reason and common
sense." Seideman v. Newton, 452 Mass. 472, 477 (2008).
"Statutes are to be interpreted, not alone according to their
simple, literal or strict verbal meaning, but in connection with
their development, their progression through the legislative
body, the history of the times, [and] prior legislation . . . .
General expressions may be restrained by relevant circumstances
showing a legislative intent that they be narrowed and used in a
particular sense" (citation omitted). Sullivan v. Chief Justice
for Admin. & Mgt. of the Trial Court, 448 Mass. 15, 24 (2006).
We bear in mind that "[w]ords that are not defined in a statute
should be given their usual and accepted meanings," Seideman,
supra at 477-478, which we derive "from sources presumably known
to the statute's enactors, such as their use in other legal
contexts and dictionary definitions." Seideman, supra at 478,
quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369
(1977).
The statutory language providing that "the attorney duly
authorized by a writing under seal" may perform the acts
authorized by the power of sale was added by amendment in 1906.
See St. 1906, c. 219, § 1. Thus, we first must determine the
usual and accepted meaning of the statutory language from
sources that likely were known to the Legislature at that time.
10
See Seideman v. Newton, supra at 477-478.
The word "attorney" is not defined anywhere in G. L.
c. 244, the chapter of the General Laws governing the
foreclosure and redemption of mortgages. The first edition of
Black's Law Dictionary defines an attorney as follows: "In the
most general sense this term denotes an agent or substitute, or
one who is appointed and authorized to act in the place of
another. . . . Attorneys in the modern use, are of two sorts,
attorneys at law and attorneys in fact . . . ." Black's Law
Dictionary 104 (1891). Describing the "two sorts" of attorneys,
the first and second editions of Black's Law Dictionary state
that an "attorney at law" is an "advocate, counsel, official
agent employed in preparing, managing, and trying cases in the
courts," and an "officer in a court of justice, who is employed
by a party in a cause to manage the same for him." See id.;
Black's Law Dictionary 104 (2d ed. 1910). By contrast, an
"attorney in fact" is defined as a "private attorney authorized
by another to act in his place and stead, either for some
particular purpose, as to do a particular act, or for the
transaction of business in general, not of a legal character.
This authority is conferred by an instrument in writing, called
a 'letter of attorney,' or more commonly a 'power of attorney.'"
Black's Law Dictionary 105 (1891). Black's Law Dictionary 103
(2d ed. 1910). Cases from this era also draw a distinction
11
between the two types of attorneys. See, e.g., Smith v. Abbott,
221 Mass. 326, 329-330 (1915) (discussing differing roles of
individual retained as "counsel" to bring ejectment action, and
another individual authorized by "power of attorney under seal"
to "manage and convey property").7
Whether § 14 refers to an attorney in fact or to an
attorney at law requires that we consider the remaining words in
the statutory provision. The provision makes specific reference
not merely to an attorney, but to "the attorney duly authorized
by a writing under seal." Legal treatises from the period
support the view that, at the turn of the Twentieth Century, the
phrase "duly authorized by a writing under seal" referred to a
person authorized to act by a power of attorney. As one
commentator stated, "[t]he expression 'power of attorney,' in a
strict sense, implies a power under seal." Crocker's Notes on
Common Forms 417 (5th ed. 1913), citing Cutler v. Haven, 8 Pick.
490 (1829). See J. Story, Commentaries on the Law of Agency 77
(8th ed. 1874) ("In regard to both a general and to a special
express authority [conferred on an agent], it may be conferred
by a formal instrument, as by a letter under seal . . ."). In
light of the above, we conclude that to the legislators enacting
7
A commentator from this era also stated that the class of
attorneys "is divisible into two kinds, differing very widely in
their rights, duties, obligations, and responsibilities: (1.)
Attorneys in law; (2.) Attorneys in fact." J. Story,
Commentaries on Agency Law 20 (8th ed. 1874).
12
the 1906 amendment, the phrase "the attorney duly authorized by
a writing under seal" meant the person authorized by a power of
attorney, also known as an attorney in fact; it is not a
reference to legal counsel (the attorney at law).
The remaining language that was also added to § 14 as part
of the 1906 amendment confirms this understanding. Prior to the
amendment, the statute authorized three categories of persons to
perform the acts required by the power of sale, including the
mortgagee.8 St. 1906, c. 219, § 1. In 1906, the Legislature
added four additional categories of potential actors: an
"attorney duly authorized by a writing under seal," the "legal
guardian [of such mortgagee]," the "conservator of such
mortgagee," and a "person acting in the name of such mortgagee
or person." Id. Like an attorney in fact, both a legal
guardian and a conservator9 occupy a formal status conferred by
law that permits each to act in the name of a principal, without
8
The other two categories were "the person who has his
estate in the land mortgaged" and "a person authorized by the
power of sale." See St. 1906, c. 219, § 1.
