United States Court of Appeals: For The First Circuit

Case: 13-2316 Document: 00116663465 Page: 1 Date Filed: 03/20/2014 Entry ID: 5809394
NO. 13-2316
United States Court of Appeals

For the First Circuit
________________
MARK A. LARACE, TAMMY LARACE
Plaintiffs-Appellants
v.
HOMEWARD RESIDENTIAL, INC. f/k/a/ AMERICAN HOME

MORTGAGE SERVICING, INC., OPTION ONE MORTGAGE
COMPANY, WELLS FARGO, N.A. as trustee for ABFC 2005-OPT1 TRUST
ABFC Asset Backed Certificates Series 2005-OPT1
Defendants –Appellees
_____________________
ON APPEAL FROM A JUDGMENT

IN CIVIL CASE NO. 12-11545 ENTERED IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
_________________________________________
APPELLANTS’ OPENING BRIEF

_________________________________________
Glenn F. Russell, Jr., Esq

Glenn F . Russell, Jr. & Associates, P.C.
38 Rock Street, Suite 12
Fall River, MA, 02720
Ct. of Appeals Bar No. 1146877
Phone (508) 324-4545
Fax (508) 938-0244
March 19, 2014 russ45esq@gmail.com
TABLE OF CONTENTS
TABLE OF AUTHORITIES……………………………………….....……………4
REASONS WHY ORAL ARGUMENT SHOULD BE HEARD.....………………8
JURISDICTIONAL STATEMENT……………………….....………...………......9
STATEMENT OF THE ISSUES…….…………… ………………………...........11
STATEMENT OF THE CASE…………………………………………… ....…...12
STATEMENT OF THE FACTS…………………………………………… ....….14
SUMMARY OF ARGUMENT………………………………………………....... 26
ARGUMENT……………………………………………………………….… ... .. 28
I. THERE EXISTS A CURRENTLY DICHOTOMY BETWEEN

HOLDINGS OF THE FEDERAL COURT AND THE
MASSACHUSETTS LAND COURT WITH RESPECT TO THE
ABILITY OF A MORTGAGOR TO FILE A PETITION TO TRY
TITLE…………................................................................................................28
A. Petitioners Seek To Certify Questions of Law To The Massachusetts

Supreme Judicial Court……………………………………..……………30
II. TRY TITLE ACTIONS UNDER G.L. C. 240, §§ 1-5………………………….30
A. Bevilacqua v. Rodriguez Can Easily Be Distinguished From The

Instant Petition, as Bevilacqua Did Not Involve An Examination
of A Petition Filed By Mortgagors In Possession That Have Already
Established Their Standing To Bring A Petition Under
G.L. c. 240, §§ 1-5…………………………………………………………32
III. THE DISTRICT COURT JUDGE ERRED WHERE HE FAILED TO

CONSIDER THAT AT THE TIME OF THE FILING OF THE PETITION
THE RESPONDENT HAD FAILED TO MEET ITS BURDEN TO
ESTABLISH THAT THE FEDERAL COURT HAD SUBJECT MATTER
JURISIDICTION TO ENTERTAIN THIS ACTION…………………...……...38
1
A. Respondent(s) Intentionally Removed This Matter To

Federal Court…………………………………………………………....41
B. Unlike Lemelson, Petitioners Filed A Motion For Remand……………42
C. Unlike Lemelson, Due To The Gravity of Importance of The

Underlying Ibanez Decision Related To This Matter, And Its
Cornerstone SJC Ruling Involving The Foundational Development
of Evolving Massachusetts State Law, The District Court Judge
Raised Issues Regarding Abstention, However Completely
Abandoned Any Further Examination of This Issue After This
Court’s Ruling In Lemelson…………………………………………...47
IV. THE DISTRICT COURT JUDGE ERRED BY FAILING TO

PROPERLY CONSIDER THAT THE CLEAR STATUTORY
WORDING OF G.L. c. 240, §§ 1-5, DOES NOT CONTEMPLATE
THAT THE PETITION FILED BY PEITIONERS IN THE INITIAL
PHASE OF THE TRY TITLE ACTION WAS ANY “COMPLAINT”,
WHICH THEREFORE PRECLUDES ANY ANALYSIS UNDER
IGBAL OF DISMISSAL UNDER FED, R. CIV. P. R. 12(b)(6)…………51
A. Due To The Clear Statutory Wording of G.L. c. 240, § 1,

Allowing The Assertion of Only The Mere “Possibility” of An
Adverse Claimant, Under an Igbal Analysis If “Petitions” To
Try-Title Were To Be Construed As “Complaints”, Every
Petition Undergoing a 12(b)(6) Examination Would Be
Dismissed………………………………………….............................53
B. The District Court Judge Erred By Placing A Legally Incorrect

Burden Upon The Petitoner, As The Statutory Construct of G.L. c.
240, §§ 1-5, Clearly Requires That Respondent Has the Burden
To Bring A Try Title Complaint Against
Petitioners…………………………………………………………….56
V. CONCLUSION…………………………………………………………....58
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)…………………....61
CERTIFICATE OF SERVICE……………………………………………….62
2
ADDENDUM………………………………………………………………63
3
TABLE OF AUTHORITIES
MASSACHUSETTS STATE CASES
Abate v. Fremont Inv. & Loan

12 MISC 464855 (Mass. Land Ct. 2012)…………18,22,23,25,28,29,38,50,51
Aragona v. Parrella
325 Mass. 583 (1950)…………………...……….………...………………...37
Bevilacqua v. Rodriguez
460 Mass. 762 (2011) ………………………..........................................passim
Blanchard v. Lowell
177 Mass. 501 (1901) ………………………………………………........32,53
Brewster v. Seeger
173 Mass. 281 (1889)…………………………………………………..……36
Clouston v. Shearer
99 Mass. 775 (1868)….………………………….……………………........31
First Baptist Church of Sharon v. Harper

191 Mass. 196 (1906)…………………………………………………........31
Loring v. Hildeth
170 Mass. 328 (1874)…………………………….………………………...32
Maglione v. BancBoston Mtg. Corp., Inc.

29 Mass. App. Ct. 88 (1990)…………………………………………….…35
Santiago v. Alba Mgt., Inc.

77 Mass. 46 App. Ct. 46 (2010)……………………………………………35
Sherriff’s Meadow Fund, Inc. v. Bay Courte Edgartown, Inc.

401 Mass. 267 (1987)……………………………………………...............32
U.S. Bank v. Ibanez

458 Mass. 637 (2011) ……..…………………………………………passim
4
Varian v. Bank of N.Y. Mellon, Trustee, et. al.

12 MISC 462971 (Mass. Land Ct. 2013)………………….13,23,24,28,37,38
Way v. Mullett
143 Mass. 49 (1886)………………………………………………………..38
FEDERAL CASES
Ashcroft v. Igbal,
129 S. Ct. 1937 (2009)…………………………………….11,27,46,52,53,56
Barbosa v. Wells Fargo Bank, N.A.

Dckt No. 12-12236, (D.Mass. 2013)…………………………………........43
Charlestown Five Cents Sav. Bank v. White

30 F. Supp. 416, 418-419 (D. Mass. 1939)………………………………....34
Dixon v. Coburg Dairy, Inc.

369 F. 3d. 211 (4th Cir. 2004)……………………............………………...47
ExParte McCardle
7 Wall. 506 (1868)……………………...….………………………………..5
Hartley v. CSX Transp., Inc.

187 F. 3d. 422 (4th Cir. 1999)……………………............……………...5,47
Healy v. Ratta
292 U.S. 263 (1934)……….……………………..……….....……….........41
Insurance Corp. of Ireland, Ltd. v. Compagnie de Bauxiles de Guinee

456 U.S. 694 (1892)……….……………………..……….....……….........41
Jepson v. Deutsche Bank Nat’l Trst Co., et. al.

Dckt No. 12-11236, (D.Mass. 2013)………………………………………29
5
Kokkonen v. Guardian Life Ins. Co. of America

511 U.S. 375 (1994)……….……………………..……….....………........40
Lemelson v. U.S. Bank Nat’l Ass’n Trustee, et. al

Dckt. No. 12-2275 (1st. Cir. 2013)……………………………………passim
Mansfield, C. & L.M.R. Co. v. Swan,

111 U.S. 379 (1884)……….……………………..……….....……….......40
Maryland Stad. Auth. v. Ellerbe Beckett, Inc.

435 F. 3d. 813 (7th Cir. 2006)……………………............……………….41
Rising-Moore v. Red Roof Inn, Inc.

369 F. 3d. 211 (4th Cir. 2004)……………………............……………….39
Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1932)……….……………………..……….....……….......41
St. Paul Mercury Indem. Corp. v. Red Cab Co.,

303 U.S. 283 (1932)……….……………………..……….....……….......42
MASSACHUSETTS STATUTES
G.L. c. 185, § 1(d) …………………………………………………..……............16
G.L. c. 185, § 1(k)…………………………………………………..……............28
G.L. c. 240, §§ 1-5…………………………………………………………...passim
G.L. c. 240, §§ 6-10………………………………………………………….passim
G.L. c. 244, § 14…………………………......................................................passim
G.L. c. 244 § 18……………………………………...…………………….14,22,50
6
FEDERAL RULES OF CIVIL PROCEDURE
Fed. R. Civ. P., R. 8(a)(2)……………………………………………………….53
Fed. R. Civ. P., R. 12(b)(6)…………………………………………………passim
7
REASONS WHY ORAL ARGUMENT SHOULD BE HEARD
The instant appeal before this Court represents a dichotomy from this
Court’s only other ruling regarding the highly esoteric, and complex Massachusetts
try title statute, G.L. c. 240, §§ 1-5. Further, the instant appeal is essentially a
follow up to the “watershed” ruling issued by the Massachusetts Supreme Judicial
Court in U.S. Nat’l Bank v. Ibanez, 458 Mass. 637 (2011). The instant matter also
represents issues crucial to the development of case law ratio decidendi related to
the rapidly evolving real property title issues in Massachusetts related to
mortgages, as well as the try title statute itself. Indeed, due to the complexity of the
subject matter, there have been, respectfully submitted, several incorrect
interpretations, and application of this highly esoteric state staute by the federal
court. Indeed, it is the Petitioners position that in fact, federal court subject matter
jurisdiction cannot lie in the instant matter, under the directive, mandate, and clear
statutory wording of this Massachusetts statute. Therefore, the Petitioners
respectfully request the opportunity, and honor, to be heard in this matter to more
accurately and succinctly articulate, with exactitude, the true historical perspective
of the intersection of federal court subject matter jurisdiction and the requirements
G.L. c. 240 §§ 1-5.
8
JURISDICTIONAL STATEMENT
(A) The Respondent(s) have sought to Remove the instant “petition”, through
the assertion of proper subject matter jurisdiction of the United States District
Court for the District of Massachusetts, pursuant 28 U.S.C. §1653 following a
Notice of Removal filed by Respondent. (A-7)
(B) Petitioners filed a Motion for Remand the “petition” on the basis of the
failure of Respondent(s) to carry their burden to establish the subject matter
jurisdiction of the Federal Court. As Petitioners Motion to Remand was solely
based upon the subject matter jurisdiction of the federal Court, Petitioners continue
to assert the absence of the subject matter jurisdiction of the District Court to have
ever entertained this matter on appeal, as the $75,000.00 in controversy was never
established, as there was never any “complaint” filed by Petitioners.
(C) The United States Court of Appeals for the First Circuit has jurisdiction over
the Petitioners-Appellants’ appeal pursuant to 28 U.S.C. § 1291, which vests in the
United States Court of Appeals jurisdiction of appeals from all final decisions of
the United States District Courts.
(D) The District Court for the District of Massachusetts issued a final written
Memorandum of Order Denying Petitioners Motion for Remand, and Granting
Defendants’ Motion to Dismiss on September 24, 2013 (ADD001) and also
9
entered Judgment on the Order of Dismissal on September 24, 2013 (ADD-019).
Petitioners filed a timely appeal on October 22, 2013 (ADD-020).
10
STATEMENT OF THE ISSUES
I. Whether a mortgagor in possession, and with independent claim to record

title, who asserts only the mere “possibility” of an adverse claimant in a
“petition”, has superior title sufficient to bring an action under
Massachusetts G.L. c. 240, §§ 1-5.
II. Whether the submittal of a “petition” by a mortgagor in possession, and with

independent claim to record title, under the initial phase of Massachusetts
G.L. c. 240, §§ 1-5, asserting only the mere “possibility” of an adverse
claimant constitutes a “complaint”.
III. Whether the federal court can maintain subject matter jurisdiction over this
matter based upon diversity, where the instant “petition” constitutes only the
initial phase of G.L. c. 240, §§ 1, and where the said statute’s specific
contextual wording and state Legislative intent clearly identify that a
“petitioner” defined under the said statute could never file any affirmative
“complaint”, and therefore leaves no dollar amount in controversy at the
time of Removal by Respondents.
IV. Whether a “petition” submitted during the initial phase of Massachusetts

