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Court

Massachusetts Unified County

Massachusetts

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Case Information

Filed 2022-10-12
Status Closed
Type Mrc Determine Validity Of Encumbrances, G.l. Chapter 240, 11 14
Docket 14 entries
Disposition dismiss

Parties

Plaintiff Bigelow, Ashley
Defendant Phh Mortgage Corporation, Inc.|Hsbc Bank Usa, National Association As

Lawyers

Docket Entries

  1. Notice of Dismissal - Mass.R.Civ.P.41(a)(1)(i).
  2. Case assigned to the Average Track per Land Court Standing Order 1:04.
  3. Land Court miscellaneous filing fee Receipt: 434974 Date: 10/12/2022
  4. Land Court surcharge Receipt: 434974 Date: 10/12/2022
  5. Land Court summons Receipt: 434974 Date: 10/12/2022
  6. Uniform Counsel Certificate for Civil Cases filed by Plaintiff.
  7. Plaintiff's Emergency Motion for Preliminary Inunction,filed.
  8. Summons and Hearing Notice issued on Application for Preliminary Injunction. Judge: Speicher, Hon. Howard P. Event: Hearing on Preliminary Injunction Date: 10/21/2022 Time: 02:00 PM
  9. Event Scheduled Judge: Speicher, Hon. Howard P. Event: Case Management Conference Date: 11/22/2022 Time: 10:15 AM
  10. The case has been assigned to the A Track. Notice sent.
  11. Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction,filed.
  12. Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction (EXHIBITS),filed.
  13. Hearing on plaintiff's motion for preliminary injunction held by videoconference. Attorneys William Brearley and Stephanie Sprague appeared and argued. Following argument, the plaintiff's motion for preliminary injunction is DENIED. Based on the present record before the court, plaintiff has made an insufficient showing of the likelihood of success on the merits required by Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609 (1980). Specifically, on the record before the court, the plaintiff made representations to the Norfolk County Superior Court in 2020 that are contrary to those allegations that the plaintiff has made here. Exercising the court's discretion to apply the doctrine of judicial estoppel, the court orders that the plaintiff is judicially estopped from denying his execution of the mortgage. Furthermore, the allegations in the current complaint are allegations that could have or should have been made in the 2020 Norfolk County Superior Court case. Accordingly, pursuant to the doctrine of res judicata, the plaintiff is barred from asserting in this action that the mortgage is invalid based on grounds that were or could have been raised in the case in Superior Court. Even had the court not applied either of these doctrines, on the record before the court, the plaintiff has not shown a likelihood of success on the merits on his claim that the mortgage is invalid because he did not sign it. The court has a credible affidavit from an attorney who witnessed the closing, saw the plaintiff sign the mortgage, and distributed the loan proceeds to the plaintiff. The plaintiff acknowledges receipt of the proceeds of the mortgage loan. Based on the foregoing, I find not enough likelihood of success on the plaintiff's merits to warrant more than a cursory look at the balance of the harms. Nonetheless, I find a greater likelihood of irreparable harm to the defendant than to the plaintiff because the defendant has been, since January 2020, paying taxes on the property and spending money repairing the property.
  14. Event Resulted: Case Management Conference scheduled on: 11/22/2022 10:15 AM Has been: Not held For the following reason: Request of Plaintiff(s) Hon. Howard P. Speicher, Presiding

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