BANK OF NEW YORK MELLON, Trustee v. ALTON KING, JR. (And a Consolidated Case).

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

22-P-246

BANK OF NEW YORK MELLON, 1 trustee, 2

vs.

ALTON KING, JR. (and a consolidated case 3).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Alton King, Jr., appeals from multiple

postjudgment orders of a Housing Court judge and a single

justice of this court entered after possession of the home

formerly occupied by King was awarded to the plaintiff, Bank of

New York Mellon (BNY Mellon), following a foreclosure sale and

summary process action. We affirm four orders of the Housing

Court judge: one dated March 9, 2021, dismissing King's direct

appeal from the underlying judgment and from the denial of his

first motion for relief from the judgment; one dated April 28,

2021, denying King's second motion for relief from the judgment;

1Formerly known as the Bank of New York.
2On behalf of the registered holders of Alternative Loan
Trust 2006-J7, Mortgage Pass-Through Certificates, Series 2006-
J7.
3 The consolidated case involves the same parties.
and two dated July 13, 2022, allowing a new execution to issue

and denying any other pending motions. We dismiss as moot (1)

the appeal from three orders denying stays of eviction, two by

the Housing Court judge (dated April 28, 2021, and March 16,

2022) and one by a single justice of this Court (dated March 17,

2022); and (2) another petition for a stay filed by King in our

single justice session. 4

Background. In 2006, King and his then wife, Terri Mayes-

King, jointly obtained a $1 million adjustable-rate loan secured

by a mortgage on the home, to fund an addition. 5 Four years

later, Mayes-King, in her name alone, obtained a loan

4 As soon as the Housing Court judge denied King's emergency
motion for a stay on March 16, 2022, King sought a stay from a
single justice of this Court (22-J-124). On March 17, 2022, the
petition was denied, and King filed a forty-two page document
that the single justice deemed an effective notice of appeal
from (1) his (the single justice's) order of that day, (2) the
Housing Court judge's order of March 9, 2021, and (3) the
Housing Court judge's order of March 16, 2022. The single
justice directed that the appeals be consolidated and entered as
22-P-246, which was the number that had been assigned the
previous day to King's appeal from the Housing Court orders of
April 28, 2021. When King thereafter filed another petition for
a stay (22-J-575), a different single justice of this court
ordered it transferred to 22-P-246. The appeal from the orders
of April 28, 2021, and March 16 and 17, 2022, and the petition
for a stay are moot, because BNY Mellon has long since
repossessed the home. See Kahyaoglu v. Sillari Enters., 493
Mass. 1005, 1005 (2023).
We acknowledge that two of the current panelists were among
the single justices who acted on various procedural motions King
filed in his appeals. None of the consolidated matters before
us concern rulings by any of the panelists.
5 The note and mortgage were assigned to BNY Mellon in 2017,

before the foreclosure.

2
modification that changed the interest rate to a fixed

percentage and added a balloon payment due on maturity. Mayes-

King defaulted on the modified loan in 2015. A loan servicing

company notified both King and Mayes-King of the default by

certified mail in 2017. BNY Mellon foreclosed on the mortgage

and bought the property at a foreclosure auction the following

year. King and Mayes-King continued living in the home after

the foreclosure sale.

In early 2019, BNY Mellon filed a summary process eviction

action in the Housing Court against both King and Mayes-King. 6

In his answer to the complaint, King averred that BNY Mellon

lacked "a superior right to possession and/or [did] not have

standing to bring" the action, failed to strictly comply with

paragraph 22 of the mortgage, and caused the foreclosure by

improperly approving repairs that resulted in property damage.

He further claimed that the loan was a product of predatory and

unfair lending practices.

BNY Mellon moved for summary judgment, arguing that it had

made its prima facie case for possession, which it supported

with authenticated documents demonstrating that it was the

mortgage holder and that King and Mayes-King received notice of

6 Mayes-King moved out of the home soon after the
foreclosure auction and was dismissed from the summary process
suit by written stipulation. She is not a party to this appeal.

3
their right to cure in compliance with both paragraph 22 and

G. L. c. 244, § 35B. King, who was not represented by counsel

at the time and had failed to file a written opposition, spoke

in opposition to the motion. 7 King raised arguments regarding

the predatory nature of the loan, code violations stemming from

improper repairs, and his inability to obtain counsel. The

Housing Court judge granted BNY Mellon's motion for summary

judgment, and judgment for possession entered on July 5, 2019.

In the order granting summary judgment, the judge stated that

King had "failed to file any written opposition and really ha[d]

no challenge to the plaintiff's claim for possession." Ten days

later King filed a motion for relief from the judgment under

Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974), and when that

motion was denied, timely filed a notice of appeal. See Mass.