G.L. c. 240, §§ 1-5 can be subject to dismissal under Mass./Fed. R. Civ. P.
R. 12(b)(6), where the said try title statutes allow a “petitioner” to assert by
way of “petition”, not complaint, only the mere “possibility” of an adverse
claimant to title.
V. Whether the federal court can place a higher burden upon a “petitioner”, as
that term is specifically defined by Massachusetts G.L. c. 240, §§ 1-5, during
the initial phase of a state law issue, by requiring said “petitioners” to assert
more than the mere “possibility” of an adverse claimant as allowed under
state statute, or face dismissal under a Fed. R. Civ. P. R. 8 standard, and the
holding of Ashcroft v. Igbal
VI. Whether the federal court can place a higher burden upon a “petitioner” as
that term is defined by Massachusetts G.L. c. 240, §§ 1-5, by requiring said
“petitioners” to carry the burden of persuasion and burden of proof as a
moving party, where the specific directive of the Massachusetts G.L. c. 240,
§§ 1, clearly directs that only if the try title proceeding reaches the second
phase under the said the statutory directive, those burdens are to be carried
by the Respondent.
11
STATEMENT OF THE CASE
On June 04, 2012, Petitioners filed their original verified Petition to Try
Title with the Massachusetts Land Court, as Petitioners (not Plaintiffs), under the
initial phase of the statutory directive and protocol clearly articulated and
delineated within Massachusetts state statute, G.L. c. 240, §§1-5, naming as
potential adverse claimants; Respondents (not Defendants) Wells Fargo Bank N.A.
as Trustee ABFC 2005-OPT1 Trust ABFC Asset Backed Certificates 2005-OPT1,
and American Home Mortgage Servicing, Inc., / Option One Mortgage
Corporation (A-13). On August 20, 2012, this matter was purportedly “Removed”
to the U.S. District Court for the District of Massachusetts by Respondent(s),
making the claim that at the point in time of Removal it/they had “established” the
jurisdictional prerequisites for federal court diversity subject matter jurisdiction
over this matter, on the claimed basis of citizenship, and further claimed basis that
at the point in time of the filing of the Petitioners’ “complaint”, at least $75,000.00
was at issue. (A-1). After Removal, on September 07, 2012, Respondent(s) almost
immediately filed a purported “Motion to Dismiss” [the “complaint”] under Fed.
R. Civ. P. R. 12(b)(6), indicating that Petitoners’ “complaint” requested no
plausible legal claims for relief (A-45). On September 17 2012 Petitioners’ timely
filed their Opposition to the Respondent(s) Motion to Dismiss (A-86), and on
September 20, 2012 Petitioners further timely filed their Motion to Remand (A-
12
608).1 On October 04, 2012, Respondent(s) filed their Opposition to Petitoners’
Motion to Remand (A-641). On December 03, 2012, Hearing was held on
Respondent(s) Motion to Dismiss, and Petitioners’ Motion to Remand (A-795). On
January 02, 2013, Petitioners filed their Memorandum of Law on the issue of
Abstention as directed by the Court (A-697). On February 04, 2013 Respondent(s)
file their Memorandum on the issue of Abstention (A-722). On February 04, 2013,
Respondent(s) file a Supplemental Memorandum In Support of their Motion to
Dismiss (A-717). On August 01, 2013, Respondent(s) file their Motion to File
Supplementary Briefing regarding the First Circuit Decision in Lemelson (A-729).
On August 15, 2013, Respondent(s) file a Supplementary Memorandum In Support
of their Motion to Dismiss (A-720). On August 28, 2012, Petitioners file a Notice
of Supplemental Authority re: Massachusetts Land Court decision in Varian (A-
755). On September 09, 2013, Respondents file an Objection to Petitioners citation
of Supplemental Authority (A-771). On September 24, 2013, the District Court
Judge (Ponsor, J.) Issued his Memorandum and Order, Denying Petitioners’
Motion for Remand, and allowing Respondent(s) Motion to Dismiss (ADD-001).
1
Although, as Petitioners’ Motion for Remand is rooted solely upon subject matter
jurisdiction of the court, Petitioners were not bound by Removal Objection
timelines (30 days), and while Motions for Remand are not subject to appellate
review generally, where, as here, such Motion for Remand is based upon the
Court’s subject matter jurisdiction, Petitioners’, in fact, may continue to raise such
issues on appeal, as to the lack of Federal Court jurisdiction related to the instant
action.
13
On September 24, 2013, these Orders were Entered on the Court’s Docket. On
October 22, 2013, Petitioners timely filed their Notice of Appeal (ADD-0019).
STATEMENT OF FACTS
On April 01, 2005, Mr. LaRace executed a loan application with Sovereign
Bank to finance a purchase of his principal residence, located at 6 Brookburn
Street, Springfield, Hampden County, Massachusetts 01119. Mr. LaRace further
executed a document that purported to be an “Adjustable Rate Note”, payable
specifically to Option One Mortgage Corporation, in the amount of $103,200.00.2
On April 01, 2005, the Petitioners also executed a document purporting to be a
“Security Instrument” for the aforementioned “Note”, in which under the specific
peculiarities attendant to Massachusetts state law, Petitioners deeded a conditional
fee subject to defeasance to 6 Brookburn Street, Springfield, Massachusetts, to
Option One Mortgage Corporation. However, despite the said grant, Petitioners
still retained their independent claim to record title by way of their recorded Quit
Claim Deed, and they also reserved their right of redemption under G.L. c. 244 §
2
Petitioners returned to the premises (and have resided thereto at the time of the
filing of the instant petition, and all times since) after the decision by the Land
Court in January of 2010, and while the Ibanez matter was on appeal before the
SJC.
14
18, and further still they retained physical possession to the said fee and premises.3
Due to a downturn in the economy, Mr. LaRace was unable to find
employment, and subsequently began to fall behind on his mortgage payments.
Realizing that he was falling further and further behind on his payments, and with
no apparent job prospects, Petitioners’ sought to sell the premises through a “short
sale” back to Option One Mortgage Company (who was only “servicing” the
mortgage loan at this point in time). 4
Indeed, Petitioners actually found and procured a full priced offer of
$140,000.00 from a fully pre-qualified buyer, which information and bid was
submitted to Option One Mortgage Company. However, instead of accepting the
full priced offer submitted by Petitioners, Option One Mortgage Company,
purportedly on behalf of Wells Fargo Bank, N.A. as Trustee for Trustee the ABFC
2005-OPT1 Trust, ABFC Asset Backed Certificates 2005-OPT1, through the law
firm of Ablitt & Charlton, elected to utilize the non-judicial foreclosure process
under G.L. c. 244 § 14, and attempted to “sell” the premises back to Wells Fargo
3
On April 01, 2005, Mr. LaRace also executed a purported promissory Note, also
payable specifically to Option One Mortgage Corporation. In the amount of
$25,800.00, and Security Instrument for the same, which was also the product of a
loan application undertaken with Sovereign Bank?
4
While only Mr. LaRace is named as the maker on the purported “note”, Mr. and
Mrs. LaRace are both named on the security instrument, as the Petitioners possess
title by tenancy by the entirety.
15
Bank, N.A. as Trustee for Trustee the ABFC 2005-OPT1 Trust, ABFC Asset
Backed Certificates 2005-OPT1 for a “credit bid” of $120,800.00. 5
Subsequent to the purported auction sale, Respondent(s) sought to then sell
the Petitoners’ premises to a third party, when a title insurer questioned the
purported validity of the foreclosure auction sale, based upon the location of the
publication used by Respondent(s) to advertise the mandatory notice of auction
under statute. Subsequent to this issue being raised by a title insurer, Respondents
thereafter brought an action against Petitioners under G.L. c. 240 §§ 6-10, seeking
to “Quiet Title” to the premises.6
The Land Court Judge (Long, J.), ultimately found that the Respondent(s)
did not have any right to enforce the Petitioners’ mortgage under the strict
requirements of G.L. c. 244 § 14, at the time of the purported (and void) auction
5
Indeed, these actions form the substance of the LaRace’s affirmative damages
claims against Respondent(s) and others in a separate matter filed at the Hampden
County Superior Court, in which Respondents have also recently attempted to
Remove that said matter on March 13, 2014, despite the presence of a named in
state Massachusetts resident corporation Defendant. See, LaRace v. Wells Fargo
Bank, N.A., et al. 3:14-cv-30043. The LaRaces will be immediately submitting a
Motion to Remand. The instant action was filed by the Petitioners in the Land
Court, a Massachusetts court with exclusive subject matter jurisdiction to hear only
matters of title at issue here, but no jurisdiction to hear other claims of the LaRace
family, see G.L. c. 185, § 1(d).
6
Respondents, through the law firm of Ablitt and Charlton, also brought similar
actions against Homeowners Antonio Ibanez, and Freddie Rosario, which
ultimately were consolidated, however unlike the LaRaces, and Antonio Ibanez
ultimately Mr. Rosario’s case was allowed to go to judgment against him.
16
sale of the Petitioners’ premises, as Respondent(s) did not receive the purported
“assignment” of the Petitioners’ mortgage until some ten (10) months after the
purported auction. Further, the Land Court Judge raised questions as to the
purported viability of the purported assignee “Option One Mortgage Company”, as
it was defunct as of the time and date of the purported “assignment”. The Land
Court Judge ultimately found that the location of the publication was valid under
the requirements of G.L. c. 244, § 14, but further found that Respondent(s) had not
established that they were in fact the “holder” of the Petitioners’ mortgage at the
time of the said publication, and therefore did not adhere to the strict requirements
necessary to enforce the power of sale under G.L. c. 244 § 14. As a result of the
preceding, the Land Court Judge, not only denied the Respondents claim to Quiet
Title, he further found and adjudged that as Respondent(s) had not established that
they were a party with proper jurisdiction and authority under statute to conduct
the non-judicial foreclosure auction sale of the Petitioners’ premises, that
Petitioners’ be restored to title to 6 Brookburn Street, Springfield Massachusetts.
Subsequent to the said ruling, the Land Court Judge also entertained a
Motion to Vacate submitted by Respondent(s), in which the Court allowed the
Respondent(s) to submit any and all documents that supported their “theory” that
the Petitioners’ mortgage was “actually” conveyed through the “securitization
documents”, and therefore the purported “assignment” recorded at the Hampden
17
County Registry of Deeds, merely “confirmed” the purported “conveyance” under
the said “securitization documents”. Ultimately, the Land Court Judge rejected the
Respondent(s) theory, and maintained and affirmed his ruling against
Respondent(s).
In what would later become the subject of numerous national publication(s),
law review(s), print news, magazine, television news, internet, and other media
articles, Respondent(s) appealed the decision from the Land Court, which
ultimately was heard by the Massachusetts Supreme Judicial Court (“SJC”), in the
combined case styled as; U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011).7
In Ibanez, the SJC affirmed the holding of the Land Court, and further, clearly
called into question the Respondent(s) claims as to any ownership over the
Petitioners’ mortgage, and defeasible fee title.8 The result currently leaves the SJC
7
Indeed, such articles persist to the present day, as interest in this case has not yet
abated.
8
Indeed, while Respondents repeatedly state that the Ibanez decision only held that
the Respondent(s) could not hold the foreclosure auction at that time, in fact a
close reading of the decision reveals that the SJC actually dissected the
Respondent(s) claims relative to the “securitization” documents, and further clearly
stated that the purported “assignment” of record was merely “confirmatory” of the
Respondent(s) claimed earlier transfer under the “securitization documents”. The
SJC clearly further pointed out the deficiencies attendant to such claims, and
clearly identified the fact that Respondent(s) had not made any proffer indicating
that the LaRace mortgage was any one of the loans purportedly “transferred” under
the securitization documents, or was ever transferred by a party that had any
purported “possession” of the title to 6 Brookburn street at the time of any
purported “assignment”. See Ibanez at 643-645, 649-650, 651-655. The result,
18
ruling in Ibanez, the law of the case to be applied to the instant matter, where here
based upon the said SJC ruling, Petitioners’ clearly have articulated a legal basis to
assert that the Respondent(s) are a “potential” adverse claimant, where Respondent
was not the “Lender” that provided the Petitioners’ monetary proceeds, nor were
Respondent(s) specifically granted any security interest. Clearly, Respondents
represent the mere “possibility” of being an adverse claimant to the Petitioners’
title, under the statutory wording at issue.
In the instant action, Respondents’ sought to begin a renewed attempt to
foreclose upon the Petitioners’ mortgage, by sending a preliminary notice of
default to Petitioners’, which prompted Petitioners’ to file the instant Petition with
the Land Court on June 04, 2012. 9, 10 As discussed, the Respondent(s) removed the
instant controversy to the U.S. District Court for The District of Massachusetts,
leaves the same purported “assignment” naming Respondent the “holder” that
remains recorded upon the Petitioners’ title as legally uncertain, and therefore a
potentially adverse claim to Petitioners’ superior claim to title, as Petitioners
remain in “possession”. Tellingly, the Respondents can point to no part of the
Ibanez decision that declares any purported “assignment” valid, thus creating the
“possibility” of an “adverse claimant”, see G.L. c. 240, § 1.
9
However, the formal foreclosure process is not “initiated” under G.L. c. 244 § 14,
until the first publication of auction sale.
10
Additionally, the District Court Judge erred in his Memorandum by stating that
that Petitioners allege that they may bring a try title claim “because the
Respondents may try to foreclose upon the Petitioners”. (A786). In fact, the
Petitioners assert in their petition that the Respondent(s) are currently a potential
adverse claimant, without regard to any future “foreclosure”. See Petition at ¶¶17,
18, 19, 20, 25 (A15-16).
19
based upon its claim of “diversity jurisdiction”, as there are no federal claims
presented. Indeed, Petitioners’ Petition, is clearly just that; a “petition” as that term
is specifically defined under state statute, and therefore can not be considered a
“complaint”, nor any claim presented thereto. Based upon the preceding, the
Petitioners’ filed a Motion for Remand, based upon the federal court’s lack of
subject matter jurisdiction to hear this matter under its constitutionally limited
jurisdictional mandate.
Thus, during this initial petition phase of the Massachusetts try-title statute,
Petitioners’ clearly could not have not filed any “complaint” that seeks any
affirmative relief at the point in time of the filing of the instant Petition. Despite
the foregoing, Respondent(s) compounded their legally incorrect foray into the
federal court, by further advancing a further legal incorrect theory under
Massachusetts statute, by immediately filing a purported “Motion to Dismiss”,
under Fed. R. Civ. P. R. 12(b) (6). As discussed, G.L. c. 240, § 1, clearly states
that only in the second phase of a try title action that a “respondent”, not
“petitioner”, would file a complaint.
Fed. R. Civ. P. R. 12(b) (6) clearly speaks to the deficiency(s) of “pleadings”
related to the plausibility of a Plaintiff’s allegations in a “complaint”. Respondent
cannot identify, or point to any “complaint” filed by Petitoners in this initial phase
under the clear statutory wording and Legislative intent of the Massachusetts try
20
title statute, and therefore the District Court Judge erred in the application of
Massachusetts law, where there can be no application of Fed. R. Civ. P. R. 12(b)
(6), in the absence of any “complaint”.11
The Petitioners were also exceedingly clear in their Petition that the instant
matter is not a Quiet Title complaint, which unlike actions brought under G.L. c.
240 §§ 1-5, a Quiet Title action does involve a “complaint” that is connected to an
In Rem action that challenges the validity and legality of the interest in title itself
(mortgage). As opposed to a “Quiet Title” action brought by complaint under G.L.
c. 240, §§ 6-10, a “Try-Title” action, is an action brought In Personam, by petition,
filed with the Massachusetts Land Court by a “petitioner”, that merely requests that
the Land Court Judge make an initial determination as to the mere possibility of the
existence of an adverse claimant to a Petitioners’ title. 12
Thus, unlike a “Quiet Title” action, here in their Try Title Petition, the
Petitioners specifically merely asserted the “possibility” of Respondents(s)
them/itself as being a potential adverse claimant(s) to their title where, 1) as
mortgagors, Petitioners maintain an independent claim to title through their
11
Indeed, the term “petition” in a try title action is clearly not synonymous with
‘complaint”, as the clear statutory wording clearly describes this initial phase of the
action as an administrative action submitted to the Land Court, which Judge then
determines whether or not a “respondent” will initiate litigation against the
“petitioner”. Thus, under the specific context of G.L. c. 240, § 1, a “petition” is not
a “complaint”.
12
Please see (A-613-621)
21
recorded Quit Claim Deed, 2) Petitioners specifically granted the Security
Instrument to only Option One Mortgage Corporation as the “lender”, 3) the
Respondent(s) now claim that Wells Fargo Bank, N.A. as Trustee for Trustee the
ABFC 2005-OPT1 Trust, ABFC Asset Backed Certificates 2005-OPT1 is the
current “holder” of Petitioners’ mortgage, 4) the SJC ruling in the Ibanez matter
clearly calls into question Respondent(s) claim of being any legally valid “title”
holder to the Petitioners’ mortgage, making Respondent a “potential” adverse
claimant to title, 5) the Petitioners also retained superior title to 6 Brookburn
Street, Springfield, Massachusetts, through evidence of their retention of the right
of redemption under G.L. c. 244 § 18, and physical possession of the property in
question.
The District Court Judge erred, where he based the entirety of his ruling on
this Court’s ruling in Lemelson, and stated that the said decision “commanded”
dismissal of the Petitioners “complaint”. 13 The distinctions between the Lemelson
matter and the instant case on appeal before this Court are clearly and readily
apparent where: 1) Unlike Lemelson, and the Abate case which it relied upon,
where, respectfully stated, both matters incorrectly interpreted the ruling of the
SJC in Bevilacqua v. Rodriguez. This is so, because here Petitioners, are
13
As discussed, Petitioners filed a mere petition (not any “complaint”) with the
Massachusetts Land Court, as the Massachusetts Try Title statute only envisions
one complaint to be filed, and that is by Resondent(s) against Petitioners.
22
mortgagors (not a purported “mortgagee” as was Bevilacqua). Additionally,
Petitioners, unlike Bevilacqua, have already established their standing to bring a
try title petition to the land court, under statutory requirements. 2) Unlike
Lemelson, Petitioners’ have already had the purported legal validity of the
Respondents’ purported “assignment” called into question, and foreclosure auction
sale deemed to be void, by the Massachusetts SJC, clearly creating the possibility
of an adverse claimant to the Petitioners’ title. 3) Unlike Lemelson, here,
Petitioners’ challenged the subject matter jurisdiction of the Court by filing a
Motion to Remand. 4) Unlike Lemelson, Petitioners’ clearly articulated that in fact,
a Motion to Dismiss cannot lie under Fed. R. Civ. P. 12(b)(6) in this matter, where
in no instance, can there ever be the presence of any “complaint” filed by a
“petitioner” under the specific statutory construct of the Massachusetts try title
statute.14 5) Unlike Lemelson, in which this Court based much of its opinion on the
Abate v. Fremont matter, Petitioners supplied the District Court Judge with a more
recent case from the same specialized Land Court regarding this precise issue
(Varian v. Bank of New York Mellon, et. al.), (A755-770), in which Land Court
14
The depth of the District Court Judge’s error can be fathomed by his repeated
reference to the Petitioners “Petition”, as a “complaint”, and further erred by
referring to the parties as “plainitiffs” and “defendants”, which further creates an
incorrect caption party reference to this appeal, however Petitioners were so
required to use the terms plaintiff and defendant in the Caption under Fed, R. App.
P. 32(a)(2)(C) as Ordered by this Courton 03/19/2014. .
23
Judge Piper, J., clearly acknowledged the errant holding of the Abate decision 15, as
well as this Court’s ruling in Lemelson based thereon, and further respectfully
stated that these decisions were made in error.16 The District Court Judge found
Varian “unpersuasive” A790, at n.2. 6) Unlike Lemelson, the instant matter
involved a “watershed” decision by the SJC, which continues to be crucial to the
foundational development of Massachusetts state decisional case law ratio
decidendi regarding a highly complex, and evolving, Massachusetts state law issue,
and 6) in the alternative, further unlike Lemeleson, the District Court Judge
identified issues related to “abstention”, and therefore by articulating that this
Court’s ruling in Lemelson “commanded” his decision, the District Court Judge
also gravely erred by failing to carefully consider Petitioners’ Motion to Remand
based upon the particular fact pattern before this Court under the Abstention
doctrine.
Due to the fact that issues related to the “securitization” of mortgages, where
the originating “lender” immediately divests any “ownership” of the defeasible fee
title to real property, and where the mortgagor retains “possession” of the said
premises”, and therefore under the historical case law holding of the
Commonwealth, the mortgagor maintains “superior” title even as to a purported
15
The Abate decision is on appeal, and was recently taken up sua sponte by the
Massachusetts Supreme Judicial Court, SJC-11638
16
Please see (A-755-770)
24
“mortgagee” as the mortgagor continues to have an independent claim to title
based upon a recorded “deed”. Therefore, a mortgagor may be heard to claim that a
purported “assignee” of the “lender” is an adverse claimant to his title, where here,
the Petitioners are in current possession, and only granted such defensible fee
rights to Option One Mortgage Corporation, not Respondent(s).
With all respect due to the District Court Judge, there were numerous errors
of interpretation of the state law at issue made in the Memorandum and Order
enunciated in this matter, and for all the reasons stated in the foregoing, which will
be more fully articulated and further set out below, the Petitioners respectfully
request that this Court make the following rulings of law, 1) that the Federal Court
lacks the subject matter jurisdiction to hear the instant controversy, and therefore
remand this matter back to the Massachusetts Land Court on a de novo basis, from
whence it came, 2) in the alternative, should this Court make findings that federal
court subject matter jurisdiction is present in this controversy, Petitioners
respectfully request that in the alternative, this Court make findings that due to the
significant policy concerns of great public import related to the instant matter, and
further find that the federal court should exercise Abstention to entertain the instant
matter, and therefore remand back to the Massachusetts Land Court on this basis.
3) Also in the alternative, make findings of law related to the fact that the instant
matter represents a complete distinction from Lemelson, and that as a result of the
25
particular Petition at issue before this Court in this matter, make findings of law
that the Massachusetts Try-Title statute does not contemplate that any “complaint”
can be filed by the Petitioners’, in the initial phase of the Try Title process under
the clear statutory language and intent of Massachusetts statute G.L. c. 240, §§ 1-5,
and therefore it was legally impossible, and grave error, to allow a “Motion to
Dismiss” in the absence of any filed “complaint”.
SUMMARY OF THE ARGUMENT
In this controversy, the U.S. Court of Appeals for the First Circuit is being
asked to carefully examine the specialized requirements of a unique, arcane, and
highly esoteric Massachusetts state statute, in which the clear statutory wording
allows a record title holder to real property (in addition to the mortgage) who is/are
also in current possession of said real property (such as Petitioners), to “petition”
the specialized Massachusetts Land Court with the assertion of such identified
“potential” adverse claimants, in order that a Judge with unique and specialized
expertise in state real property matters, make an initial determination as to whether
or not there is even the mere “possibility” of an adverse claimant to the title of the
Petitioner.17 Under the unambiguous statutory language, and ambit of, of G.L. c.
17
Indeed, the key phrase under G.L c. 240, § 1, is “possibility”. Therefore, under a
12(b)(6) examination, if a petition only asserting the “possibility” of an adverse
26
240, §§ 1-5, the filing of the “Petition” clearly does not constitute the filing of any
affirmative “complaint” by Petitioners.(26-38) Therefore, the preceding clearly
provides the foundational basis to establish that it was legally impossible for the
Respondent to carry its heavy burden that would establish this Court’s subject
matter jurisdiction over the instant matter and therefore the District Court Judge
gravely erred in not remanding this matter, as the Petitioners’ maintain a
continuing right to challenge the subject matter jurisdiction of the federal court to
entertain this matter. (38-43). In the alternative, The District Court Judge Further
erred by not considering the distinctions between Lemelson, where here the
Petitioners’ underlying case represented an water shed ruling by the SJC, in
Ibanez, and therefore should have Remanded this matter back to the Land Court on
this basis. (44-51)
Clearly, the statutory language of G.L. c. 240, §§ 1-5, is a two-step
procedure, in that, where the Land Court Judge using his or her unique and
specialized acumen related to real property matters within the Commonwealth,
makes the initial determination that there exists the mere possibility of adverse
claim(s) to the Petitoners’ title, the Land Court Judge shall thereafter summons
such adverse claimant(s) to have them show cause why they should not file a try
claimant were to be construed as a “complaint”, there would never be any petition

