WELLS FARGO BANK, N.A., Trustee v. BENJAMIN A. COULSEY & Another.

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-255

WELLS FARGO BANK, N.A., trustee,1

vs.

BENJAMIN A. COULSEY & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal stems from a postforeclosure summary process

action brought by the plaintiff, Wells Fargo Bank, N.A., as

Trustee for Option One Mortgage Loan Trust 2007-4, Asset-Backed

Certificates, Series 2007-4 (Wells Fargo), against Sarah and

Benjamin Coulsey, who are the occupants of a home located at 50

Cleveland Street in Greenfield (the property).3 Sarah purchased

the property in 2007 but quickly fell behind on her payments,

1For Option One Mortgage Loan Trust 2007-4, Asset-Backed
Certificates, Series 2007-4.

2 Sarah L. Coulsey.

3As the plaintiffs share the same last name, we refer to
them by their first names for ease of reference.
and litigation ensued over the next seventeen years in both

State and Federal courts regarding her default, subsequent

attempts at loan modifications, and Wells Fargo's compliance

with foreclosure requirements. After prevailing in this prior

litigation, Wells Fargo sought possession of the property in the

Housing Court, where the judge dismissed the Coulseys' defenses

and counterclaims and entered judgment in favor of Wells Fargo.

Sarah and Benjamin appeal, raising numerous issues, none of

which provides a basis for the relief they seek. Accordingly,

we affirm.

Background. We summarize only those facts necessary to

provide context for our discussion of the issues. As noted,

Sarah purchased the property in 2007 using funds from a loan

secured by a mortgage on the property. Within a year, the

mortgage was in foreclosure. Negotiations between Sarah and the

various mortgage holders to cure the default and modify the

terms of the mortgage ensued but ultimately were unsuccessful.4

Eventually, the note and mortgage were transferred to Wells

Fargo.5

4 During those negotiations, the mortgage servicer changed
from Option One Mortgage Corporation to American Home Mortgage
Services, Inc., Homeward Residential Holdings, Inc., and Ocwen
Loan Servicing, LLC.

5 The allonge, endorsing the note to Wells Fargo, is dated
January 30, 2007. The mortgage was assigned to Wells Fargo on
October 14, 2008.

2
1. The 2015 litigation. As the mortgagee and note holder,

Wells Fargo initiated foreclosure proceedings on the property

and a foreclosure auction was scheduled for January 22, 2015.

However, prior to that date, on January 20, 2015, Sarah filed a

complaint in the Superior Court against several of the entities

involved in procuring and servicing the loan and obtained a

preliminary injunction enjoining the auction. Wells Fargo was

not named in that initial complaint. The case was then removed

to Federal court, and on February 24, 2015, Sarah filed an

amended complaint naming Wells Fargo as a defendant. The

amended complaint asserted, among other claims: (1) breach of

contract; (2) breach of the covenant of good faith and fair

dealing; (3) fraud, deceit, or negligent misrepresentation;

(4) negligence; (5) violation of the Real Estate Settlement

Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617; and

(6) violation of G. L. c. 93A, § 11.

Together with the other defendants, Wells Fargo filed a

motion for judgment on the pleadings, which resulted in the

dismissal of all claims by a United States magistrate judge.

The claims against Wells Fargo, however, were dismissed without

prejudice because the amended complaint failed to allege any

misconduct on its part.6 The judge granted Sarah sixty days to

6 The claims against the remaining defendants, who are no
longer in this case, were mostly dismissed with prejudice.

3
file a second amended complaint as to those claims, which she

did on February 12, 2016. The second amended complaint alleged,

among other things: (1) violation of the Federal Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq.;

(2) violation of RESPA; (3) fraud, deceit, or negligent

misrepresentation; (4) violations of G. L. c. 93A, § 9;

(5) defamation; and (6) emotional distress.

For reasons that do not appear on the record, the United

States magistrate judge was recused, and the case was then

handled by a United States District Court judge, who granted

Wells Fargo's motion for a judgment on the pleadings and

dismissed Sarah's second amended complaint. Sarah's motion to

file a third amended complaint was denied. Sarah appealed, and

the order granting Wells Fargo's motions to dismiss and for

judgment on the pleadings and the order denying Sarah's motion

to file a third amended complaint were affirmed by the First

Circuit Court of Appeals in 2019.