R. A. P. 4 (2) (C), as appearing in 481 Mass. 1606 (2019). That

appeal was the direct appeal.

In his appellate brief in the direct appeal, King argued

that BNY Mellon had failed to strictly comply with the notice

provision of the mortgage, that the trial judge had abused his

discretion by denying King's request for counsel, and that the

7 King asked the judge to postpone the hearing to allow more
time to find an attorney after his representation by a nonprofit
organization fell through. The judge refused to delay the
hearing because, as noted by BNY Mellon's counsel, King had
failed to raise the issue at the case management conference
three months earlier.

4
trial judge had erred by determining that the mortgage loan was

not predatory. 8 After the direct appeal was assigned to a panel

of this court but before the panel could reach the merits,

however, the Housing Court judge on March 9, 2021, dismissed

King's direct appeal for failure to make use and occupancy

payments as ordered by the judge and affirmed by the Supreme

Judicial Court. 9 The first of many executions on the judgment

was entered.

On March 12, 2021, King filed his second rule 60 (b) motion

for relief from the judgment and a motion for a stay of the

execution on the judgment. The rule 60 (b) motion did not

address the dismissal of the direct appeal, but rather addressed

the validity of the underlying judgment. The judge denied both

8 We take judicial notice of the docket and papers filed in
the Housing Court and related appellate proceedings. See Jarosz
v. Palmer, 436 Mass. 526, 530 (2002).
9 The Housing Court judge waived the appeal bond otherwise

required under G. L. c. 239, § 5, and ordered King to pay $4,000
per month in use and occupancy payments during the appeal. King
appealed the use and occupancy portion of the order to a single
justice of this Court. The single justice vacated that portion
of the order and reported the correctness of his decision to a
full panel of this Court. The Supreme Judicial Court took the
appeal on its own motion and affirmed both the Housing Court
judge's authority to require use and occupancy payments and the
amount of the payments that the judge had ordered. See Bank of
N.Y. Mellon v. King, 485 Mass. 37, 39-41 & 53 (2020).

5
motions on April 28, 2021, and King timely filed a notice of

appeal. 10

Meanwhile, King continued living in the home without making

use and occupancy payments, and BNY Mellon repeatedly obtained

executions on the judgment. King unsuccessfully sought relief

from a range of sources, including the Federal Bankruptcy and

District Courts. On March 16, 2022, the Housing Court judge

denied an emergency motion by King for a stay of eviction. The

next day, a single justice of this court denied King's petition

for a stay of eviction, and King appealed. That appeal, and the

appeal from the Housing Court orders of April 28, 2021, were

consolidated and entered as 22-P-246. See note 4, supra.

On July 13, 2022, the Housing Court judge allowed a motion

for a new execution to issue and denied "[a]ny and all pending

motions before the court, if there are any." King appealed, and

that appeal (23-P-191) was consolidated with 22-P-246 by order

of a different single justice of this Court. In 2023, the

sheriff's office finally levied on the execution and the bank

obtained possession of the home.

10In the interim, on April 1, 2021, the panel ordered the
direct appeal dismissed. King did not file a notice of appeal
from that order. King filed a third motion for relief from the
judgment on June 7, 2021, which was denied on June 25, 2021. He
did not file a notice of appeal from that order either.

6
Discussion. In these appeals, King raises numerous,

interrelated arguments, virtually all of which are waived, moot,

or otherwise outside the scope of this appeal. Notably, King

does not address the Housing Court orders of July 13, 2022, and

so we do not address them either. Mass. R. A. P. 16 (a) (9)

(A), as appearing in 481 Mass. 1628 (2019). The narrow issues

before us are whether the Housing Court judge properly dismissed

King's direct appeal on March 9, 2021, and denied King's second

motion for relief from the judgment on April 28, 2021. King has

failed to demonstrate entitlement to relief.

As an initial matter, the Housing Court judge properly

dismissed the direct appeal based on King's failure to make use

and occupancy payments. The Supreme Judicial Court has already

ruled that the Housing Court judge had the authority to require

use and occupancy payments and that the amount of the payment

ordered was reasonable. See Bank of N.Y. Mellon v. King, 485

Mass. 37, 45-53 (2020). King does not assert that he made the

required payments.

Nor did the judge abuse his discretion in denying King's

second motion for relief from the judgment. "Rule 60 sets forth

a comprehensive framework for obtaining relief from a final

judgment or order, balancing the competing needs for finality

and flexibility to be certain that justice is done in light of

all the facts." Owens v. Mukendi, 448 Mass. 66, 71 (2006),

7
quoting Sahin v. Sahin, 435 Mass. 396, 399-400 (2001). The

general thrust of King's motion was that the original judgment

for possession in favor of BNY Mellon should not have entered

-- for the reasons King had asserted in his direct appeal. Rule

60 "does not provide for general reconsideration of an order or

judgment, and does not provide an avenue for obtaining relief

from errors correctable on appeal." Mitchell v. Mitchell, 62

Mass. App. Ct. 769, 776 n.12 (2005). We accordingly do not

address the issues that King raised, or could have raised, in

his direct appeal or in his first rule 60 (b) motion, including

his claims challenging BNY Mellon's existence, capacity, and

assignment of the mortgage; the propriety of the notices King

received; or the conduct of the foreclosure sale.