that would ever withstand the analysis under Igbal. Clearly, this is a legally
untenable proposition.
27
title complaint against the Petitioners (try their title). Thus, the District Court Judge
erred in the application of Massachusetts law, where said statute requires that the
only “complaint” would necessarily have to be filed by the Respondents, not
Petitioners, and therefore a “Motion to Dismiss cannot lie in the absence of any
filed complaint (51-60).
ARGUMENT
I. THERE EXISTS A CURRENTLY DICHOTOMY BETWEEN

HOLDINGS OF THE FEDERAL COURT AND THE
MASSACHUSETTS STATE COURT RELATED TO THE ABILITY
OF A MORTGAGOR TO SUBMIT A PETITION TO TRY TITLE
In Lemelson v. U.S. Bank Nat’l Ass’n, Trustee, No. 12-2275, this Court
relied heavily upon the holdings enunciated by the Massachusetts Supreme Court
in Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), and the Massachusetts Land Court
in, Abate v. Fremont Home Inv. & Loan, 2012 WL 6115613 (Mass. Land Ct. Dec.
10, 2012). Subsequent to this Court’s holding in Lemelson, there have been two
announced decisions related to the clearly state law issue involved in the instant
matter before this Court on appeal.
After this Court’s ruling in Lemelson, a different Judge at the Massachusetts
Land Court undertook a closer examination of the issues related to a petition under
the Massachusetts try-title statute being submitted by a mortgagor as opposed to a
purported “mortgagee”. Indeed, in Varian v. Bank of New York Mellon, et. al, Ca.
No. 12 MISC 462971-GHP, (Mass. Land Ct. Aug. 23, 2013) the Honorable Piper,
28
J., clearly articulated that he made findings that that the foundational basis upon
which the Abate decision was premised was clearly undertaken in error, and further
cited to the fact that (respectfully) he declined to follow this Court’s findings in
Lemelson because they were foundationally based upon a federal court also relying
on the errant interpretation espoused in Abate, and further due to the fact that there
was no current state appellate court ruling addressing this issue.
Subsequent to the preceding rulings, in Jepson v. Deutsche Bank Nat’l Trust
Co., et. al., Ca. No. 12-11226 (D. Mass., Sept 18, 2013), the Honorable Young, J.,
called into question, and clearly identified, the current split of authority between
the federal and Massachusetts state courts regarding this clearly state law issue, but
further spoke to the fact that even though there exists such current dichotomy, that
he was bound by this Court’s holding in Lemelson, and therefore ruled against the
petitioner Jepson in that action. 18 As a further point of reference, the ruling in
Abate is currently on appeal, and which appeal was also recently taken up sua
sponte by the Massachusetts Supreme Judicial Court (“SJC”). Based upon the
preceding, the instant matter brought on appeal before this court clearly is
18
At oral argument during the December 03, 2012 in this matter, and in response
to the Respondents citation of the Jepson matter as “precedent”, Petitioners
counsel informed the District Court Judge that unlike the LaRaces’ Petition before
him, Jepson (like Lemelson) never filed any Motion for Remand and merely
conceded jurisdiction, to which the District Court Judge here responded, “Well,
what a lovely mess” (ADD-023).
29
distinguishable from this Court’s holding in Lemelson.19
A. Petitioners Seek To Certify Questions of Law To The

Massachusetts Supreme Judicial Court
Due to the fact that the instant matter presents highly complex, arcane, and
esoteric issues related to a clearly Massachusetts state law matter related to title to
real property, and where there is also currently a split of authority between the
federal and state courts on this issue, the Petitioners will respectfully submit a
Motion to Certify Certain Questions of Law to the SJC, under Rule 1:03.
Petitioners wish to seek guidance from the SJC to Questions related to:
I. Whether the submittal of a “petition” by a mortgagor “petitioner” in

possession, under the initial phase of G.L. c. 240, §§ 1-5, asserting only the
mere “possibility” of an adverse claimant constitutes a “complaint”.
II. Whether a “petition” by a mortgagor “petitioner” in possession, submitted

under the initial phase of G.L. c. 240, §§ 1-5 can be subject to dismissal
under Mass./Fed. R. Civ. P. R. 12(b)(6), where the try title statutes allow a
“petitioner” to assert by way of “petition” only the mere “possibility” of an
adverse claimant to title.
III. Whether a mortgagor in possession, and with independent record title, who
asserts only the mere “possibility” of an adverse claimant in a “petition”, has
superior title sufficient to bring an action under G.L. c. 240, §§ 1-5, naming
a purported “assignee” of the original “lender” as a “potential adverse
claimant”.
19
The District Court Judge, therefore, erred where he states the following: “If there
were any doubt about the weakness of “Plaintiffs” arguments,, the Lemelson
decision put them to rest, (citing 721 F. 3d at 25)” (ADD-016).
30
II. TRY TITLE ACTIONS UNDER G.L. c. 240, §§ 1-5
An action to quiet title is an in rem action, G. L. c. 240, § 6-10, brought
under the Massachusetts state 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 a “petition” filed with the court that asserts
only the mere possibility of an adverse claimant, and requests that the Land Court
Judge order that the respondent as an individual, bring an action at law against the
Petitoner and carry the burden of persuasion and proof, to “try his or her title”. 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]). 20
The distinction between a Quiet Title action and a Try Title petition is
critical, because a claimant to record title in a try title action may defeat the
specified adverse claims through a default or by showing title that is merely
20
See Bevilacqua at, n. 5.
31
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 a
“plaintiff" to file a “complaint” (not petition) and carry the burden of persuasion to
not merely to demonstrate better title to the locus than a “defendant” possesses, but
requires the plaintiff to also carry the burden of proof 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. 21
A. Bevilacqua v. Rodriguez Can Easily Be Distinguished From The

Instant Petition, as Bevilacqua Did Not Involve An Examination
of A Petition Filed By Mortgagors In Possession That Have Already
Established Their Standing To Bring A Petition Under
G.L. c. 240, §§ 1-5
In Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), the SJC considered an appeal of
21
Indeed, please Reference Bevilacqua at n. 5, “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").”
32
an action from a purchaser of a real property in Massachusetts with an “Ibanez”
problem.22 Indeed, the Bevilacqua matter only examined a “petitioner’s” “standing”
under statute, but only from the perspective of a purported “mortgagee”, not mortgagors
such as Petitioners here.23
The SJC made an in-depth analysis as to Mr. Bevilacqua’s claimed chain of title,
as well as the historical background of the try title statute itself, and found that
Bevilacqua had not established that he was a “record title holder”.24 Bevilacqua claimed
that he had record title because he was the “owner” by virtue of a quitclaim deed granted
to him by U.S. Bank by virtue of its claim of a purportedly valid foreclosure deed.25
22
The Ibanez problem is so named as it was identified in U.S. Bank v. Ibanez, and
occurs where a purchaser of real property in Massachusetts purportedly
“purchases” real property that was previously purportedly sold at a “foreclosure”
auction by a purported mortgagee who had not yet received any purported
“assignment”, and therefore the said purchaser in fact, purchased nothing from a
void foreclosure deed, nemo dat quod non habet, creating a void purchase
transaction.
23
Here, Petitioners have already met statutory condition precedents for standing.
24
However, the Bevilacqua opinion provides an extremely helpful background of
the historical background and contextual underpinnings of the Try Title statute.
25
Indeed, the SJC held that the mere recordation of a purported document upon a
Registry of Deeds cannot bestow legal effectiveness upon a worthless piece of
paper, “….. 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.
33
However, recognizing the fatal defects this argument (due to the void foreclosure
auction sale, and void foreclosure deed received therefrom), Bevilacqua also attempted a
fall back argument claiming standing to claim record title based upon standing as an
“assignee” of the mortgage (despite the void auction sale).26
“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……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
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").”
Bevilacqua at 771.
26
In actuality, it was not Bevilacqua himself that filed the petition to try title, but
his title insurance carrier’s counsel (Rich/May), seeking to make an attempt to
“rectify” title, under the limited indemnification policy of title “insurance”,
34
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."
Indeed, there has been much confusion and incorrect reading, (and or
Potential intentional mis-reading by the financial bar) and/or interpretation of this
portion of the holding in Bevilacqua. What the SJC solely held in Bevilacqua was
in fact, that only a mortgagee’s claim of record title is legally untenable against a
mortgagor in a try title petition, where the “lender mortgagee” or a purported
“assignee of the lender mortgagee” remains subject to the same mortgagor’s equity
of redemption under G.L. c. 244, § 18.
“This point [redemption] controls the present case because a litigant

[mortgagee] 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. “ Bevilacqua at 775-
776
The SJC in Bevilacqua further clearly noted that unlike a mortgagee,
a mortgagor may be heard to challenge the validity of the mortgage (or
mortgagee) in a petition to try title:
35
“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 [mortgagee] to both claim record
title as holder of a mortgage and to dispute the respondent's
[mortgagor] 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.” Bevilacqua at
776.27
Indeed, the Petitioners, as mortgagors, have in fact, petitioned the Land Court
stating precisely that “possibility”; that Respondent(s) (as only a purported “assignee(s),
not “lender”), are an adverse claimant to their record title evidenced by Quit Claim Deed
(unlike Bevilacqua who claimed title derived only through the mortgage). Respondent(s)
do not purportedly “hold” Petitioners mortgage as the original “lender, and further, the
Respondents claims of being a proper “assignee” have clearly been called into question
as evidenced through the decision enunciated by the SJC in Ibanez.28 Thus, here, unlike
27
Unlike Bevilacqua, the instant petition involves the submittal of the petition by a
mortgagor, not mortgagee as “plaintiff”. Further, as the instant action is only in the
petition phase Respondent(s) was/were never required to file their try title action
against Petitoners, and therefore there is not yet any named “plaintiff” or
“defendant”.
28
Indeed, Respondent states that the Ibanez decision never stated that the
assignment was invalid. Petitioners counter with the fact that a thorough reading of
the decision clearly points out the deficiency(s) in the purported chain of title,
identified by the SJC. Further, Petitioners notice that Respondent fail to cite where
the Ibanez decision indicates that the Respondents are the unquestioned legal title
holder, or are in current possession of any legally enforce right to the instant
36
Bevilacqua, the instant examination under the peculiarities attendant to G.L. c. 240, §§1-
5, was to be taken from the vantage point of the mortgagor, who, unlike a mortgagee,
such as Bevilacqua, holds current record title independent of the mortgage through
evidence of a Quitclaim Deed, and possession.29
Further, in Ibanez, the SJC has clearly called into question any purported claim of
legal dominion and or control over the defeasable fee title to the real property in issue by
Respondent. Clearly, from the Petitioners mortgagor vantage point, they may be heard
to claim that there is a mere possibility that Respondent is a stranger to their record title,
and therefore an adverse claimant. Further, respectfully stated, judicial opinions
indicating, or implying, that a mortgagor and mortgagee’s claim to title are always
“complimentary”, have been made in error as they did not fully consider the divergent
defensible fee title to Petitioners real property. Indeed Petitioners, feel as though
the Respondents will have a difficult time indicating precisely where in the
Ibanez opinion, that the SJC affirmatively indicated that there was ever any
legally valid document before them that indicates that the Respondent ever
possessed any legally valid claim to the dominion and/or control over the
defeasible title to the subject real property and or premises as only a purported
“assignee”, creating the “possibility” of an adverse claimant...
29
Reviewing the Memorandum and order on appeal in this matter, the District
Court Judge erred by incorrectly transposing the perspective of the Petitioners, as
mortgagors, as opposed to the SJC holding in Bevilacqua that specifically
discussed issues where a purported “mortgagee”, not mortgagor, was filing a try
title “petition”, see (ADD012-013).29
37
perspectives of the mortgagee and mortgagor related to title, in a try title action.30
Indeed, the precise point was recently recognized in Varian v. Bank of New York
Mellon, et al. 12 MISC 462971 (Mass. Land Ct. 2013).
“For the following reasons, this court today parts from the earlier
decision of the Land Court in Abate, and from the First Circuit's
treatment of Massachusetts law in Lemelson. This court respectfully
suggests that the outcomes in these two cases are not compelled by
Bevilacqua. The opposite alignment of the parties in those cases--
between Bevilacqua, on the one hand, where a party asserting rights
as mortgagee sought to compel its mortgagor to try title, and Abate
and Lemelson, on the other, where it was the mortgagors seeking to
require putative mortgagees to try their titles--is critical. Bevilacqua v.
Rodriguez was not Rodriguez v. Bevilacqua” Varian, at p. 7 of Mem
& Ordr.
“The crucial difference between the instant case and the Bevilacqua
decision is that in Bevilacqua, the plaintiff, as a matter of law and
logic, had to admit the existence of the subject mortgage, admit he
stood before the court as the mortgagee, and simultaneously allege
that the defendant Rodriguez was the mortgagor. Taking all these
allegations together, the plaintiff failed to plead any adversity of
interest. See 460 Mass. at 775: "The title that [plaintiff] might claim
as mortgagee, however, would be inconsistent with the relief that
might be provided under G.L. c. 240, §§ 1-5." Here, the Varians'
title is established independently of the mortgage because they
indisputably hold a fee interest under a recorded deed. The
Varians have not pleaded any facts which, if true, would be
inconsistent with the relief they seek. On the contrary, and unlike the
facts in Bevilacqua, the Varians allege that Bank of NY is a stranger
to the title. Admitting that they (the Varians) have granted a
30
“So long as it remains in possession, the mortgagor is regarded as the real
owner”, Way v. Mullett, 143 Mass. 49 (1886), “and it [mortgagor] retains all
incidents of ownership, not only as to all the world, but as to the mortgagee as
well” Aragona v. Parrella, 325 Mass. 583 (1950).
38
mortgage to some party does not prevent them from arguing that
Bank of NY is not that party. As between the mortgagor and a
stranger-who holds no title but nonetheless claims to-clearly there is
an adverse relationship. 31 Varian, at p.p. 9-10 of Mem & Ordr.
III. THE DISTRICT COURT JUDGE ERRED WHERE HE FAILED TO