9
In 1891, Black's Law Dictionary defined a guardian as
"a person lawfully invested with the power, and charged
with the duty, of taking care of the person and managing
the property and rights of another person, who, for some
peculiarity of status, or defect in age, understanding, or
self-control, is considered incapable of ministering his
own affairs."
Black's Law Dictionary 551 (1891). A conservator was defined as
"a guardian, protector, or preserver." Id. at 255.
 13
seeking authorization from the principal. See, e.g., Johnson v.
Kindred Healthcare, Inc., 466 Mass. 779, 785-787 (2014)
(analyzing current statutory scheme granting "broad[] decision-
making authority" to "attorneys in fact, guardians, and
conservators").
The similar status afforded an attorney in fact, a legal
guardian, and a conservator supports our determination that "the
attorney duly authorized by a writing under seal" means an
attorney in fact. See Yates v. United States, 135 S. Ct. 1074,
1085 (2015) ("we rely on the principle of nosciutur a sociis --
a word is known by the company it keeps"). We conclude that, by
adding this statutory language, the Legislature intended to
authorize an attorney in fact to perform the acts of providing
notice of a foreclosure sale required by § 14, and did not
intend to require the mortgagee to issue written authorization
to its legal counsel before counsel may perform such acts on the
mortgagee's behalf.
Finally, we reject the Regos' argument that, by enacting
the 1906 amendment, the Legislature sought to overrule Cranston
v. Crane, 97 Mass. 459, 464 (1867) (Cranston), which held that a
mortgagee may authorize another to perform acts required by the
power of sale without granting "authority under seal," otherwise
known as the power of attorney. The Regos contend that the
Legislature intended to require an attorney to obtain prior
14
written authorization in order to abrogate our holding in
Cranston. The Regos' interpretation of the statute simply
cannot be squared with the meaning of the words employed by the
Legislature when the amendment was enacted, and there is no
other basis on which to conclude that the Legislature sought to
overrule Cranston forty years later by requiring a mortgagee to
provide written authorization to permit its legal counsel to act
on its behalf.
The argument advanced by the Regos also ignores the fourth
category of persons authorized to act by the 1906 amendment, the
"person acting in the name of such mortgagee." See
G. L. c. 244, § 14. The inclusion of this provision in the 1906
amendment likely reflects the Legislature's intent to preserve
the long-standing practice that a mortgagee may delegate its
authority to perform the acts required by the power of sale.
See Fairhaven Sav. Bank v. Callahan, 391 Mass. 1011, 1012
(1984); Brown v. Wentworth, 181 Mass. 49, 52 (1902) (relying on
Cranston, supra at 464, for proposition that mortgagee "put the
foreclosure into professional hands, and relied upon those whom
he employed to see that all the proper steps were taken").
Therefore, just as the mortgagee may direct its agent to perform
the acts required by the power of sale, the mortgagee may
instruct its legal counsel to undertake such acts "in the name
of [the] mortgagee." See G. L. c. 244, § 14. Because the
15
attorneys at Orlans Moran, acting on behalf of GMAC, published
and mailed the notices at the direction of GMAC, the foreclosure
suffers no defect on this ground.
2. Housing Court's jurisdiction to resolve G. L. c. 93A
counterclaims. The Regos asserted an equitable defense in
answer to Fannie Mae's complaint, and filed counterclaims for
violations of G. L. c. 93A. In addition to claims based on
asserted violations related to the statutory power of sale, the
Regos claimed that GMAC engaged in unfair or deceptive practices
when it charged them excessive late fees on multiple occasions
during a single month, in violation of the terms of the mortgage
note, and when it sent them deceptive notices concerning their
eligibility for loan modification in the days leading up to the
foreclosure.10
As stated, after granting summary judgment in favor of
Fannie Mae "as to possession only," the judge scheduled trial on
the Regos' counterclaims. Fannie Mae then moved to dismiss the
counterclaims for lack of "subject matter jurisdiction."11 At
the first of two hearings on this motion, Fannie Mae contended
10
The Regos also asserted in their answer that GMAC
committed a breach of the implied covenant of good faith and
fair dealing in the mortgage note.
11
Fannie Mae's motion to dismiss for lack of jurisdiction
was also, in the alternative, a request for clarification
regarding "which components of the Defendants' [G. L.] c. 93A
Claim remain at issue in this action."
16
that, because the counterclaims sought only damages under G. L.
c. 93A related to loss of possession, and GMAC had prevailed on
the question of possession, the Housing Court "no longer had
jurisdiction" to hear the G. L. c. 93A claim. The Regos argued
that, based on Bank of Am., N.A. v. Rosa, 466 Mass. 613, 615
(2013) (Rosa), their claims of wrongful or deceptive conduct
established an equitable challenge to the foreclosure sale that
would entitle them to postforeclosure relief of setting aside
the foreclosure sale if they prevailed. The judge dismissed the
counterclaims without setting forth the basis of his ruling. He
then scheduled a second hearing on the question whether he could
proceed to trial on the counterclaims under G. L. c. 93A,
inviting the parties to further discuss the impact of our
decision in Rosa. Fannie Mae argued that, under Rosa, the
Housing Court had "limited jurisdiction" and could not entertain
the claim under G. L. c. 93A where the judge had ruled that it
was entitled to possession. The judge allowed Fannie Mae's
motion to dismiss, and final judgment entered in favor of Fannie
Mae on its claim for possession.