King's second motion for relief from the judgment cited

rule 60 (b) (6), the "catchall provision," which applies only

"in extraordinary circumstances" and "is only appropriate when

justified by some reason other than those set forth in rule 60

(b) (1)-(5)." Sahin, 435 Mass. at 406-407. Throughout the

motion and in his current appellate brief, however, King made

arguments to the effect that the judgment of possession was

void. See Mass. R. Civ. P. 60 (b) (4). Our review is based on

the content of the motion rather than its title. See Colley v.

Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527,

8
529 (1997). We therefore treat King's assertion as brought

under rule 60 (b) (4).

The denial of a rule 60 (b) (4) motion is reviewed for

abuse of discretion. See Judge Rotenberg Educ. Ctr., Inc. v.

Commissioner of Dep't of Developmental Servs., 492 Mass. 772,

785 (2023). "A judgment is void if the court from which it

issues lacked jurisdiction over the parties, lacked jurisdiction

over the subject matter, or failed to provide due process of

law." Harris v. Sannella, 400 Mass. 392, 395 (1987). Where, as

here, "a court has rendered judgment, and opportunities for

appeal have been exhausted, . . . the judgment is immune from

postjudgment attack unless the court's exercise of jurisdiction

constituted a clear usurpation of power" (quotation and citation

omitted). Southwick v. Planning Bd. of Plymouth, 72 Mass. App.

Ct. 266, 268 (2008). See United States v. Boch Oldsmobile,

Inc., 909 F.2d 657, 661-662 (1st Cir. 1990), quoting Lubben v.

Selective Serv. Sys. Local Bd. No. 27, 453 F.2d 645, 649 (1st

Cir. 1972) ("It is essential to state, that total want of

jurisdiction must be distinguished from an error in the exercise

of jurisdiction, and that only 'rare instance[s] of a clear

usurpation of power' will render a judgment void"). 11 "In the

11"As a general principle, the Massachusetts Rules of Civil
Procedure are given the same construction as the cognate Federal
rules. . . . In all pertinent respects, Mass. R. Civ. P. 60 (b)

9
interest of finality, the concept of void judgments is narrowly

construed." O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 455

(1991), quoting Lubben, supra.

King argues that the judgment was void because he was the

victim of predatory and discriminatory lending. But these

allegations did not strip the Housing Court of power to

adjudicate the summary process matter. Indeed, King's reliance

on HSBC Bank USA, N.A. v. Morris, 490 Mass. 322 (2022), proves

the point. In Morris, supra at 329-337, the court held that a

defendant in a summary process action brought by the assignee of

a mortgage loan after a foreclosure sale may assert

counterclaims under the Predatory Home Loan Practices Act, G. L.

c. 183C. Such claims, however, do not make the mortgage loan

void. See id. at 332 n.20. Nothing about the Morris decision

suggests that an assignee of the mortgage loan lacks standing or

that the Housing Court lacks jurisdiction. King did not

demonstrate a total lack of jurisdiction or a clear usurpation

of power in the adjudication of the summary process action in

the Housing Court.

Although we offer no view on the merits of King's predatory

and discriminatory lending claims, we do not "ignore" them.

Rather, we hold that by failing to make use and occupancy

is identical to Fed. R. Civ. P. 60 (b)." Sahin, 435 Mass. at
400 n.7.

10
payments as required by the Housing Court judge and affirmed by

the Supreme Judicial Court, he forfeited his main avenue for

appellate review of those claims. The Housing Court judge did

not abuse his discretion in denying King's attempt to resurrect

those claims via the second motion for relief from the judgment.

Conclusion. The following orders of the Housing Court

judge are affirmed: the order dated March 9, 2021, dismissing

King's direct appeal; the order dated April 28, 2021, denying

the second motion for relief from the judgment; and the orders

dated July 13, 2022, allowing a new execution to issue and

denying any and all pending motions. The appeal from the orders

of the Housing Court judge dated April 28, 2021, and March 16,

2022, and of the single justice dated March 17, 2022, all

denying stays of eviction, is dismissed as moot, as is the

petition seeking a stay of eviction.

So ordered.

By the Court (Milkey,
Massing & Neyman, JJ. 12),

Assistant Clerk

Entered: May 8, 2024.

12 The panelists are listed in order of seniority.

11