CONSIDER THAT AT THE TIME OF THE FILING OF THE PETITION
THE RESPONDENT HAD FAILED TO MEET ITS BURDEN TO
ESTABLISH THAT THE FEDERAL COURT HAD SUBJECT MATTER
JURISIDICTION TO EVEN ENTERTAIN THIS ACTION
As discussed above, G.L. c. 240, §§ 1-5, only contemplates that the
Petitioners are only required to establish their standing to bring the said action
(through evidence of record title and current possession), and thereafter “petition”
the Massachusetts Land Court, with only an assertion of the mere “possibility” of
an adverse claimant to their title to real property. Subsequently the Land Court
Judge is to make a sua sponte “determination as to the existence of any “potential”
adverse claimant, and only then consider whether the second phase of the try title
action would be utilized, where Respondent would be summonsed to file a
complaint to try title against Petitioners. Therefore is no, and can never be, any
document entitled a “complaint” that can be filed by “Petitioners” in a try title
action, nor can Respondent point to any affirmative claims being asserted in the
Petition, as the instant matter is just that, merely a “petition” to the Court.
31
Unlike the instant matter, the procedural posture of the Varian case involved the
Respondent answering the Petition, then filing a motion to dismiss on the pleadings
39
In the instant matter, Respondent(s) made the conscious decision to Remove
the instant controversy as “the removing party”, despite the fact that the instant
action is clearly entitled a “petition”, and further despite the clear statutory
language of the Massachusetts try title statute at issue, that unequivocally states
that the only “complaint” anticipated to be filed would be by the Respondent itself,
not Petitioners. Thus, the burden is on the removing party to set out the facts
necessary to carry the case over the threshold to establish the subject matter
jurisdiction of the federal court. See, e.g., Rising-Moore v. Red Roof Inns, Inc., 435
F.3d 813, 815 (7th Cir. 2006).
Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction
is power to declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and dismissing the cause." Ex
parte McCardle, 7 Wall. 506, 514, 19 L. Ed. 264 (1868). The requirement that
jurisdiction be established as a threshold matter that, "spring[s] from the nature and
limits of the judicial power of the United States" and therefore is, "inflexible and
without exception." Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4
S.Ct. 510, 511, 28 L. Ed. 462 (1884)".
Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, which is “not to be expanded by
judicial decree." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,
40
377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “We presume that a cause lies
outside this limited jurisdiction, ... and the burden of establishing the contrary rests
upon the party asserting jurisdiction." Id. "The general rule is that the parties
cannot confer on a federal court jurisdiction that has not been vested in that court
by the Constitution and Congress. This means that the parties cannot waive lack of
[subject-matter] jurisdiction by express consent, or by conduct, or even by
estoppel; the subject matter jurisdiction of the federal courts is too basic a concern
to the judicial system to be left to the whims and tactical concerns of the litigants."
13 WRIGHT ET AL.,, § 3522, at 66-68 (citations omitted); see, e.g., Insurance
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702,
102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982).
A. Respondents Intentionally Removed This Matter to The Federal Court
Removal statutes, in particular, must be strictly construed, in as much as the
removal of cases from state to federal court raises significant federalism concerns.
See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85
L. Ed. 1214 (1941) ("The power reserved to the states under the Constitution to
provide for the determination of controversies in their courts, may be restricted
only by the action of Congress in conformity to the Judiciary Articles of the
Constitution."); see also Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L. Ed.
1248 (1934) ("Due regard for the rightful independence of state governments,
41
which should actuate federal courts, requires that they scrupulously confine their
own jurisdiction to the precise limits which the statute has defined." ); Maryland
Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255, 260 (4th Cir.2005) (noting our
duty to construe removal jurisdiction strictly because of the significant federalism
concerns implicated by removal).
In 1938, the United States Supreme Court established the basic standard by
which to evaluate a challenge that a plaintiff has not met the jurisdictional amount-
in-controversy requirement: The rule governing dismissal for want of jurisdiction
in cases brought in federal court is that, unless the law gives a different rule, the
sum claimed by the plaintiff controls if the claim is apparently made in good
faith. It must appear to a legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal. St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845(1938) (internal citations
omitted). 32
B. Unlike Lemelson, Petitoners Filed a Timely Motion to Remand
In the instant matter, there exists no “complaint”, no “claim of damages”,
indeed there also nowhere exists any named “plaintiff” or “defendant”, or indeed
32
Clearly in the instant matter, it was the Respondent that asserted Removal, and
therefore it is the Respondent that must specifically articulate, and carry its own
heavy burden, to supply the foundational basis that provide sufficient evidence that
would enable the federal court to find sufficient subject matter jurisdiction to hear
the instant matter, which Respondent clearly has failed to do here.
42
any claim whatsoever, only a “petition” submitted to the court asserting the mere
“possibility” of an adverse claimant. 33 Therefore the Respondent, as the removing
party in this matter, carries the heavy burden to establish the subject matter
jurisdiction of the federal court in this matter. 34
The District Court Judge erred by accepting the Respondent(s) “theory” that
the mortgage itself supplied the “in controversy” threshold, by stating in an
incorrect contextual manner, that “Plaintiffs” argue that remand is appropriate
because the amount in controversy is less than $75,000.00.35 Indeed, the District
Court Judge clearly ignores the Petitioners’ astute conditional precedent
asservation that there was never any “complaint” ever filed by Petitioners in this
matter:
33
This is a statutory language fact, despite the District Court Judge’s repeated
incorrect references to the parties in this initial phase of the try title action, as
“plaintiffs” and “defendants”.
34
Indeed, in the only other cited case regarding remand of a try title action
Removed to the federal court to Petitoners knowledge), Barbosa v. Wells Fargo
Bank, N.A., 12-12236-DJC, the Honorable Casper, J. also, respectfully submitted,
erred by incorrectly basing subject matter jurisdiction of the court upon the “value
of the mortgage” in the absence of any filed “claim”. Like the instant matter, Judge
Casper’s ruling relied upon Bevilacqua v. Rodriguez, which is not analogous to the
Petitioners’ position as mortgagors. Further Barbosa also failed to recognize that
as a condition precedent, there can never be any “complaint” filed by a “petitioner
under G.L. c. 240, § 1.
35
Subsequently incorrectly finding that the mortgage itself supplied the monetary
requirement for federal court diversity jurisdiction related to a “petition”, as the
District Court Judge further erred where he failed to recognize that as a condition
precedent, there was never any “complaint” ever filed by Petitioners in this matter,
nor can there be under the specific statutory construct at issue.
43
“Thus, the Petitioners have not filed any affirmative “complaint”

seeking damages from the Respondents in the amount of $75,000.00
or greater.”(A-619)
In Respondent(s) Opposition to Remand, it/they attempt to advance a
hopelessly legally deficient argument, explicating that the amount in controversy is
based upon the “value of the mortgage”, which the District Court Judge
erroneously accepted as legally correct. (A646-648).36 Indeed, the Respondent(s)
admit that, in addition to carrying the burden to establish the subject matter
jurisdiction of the federal court to hear this matter, that the heavy burden also shifts
to Respondents (not Petitioners) to provide “proof” associated with Respondent(s)
“claim” to title, to ultimately be brought against Petitioners, under G.L. c. 240, §§
1-5, but however incorrectly adds the following 37:
“……their [Petitioners] argument in regard to a nonexistent amount in

controversy is flawed. Indeed, the Petitioners have not explicitly
demanded monetary relief in their Petition. However, this lack of
demand is not indicative of a lack of amount in controversy between
the parties. In fact, federal law enables the party to establish the
36
Indeed, this is the “go to” argument by the financial bar to establish the
foundational bases for the wholesale removal of complaints filed by homeowners
when challenging a purported “mortgagee” seeking to utilize the non-judicial
foreclosure process under G.L. c. 244, § 14 in state court. However, unfortunately
for Respondents, in the matter before this court there is no “foreclosure action”
under G.L. c. 244, § 14, nor is there any filed “complaint”, nor any affirmative
“claims”. The result being a legally untenable “argument” by Respondents under
G.L. c. 240, §§ 1-5 as well as a legally barren assertion that any amount was in
controversy at the time of Removal.
37
Indeed, it is to be remembered that under statute, it is the Respondent that would
have to prove its superior title over Petitioners, not the other way ‘round.
44
amount in controversy (if not stated within the “complaint”).”

(A646).38
In fact, unlike a complaint filed to challenge “a foreclosure” or to “Quiet
Title”, here under the peculiar Massachusetts state law squarely at issue, and that is
directly controlling in this matter, during the initial “petition” phase of a try title
action, there could never be any amount or item in controversy, as there can be no
“complaint” that can be filed by Petitioners under statute.
Thus there can be never named “defendant(s)”, nor any named affirmative
claims therein during the initial phase of the Massachusetts try title action. To hold
otherwise would have the federal court act outside its constitutionally limited
charter and limited subject matter jurisdiction, by intentionally usurping the
mandate and directive of a legislatively enacted Massachusetts statute. The result
of such action would clearly have the federal court placing a federally imposed
additional legal burden upon the “petitioner” (instead of respondent) in a try title
38
Indeed, as further reference to the District Court Judge’s error, please reference
the Memorandum and Opinion, where he references a citation from Monogram
Indus, Inc. v. Zellen, 467 F. Supp. 122, 123 (D.Mass 1979), finding that though the
federal court may not interfere with state probate proceedings nor exercise control
over property in exclusive possession of the state probate court, it may none the
less make a determination of a debt due from decedent because a debt so
established would simply take its place and share of the estate as administered by
the probate court”. In the instant matter, The Petition has nothing to do with any
“debt due”, as the instant matter is solely and myopically focused upon an
examination of title to real property The instant Petition is not nor ever can be, any
“complaint” regarding “foreclosure” or regarding any claims whatsoever relative to
any underlying indebtedness.(ADD-011)
45
action to carry the burden to “plead’ with particularity “claims” naming specific
adverse claimant(s), and succinctly articulating “plausible assertions” under the
backdrop of an Igbal examination, where the state statute at issue clearly allows a
“petitioner” to solely make the mere asservation of only the “possibility” of an
adverse claimant.
Therefore, the only “flawed argument” advanced in these proceedings, was
made by Respondent(s) themselves, under the incorrect foundational premise that
during this initial phase of the try title action, and/or at the time of Removal, that
there was ever any “complaint” filed by Petitoners at all. 39 The District Court
Judge clearly erred in accepting the Respondents arguments in this regard, and
further clearly erred in basing his decision thereon.40
The clear error committed by the District Court Judge is that he accepted
whole cloth, the Respondent(s) legally incorrect legal “theories” regarding this
highly complex Massachusetts state law issue, and therefore further clearly and
gravely erred where he found that “the mortgage” itself satisfied the “amount in
controversy” to provide the federal court subject matter jurisdiction to hear the
instant matter during this initial “Petition” phase of the try title procedure. “Doubts
39
Indeed, the Respondents made numerous references to “Quiet Title”, and in fact
submitted case law from extra judicial Quiet Title actions to support their position.
40
Indeed, which is the precise raison d’etra that during this phase of a try title
action the parties are named as “petitioner” and “respondent”, and not plaintiff and
defendant.
46
about the propriety of removal should be resolved in favor of remanding the case
to state court”. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir.2004) (en
banc); Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).
Based upon the preceding, the Petitioners respectfully reiterate their
continuing challenge to the subject matter jurisdiction of the federal court to
entertain this matter, and therefore further respectfully request that this Court make
findings of law that the District Court Judge, in fact, committed grave error in
finding that the federal court had subject matter jurisdiction in this matter.
Therefore, as a result of the clear judicial error committed by the District Court
Judge, the Petitioners, further respectfully request that the Memorandum and Order
enunciated in this matter be vacated, as the federal court lacked the subject matter
jurisdiction to opine in any way on this matter, and further request that this Petition
be remanded back to the Massachusetts Land Court from whence it came.
C. Unlike Lemelson, Due To The Gravity of Importance of The Underlying

Ibanez Decision Related To This Matter, And Its Cornerstone SJC
Ruling Involving The Foundational Development of Evolving
Massachusetts State Law, The District Court Judge Raised Issues
Regarding Abstention, However Completely Abandoned Any Further
Examination of This Issue After This Court’s Ruling In Lemelson
In the alternative, should this Court find that the federal court has the subject
matter jurisdiction to adjudicate the instant controversy, the Petitioners respectfully
refer this Court to review the magnitude of the U.S. Bank Nat’l Ass’n v. Ibanez
decision that undergirds the instant action. Indeed, Ibanez has been described in
47
various local, and national circles, as a “watershed ruling”, and one that is
“crucially important as a cornerstone decision, that supplies the fundamental
foundation for the rapidly developing Massachusetts state decisional law”,
regarding issues related to real property, mortgages and mortgage foreclosure, as
there is only a sparse light of guidance on these complex issues.
Indeed, the District Court Judge himself, astutely recognized this fact at the
December 03, 2012 joint hearing on the Petitioners Motion for Remand, and
Respondents Motion to Dismiss 41 (A795-823):
“As I was preparing for this case and going through the papers, and I
don't like to play law school here, but it went through my mind isn't
this an abstention situation? Shouldn't I be abstaining here? The
abstention doctrine under the Burford case, B-u-r-f-o-r-d, creates a
situation which is admittedly rare. Federal courts are normally
required to exercise jurisdiction if they have it, but allows courts to
abstain even in situations where they have jurisdiction where certain
criteria are met and when the court is facing difficult questions of state
law bearing on "policy problems of substantial public import whose
importance transcends the result in the case then at bar.” (A799)
The District Court Judge further stated that he recognized, and was
concerned, that as the underlying Ibanez decision created a “seismic effect” on real
estate law in Massachusetts, this issue ought to best to be addressed by the
Massachusetts Land Court:
41
Indeed, although the hearing was also scheduled to take place regarding the
Respondent(s) Motion to Dismiss, even though both party(s) were present, the
entire discussion only involved the Petitioners’ Motion for Remand, and issues of
abstention
48
“Sooner or later the SJC is going to have to make the decision, and the
land court seems to me to be the best place to get this process going
rather than having me come in with my size 13 shoes, my size 13
federal shoes, tromp all over everything and say, well, this is what I
think Massachusetts state law should be, which would be fun for me
and I would enjoy doing it and I could make a decision, but the Ibanez
decision had a kind of a seismic effect on real estate law in
Massachusetts as I understand it and for me to get involved in this
really concerns me.” (A-800)
At the close of the hearing, the District Court Judge Ordered that both
parties submit Supplemental Briefing on the issue of Abstention (A817-821). In
compliance with the Court’s Order, the Petitioners Submitted their Supplemental
Briefing on Abstention, (A697-708), which Respondents countered with their
Memorandum, (A722-728).
In The Respondents’ Memorandum on Abstention, it states that:
“patently absent from this case is a “difficult question of state law

bearing on policy problems with respect to a matter of substantial
public concern” (A725). 42
As a premise for the foregoing statement, the Respondent further stated:
“Although Petitioners insist on referring to the Massachusetts try title

statute as “esoteric”, in nature, the Supreme Judicial Court recent
opinion in Bevilacqua v. Rodriguez, 460 Mass. 762, 955 N.E. 2d 884
(2011), illustrates that there is nothing arcane or mysterious about the
statute,. In its opinion, the Bevilacqua Court provides a thorough
42
Indeed, unlike Respondent(s) statement, one would be hard pressed to imagine
any scenario being more “difficult, arcane and mysterious” than the state law at
issue here.
49
discussion regarding the history, evolution, and intent of the try title
statute……” (A725).43, 44
Of course, unlike the instant matter, Bevilacqua only concerned an
examination of standing to bring a try title Petition from the mortgagee’s position,
where a purported mortgagee’s claimed basis to title solely relies upon the
mortgage alone. Because the mortgagee’s claim to title is based solely upon the
“mortgage”, the “mortgagee’s” claim to defeasible title to Petitioners title remains
subject to the Petitioners mortgagors right of redemption under G.L. c. 244 § 18.
As discussed, unlike Bevilacqua’s challenge as a purported “mortgagee”,
here, Petitioners, as mortgagors, have an independent claim to title based upon the
possession of “record title”, through possession of a Quit Claim Deed. Thus,
Petitioners’ petition names only a purported “assignee-mortgagee” of their original
“lender” as a “possible” adverse claimant. Further, petitioners assertion is clearly
further bolstered by the findings made by the SJC in the Ibanez decision.
Indeed, the SJC has identified “potentially” grave issues as to claims made
by Respondent that it has purported legal right or authority to claim the legal
43
Respondent also relied upon the holding in Abate as well
44
The weakness of the Respondents argument that the instant Massachusetts
statute is not “arcane”, is put to rest by the SJC’s finding of the following in
Bevilacqua, “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…” Bevilacqua at 767.
50
dominion and/or control over its claimed defeasible fee interest to the Petitioners
title. Thus, Bevilacqua, (nor Lemelson or Abate, based thereon), does not support
Respondents position, and in fact Bevilacqua clearly sets out that a mortgagor
(unlike a mortgagee) may be heard to claim invalidity as to the mortgage and/or
one claiming right to the same as an assignee in a try title action.
Therefore, after this Court’s decision in Lemelson, the District Court Judge
erred by completely abandoning any examination of the abstention issue in this
matter. The District Court Judge gravely erred in so doing, because the Petitioners
action represents a complete dichotomy and distinction from Bevilacqua, and
further unlike Lemelson, there are clearly significant and enduring “policy
problems, with respect to this matter of substantial public concern”, related to the
issues raised in the underlying Ibanez case, which clearly undergird the instant
action.
Therefore, and in the alternative to making a finding that the federal court
does not have subject matter jurisdiction, the Petitioners respectfully request that
this Court make findings of law that the federal court should abstain from
entertaining the instant controversy, as it is an extremely important cog in the
development of the foundational decisional case law regarding real property issues
within the Commonwealth of Massachusetts.
51
IV. THE DISTRICT COURT JUDGE ERRED BY FAILING TO

