Sead LLC v. Arcadio Francisco, Jr.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-815

SEAD LLC

vs.

ARCADIO FRANCISCO, JR.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Arcadio Francisco, Jr. (Arcadio Jr.2),

appeals from a default judgment entered against him in the Land

Court, stemming from Arcadio Jr.'s failure to timely respond to

the complaint filed by the plaintiff, SEAD LLC (SEAD), seeking

to quiet title to property SEAD had purchased from Arcadio,

Jr.'s parents. Arcadio Jr. argues that the judge's denial of

his "motion to set aside the entry of default" constituted an

1Defendants Arcadio Francisco, Sr., Ramona Francisco,
Franchesca Francisco, and Zuleyca Francisco entered into an
agreement for judgment with the plaintiff, and are not parties
to this appeal.

2Because some of the parties share a last name, we refer to
them by their first names.
abuse of discretion because he presented a meritorious defense.

We affirm.

Background. In March of 2022, SEAD purchased property

located in Jamaica Plain from the grantors, Arcadio Francisco,

Sr. (Arcadio Sr.) and Ramona Francisco, and acquired a quitclaim

deed (2022 deed). The 2022 deed indicated that Arcadio Sr. and

Ramona obtained title by a deed dated March 27, 1989. In 2023,

SEAD learned from the tax collector's office that the 2022 deed

was not executed by all owners of the property. SEAD

subsequently discovered a deed dated March 14, 2016, in which

Arcadio Sr. and Ramona purported to convey the property to

themselves and their three children: Arcadio Jr., Franchesca,

and Zuleyca (2016 deed). Although the 2016 deed had been

accepted for recording at the registry of deeds, it did not

include an acknowledgment as required by G. L. c. 183, § 29.

The last names of the grantors were also misspelled by the

registry as "Fracisco" instead of "Francisco," and thus the 2016

deed was not found in a title examination conducted before the

purchase.

On February 1, 2024, SEAD commenced this action to quiet

title against Arcadio Sr., Ramona, and their children. The

defendants failed to timely answer the complaint, and on

February 28, 2024, SEAD filed a request for default of all

2
defendants pursuant to Mass. R. Civ. P. 55 (a), 365 Mass. 822

(1974). On March 5, 2024, Arcadio Sr., Ramona, Franchesca, and

Zuleyca were permitted to file their answer late. Counsel for

Arcadio Jr. entered an appearance on March 14, 2024. That same

day, the judge allowed SEAD's request for a default against

Arcadio Jr.

On March 18, 2024, Arcadio Jr. filed a motion to set aside

the default, accompanied by a proposed answer and supporting

affidavits. Arcadio Jr. asserted that he had a meritorious

defense to the action because SEAD had actual notice of the 2016

deed.3 In his affidavit he averred, inter alia, that he had

known Carmenelly Abreu, the manager of SEAD, and her husband

Socrates for "approximately twenty years"; that he had spoken

with Socrates in 2020 regarding the property being listed for

sale and told him that "my parents will have to tell me about it

because I'm on the deed"; and that "[a] few months later," he

had dinner with Socrates and Carmenelly and informed them that

he was "part owner of the [p]roperty" and that his "name is on

the deed." In addition, Arcadio Jr.'s affidavit referenced

another occasion where he spoke with Socrates about an offer

3 In his affidavit, Arcadio Jr. also explained the reasons
for his failure to timely file an answer, which included that he
was "overwhelmed and distracted" by unrelated legal proceedings
and was out of the country from February 28, 2024, until March
8, 2024.

3
that SEAD had made to purchase the property during which Arcadio

Jr. again mentioned that he is "on the deed as an owner of the

[p]roperty."

SEAD filed an opposition to the motion to set aside the

default and requested that the judge enter default judgment

against Arcadio Jr.4 The judge concluded that Arcadio Jr.'s

defense to the action would be futile because his claim that he

told Socrates and Carmenelly that he was "on the deed" was

insufficient to put the manager of SEAD on actual notice of the

2016 deed. On April 8, 2024, the judge denied Arcadio Jr.'s

motion to set aside the default and allowed SEAD's motion for

entry of default judgment. On April 19, 2024, a default

judgment entered against Arcadio Jr.5 This appeal ensued.

Discussion. "A motion to remove a default is addressed to

the sound discretion of the trial judge." Silkey v. New England

Tel. & Tel. Co., 9 Mass. App. Ct. 816, 816 (1980). In order to

prevail, the movant must provide a "good" reason to remove the

default and the existence of a meritorious claim or defense.

4 SEAD filed an affidavit from Socrates in which he denied
discussing the property with Arcadio Jr. and averred that
Arcadio Jr. never told him that his name was on the deed.

5 The remaining defendants and SEAD filed an agreement for
judgment pursuant to Mass. R. Civ. P. 58, as amended, 371 Mass.
908 (1977), in which they requested an order declaring the 2016
deed null and void, nunc pro tunc to March 14, 2016, and which
the judge approved.