2. The 2021 litigation. Thereafter, Wells Fargo moved

forward with the foreclosure and scheduled a new auction date of

September 2, 2021. Sarah again sought to enjoin the auction and

filed an emergency motion for a preliminary injunction and a new

complaint (the 2021 complaint) on August 31, 2021, in Superior

Court. Like the second amended complaint from the 2015

litigation, the 2021 complaint alleged violations of FDCPA and

4
c. 93A. It also alleged, among other claims, that the mortgage

became unenforceable pursuant to G. L. c. 106, § 3-118, after

the six-year statute of limitations passed. After a hearing, a

judge of the Superior Court denied Sarah's request for an

injunction. The judge concluded that the claims advanced in

support of the injunction were precluded by the prior litigation

and therefore it was "unlikely" that Sarah's complaint would be

successful. The foreclosure auction proceeded, and Wells Fargo

was the highest bidder and purchased the property. Thereafter,

the case was again removed to Federal court. On October 26,

2021, the same United States District Court judge who dismissed

Sarah's second amended complaint allowed Wells Fargo's motion to

dismiss for failure to state a claim. The judge concluded that

the arguments were, or should have been, raised in the 2015

litigation and were barred by the doctrine of claim preclusion.

3. The summary process action. Meanwhile, on or about

January 10, 2022, Wells Fargo recorded a foreclosure deed and an

affidavit pursuant to G. L. c. 244, § 15, with the registry in

Franklin County. Wells Fargo also recorded an affidavit of

compliance and averred that the mortgagee held the note at the

time of the foreclosure. Wells Fargo then served a notice to

quit on March 11, 2022, and filed a summary process action

seeking to evict the Coulseys on May 4, 2022.

5
Sarah and Benjamin's answer to the summary process

complaint alleged, among other claims and defenses, that Wells

Fargo lacked standing to bring the action, gave defective

notice, did not comply with foreclosure requirements, violated

c. 93A, and engaged in predatory loan practices. Wells Fargo

filed a motion to dismiss the defenses and counterclaims. A

judge of the Housing Court allowed the motion on the ground that

the Coulseys' claims were or could have been litigated in the

prior actions and therefore were barred by res judicata. Wells

Fargo also filed a motion for summary judgment on the remaining

possession claim, which was allowed. The Coulseys appealed.7

7 Benjamin subsequently filed a motion for relief from
judgment pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828
(1974), claiming that he should not be subject to the summary
process action because he had no relation to the foreclosed
mortgage and "no legal ties at all" to Wells Fargo. The motion
was denied in a margin endorsement: "Despite Mr. Coulsey not
being a signatory to the loan or mortgage, he is an adult
occupant and judgment for possession is appropriate." We note
that Benjamin purports to appeal from the denial of this motion;
however, he did not file a separate notice of appeal as required
by Mass. R. A. P. 4 (a) (3), as appearing in 481 Mass. 1606
(2019). "A notice of appeal filed before the disposition of any
timely motion listed in Rule 4 (a) (2) shall have no effect. A
new notice of appeal must be filed within the prescribed time
measured from the entry of the order disposing of the last such
remaining motion." Id. As a result, the argument is not
properly before us. "A timely notice of appeal is a
jurisdictional prerequisite to our authority to consider any
matter on appeal." DeLucia v. Kfoury, 93 Mass. App. Ct. 166,
170 (2018). In any event, even if we had jurisdiction, the
motion was properly denied for the reasons stated by the judge.

6
Discussion. 1. Motion to dismiss. Our review of a motion

to dismiss is de novo. See Buffalo-Water 1, LLC v. Fidelity

Real Estate Co., LLC, 481 Mass. 13, 17 (2018). That said, our

review of the record leads us to the same conclusion as the

judge. The Coulseys' defenses and counterclaims are barred by

the doctrine of claim preclusion within the defense of res

judicata. "The term 'res judicata' includes both claim

preclusion and issue preclusion. The doctrine of claim

preclusion makes a valid, final judgment conclusive on the

parties and their privies, and bars further litigation of all

matters that were or should have been adjudicated in the action"

(quotations and citations omitted). TLT Constr. Corp. v. A.