PROPERLY CONSIDER THAT THE CLEAR STATUTORY
WORDING OF G.L. c. 240, §§ 1-5, DOES NOT CONTEMPLATE
THAT ANY COMPLAINT CAN BE FILED BY PEITIONERS,
WHICH THEREFORE PRECLUDES ANY ANALYSIS UNDER
IGBAL REGARDING DISMISSAL UNDER FED, R. CIV. P. R.
12(b)(6)
The only “flawed argument” advanced in these proceedings, in fact, was made
by Respondent(s) themselves and accepted by the District Court Judge, which was
rooted in the Respondent(s) legally incorrect premise that during this initial phase
of the try title action, and at the time of Removal, that there was ever any
“complaint” filed at all.45 Therefore, in the absence of any filed complaint by
Petitioners, there can never be any “Motion to Dismiss”.46 As stated, the question
of whether Petitoners have better title or not does not arise during the instant
Petition phase of the try title action, and therefore any potential judicial
determination as to who has superior title or not, would only be determined in the
actions, which the Respondents may or may not be ordered to bring against
Petitioners.
“…..The bill of exceptions shows a record title in the petitioner. It is

true that it also shows a record title in the respondents. But if the
45
Indeed, the Respondents incorrectly made numerous references to “Quiet Title”,
and in fact submitted case law from extra judicial Quiet Title actions to support
their position, which of course has no bearing on this matter.
46
Indeed, which is the precise raison d’etra that during this phase of a try title
action the parties are named as “petitioner” and “respondent”, and not plaintiff and
defendant.
52
petitioner has, in addition to a record title, possession, the

question whether he has a better title or not does not arise, and is
not to be determined in these proceedings, but in the actions
which the respondents may be ordered to bring. Blanchard v.
Lowell, 177 Mass. 501, 504-505 (1901)
Clearly, as a result of the preceding, the District Court Judge clearly erred by
accepting Respondents arguments as legally valid, but further erred in application
of the preceding in his ruling on appeal, by not fully considering that there can be
no complaint submitted by a “petitioner”, and therefore as a result, there could
never be any Motion brought by Respondent(s) against Petitioners to Dismiss a
non-existent complaint, under Fed. R. Civ. P. R 12(b)(6).
A. Due To The Clear Statutory Wording of G.L. c. 240, § 1, Allowing

The Assertion of Only The Mere “Possibility” of An Adverse
Claimant, Under an Igbal Analysis If “Petitions” To Try-Title Were To
Be Construed As “Complaints”, Every Petition Undergoing a 12(b)(6)
Examination Would Be Dismissed
Indeed, if the instant document under review that is entitled a “petition”
under the peculiar and specific definition of that term, under the specific wording
of a specific Massachusetts state statute, is deemed by this Court to be a
“complaint”, such document could never meet the pleading standards under Fed.
Rule Civ. Proc. 8(a)(2), and/or as enunciated under Ashcroft v. Iqbal, 556 U.S. 662
(2009). Indeed, in Igbal, it was stated as follows:
“Determining whether a complaint states a plausible claim for relief

will, as the Court of Appeals observed, be a context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense. 490 F. 3d, at 157–158. But where the well-pleaded
53
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has
not “show[n]”—“that the pleader is entitled to relief.” Fed. Rule
Civ. Proc. 8(a)(2).”
Comparing the above, with the specific wording of the specific
Massachusetts state statute at issue in this matter, G.L. c. 240, § 1, it is
clear that most, if not all, “petitions” would be dismissed if they were to
be construed as “complaints”, as a “petitioner” may assert only the
“possibility” of an adverse claimant:
Section 1. 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 or an unexpired term of not less
than ten years, and a person who by force of the covenants in a deed
or otherwise may be liable in damages, if such claim should be
sustained, 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).
Thus, under the specific statutory wording of the Massachusetts state statute
at issue, a “petitioner” is allowed to “petition” the court alleging only the
“possibility” of an adverse claimant, which therefore would immediately subject
any “petitioner” to dismissal under 12(b)(6) analysis, if a “petition” were to be
construed as a “complaint”.
Clearly, the United States Constitution and Congress did not intend to
impinge on the property rights of Massachusetts state residents who seek to utilize
54
the unique and specialized Massachusetts state statutes, in the specialized
Massachusetts Land Court, related to protecting the title to their real property from
adverse claim(s) of only “possible” adverse” claimant(s). Indeed, states frequently
grant greater rights that what would be afforded under federal law under their
police power. “Due regard for the rightful independence of state governments,
which should actuate federal courts, requires that they scrupulously confine their
own jurisdiction to the precise limits which the statute has defined." 407 F.3d 255,
at. 260.
The Judicial error undertaken by the District Court Judge is clearly evident
where he makes a finding that”
To begin with, the Plaintiffs claim that the Defendant Option One’s
assignment of mortgage was invalid misconstrues the SJC’s holding.
Ibanez invalidated the foreclosure sale only. The SJC declared that
Defendants failed ‘to abide by the principles and requirements
necessary to effect a valid assignment of mortgage and thus convey
the statutory power of sale, Ibanez, 458 Mass. at 654. Defendants, the
SJC said, simply could not establish that they were holder of the
Plaintiffs mortgage at the time they foreclosed on the property, Id. At
655. The SJC did not rule on the question of whether the assignment
after the foreclosure sale was invalid.” (ADD-016)
Clearly, the Judge was confused as to the Massachusetts state law issue that
was squarely before him in this matter. First, at this initial phase of the
Massachusetts try title action procedure, there is no “plaintiff” or “defendant”.
Secondly, the Judge errs where he states that the SJC only held that the
Respondents did not have a valid assignment at the time of the foreclosure sale.
55
Indeed, as discussed, here it was not Petitioners burden to prove their case here,
and further, the Massachusetts try title statute allows a Petitioner to make the
asservation of the mere possibility of an adverse claimant. The District Court Judge
errs where, he notably fails to note that, nowhere in Ibanez, does the SJC make any
finding that the assignment was valid, thus clearly creating the possibility of an
adverse claim, which is further bolstered by referencing Ibanez, at 643-645; 649-
650; and at 651-655.
Effectively, the District Court Judge erred by placing legally incorrect
burden upon Petitioners, and additionally erred where he places Petitioners Petition
under an Igbal analysis, where the state statutory language at issue clearly allows
the Petitioners to aver the mere “possibility” of an adverse claimant. The
fundamental grave error committed by the District Court Judge lies in his making a
finding that federal court subject matter jurisdiction exists, and he makes findings
that far exceed the jurisdictional mandate of the federal court, involving ht specific
Massachusetts statute at issue.
B. The District Court Judge Erred By Placing A Legally Incorrect

Burden Upon The Petitoner, As The Statutory Construct of G.L. c.
240, §§ 1-5, Clearly Requires That Respondent Has the Burden
To Bring A Try Title Complaint Against Petitioners
By granting the Respondent a “dismissal” under 12(b)(6), the District Court
Judge further gravely erred by placing a legally incorrect burden upon the
Petitioner, as under state statute, it is only the Respondent that files a try title
56
“complaint” against the Petitioner, and it would be Respondent that would
therefore carry the burden of persuasion, and only in the second phase of the try
title action where any determination as to superior title (or not) under statute would
take place. The District Court Judge erred by disregarding the clear and
unequivocal directive of G.L. c. 240, § 1, which required the District Court Judge
to require that the Respondent(s) file a true title complaint against Petitioners, and
therefore it is Respondents, not Petitioners, burden to carry persuasion.
Again, the District Court Judges error is readily apparent, where Petitioners
counsel was quite clear about explaining this protocol under the try title statute
during the following colloquy with the District Court Judge at the December 03,
2012 hearing on the Petitioners Motion to Remand, where the District Court Judge
was clearly confused as to the burden of Respondent in this action, however was
clearly put on notice of the respective burdens of the respective parties under G.L.
c. 240, §1 by Petitioners counsel, yet erred by allowing the Respondent(s) Motion
to Dismiss anyway:
THE COURT: So if I were to follow Judge Young's path to some

extent and keep this case and set it up for trial -- Judge Young is a big
trial person, he loves trials, he loves juries, he loves that kind of thing.
Is this a jury case? Do I put eight people in the box here and you step
in front of the jury, assuming I deny the motion to dismiss, and each
of you steps in front of the jury and you try to persuade them? I
suppose you, you would have the burden, this is a try title case, I
guess? No, you don't have the burden?
MR. RUSSELL: No.

57
THE COURT: I'm used to having the petitioner have the burden. You
don't have the burden?
MR. RUSSELL: No, that's the key, Your Honor.This is a petition. It's
brought to the land court. The land court makes a determination has
the petitioner set forth the two factors: Possession of the land and
record title.
THE COURT: So they --
MR. RUSSELL: If that's the case, the burden shifts to them to bring a
try title action against my clients.
THE COURT: Okay. (A817).
V. CONCLUSION
Respectfully stated, the District Court Judge clearly abused his discretion,
committed numerous errors in legal analysis, committed numerous errors, and was
not clear in the specific application of the state law at issue as a legal framework
for the instant fact pattern. The District Court Judge also committed numerous
errors through incorrect citation to off point case law, while simultaneously
ignoring the Petitioners’ fundamentally correct argumentation of state and
application of the Massachusetts state law to the Petitioners. Further respectfully
stated, the District Court Judge clearly erred, by not recognizing as a condition
precedent, that the federal court lacks subject matter jurisdiction to hear this
matter, and further erred derivatively, by failing to fully consider that in the
alternative there was no filed complaint, therefore further erred by finding for
58
Respondents on 12(b)(6) dismissal, where dismissal is clearly inapplicable in the
absence of any filed complaint.
Thus, for all of the foregoing reasons and stated ratio decidendi contained
herein, the Plaintiffs respectfully request that this Court make findings that the
federal court lacks subject matter jurisdiction to entertain this matter, and remand
this controversy back to the Massachusetts Land Court, or in the alternative
remand this matter back to the Massachusetts Land Court based upon principles of
Abstention, or if this Court makes findings that the federal court has subject matter
jurisdiction and/or there are no countervailing abstention issues, in the alternative
under 12(b)(6) analysis, should this federal Court make findings that the instant
“petition” represents a “complaint, in the alternative to finding that the federal
court lacks jurisdiction to entertain this matter, the Petitioners respectfully request
that this Court make findings of law that the District Court Judge erred in basing
his ruling on dismissal based upon the legally incorrect interpretation and
application of Lemelson, and Bevilacqua v. Rodriguez, to the instant matter, where
Petitioners are clearly inapposite, as they are mortgagors, not a purported
“mortgagee” as was Bevilacqua. Therefore, in the alternative, Petitioners
respectfully request that this Court reverse and remand the order of dismissal back
to the District Court, consistent with rulings of this Court.
59
Respectfully Submitted
Petitioners,
Mark A, LaRace
Tammy L. LaRace
By their attorney,
/s/ Glenn F. Russell, Jr.

Glenn F. Russell, Jr.
BBO#656914
& Associates, P.C.
38 Rock Street, Suite 12
Fall River, MA 02720
P. (508) 324-4545
F. (508) 938-0244
Dated: March 19, 2014 Email: russ45esq@gmail.com
60
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because:
2. This brief contains approximately [13,965 words], excluding parts of the

brief exempted by Fed.R.App. P. 32(a)(7)(B)(iii)
3. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
a. this brief has been prepared in a proportionally spaced typeface using

Word version in 14 times new roman style.
/s/Glenn F. Russell, Jr.

Dated: March 19, 2014
61
CERTIFICATE OF SERVICE
I, Glenn F. Russell, Jr. hereby certify that on March 19, 2014, this document
was filed through the US Court of appeals for the first circuit CM/ECF, and will be
sent electronically to its registered participants as identified in the Notice of
Electronic Filing (NES) .
Dated: March 19, 2014
/s/Glenn F. Russell, Jr.

62
ADDENDUM
63
ADDENDUM
TABLE OF CONTENTS
Page
District Court Decision of September 24, 2013……..............................ADD-001
G.L. c. 185 § 1(d)…..…………………………………………………..ADD-022
G.L. c. 185 § 1(k)…..…………………………………………………..ADD-022
G.L. c. 240 §§ 1-5……………………………………………………...ADD-024
G.L. c. 240 §§ 6-10………………………………………………….....ADD-028
G.L. c. 244 § 14………………………………………………………..ADD-034
G.L. c. 244 § 18………………………………………………………..ADD-037
64
Case: 13-2316 Document:
Case 00116663465 Document
3:12-cv-11545-MAP Page: 6632 Filed
Date09/24/13
Filed: 03/20/2014
Page 1 of 18Entry ID: 5809394

FOR THE DISTRICT OF MASSACHUSETTS
MARK A. LARACE and )

TAMMY L. LARACE )
Plaintiffs )
)
v. ) C.A. No. 12-cv-11545-MAP
)
WELLS FARGO BANK, N. A. AS )
TRUSTEE FOR ABFC 2005-0PTl )
TRUST ABFC ASSET BACKED )
CERTIFICATES SERIES 2005-0PT1, )
AMERICAN HOME MORTGAGE )
SERVICING, INC., and )
OPTION ONE MORTGAGE COMPANY )
Defendants )
MEMORANDUM AND ORDER REGARDING

