Editor: David Reiss
Brooklyn Law School

July 2, 2013

Massachusetts Supreme Court Dismisses Try Title Action Due To Lack Of Subject Matter Jurisdiction

By Ebube Okoli

In Bevilacqua v. Rodriguez, 460 Mass. 762 (2011), theMassachusetts Supreme Court handled the issue of whether a plaintiff had standing to maintain a try title action under G.L. c. 240, §§ 1-5, where he was in physical possession of real property but his chain of title rested on a foreclosure sale conducted by someone other than “the mortgagee or his executors, administrators, successors or assigns.”

In this case, the purchaser of property, after foreclosure of a mortgage, brought an action to try title against mortgagor. The purchaser alleged, that because foreclosure sale had been conducted by assignee before the mortgagee had actually assigned mortgage, a cloud existed on purchaser’s title. This action was dismissed, and an appeal ensued. On review, the Massachusetts Supreme Court affirmed the lower court’s holding. However, the court modified the lower court’s holding, finding that the dismissal should have been entered without prejudice.

The court found that the lower court properly raised the issue of whether the plaintiff had record title to the property such that he had standing to bring a try title action. The court found that the plaintiff had not identified a basis on which the court could conclude that the plaintiff had record title to the property such that a try title action could be sustained.

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