4
Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002).

See Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974) ("For good

cause shown the court may set aside an entry of default").

Here, Arcadio Jr. claims that he had a meritorious defense to

the action to quiet title because SEAD had actual notice or

inquiry notice of the 2016 deed. The claim is unavailing.

"Actual notice is a question of fact[.]" Emmons v. White,

58 Mass. App. Ct. 54, 65 (2003), citing McCarthy v. Lane, 301

Mass. 125, 128 (1938). Actual notice can be satisfied by

"[i]ntelligible information of a fact, either verbally or in

writing, and coming from a source which a party ought to give

heed to" (citation omitted). Emmons, supra. "The term is to be

construed with 'considerable strictness' and mere '[k]nowledge

of facts which would ordinarily put a party upon inquiry is not

enough.'" Id., quoting Tramontozzi v. D'Amicis, 344 Mass. 514,

517 (1962).

Arcadio Jr. argues that SEAD had actual notice because he

told Carmenelly once and Socrates three times that his name was

on the deed. Even considering the context of the parties'

alleged relationship, Arcadio Jr.'s general statements that his

name was "on the deed" and that he was "part owner" did not

provide SEAD with "intelligible information" about the 2016

deed. He did not mention that there was a superseding deed from

5
2016, provide more information about the 2016 transaction, or

show Socrates or Carmenelly the 2016 deed. Compare Emmons, 58

Mass. App. Ct. at 67-68 (actual notice of settlement agreement

satisfied where purchaser had copy of Land Court letter to

grantor's attorney referring to unrecorded documents related to

agreement, called grantor's attorney and discussed particulars

of letter with him, including need for documents effectuating

settlement). Under the strict standard applied in construing

actual notice, we cannot say that the judge abused his

discretion in determining that Arcadio Jr. failed to satisfy his

burden to show that SEAD had actual notice of the 2016 deed.

See Richardson v. Lee Realty Corp., 364 Mass. 632, 634 (1974).

We further note that just as "an unrecorded mortgage is invalid

as against third parties who do not have actual notice of it[,]"

under the facts of this case, the improperly recorded deed with

misspelled names was likewise invalid as against SEAD (quotation

and citation omitted). Tramontozzi, 344 Mass. at 517.

Arcadio Jr.'s claim that SEAD had inquiry notice because a

property address search would have revealed the 2016 deed

similarly fails. Arcadio Jr. cites no authority for the

proposition that a duty of inquiry can arise for a deed that is

not properly recorded. Cf. Richardson, 364 Mass. at 634-635

(actual notice required for unrecorded instruments and

6
"knowledge of facts which might arouse suspicion would not be

sufficient to destroy the bona fides of the subsequent

purchaser"). Even assuming a duty of inquiry can exist for

improperly recorded instruments, Arcadio Jr. points to no

authority to support his claim that SEAD was required to perform

an address search in addition to a standard title search. See

G. L. c. 36, §§ 25, 26 (recorded instruments are organized in

indices according to grantor and grantee names); Richardson,

supra at 635 ("'[P]urchasers should not be required to look

beyond the registry of deeds further than is absolutely

necessary'" [citation omitted]); Morse v. Curtis, 140 Mass. 112,

115 (1885) ("if a purchaser, upon examining the registry,

find[s] a conveyance from the owner of the land to his grantor,

which gives him a perfect record title . . . , he is entitled to

rely upon such record title, and is not obliged to search the

records afterwards"). Even if SEAD had "knowledge of facts

which might arouse suspicion," Richardson, supra at 634, an

inspection of the title through the conventional method did not

reveal the 2016 deed. See Dalessio v. Baggia, 57 Mass. App. Ct.

468, 472 (2003) ("standard [title] examination would not have

revealed . . . 'out-of-chain' conveyance").

7
In sum, where Arcadio Jr. failed to meet his burden of

showing that he had a meritorious defense, the judge did not

abuse his discretion in declining to remove the default.6,7

Judgment affirmed.

By the Court (Neyman, Shin &
Wood, JJ.8),

Clerk

Entered: June 3, 2025.

6 Arcadio Jr. also argues that the judge abused his
discretion by failing to consider the other factors relevant to
a motion to set aside a default. See Ceruolo v. Garcia, 92
Mass. App. Ct. 185, 189 (2017). Given the judge's conclusion
that Arcadio Jr.'s defense would be futile, his decision not to
weigh the remaining factors in favor of removing the default was
not outside the range of reasonable alternatives and was an
appropriate exercise of his discretion. See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014); Clamp-All Corp.,
53 Mass. App. Ct. at 806-807 ("a party must show both a good
reason to remove the default and also the existence of
meritorious claims or defenses").

7 SEAD's request for attorney's fees is denied.

8 The panelists are listed in order of seniority.

8