DEFENDANTS' MOTION TO DISMISS AND
PLAINTIFFS' MOTION TO REMAND TO STATE COURT
(Dkt. Nos. 8 & 15)
September 24, 2013
PONSOR, U.S.D.J.
I. INTRODUCTION
Plaintiffs Mark and Tammy LaRace are Springfield
residents who purchased a home at 6 Brookburn Street.
Defendants at various times have held a mortgage on the
property, either as the original mortgagee or an assignee of
the mortgage. In June 2012, Plaintiffs filed a petition to
ADD-001
3:12-cv-11545-MAP Page: 6732 Date09/24/13
Filed Filed: 03/20/2014
try title against Defendants in the Massachusetts Land
Court. In August 2012, Defendants removed the case to this
court based on diversity jurisdiction and filed a motion to
dismiss. Shortly thereafter, Plaintiffs filed a motion to
remand arguing lack of jurisdiction. Based on the recent
decision in Lemelson v. U.S. Bank National Association, 721
F.3d 18 (1st Cir. 2013), Plaintiffs' motion will be denied,
and Defendants' motion will be allowed.
II. FACTUAL BACKGROUND 1
Plaintiffs are citizens of Massachusetts. Defendant
Homeward Residential, Inc. f/k/a American Home Mortgage
Servicing, Inc., is a Delaware corporation with a principal
place of business in Texas; Defendant Wells Fargo as Trustee
has its main office in Sioux Falls, South Dakota; and
Defendant Sand Canyon Corporation f/k/a Option One is a
California corporation with its principal place of business
in California. Defendants assert an amount in controversy
1
The facts are drawn from Plaintiffs' Complaint (Dkt. No.
1, Ex. 1) as well as from the Massachusetts Supreme Judicial
Court's Ibanez decision. U.S. Bank Nat'l Ass'n v. Ibanez, 458
Mass. 637, 643-45 (2011). As always, for purposes of a motion
to dismiss, the court will "assume the truth of all well-pled
facts and give [Plaintiffs] the benefit of all reasonable
inferences therefrom." Ruiz v. Bally Total Fitness Holding
Corp., 496 F.3d 1, 5 (1st Cir. 2007).
-2-
ADD-002
Date09/24/13
Filed: 03/20/2014
of $103,200.00, the value of the mortgage on the Springfield
property.
On May 19, 2005, Plaintiffs mortgaged their Springfield
home to Option One for $103,200; the mortgage was recorded
that same day. On May 26, 2005, Option One executed an
assignment of the mortgage in blank. In a July 28, 2005,
sale and servicing agreement, Option One assigned the
mortgage to Bank of America. In an October 1, 2005,
mortgage loan purchase agreement, Bank of America assigned
the mortgage to Asset Backed Funding Corporation (ABFC) . As
part of a pooling and servicing agreement (PSA) , ABFC pooled
the mortgage with others and assigned i t to Wells Fargo, as
trustee for the ABFC 2005-0PT 1 Trust, ABFC Asset-Backed
Certificates, Series 2005-0PT1.
On April 27, 2007, Defendant Wells Fargo filed a
complaint in the Land Court seeking both a finding that
Plaintiffs were not beneficiaries of the Servicemembers Act
and a judgment that a foreclosure could proceed in
accordance with the terms of the power of sale. In the
complaint, Wells Fargo represented that it was the "owner
(or assignee) and holder of the mortgage" of the Springfield
-3-
ADD-003
Date 09/24/13
Filed: 03/20/2014
property. U.S. Bank Nat'1 Ass'n v. Ibanez, 458 Mass. 637,
645 {2011). On July 3, 2007, the Land Court issued the
requested finding and judgment. In June 2007, as required
by statute, Wells Fargo published the notice of sale in The
Boston Globe and identified itself as the "present holder"
of the mortgage. Id.
On July 5, 2007, Wells Fargo, as trustee, purchased the
Springfield property at a foreclosure sale for a price of
$120,397.03 significantly below market value. Almost a
year later, on May 7, 2008, Wells Fargo executed a statutory
foreclosure affidavit and foreclosure deed. That same day,
Option One -- which was still the record holder of the
Springfield mortgage -- executed an assignment of the
mortgage to Wells Fargo as trustee. The assignment was
recorded on May 12, 2008, but i t contained an effective date
of April 18, 2007. Id.
In October 2008, Wells Fargo brought an action in Land
Court to quiet title; specifically, it sought a judgment
extinguishing Plaintiffs' right, title, and interest in the
property, declaring no cloud on the title, and vesting title
in Wells Fargo in fee simple. Plaintiffs initially did not
-4-
ADD-004
Date09/24/13
Filed: 03/20/2014
answer the complaint, and Wells Fargo moved for default
judgment. On March 26, 2009, the Land Court entered
judgment against Wells Fargo. The court deemed the
foreclosure sale invalid because the statutory notices of
sale named Wells Fargo as the "present holder" of the
mortgage when i t had not yet been assigned the mortgage by
Option One.
Wells Fargo appealed this judgment, and in U.S. Bank
National Association v. Ibanez, 458 Mass. 637 (2011), the
Massachusetts Supreme Judicial Court ("SJC") upheld the
lower court's decision. Because Massachusetts recognizes a
statutory power of sale, which permits foreclosure without
judicial oversight, one who exercises such a power of sale
is held strictly to the statutory requirements. Id. at 646.
As the SJC noted, "[o]ne of the terms of the power of sale
that must be strictly adhered to is the restriction on who
is entitled to foreclose." Id. at 647. The SJC underlined
a second requirement of proper notice. Both these terms
were violated by Wells Fargo. Because i t could not
establish that i t was the holder of the mortgage at the time
of notice or sale, Wells Fargo's foreclosure on the
-5-
ADD-005
3:12-cv-11545-MAP Page: 71
32 Date09/24/13
Springfield property was invalid. Accordingly, Wells Fargo
was not entitled to a judgement from the Land Court that i t
had acquired fee simple title to the Springfield property
when i t purchased the property at the foreclosure sale. Id.
at 655.
On June 6, 2012, Plaintiffs filed a petition to try
title, pursuant to Mass. Gen. Laws ch. 240, §§ 1-5, in the
Massachusetts Land Court. They alleged that "the
possibility of an adverse claim" by Defendants existed
because Defendants might, sometime in the future, seek again
to foreclose on the Springfield property. (Pls. ' Compl. ,
Dkt. No. 1, Ex. 1 at 6.) On August 20, 2012, Defendants
removed the petition to this court based on diversity
jurisdiction and promptly filed a motion to dismiss.
Plaintiffs responded with both an opposition and a motion to
remand.
Following oral argument on December 3, 2012, the court
requested that the parties prepare supplemental submissions
on the issue of abstention as set forth in Burford v. Sun
Oil Co., 319 U.S. 315 (1943). Shortly after these memoranda
arrived, however, the First Circuit issued its decision in
-6-
ADD-006
Case: 13-2316 Document: 00116663465 Page: 72 Date Filed: 03/20/2014
Case 3:12-cv-11545-MAP Document 32 Filed 09/24/13 Page 7 oilS
Entry ID: 5809394
Lemelson. As will be seen, this decision essentially
commands dismissal of Plaintiffs' petition, rendering any
discussion of abstention unnecessary. The discussion below
will begin with Plaintiffs' motion to remand before
proceeding to Defendants' motion to dismiss.
III. DISCUSSION
A. Plaintiffs' Motion to Remand.
Defendants removed Plaintiffs' civil action from the
Massachusetts Land Court to this court based on diversity
jurisdiction. Section 1332 of Title 28 of the United States
Code provides for removal of a civil action from state court
where the matter in controversy is between citizens of
different states and exceeds the "sum or value" of $75,000.
28 U.S.C. § 1332(a). Plaintiffs argue that remand is
appropriate because the amount in controversy is less than
$75,000. Moreover, Plaintiffs assert that their petition to
try title can only be brought in Land Court and Defendants'
removal to federal court is an attempt to get around their
obligations under Massachusetts law.
Plaintiffs' original petition in Land Court was to try
title, pursuant to Mass. Gen. Laws ch. 240, §§ 1-5. This
-7-
ADD-007
Case: 13-2316 Case
Document: 00116663465 Document
3:12-cv-11545-MAP Page: 73 Date09/24113
32 Filed Filed: 03/20/2014
Page 8 of 18 Entry ID: 5809394
statute is designed to compel adverse claimants to a piece
of property to either assert their claim or forever abandon
it. Plaintiffs argue that their petition does not seek
damages and, therefore, Defendants cannot claim that the
amount in controversy is $75,000. See Spielman v. Genzyme
Corp., 251 F.3d 1, 5 (1st Cir. 2001) (stating that generally
a plaintiff's allegations of damages controls)
Section 1446(c) (2) provides that "the sum demanded in
good faith in the initial pleading shall be deemed to be the
amount in controversy, except that the notice of removal may
assert the amount in controversy if the initial pleading
seeks nonmonetary relief." 28 U.S.C. § 1446(c)(2)(A)(I).
Additionally, "removal of the action is proper on the basis
of an amount in controversy asserted under subparagraph (A)
if the district court finds, by a preponderance of the
evidence, that the amount in controversy exceeds [$75,000] ."
§ 1446 (c) (2) (B)
The burden is on Defendants, as the parties asserting
jurisdiction, to show that the statutory requirements have
been met. Spielman, 251 F.3d at 4. Defendants stated in
their notice of removal that the amount in controversy was
-8-
ADD-008
3:12-cv-11545-MAP Page: 7432 Date 09/24/13
$103,200, which is the principal amount of Plaintiffs' first
mortgage. (Dkt. No. 1.) Alternatively, Defendants argue
that they can establish by a preponderance of the evidence
that the amount in controversy is in excess of $85,000,
which is the most recent appraised value of the property at
issue.
The record convincingly establishes that Defendants
have met the requirements of § 1332 for diversity
jurisdiction. It is reasonable to designate the amount in
controversy as the value of the mortgage, since Plaintiffs'
petition does not specify a damage amount and Defendants'
mortgage interest would be extinguished if Plaintiffs were
ultimately successful.
Plaintiffs next argue that the "exclusive original
jurisdiction" for petitions to try title lies with the
Massachusetts Land Court. Bevilacqua v. Rodriguez, 460
Mass. 762, 766 (2011); Mass. Gen. Laws ch. 240, §§ 1-5.
Plaintiffs assert that if they meet the two statutory
requirements to bring a petition to try title, then the Land
Court has exclusive jurisdiction. See Bevilacqua, 460 Mass.
at 767 (stating that the two jurisdictional requirements are
-9-
ADD-009
Case: 13-2316 Case
Document: 00116663465Document
3:12-cv-11545-MAP Page: 75 Date09/24/13
32 Filed Filed: 03/20/2014
(1) that the petitioner be in possession of the property and
(2) that the petitioner hold the record title to the
property). Once the petition to try title is properly
initiated, Plaintiffs argue, Defendants must either disclaim
their interest in the property or bring an action to assert
their adverse claim. They may not, Plaintiffs say, bring a
motion to dismiss.
While Bevilacqua does set out the elements necessary to
establish standing to proceed under the try title statute,
the case does not hold that the Land Court possesses
"exclusive jurisdiction" to try these claims. See Lemelson,
721 F.3d at 22 (stating that Bevilacqua "concerned the
factual allegations necessary to establish standing"
(emphasis in original)); see Barbosa v. Wells Fargo Bank,
N.A., No. 12-cv-122236-DJC, 2013 WL 4056180 (D. Mass. Aug.
13, 2013) (Casper, J.) (granting defendant's motion to
dismiss a try title claim removed from state court).
Furthermore, "where the requisite diversity of citizenship
and amount in controversy are present, a state statute
cannot defeat federal jurisdiction." Monogram Indus., Inc.
v. Zellen, 467 F. Supp. 122, 123 (D. Mass. 1979) (finding
-10-
ADD-010
Case: 13-2316 Case
3:12-cv-11545-MAP Page: 76 Date09/24/13
32 Filed Filed: 03/20/2014
that though "a federal court may not interfere with state
probate proceedings nor exercise control over property in
the exclusive possession of the state probate court," i t may
nonetheless make a determination of a debt due from the
decedent because a debt so established would then simply
"take its place and share of the estate as administered by
the probate court") .
As Defendants here have established diversity of
citizenship and an amount in controversy in excess of
$75,000, they have appropriately invoked the jurisdiction of
this court. Therefore, Plaintiffs' motion to remand will be
denied.
B. Defendants' Motion to Dismiss for Failure to State a
Claim.
To defeat Defendants' motion to dismiss, Plaintiffs'
well-pleaded allegations, taken as true, must justify
recovery on some theory articulated in their complaint.
Arruda v. Sears, Roebuck & Co., 310 F.3d 13, 18 (1st Cir.
2002) - Stated another way, "[i]f the facts in the complaint
are sufficient to state a cause of action, a motion to
dismiss the complaint must be denied. Iantosca v. Benistar
-11-
ADD-011
Case: 13-2316 Case
3:12-cv-11545-MAP Page: 77 Date09/24/13
32 Filed Filed: 03/20/2014
Admin Servs., Inc., 738 F. Supp. 2d 212, 217 (D. Mass.
2010) .
The Massachusetts try title statute provides that "[i]f
the record title of land is clouded by an adverse claim, or
by the possibility thereof, a person in possession of such
land . . may file a petition in the land court" to try
title. Mass. Gen. Laws ch. 240, § 1. Massachusetts is a
"title theory" state: "a mortgage is a transfer of legal
title in a property to secure a debt." Bevilacqua, 460
Mass. at 773. When Plaintiffs signed the mortgage with
Option One, the title to the property was split into two
parts: "the legal title, which becomes the mortgagee's, and
the equitable title, which the mortgagor retains." Id. at
774. When the mortgage note is paid in full, the two parts
of the title merge again, extinguishing any interest the
mortgagee once had.
"Inherent in this concept of the mortgagee's defeasible
title is the mortgagor's equity of redemption," which
permits the mortgagor to redeem the mortgage obligation
after its due date, so long as the mortgagee fails to
foreclose on the mortgage and thus terminate the equity of
-12-
ADD-012
Case: 13-2316 Case
3:12-cv-11545-MAP Page: 78 Date09/24/13
32 Filed Filed: 03/20/2014
redemption. Id. "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." Id. at
775. Consequently, though a mortgagee's and mortgagor's
economic interests may be adverse, their claims on the
property are not. Id.; see also Lemelson, 721 F.3d at 23-4
(discussing the title theory of mortgage law).
Plaintiffs argue that the statute authorizing petitions
to try title provides that such petitions may be brought
"[i]f the record title is clouded by an adverse claim, or by
the possibility thereof." Mass. Gen. Laws ch. 240, § 1
(emphasis added). Accordingly, they contend, they may bring
a try title claim since Defendants might try to foreclose on
the Springfield property under an invalid assignment of the
mortgage. In disputing Defendant Wells Fargo's
characterization of itself as the "mortgagee," Plaintiffs
first argue that in Ibanez the SJC found all assignments of
the mortgage by Option One to be invalid because of the
original assignment on May 26, 2005 made out to a blank
grantee.
-13-
ADD-013
Case: 13-2316 Case
3:12-cv-11545-MAP Page: 79 Date
32 Filed Filed: 03/20/2014
09/24/13 Page 14 of 18Entry ID: 5809394
Even if the SJC never made that determination in
Ibanez, Plaintiffs argue that Option One's direct assignment
to Wells Fargo (executed on May 7, 2008, and recorded on May
12, 2008) is invalid because Wells Fargo never explained the
May 26, 2005, assignment in blank. In other words, the
first assignment in blank has continued to corrupt all
subsequent assignments of the mortgage. Until that blank
assignment is "explained" or addressed, no subsequent
assignments of the mortgage by the loan originator (Option
One) can be considered valid.
Second, Plaintiffs assert that the ABFC 2005-0PTl
Trust (Trust), on whose behalf Defendant Wells Fargo acts as
trustee, does not have a valid interest in the Springfield
mortgage. Plaintiffs rely on documents proffered by
Defendants in the Ibanez case, specifically the pooling and
servicing agreement (PSA) , by which the mortgage was
assigned to Wells Fargo, as trustee for the Trust. The PSA
provided a cut-off date of October 1, 2005, after which no
new assets could be added to the corpus of the Trust. Thus,
even if the court finds that the May 2008 assignment of the
mortgage to Wells Fargo was valid, Plaintiffs argue that
-14-
ADD-014
Case: 13-2316 Case
3:12-cv-11545-MAP Page: 80 Date09/24/13
32 Filed Filed: 03/20/2014
Defendants nonetheless may not assert any interest in the
mortgage by the terms of the Trust, which cut off the
addition of any more assets after October 1, 2005.
Unfortunately for Plaintiffs, neither of these lines of
argument will withstand scrutiny.
To begin, Plaintiffs' claim that Defendant Option One's
assignment of the mortgage to Wells Fargo was declared
invalid in Ibanez misconstrues the SJC's holding. Ibanez
invalidated the foreclosure sale only. The SJC declared
that Defendants failed "to abide by the principles and
requirements" necessary to effect a valid assignment of a
mortgage and thus convey the statutory power of sale.
Ibanez, 458 Mass. at 654. Defendants, the SJC said, simply
could not establish that they were the holders of
Plaintiffs' mortgage at the time they foreclosed on the
property. Id. at 655. The SJC did not rule on the question
of whether the assignment after the foreclosure was invalid.
Id. (holding that Wells Fargo "did not demonstrate that [it
was] the holder[] of the Ibanez and LaRace mortgages at the
time that [it] foreclosed on these properties, and therefore
failed to demonstrate that [it] acquired fee simple title to
-15-
ADD-015
Case: 13-2316 Case
3:12-cv-11545-MAP Page: 81 Date09/24/13
32 Filed Filed: 03/20/2014 Entry ID: 5809394
Page 16 of 18
these properties by purchasing them at the foreclosure
sale") .
If there were any doubt about the weakness of
Plaintiffs' arguments, the Lemelson decision put them to
rest. 721 F.3d at 25. As here, the Lemelson plaintiffs had
executed a mortgage on their home; that mortgage, originally
held by one company, had been assigned numerous times to
various other companies, until the defendants received the
promissory note and mortgage. Also as here, the plaintiffs
brought a try title claim against defendants who, the
plaintiffs asserted, did not have valid or legally operative
assignment of the original mortgage. Id. at 21. The
district court granted the defendants' motion to dismiss for
failure to state a claim because the plaintiffs did not
adequately allege the existence of an adverse interest as
required for a try title claim.
In affirming the district court, the First Circuit
declared that, to proceed with a try title action, the
plaintiffs needed to allege an adverse claim, and a
defendant's interest in a property as an alleged mortgagee
cannot be deemed adverse to the plaintiffs' interest as
-16-
ADD-016
3:12-cv-11545-MAP Page: 8232 Date09/24/13
Filed Filed: 03/20/2014 Entry ID: 5809394
Page 17 of 18
mortgagor under Massachusetts law. In alleging in their try
title complaint that they had mortgaged their property,
Plaintiffs ipso facto effectively conceded that they had
conveyed all legal title to the property. Since the
plaintiffs no longer had legal title to their property, they
could not now "commence a try title action against one
asserting ownership of only that legal title." Id. at 24.
The First Circuit held that, even where a defendant's claim
to be a mortgagee might be invalid or legally inoperative, a
plaintiff could not employ the try title statute to force
the defendant to assert its potential claim. As Chief Judge
Lynch wrote: "Uncertainty as to who holds a valid mortgage
does not provide the requisite adversity to cloud a
mortgagor's claim of equitable title." Id. at 24 n.7.
Plaintiffs' arguments that Defendants do not hold a
valid assignment of the mortgage because of the terms of the
trust documents -- though resourceful -- cannot spare them
from the holding in Lemelson. 2 Because Plaintiffs do not
2
Plaintiffs urge the court to follow Varian v. Bank of
New York Mellon, No. 12 MISC 462971 (GHP), 2013 WL 4537421
(Mass. Land Court Aug. 23, 2013), which denied a motion to
dismiss on similar facts. This court does not find that
decision persuasive and, in any event, the First Circuit's
decision in Lemelson obviously controls here. Lemelson, 721
-17-
ADD-017
Case: 13-2316 Document: 00116663465 Document
Case 3:12-cv-11545-MAP
Page: 83 Date Filed: 03/20/2014 Entry ID: 5809394
32 Filed 09/24/13 Page 18 of 18
hold the legal title to the property and seek only to
challenge Defendants' claim to be the mortgagee in
possession of legal title, Plaintiffs have not alleged an
adverse claim. Accordingly, regardless of whether
Defendants here hold a valid mortgage on Plaintiffs'
property, Plaintiffs' petition to try title lacks an
essential element. 3 Defendants' motion will be granted.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion to Remand
(Dkt. No. 15) is hereby DENIED, and Defendants' Motion to
Dismiss (Dkt. No. 8) is hereby ALLOWED. The clerk will
enter judgment for Defendants. This case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor

MICHAEL A. PONSOR
U. S. District Judge
F.3d at 24 n.B.
3
Plaintiffs may not be left without recourse. Varian
suggests that, "declaratory judgment is readily available" for
parties in Plaintiffs' position. Varian, 2013 WL 4537421 at
*5 n.6.
-18-
ADD-018
Case: 13-2316 Document: 00116663465 Document
Case 3:12-cv-11545-MAP Page: 8434 Date
10/22/13 Page 1 of 2Entry ID: 5809394

DISTRICT OF MASSACHUSETTS
CV Action No. 3: 12-cv-11545-MAP
)
MARK A. LARACE )
TAMMY L. LARACE )
)
~
Petitioners
)
WELLS FARGO BANK, N.A. AS TRUSTE )
TRUSTEE FOR ABFC 2005-0PTI TRUST )
ABFC ASSET BACKED CERTIFICATES )
SERIES 2005-0PTI; )
AMERICAN HOME MORTGAGE )
SERVICING )
OPTION ONE MORTGAGE COMPANY )
Respondents )
)
NOTICE OF APPEAL
Notice is hereby given that Mark A. LaRace and Tammy L. LaRace, the Petitioners in
the above-captioned matter, hereby appeal to the United States Court of Appeals For the First
Circuit, from the September 24, 2013 Judgment entered (Doc. 33); regarding both; the
Petitioners Motion for Remand (Doc. 15) and the Respondents Motion to Dismiss the
Petitioners Petition, (Doc. 8). Additionally, the Petitioners respectfully seek to certify a
Question of Law, to the Massachusetts Supreme Judicial Court pursuant to Massachusetts
Supreme Judicial Court Rule I :03, to resolve a current conflict between the U.S. District
Court, District of Massachusetts, and the Massachusetts State courts, regarding an unresolved
issue of state law. See: Jepson v. Deutsche Bank Nat'! Trust Co., as Indenture Trustee, et. a!.,
Ca. No. 12-11226-WGY (September 18, 2013), at p. 15.
ADD-019
Case 3:12-cv-11545-MAP Document 34 Filed 10/22/13 Page 2 of 2
Respectfully submitted,
Petitioners,
By their Attorney,
is/Glenn F. Russell, Jr
BBO# 656914
& Associates, P.C.
Dated: October 22, 2013 38 Rock Street, Suite # 12
Fall River, MA 02720
(508) 324-4545
russ45esq@gmail.com
CERTIFICATE OF SERVICE
I, Glenn F. Russell, Jr., do hereby certify that this document filed through the ECF system
will be sent electronically to the registered participants as identified in the Notice of Electronic
Filing (NEF) on this is, the 22nd day of October, 2013:
Is/Glenn F. Russell, Jr
Justin M. Fabella
Maura K. McKelvey
Hinshaw and Culbertson, LLP
28 State Street, 241h Floor
Boston, MA 01915
ADD-020
General Laws: CHAPTER 185, Section I https :1/malegislature.gov/La ws/GeneralLaws/PartiJ/Titl el/Chapter 185 ...
THE 188 TH GENERAL COURT OF

site search
THE COMMONWEALTH OF MASSACHUSETTS Options 1111
Massac:huse!ls Laws Bills State Budget People Committees Educate & Engage Events My legislature
\fi<';~dC.htL'JZ:lt~ 1~!\\S
General Laws
Massacl1use1ts Constitution
PART II REAL AND PERSONAl PROPERTY AND DOMESTIC RELATIONS
General Laws
F FIE\'
Rules
TITLE I TITLE TO REAL PROPERTY
Session Lnws
CHAPTER 185 THE LAND COURT AND REGISTRATION OF TITLE TO LAND
Section 1 Jurisdiction; place of sittings; rules and forms of procedure
Section 1. The land court department established under section one of chapter two hundred
and eleven B shall be a court of record, and wherever the words "land court", or wherever in
this chapter the word "court" is used in that context, they shall refer to the land court
department of the trial court, and the words "judge of the land court" or the word "judge", in
context, shall mean an associate justice of the trial court appointed to the land court
department. The land court department shall have exclusive original jurisdiction of the
following matters:
(a) Complaints for the confirmation and registration and complaints for the confirmation
without registration of title to land and easements or rights in land held and possessed in fee
simple within the commonwealth, with power to hear and determine all questions arising upon
such complaints, and such other questions as may come before it under this chapter, subject
to all rights to jury trial and of appeal provided by law. The proceedings upon such complaints
shall be proceedings in rem against the land, and the judgments shall operate directly on the
land and vest and establish title thereto. A certified copy of the judgment of confirmation and
registration shall be filed and registered in the registry district or districts where the land or
any portion thereof lies, as provided in section forty-eight, and a certificate of title in the form
prescribed by law shall be issued pursuant thereto. Immediately upon the entry of a judgment
of confirmation without registration, the recorder shall cause a certified copy of the same to be
recorded in the registry of deeds for the district or districts where the land or any portion
thereof lies, and thereafter, the land therein described shall be dealt with as unregistered
land.
(al/2) Complaints affecting title to registered land, with the exception of actions commenced
pursuant to chapter two hundred and eight or two hundred and nine.
(b) Proceedings for foreclosure of and for redemption from tax titles under chapter sixty.
(c) Actions to recover freehold estates under chapter two hundred and thirty-seven. In such
an action brought in accordance with section forty-seven of chapter two hundred and
ADD-021
I of3 3/l?/2014 2:36PM
General Laws: CHAPTER 185, Section I https ://malegislature .gov!La ws/Genera!La ws/Partii/Titlel/Chapter 185 ...
thirty-s1x, where the tenant is entaled under clause (2) of section nine of chapter one hundred
and nine A to retain the real estate as security for repayment of the consideration paid
therefor by him, said court may determine the amount of such consideration and may order a
judgment for possession upon being satisfied that such amount, with lawful interest, has been
paid or tendered by the plaintiff to the defendant.
(d) Petitions to require actions to try title to real estate, under sections one to five, inclusive,
of chapter two hundred and forty.
(e) Complaints to determine the validity of encumbrances, under sections eleven to fourteen,
inclusive, of chapter two hundred and forty.
(f) Complaints to discharge mortgages, under section fifteen of chapter two hundred and forty.
(g) Complaints under section twenty-seven of chapter two hundred and forty to establish
power or authority to transfer an interest in real estate.
(h) Complaints to determine the boundaries of flats, under section nineteen of chapter two
hundred and forty.
(i) Complaints under sections sixteen to eighteen, inclusive, of chapter two hundred and forty
to determine whether or not equitable restrictions are enforceable.
(j} Complaints under section twelve of chapter forty-two to determine county, city, town or
district boundaries.
(j1/2) Complaints under section fourteen A of chapter two hundred and forty to determine the
validity and extent of municipal zoning ordinances, by-laws and regulations.
It shall also have original jurisdiction concurrent with the supreme judicial court and the
superior court of the following:~
(k) All cases and matters cognizable under the general principles of equity jurisprudence
where any right, title or interest in land is involved, including actions for specific performance
of contracts.
(I) Actions under clauses (4) and (10) of section 3 of chapter 214, where any right, title or
interest in real estate is involved.
(m) Actions under clause (8) of said section 3 of said chapter 214 or under section 9 of
chapter 109A, where the property claimed to have been fraudulently conveyed or encumbered
consists of rights, titles or interest in real estate only.
(n) Proceedings transferred to it under the provisions of section 4A of chapter 211.
(a) Civil actions of trespass to real estate involving title to real estate.
(p) Actions brought pursuant to the provisions of sections 7 and 17 of chapter 40A.
(q) Actions brought pursuant to sections 818, 81V, 81Y, and 8188 of chapter 41.
(r) Actions brought pursuant to section 4 or 5 of chapter 249 where any right, title or interest
in land is involved, or which arise under or involve the subdivision control law, the zoning act,
ADD-022
2 of3 3117/2014 2:36PM
General Laws: CHAYIER 185, Section I https ://malegislature.gov/Laws/GeneralLa ws/Partii/Titlei/Chapter 185 ...
or municipal zoning, subdivision, or land-use ordinances, by-laws or regulations.
(s) Actions brought pursuant to section 1 of chapter 245.
The land court department also shall have original jurisdiction concurrent with the probate
courts of the following:-
(t) Petitions for partition under chapter 241.
The court shall hold its sittings in the cities of Boston, Fall River, and Worcester, but may
adjourn from time to time to such other places as public convenience may require. In Suffolk
county, the city council of the city of Boston shall provide suitable rooms for the sittings of said
court in the same building with, or convenient to, the probate court or the registry of deeds. In
Fall River and Worcester, and other counties, the chief justice of administration and
management shall make court rooms, clerk facilities, and other trial facilities available to the
land court. On or before February 1, 2007, the chief justice of the land court department shall
establish procedures for holding regular sessions of the Ia nd court in Fall River and Worcester
for the consideration of cases arising from central, western, and southeastern Massachusetts,
as the caseload requires but not less than once per quarter.
The court shall have jurisdiction throughout the commonwealth, shall always be open, except
on Saturdays, Sundays and legal holidays, and shall have a seal with which all orders,
processes and papers made by or proceeding from the court and requiring a seal shall be
sealed; provided, that, if the convenience of the public so requires, the court shall be open on
such Saturdays, not legal holidays, and during such hours thereof, as the judges thereof may
determine. Its notices, orders and processes may run into any county and be returnable as it
directs.
The court shall from time to time make general rules and forms for procedure, which, before
taking effect, shall be approved by the supreme judicial court or by a justice thereof.
M<l2_$_,yyv .Si1{!_M5lP: I S!I.~YoJg;y I W~!J_nm_\§!.

<::;opyn9ht t9 2014 The Gen.-:>ral Court. All Higilts, Res0rvcrl
ADD-023
3 of3 3117/2014 2:36PM
General Laws: CHAPTER 240, Section I https://malegislature.gov/Laws/Genera!Laws/Partiii/Titleiii/Chapter2 ...
·,_;-,
THE 188TII GENERAL CoURT OF
site search
Massachusetts Laws Bills

THE COMMONWEALTH OF MASSACHUSETTS
State Budget People Committees Educate & Engage Events

Options
•
My legislature
General Laws
fviassc)CiliJS&Its Constitution
PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
Gener<1l Laws
Rules
TITLE III REMEDIES RELATING TO REAL PROPERTY
Sess1on Laws
CHAPTER 240 PROCEEDINGS FOR SETTLEMENT OF TITLE TO LAND
Section 1 Petition to compel adverse claimant to try title
Section 1. 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 or an

unexpired term of not less than ten years, and a person who by force of the covenants in a
deed or otherwise may be liable in damages, if such claim should be sustained, 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. If no better description
can be given, they may be described generally, as the heirs of A B or the like. Two or more
persons having separate and distinct parcels of land in the same county and holding under the
same source of title, or persons having separate and distinct interests in the same parcel or
parcels, may join in a petition against the same supposed claimants. If the supposed claimants
are residents of the commonwealth, the petition may be inserted like a declaration in a writ,
and served by a copy, like a writ of original summons. Whoever is in the enjoyment of an
easement shall be held to be in possession of land within the meaning of this section.
Copyright (,1 201<-l The General Court, il.ll Rights Rese1v~>d
ADD-024
I of I 3/17/2014 2:38PM
General Laws: CHAPTER 240, Section 2 https://malegislature.gov/Laws/GeneralLaws/Partiii!Titleiii/Chapter2 ...
188TH GENERAL COURT OF

THE
site search
THE COMMONWEALTH OF MASSACHUSETTS Options •
Massachusetts Laws Bills State Budget People Committees Educate & Engage Events Mylegislature
\!<tY~aehlL'J<:l!s !.<i\\S
General Laws
Prinl Pa~<e
MassacnusfJ!t;:; Constituti011
PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIl CASES
General Laws
PRE\'
Rules
Session Lu;vs

PHEV
Section 2 Proceedings upon petition
r~r- XI
Section 2. If the petition is not so served, the court shall order notice thereof by publication to
the supposed claimants, whether residents or non-residents of the commonwealth. Such
notice shall bind all the world, but the court may also require personal or other notice, and i(
upon return of the order of notice duly executed, the parties notified do not appear within 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 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. A judgment or decree under this section may require the giving of a
bond to respond to any action brought under section four within five years after the entry of
such judgment or decree.
Mass.gox Site Map lllitft Policy I Y:@!;Jmaster

Copynght ~) ?014 The Gl~nerai Court. Afl Rights nescrved
ADD-025
I of l 3/17/2014 2:38PM
General Laws: CHAPTER 240, Section 4 https://malegislature.gov!Laws/GeneralLaws/Partiii/Titlelii!Chapter2 ...

THE
site search

State Budget People Committees Educato & Engage Events

Options
MyLegislature
•
General Laws
Massilcl•usetts Constitution
General Lwcs
f"FtEV
Rules
TITLE III REMEDIES RElATING TO REAL PROPERTY
Session Laws
Section 4 Parties without actual notice; remedies
Section 4. A party against whom, without other notice than publication in a newspaper, a
judgment or decree has been rendered under section two and whose right is barred thereby,
may recover from the person in whose favor such judgment or decree was entered, or from
his executors, administrators, heirs or devisees, in accordance with chapter one hundred and
ninety-seven, the value at the time action is brought of any interest or right, except of
improvements made by the defendants, of which he may have been deprived by such
judgment or decree, unless at that time an action which, but for such judgment or decree, he
might have maintained for the recovery of such interest or the enforcement of such right
would have been barred by the statute of limitations.
Mas;;_qov 9i_l_Q __M_ill! ! Site Pqlio;,y I WdlJf!\lSler

Copyright"? 2014 The General Court, All Rights Rfl-'>e!Ved
ADD-026
I of I 3/17/2014 2:38PM
General laws: CHAfYTER 240, Section 5 https://malegislature.gov/laws/Generallaws/Partiii/Title!Il/Chapter2 ...
THE188TH Gh"NERALCOURTOF
site search
THE COMMONWEALTH OF MASSACHUSETTS Options •
Massachusetts Laws Bills State Budget People Committees Educate & Engage Events MyLegis!atul'e
General Laws
Massachusetts Constitution
PART III COURTS, JUDICIAl OFFICERS AND PROCEEDINGS IN CIVIL CASES
GE'Jneral Laws
PREV
Rule5
TITLE Ill REMEDIES RELATING TO REAL PROPERTY
Session Laws
Section 5 Application of preceding sections
Section 5. The four preceding sections shall not apply to any property, right, title or interest of
the commonwealth.
Copyoghl@l 2014 The Gen;:>ml Couri. All Rights ReS0NCd
ADD-027
I of I 3/17/2014 2:39PM
General Laws: CHAPTER 240, Section 6 https://malegislature.gov/Laws/GeneraiLaws/Partiii!Titleiii!Chapter2 ...

site search
THE COMMONWEALTH OF MASSACHUSETTS Options Ill
Massachusetts Laws Bills State Budget People Committees Educate & Engage Events Mylegis!ature
General Laws
fv1assachusetts Constitution
General Laws
PREV
Rules
Session Law:> "f-·

PHf_V
Section 6 Actions in supreme judicial, superio1· or land courts
Section 6. If, in a civil action in the supreme judicial or the superior court, or in the land court,
to quiet or establish the title to land situated in the commonwealth or to remove a cloud from
the title thereto, it is sought to determine the claims or rights of persons unascertained, not in
being, unknown or out of the commonwealth, or who cannot be actually served with process
and made personally amenable to the judgment of the court, such persons may be made
defendants and, if they are unascertained, not in being or unknown, may be described
generally, as the heirs or legal representatives of AB, or such persons as shall become heirs,
devisees or appointees of CD, a living person, or persons claiming under AB. It shall be
unnecessary for the maintenance of such action that the defendants shall have a claim or the
possibility of a claim resting upon an instrument the cancellation or surrender of which would
afford the relief desired; but it shall be sufficient that they claim or may claim by purchase,
descent or otherwise, some right, title, interest or estate in the land which is the subject of the
action and that their claim depends upon the construction of a written mstrument or cannot be
met by the plaintiffs without the production of evidence. Two or more persons claiming to own
separate and distinct parcels of land in the same county by titles derived from a common
source, or two or more persons having separate and distinct interests in the same parcel, may
join as plaintiffs in any action brought under this section.
f:,1i:l0-~.flQV ,: $it~ M.;J;p I.S.I.le Pqljr,_y I V~l!;bri!,':l.s.ter