We observe first that, as a jurisdictional matter, the
Housing Court has broad authority to resolve civil claims and
counterclaims that relate "directly or indirectly" to "the
health, safety, or welfare, of any occupant of any place
used . . . as a place of human habitation," as well as the
17
authority to resolve all "housing problems, including all
contract and tort actions which affect the health, safety and
welfare of the occupants or owners" of such housing.
G. L. c. 185C, § 3. See LeBlanc v. Sherwin Williams Co., 406
Mass. 888, 894 (1990). See also Rosa, supra at 621-625
(discussing historical development resulting in expanded
jurisdiction of Housing Court). Therefore, under G. L. c. 185C,
§ 3, the Housing Court has jurisdiction to adjudicate a claim
brought under G. L. c. 93A alleging, for instance, an unfair or
deceptive act or practice related to the sale or rental of
housing, and may award equitable or monetary relief.
The Housing Court also has jurisdiction to hear summary
process complaints, in which the owner of a housing unit seeks
to evict the occupant of that unit and recover possession. See
G. L. c. 185C, § 3; G. L. c. 239, § 1. In summary process
cases, the occupant facing eviction may bring a defense or
counterclaim that the owner of the property has committed a
breach of warranty, a breach of any material provision of the
rental agreement, or a "violation of any other law." G. L.
c. 239, § 8A. When the summary process action follows a
foreclosure on the property, the foreclosed occupant facing
eviction may assert that the power of sale was not strictly
complied with and that the foreclosure is therefore void,
entitling the occupant to possession. See Bank of N.Y. v.
18
Bailey, 460 Mass. 327, 334 (2011). The occupant also may assert
other affirmative defenses or counterclaims, such as those based
on violations of G. L. c. 93A or G. L. c. 151B, and may seek
possession, monetary damages, or other equitable relief. See
Rosa, supra at 625 (counterclaim for unlawful discrimination may
be decided in postforeclosure summary process action where it
"could vitiate the title, or possession"). Where the
affirmative defenses or counterclaims challenge the right to
possession, the judge must resolve those claims as part of the
summary process action. Id. at 624-625.
But it is also the case that where a judge determines that
an occupant's defenses or counterclaims do not affect the right
to possession, the judge may sever the counterclaims and proceed
to determine possession in the summary process action. See
Commentary to Rule 5 of the Uniform Summary Process Rules, Mass.
Ann. Laws Court Rules, at 801 (LexisNexis 2015-2016) ("the court
retains discretion to sever a counterclaim which cannot
appropriately be heard as part of the summary process action").
Thereafter, pursuant to the Housing Court's general jurisdiction
under G. L. c. 185C, § 3, the judge may in a separate proceeding
determine whether the occupant is entitled to monetary damages,
other forms of equitable relief, or attorney's fees.12 This
12
If, on the other hand, a judge determines that the
Housing Court lacks jurisdiction over a counterclaim under G. L.
19
approach conserves judicial resources because the Housing Court
judge already will be familiar with the issues presented; it
also reduces further expenditure of resources by a summary
process defendant, who otherwise would be required to file a
separate action in another court, thereby "promot[ing] the
legislative goal of 'just, speedy, and inexpensive' resolution
of summary process cases." See Bank of N.Y. v. Bailey, supra
at 334, quoting Rule 1 of the Uniform Rules of Summary Process.
Here, the Regos followed the correct procedure in asserting
their equitable defense and G. L. c. 93A counterclaims in their
answer to Fannie Mae's complaint. Contrast U.S. Bank Nat'l
Ass'n v. Schumacher, 467 Mass. 421, 422 n.4 (2014). But we are
unable to ascertain on this record whether, in the context of
the summary process action, the judge determined that the Regos=
G. L. c. 93A counterclaims and defenses did not entitle them to
equitable relief affecting the right to possession, or whether
he intended to consider that form of equitable relief, along
with all other potential forms of equitable and monetary relief,
in the separate proceeding but erroneously concluded that he
lacked jurisdiction to do so.
c. 185C, § 3, the judge may dismiss the counterclaim or,
alternatively, ask the Chief Justice of the Trial Court Ato
transfer the case, or the judge, or both, to the appropriate
department of the Trial Court." Konstantopoulos v. Whately, 384
Mass. 123, 129 (1981). See Skawski v. Greenfield Investors
Prop. Dev. LLC, 473 Mass. 580, 592 (2016).
20
Conclusion. The order dismissing the defendants'
counterclaims is reversed, and the decision allowing the
plaintiff's motion for summary judgment is vacated. The matter
is remanded to the Housing Court for further proceedings
consistent with this opinion.
So ordered.