Anthony Tappe & Assocs., 48 Mass. App. Ct. 1, 4 (1999). For

claim preclusion to bar the Coulseys' arguments against Wells

Fargo, three elements are required: "(1) the identity or

privity of the parties to the present and prior actions;

(2) identity of the cause of action; and (3) prior final

judgment on the merits" (citation omitted). Id.

We first address the issue of identity or privity of the

parties to the present and prior actions. Both Sarah and

Benjamin argue that the parties differ because Wells Fargo was

not named as a defendant in the first original complaint filed

in Superior Court and was added in name only in the first

amended complaint filed in Federal court. Neither provides a

7
basis for concluding that Wells Fargo was not a party to the

prior actions. To the contrary, Sarah was explicitly granted

permission to file a second amended complaint in Federal court

so that she could "address certain shortcomings" with respect to

the claims (against Wells Fargo) that had been dismissed without

prejudice. Furthermore, Wells Fargo has participated in

defending all prior complaints, including the original complaint

and the first amended complaint. Given these circumstances, we

are not persuaded that Wells Fargo was not a party to the prior

litigation.8

Next, Benjamin contends that the doctrine of claim

preclusion should not apply to him because he was not a named

plaintiff in the prior litigation. While it is true that

Benjamin, who was not a party to the note or mortgage, did not

join the litigation until Wells Fargo brought the summary

process action, he was a party in privity to the real party in

interest, namely, his wife Sarah. Our case law does not require

absolute identical parties as Benjamin asserts. Rather, we look

8 The argument that Wells Fargo was not a party to the
litigation because Sarah had not designated it as "trustee" also
fails. First, while that particular designation was not
included in the caption of Sarah's second amended complaint, she
alleged that Wells Fargo was, in fact, acting as trustee. In
addition, the Federal docket names "Wells Fargo Bank, N.A., As
Trustee" as a defendant, and the judge’s memorandum of decision
dismissing the complaint identifies it as "Wells Fargo Bank
N.A., as Trustee."

8
to the relationship between the party and the non-party and the

nature of their interest in the litigation. See DeGiacomo v.

Quincy, 476 Mass. 38, 43-44 (2016). Here, there is no question

that Benjamin, as an occupant of the home on the property,

shared the same interests as Sarah in every material aspect of

the prior litigation. Furthermore, we conclude that there are

no "special circumstances or due process considerations which

make it unfair to bind [Benjamin] to [the prior] judgment[s]"

(citation omitted). Id. at 44.

We now turn to the identity of the causes of action. This

element of claim preclusion is met when a claim has been or

could have been litigated in a prior action. See LaRace v.

Wells Fargo Bank, N.A., 99 Mass App. Ct. 316, 323-324 (2021);

TLT Constr. Corp., 48 Mass. App. Ct. at 7. Sarah and Benjamin

argue that their claims regarding ownership of the note and

assignment of the mortgage to Wells Fargo were not previously

litigated and therefore not subject to claim preclusion. Our

review of the record discloses no support for this argument.9

9 For example, the second amended complaint "call[s] into
question Wells Fargo Bank[']s actual role in [Sarah's] mortgage
loan, and the legality they have in regards to said loan,"
challenges American Home Mortgage's "power to sell the mortgage"
to Wells Fargo, and accuses Wells Fargo of misrepresenting
material facts regarding "who is the true note holder." The
judge acknowledged Sarah's argument that "the assignment of her
mortgage to Wells Fargo was fraudulent" and that "Wells Fargo
identifies itself as the Trustee . . . that holds the mortgage

9
Furthermore, even if we were to conclude otherwise, their

argument is unavailing because it ignores the aspect of claim

preclusion, which bars claims that could have been litigated in

a prior action. Even assuming that Sarah did not challenge

Wells Fargo's ownership of the note and mortgage when she

commenced litigation in 2015, we have no doubt that she

certainly could have done so.

The same rationale precludes the Coulseys from relitigating

their claims brought pursuant to G. L. c. 93A. Sarah was

permitted to file an amended complaint in order to specify the

basis for her allegation that Wells Fargo (and the other

defendants) had engaged in unfair and deceptive acts. Any new

basis or theory supporting her c. 93A claim could have been

brought at that time. Moreover, Sarah's assertion that c. 93A

violations are ongoing and therefore could not have been

advanced in prior litigation is contrary to the purpose of the

doctrine of res judicata, which assures that judgments are

conclusive and relitigation of issues that were or could have

been raised in an original action are avoided. See DeGiacomo,

476 Mass. at 41.

The last requirement, whether there was a final judgment on

the merits, also has been satisfied. Each of the prior matters

note . . . an assertion Plaintiff disputes," but ultimately
allowed the defendants' motion to dismiss.