Copyrignt (;'; 2014 T11e Genero.l Court. A!! Rights Reserved
ADD-028
I of I 3/17/2014 2:39PM
General Laws: CHAPTER 240, Section 7 https://malegislature.gov/Laws/GeneralLaws/Partiii/Titleiii/Chapter2 ...

site search
Massnchusetts laws Bills


Options
Mylegislature
•
General Laws
Massc.lchusetts Co1Jsiitutio11
PART III COURTS, JUDICIAl OFFICERS AND PROCEEDINGS IN CIVIL CASES
f"REV
Rules
Session Luws
Section 7 Notice
fRXf
Section 7. If in such action the court finds that actual service cannot be, or has not been,
made upon a defendant, it may at the request of the plaintiff order notice of the action to be
posted in a conspicuous place on the land or to be published in a newspaper within or without
the commonwealth, or both, or to be given in such other manner as it considers most
effectual, and may also require personal notice to be given. Notice given under this section
shall be constructive service on all the defendants.
Copyf!g!ll@ 2014 Th~ Gem:ral Court. All nights Reserved
ADD-029
I of I 3/17/2014 2:39PM
General Laws: CHAPTER 240, Section 8 https://malegislature.gov/Laws/GeneraiLaws/Partlll/Titleiii!Chapter2 ...

site search


Options
•
My Legislature
General Laws
Massachusetts ConstitutiOil
General Laws
PREY
Rules
Session Laws

PHOV
Section 8 Guardian ad litem
Section 8. If, after notice has been given or served as provided in the preceding section and
the time limited in such notice for the appearance of the defendants has expired, the court
finds that there are or may be defendants not actually served with process within the
commonwealth who have not appeared in the action, it may of its own motion, or on the
representation of any party, appoint a guardian ad litem or next friend of any such defendant,
and if any such defendants have or may have conflicting interests, it may appoint different
guardians ad litem or next friends to represent them.
·~or.yngl1t {9;":>014 The C.en;:,ral Courl. fl..ll Rights Resorved
ADD-030
I of I 3/17/2014 2:39PM
General Laws: CHAPTER 240, Section 9 https:l/rnalegislature.gov/Laws/Generallaws/Partiii/Titleiii/Chapter2 ...

··-<,
site search


Options
Mylegis!ature
•
General Laws
Maf;sac!1usett;; Constitution
General L<i'itS
PREY
RuiGS
Session L111S

PRlV
Section 9 Guardians ad litem; compensation and expenses
Section 9. The cost of appearance of any such guardian ad litem or next friend, including
compensation of his counsel, shall be determined by the court and paid by the plaintiff,
against whom execution may issue therefor in favor of the guardian ad litem or next friend.
Mass.gov $it~ ! Si!e Policy I Webmaster

Copyright :0 ;>014 The GenNa! Court. All rl1ghts neser,•ed
ADD-031
I of I 3/17/2014 2:39PM
General Laws: CHAPTER 240, Section I OA https://malegislature.gov/Laws/GeneraiLaws/PartiiJ/Titleiil/Chapter2 ...

site search


Options
Mylegistature
•
General Laws
fviassachuSf:ltB Constitution
General Laws
PREV
Rules
Sess10n laws
CHAPTER 240 PROCEEDINGS FOR SETILEMENT OF TITLE TO LAND
PREY
Section lOA Restrictions on land; determination; jurisdiction; petition
Section lOA. The superior court and the land court shall have concurrent jurisdiction of a civil
action by any person or persons claiming an estate of freehold, or an unexpired term of not
less than ten years, in land subject to a restriction described in section twenty-six of chapter
one hundred and eighty-four, to determine and declare whether and in what manner and to
what extent and for the benefit of what land the restriction is then enforceable, whether or not
a violation has occurred or is threatened. The complaint shall state the names and addresses,
so far as known to the plaintiff or plaintiffs, of the owners of the subject parcels as to which
the determination is sought, of the owners of any benefited land and of any persons benefited
other than persons interested in benefited land. There shall be filed therewith (1) a certified
copy of the instrument or instruments imposing the restriction, or of a representative
instrument ifthere are many and the complaint includes a summary of the remainder, and (2)
a plan or sketch showing the approximate locations of the parcels as to which the
determination is sought, and the other parcel or parcels, if any, which may have the benefit of
the restriction, and the ways, public or open to public use, upon which the respective parcels
abut or nearest thereto, and the street numbers, if any, of such parcels.
Copynghl!&.~ 201·1 The Genera! Court. Ajl Rights Reserved
ADD-032
I of l 3/17/2014 2:40PM
General Laws: CHAPTER 240, Section I OC https://malegislature.gov/Laws/Genera!Laws/PartiiJ/Titleiii/Chapter2 ...

site search
THE COMMONWEALTH OF MASSACHUSETTS Options
Massachusetts Laws Bills State Budget People Committees Educate & Engage Events My Legislature
General Laws
Massc.lCi1use1ts CDilStitutron
PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIl. CASES
Rules
Sesswn Laws
Section 10C Determination of restrictions; manner
Section lOC. Any determination or declaration that the restriction is or is not enforceable, or is
enforceable only in a certain manner or to a certain extent or for the benefit of certain land
shall be in rem and operate directly upon the subject land, and be binding upon all persons
entitled to enforce the restriction thereon. If the court determines that the restriction is
enforceable only by award of money damages it shall, whether or not a violation has occurred,
make such award according to general rules of equity, and upon payment thereof determine
that the land is free of the restriction.
Mo1$'?_,9.QY: I Site _IJgQ i S1te PoliQY_ I Webn}il_~llil

o.:;oryn9hl (¢ 2014 The General CourL All nights Reserved
ADD-033
I of I 3/17/2014 2:40 PM
General Laws: CHAPTER 244, Section 14 https://rnalegislature.gov/Laws/Genera!Laws/Partiii/Title!II/Chapter2 ...

THE
site search


Options
My Legislature
•
General Laws
Massacitusetts Const1tut:on
PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIl CASES
General Lih'IS
Rulw:>
Sess1on L~w;s
CHAPTER 244 FORECLOSURE AND REDEMPTION OF MORTGAGES
Section 14 Foreclosure under power of sale; procedure; notice; form

''r-:r··;
Section 14. 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; provided, however, 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 3 successive weeks, the first publication of which shall
be not less than 21 days before the day of sale, in a newspaper published in the city or town
where the land lies or in a newspaper with general circulation in the city or town where the
land lies and notice of the sale has been sent by registered mail to the owner or owners of
record of the equity of redemption as of 30 days prior to the date of sale, said notice to be
mailed by registered mail at least 14 days prior to the date of sale to said owner or owners to
the address set forth in section 61 of chapter 185, if the land is then registered or, in the case
of unregistered land, to the last address of the owner or owners of the equity of redemption
appearing on the records of the holder of the mortgage, if any, or if none, to the address of
the owner or owners as given on the deed or on the petition for probate by which the owner or
owners acquired title, if any, or if in either case no owner appears, then mailed by registered
mail to the address to which the tax collector last sent the tax bill for the mortgaged premises
to be sold, or if no tax bill has been sent for the last preceding 3 years, then mailed by
registered mail to the address of any of the parcels of property in the name of said owner of
record which are to be sold under the power of sale and unless a copy of said notice of sale
has been sent by registered mail to all persons of record as of 30 days prior to the date of sale
holding an interest in the property junior to the mortgage being foreclosed, said notice to be
mailed at least 14 days prior to the date of sale to each such person at the address of such
person set forth in any document evidencing the interest or to the last address of such person
known to the mortgagee. Any person of record as of 30 days prior to the date of sate holding
an interest in the property junior to the mortgage being foreclosed may waive at any time,
whether prior or subsequent to the date of sale, the right to receive notice by mail to such
person under this section and such waiver shall constitute compliance with such notice
l of 3
ADD-034
31!7/2014 2:41PM
General Laws: CHAPTER 244, Section 14 https:!/ma1egis1ature.gov/Laws/Genera1Laws/Partiii/Titleiii/Chapter2 ...
requirement for all purposes. If no newspaper is published in such city or town, or if there is
no newspaper with general circulation in the City or town where the land lies, notice may be
published in a newspaper published in the county where the land lies, and this provision shall
be implied in every power of sale mortgage in which 1t is not expressly set forth. A newspaper
which by its title page purports to be printed or published in such city, town or county, and
having a circulation in that city, town or county, shall be sufficient for the purposes of this
section.
The following form of foreclosure notice may be used and may be altered as circumstances
require; but nothing in this section shall be construed to prevent the use of other forms.
(Form.)MORTGAGEE'S SALE OF REAL ESTATE.
By virtue and in execution of the Power of Sale contained in a certain mortgage given
by .......... to.. . dated.. and recorded with
Deeds, Book .. ., page .... .. , of which mortgage the undersigned is the present
holder, ..
{If by assignment, or in any fiduciary capacity, give reference.)
for breach of the conditions of said mortgage and for the purpose of foreclosing the same will
be sold at Public Auction at.. . .... o'clock, .......... M. on the .......... day of........... A.D.
{insert year),. . .. (place).. . ..... all and singular the premises described in said
mortgage,
(In case of partial releases, state exceptions.)
To wit: "(Description as in the mortgage, including all references to title, restrictions,

encumbrances, etc., as made in the mortgage.)"
Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time
and place of the sale, and the time or times for payment of the balance or the whole as the
case may be.)
Other terms to be announced at the sale.
(Signed)
Present holder of said mortgage._
A notice of sale in the above form, published in accordance with the power in the mortgage
and with this chapter, together with such other or further notice, if any, as is required by the
mortgage, shall be a sufficient notice of the sale; and the premises shall be deemed to have
been sold and the deed thereunder shall convey the premises, subject to and with the benefit
of all restrictions, easements, improvements, outstanding tax titles, municipal or other public
taxes, assessments, liens or claims in the nature of liens, and existing encumbrances of record
created prior to the mortgage, whether or not reference to such restrictions, easements,
improvements, Hens or encumbrances is made in the deed; provided, however, that no
purchaser at the sale shall be bound to complete the purchase if there are encumbrances,
ADD-035
2 of3 3/17/2014 2:41PM
General laws: CHAYTER 244, Section 14 https://malegislature.govllaws/Generallaws/Part!WTitle!II!Chapter2 ...
other than those named in the mortgage and included in the notice of sale, which are not
stated at the sale and included in the auctioneer's contract with the purchaser.
For purposes of this section and section 21 of chapter 183, in the event a mortgagee holds a
mortgage pursuant to an assignment, no notice under this section shall be valid unless (i) at
the time such notice is mailed, an assignment, or a chain of assignments, evidencing the
assignment of the mortgage to the foreclosing mortgagee has been duly recorded in the
registry of deeds for the county or district where the land lies and (ii) the recording
information for all recorded assignments is referenced in the notice of sale required in this
section. The notice shall not be defective if any holder within the chain of assignments either
changed its name or merged into another entity during the time it was the mortgage holder;
provided, that recited within the body of the notice is the fact of any merger, consolidation,
amendment, conversion or acquisition of assets causing the change in name or identity, the
recital of which shall be conclusive in favor of any bona fide purchaser, mortgagee, lienholder
or encumbrancer of value relying in good faith on such recital.
MasS.gQ\i $i!e Map ~ Site P_QII{¥ I Web!119,s\er
Copyright fP2014 Tt--.e Genera! Court. ,tJ; Rights Rese!V;;d
ADD-036
3of3 3117/2014 2:41PM
General laws: CHAPTER 244, Section 18 https ://malegis Iature. gov /La ws/Generalla ws/Partiii!Ti tleiii!Chapter2 ...

site search


Options
•
MyLegislature
General Laws
rv1B.SSilCi11JSe!ts COilS!itut;Oil
PART Ill COURTS, JUDICIAl OFFICERS AND PROCEEDINGS IN CIVIL CASES
Genera! La;•1s
Rules
Session Lu:u s
CHAPTER 244 FORECLOSURE AND REDEMPTION OF MORTGAGES
Section 18 Persons authorized to 1·edeem
Section 18. The mortgagor or person claiming or holding under him may, after breach of
condition, redeem the land mortgaged, unless the mortgagee, or person claiming or holding
under him, has obtained possession of the land for breach of condition and has continued that
possession for three years, or unless the land has been sold pursuant to a power of sale
contained in the mortgage deed.
Copyngnt (9 <~014 The Genera! Couti. All Rigti\5 Reserved
ADD-037
I of I 3/17/2014 2:41PM

United States Court of Appeals: For The First Circuit

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

United States Court of Appeals: For The First Circuit

Încărcat de

Drepturi de autor:

Formate disponibile

Case: 13-2316 Document: 00116663465 Page: 1 Date Filed: 03/20/2014 Entry ID: 5809394

United States Court of Appeals

HOMEWARD RESIDENTIAL, INC. f/k/a/ AMERICAN HOME

ON APPEAL FROM A JUDGMENT

APPELLANTS’ OPENING BRIEF

Glenn F. Russell, Jr., Esq

REASONS WHY ORAL ARGUMENT SHOULD BE HEARD.....………………8

STATEMENT OF THE ISSUES…….…………… ………………………...........11

STATEMENT OF THE CASE…………………………………………… ....…...12

STATEMENT OF THE FACTS…………………………………………… ....….14

I. THERE EXISTS A CURRENTLY DICHOTOMY BETWEEN

A. Petitioners Seek To Certify Questions of Law To The Massachusetts

II. TRY TITLE ACTIONS UNDER G.L. C. 240, §§ 1-5………………………….30

A. Bevilacqua v. Rodriguez Can Easily Be Distinguished From The

III. THE DISTRICT COURT JUDGE ERRED WHERE HE FAILED TO

A. Respondent(s) Intentionally Removed This Matter To

B. Unlike Lemelson, Petitioners Filed A Motion For Remand……………42

C. Unlike Lemelson, Due To The Gravity of Importance of The

IV. THE DISTRICT COURT JUDGE ERRED BY FAILING TO

A. Due To The Clear Statutory Wording of G.L. c. 240, § 1,

B. The District Court Judge Erred By Placing A Legally Incorrect

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)…………………....61

MASSACHUSETTS STATE CASES

Abate v. Fremont Inv. & Loan

First Baptist Church of Sharon v. Harper

Maglione v. BancBoston Mtg. Corp., Inc.

Santiago v. Alba Mgt., Inc.

Sherriff’s Meadow Fund, Inc. v. Bay Courte Edgartown, Inc.

U.S. Bank v. Ibanez

Varian v. Bank of N.Y. Mellon, Trustee, et. al.

Barbosa v. Wells Fargo Bank, N.A.

Charlestown Five Cents Sav. Bank v. White

Dixon v. Coburg Dairy, Inc.

Hartley v. CSX Transp., Inc.

Insurance Corp. of Ireland, Ltd. v. Compagnie de Bauxiles de Guinee

Jepson v. Deutsche Bank Nat’l Trst Co., et. al.

Kokkonen v. Guardian Life Ins. Co. of America

Lemelson v. U.S. Bank Nat’l Ass’n Trustee, et. al

Mansfield, C. & L.M.R. Co. v. Swan,

Maryland Stad. Auth. v. Ellerbe Beckett, Inc.

Rising-Moore v. Red Roof Inn, Inc.

Shamrock Oil & Gas Corp. v. Sheets,

St. Paul Mercury Indem. Corp. v. Red Cab Co.,

G.L. c. 185, § 1(d) …………………………………………………..……............16

G.L. c. 185, § 1(k)…………………………………………………..……............28

G.L. c. 240, §§ 1-5…………………………………………………………...passim

G.L. c. 240, §§ 6-10………………………………………………………….passim

G.L. c. 244, § 14…………………………......................................................passim

G.L. c. 244 § 18……………………………………...…………………….14,22,50

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P., R. 8(a)(2)……………………………………………………….53

Fed. R. Civ. P., R. 12(b)(6)…………………………………………………passim

REASONS WHY ORAL ARGUMENT SHOULD BE HEARD

follow up to the “watershed” ruling issued by the Massachusetts Supreme Judicial

the rapidly evolving real property title issues in Massachusetts related to

subject matter, there have been, respectfully submitted, several incorrect

statutory wording of this Massachusetts statute. Therefore, the Petitioners

G.L. c. 240 §§ 1-5.

Court for the District of Massachusetts, pursuant 28 U.S.C. §1653 following a

Notice of Removal filed by Respondent. (A-7)

failure of Respondent(s) to carry their burden to establish the subject matter

jurisdiction of the Federal Court. As Petitioners Motion to Remand was solely

established, as there was never any “complaint” filed by Petitioners.