HSBC BANK USA, N.A., Trustee v. TOMMY L. MORRIS & 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-1073

HSBC BANK USA, N.A., trustee,1

vs.

TOMMY L. MORRIS & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants, Mary L. and Tommy L. Morris, appeal from a

summary judgment entered in the Housing Court in favor of the

plaintiff, HSBC Bank USA, N.A. (bank), and the subsequent orders

denying their motion for reconsideration and for issuance of an

execution for possession. We affirm.3

Discussion. 1. Jurisdiction of the Housing Court. The

defendants contend that the Housing Court lacked jurisdiction

1Of the Fremont Home Loan Trust 2005-E, Mortgage Backed
Certificates, Series 2005-E.

2 Mary L. Morris.

3We assume familiarity with the prior decisions in this
matter by this court and the Supreme Judicial Court. See HSBC
Bank USA, N.A. v. Morris, 99 Mass. App. Ct. 417 (2021), S.C.,
490 Mass. 322 (2022).
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over the case on remand. In the defendants' prior appeal, the

Supreme Judicial Court rejected their argument that the Housing

Court lacked subject matter jurisdiction over the summary

process action. HSBC Bank USA, N.A. v. Morris, 490 Mass. 322,

340 n.30 (2022). We are unpersuaded by their new jurisdictional

challenges. Although some claims under the Predatory Home Loan

Practices Act (PHLPA) may implicate title, the defendants' PHLPA

counterclaim did not because any recovery was limited to

monetary damages, attorney's fees, and costs. Id. at 337. See

G. L. c. 183C, § 15 (b) (2). Further, even if title had been at

issue, the Housing Court would not have lacked jurisdiction to

adjudicate the matter. See Bank of N.Y. v. Bailey, 460 Mass.

327, 333-334 (2011). As for the Housing Court's failure to

enter on its docket the rescript issued by the Supreme Judicial

Court, this procedural defect did not deprive the Housing Court

of jurisdiction to decide the counterclaim, particularly where

the defendants did not raise this issue in the two years they

litigated in the Housing Court after the Supreme Judicial Court

remanded the case. See Depianti v. Jan-Pro Franchising Int'l,

Inc., 465 Mass. 607, 611 (2013).

2. Judgment for possession. The defendants assert that

the execution for possession dated August 23, 2024, was issued

in error because it relied on the 2018 judgment for possession,

which they argue was vacated by the Supreme Judicial Court. We

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disagree. As the judge explained, the Supreme Judicial Court

did not reverse the judgment for possession in favor of the

bank. See HSBC Bank USA, N.A., 490 Mass. at 340-341. Rather,

the court reversed the grant of summary judgment "insofar as it

concerns the [defendants'] PHLPA counterclaim," and also

reversed in part and affirmed in part the grant of summary

judgment "insofar as it concerns the c. 93A claim." HSBC Bank

USA, N.A., supra at 341. Although the court did not explicitly

affirm the judgment for possession, it did not reverse or remand

on any issue that called that judgment into question.

On remand, a trial court judge must follow the terms of an

appellate court's decision as to matters addressed in that

decision. See City Coal Co. of Springfield v. Noonan, 434 Mass.

709, 710–711 (2001). Here, the only remaining issue for the

Housing Court judge to address on remand was the defendant's

PHLPA counterclaim for damages. In an abundance of caution,

after entering summary judgment in the bank's favor, the judge

allowed the defendants' motion to stay execution of the judgment

pending this appeal. Because we agree with the judge that the

judgment for possession was not disturbed by the Supreme

Judicial Court's decision, execution on it may proceed.

3. Summary judgment. The defendants also contend that the

Housing Court judge erred in granting summary judgment on the

defendants' remaining counterclaim under G. L. c. 183C,

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§ 15 (b) (2). "We review a decision on a motion for summary

judgment de novo." Conservation Comm'n of Norton v. Pesa, 488

Mass. 325, 330 (2021) (Pesa). "Summary judgment is appropriate

where there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law." Barbetti v.

Stempniewicz, 490 Mass. 98, 107 (2022), quoting Pesa, supra.

See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

In remanding the case for further proceedings on the

defendant's PHLPA counterclaim, the Supreme Judicial Court

stated that it was "limited to monetary damages capped at the

'amounts required to reduce or extinguish the borrower's

liability under the high-cost home mortgage loan' plus costs and

reasonable attorney's fees." HSBC Bank USA, N.A., 490 Mass. at

337, quoting G. L. c. 183C, § 15 (b). The court noted that the

defendants could "pursue damages sufficient to extinguish their

deficiency on the loan even though there is not presently a

claim by HSBC for the deficiency." HSBC Bank USA, N.A., supra

at 340 n.29. On remand, the judge concluded that the

defendants' PHLPA counterclaim failed because "there is not [a]

claim by HSBC for any outstanding liability under the loan" and

the defendants "are in turn not entitled to any monetary

damages." Although they do not make the argument here, the

defendants contended in the Housing Court that the bank could

still assert or assign a claim for the deficiency in some future

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action. The judge acknowledged that possibility in his summary

judgment decision and in a postjudgment order. To the extent

there was previously uncertainty regarding this issue, we are

satisfied by the bank's letter filed pursuant to Mass. R. A. P.

22 (c), as appearing in 481 Mass. 1651 (2019), stating that it

will not seek a deficiency judgment against the defendants and

that "any ability to seek a deficiency judgment has expired."

See Clair v. Clair, 464 Mass. 205, 214 (2013), quoting Gabbidon

v. King, 414 Mass. 685, 686 (1993) ("It is well established

that, on appeal, we may consider any ground apparent on the

record that supports the result reached in the lower court").

Because there is no longer the possibility of a claim for a

deficiency for which offsetting damages could be sought, we

affirm summary judgment on the defendants' counterclaim under

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G. L. c. 183C, § 15 (b) (2).4

Summary judgment on PHLPA
counterclaim affirmed.

Order allowing application
for execution for
possession affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Meade,
Ditkoff & Toone, JJ.5),

Clerk

Entered: December 16, 2025.

4 The defendants did not argue in the Housing Court, and do
not argue here, that they may recover attorney's fees and costs
in the absence of an award of damages under G. L. c. 183C,
§ 15 (b) (2). The other arguments raised in the defendants'
brief are without merit. This court previously rejected their
argument that the affidavit of sale was deficient because it did
not state the affiant's basis of knowledge, and that holding was
not disturbed on further appellate review. See HSBC Bank USA,
N.A., 99 Mass. App. Ct. at 425. The defendants waived their
arguments regarding their claimed violations of due process and
the application of strict scrutiny by failing to raise them in
their first appeal or in the Housing Court on remand. See Carey
v. New England Organ Bank, 446 Mass. 270, 285 (2006); Gutierrez
v. Massachusetts Bay Transp. Auth., 442 Mass. 1041, 1042-1043
(2004).

5 The panelists are listed in order of seniority.

6