10
were decided on motions to dismiss or motions for judgment on

the pleadings, and subject to appellate review, thus they were

final judgments on the merits.10 See Mestek, Inc. v. United Pac.

Ins. Co., 40 Mass. App. Ct. 729, 731 (1996). In addition, the

dismissal of the second amended complaint was affirmed by the

First Circuit. In sum, all three elements of claim preclusion

were met, and the judge properly dismissed the Coulseys'

defenses and counterclaims as barred by res judicata.

2. Summary judgment. We now turn to Wells Fargo's claim

of possession and to the question of whether it is entitled to

summary judgment as a matter of law. "We review a grant of

summary judgment de novo to determine whether, viewing the

evidence in the light most favorable to the nonmoving party, all

material facts have been established and the moving party is

entitled to judgment as a matter of law" (citation and quotation

omitted). Blake v. Hometown Am. Communities, Inc., 486 Mass.

268, 272 (2020). To prevail on its motion for summary judgment,

10Sarah contends that because the dismissal of the second
amended complaint was based on the applicable statutes of
limitations rather than a determination of the merits, the
judgments cannot be given res judicata effect. This contention
is based on a misunderstanding of Mass. R. Civ. P. 41 (b) (3),
as amended, 454 Mass. 1403 (2009), which provides: "any
dismissal not provided for in this rule, other than a dismissal
for lack of jurisdiction, for improper venue, or for failure to
join a party under Rule 19, or for improper amount of damages
. . . operates as an adjudication upon the merits." See Mestek,
Inc. v. United Pac. Ins. Co., 40 Mass. App. Ct. 729, 731 (1996).

11
Wells Fargo "had the burden of showing that there are no

material facts in dispute regarding its legal title to the

property" (citation omitted). Bank of N.Y. v. Bailey, 460 Mass.

327, 334 (2011). "In a summary process action for possession

after foreclosure by sale, the plaintiff is required to make a

prima facie showing that it obtained a deed to the property at

issue and that the deed and affidavit of sale, showing

compliance with statutory foreclosure requirements, were

recorded." Id. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463

Mass. 635, 642 (2012) ("in a summary process action a

foreclosure deed and statutory form [affidavit] constitute prima

facie evidence of the right of possession"); Deutsche Bank Nat'l

Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 568-570 (2012).

Wells Fargo met its burden. There is no dispute that Wells

Fargo conducted a public foreclosure auction at which it

purchased the property. Wells Fargo then recorded the

foreclosure deed, with the affidavit of sale. Furthermore,

Wells Fargo complied with the publication and notice

requirements of G. L. c. 244, § 14, as evidenced by the

affidavit of sale attached to the recorded foreclosure deed.

Once Wells Fargo made a prima facie case, it was "incumbent on

[the Coulseys] to counter with [their] own affidavit or

acceptable alternative demonstrating at least the existence of a

genuine issue of material fact to avoid summary judgment against

12
[them]." Hendricks, 463 Mass. at 642. Here, the Coulseys did

not submit an affidavit in opposition to summary judgment and

have not pointed to any evidence in the record that contradicts

Wells Fargo's compliance with the statutory foreclosure

requirements, nor have they directed our attention to any

competent evidence that Wells Fargo was not the holder of the

note and the mortgage at the time of the foreclosure. Because

the Coulseys offered nothing to show the existence of a genuine

issue of material fact, summary judgment was correctly entered

against them.11

Judgement affirmed.

By the Court (Vuono,
Hershfang & Tan, JJ.12),

Clerk

Entered: May 12, 2025.

11In addition, Sarah and Benjamin's assertion that Wells
Fargo is barred from foreclosing by the six-year statute of
limitations provided for in G. L. c. 106, § 3-118, fails. This
section of the statute applies to notes and other negotiable
instruments, and not mortgages. See Dorsey v. Rathbun, 102
Mass. App. Ct. 600, 607 (2023) ("The expiration of the
limitations period for enforcing the note does not, however,
preclude the plaintiff from enforcing the mortgage").

12 The panelists are listed in order of seniority.

13