JACQUES E. MITRI v. CHRISTINA C. FERGUSON MARGE & Others.

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

23-P-1236

JACQUES E. MITRI

vs.

CHRISTINA C. FERGUSON MARGE & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jacques Mitri, filed this action challenging

the validity of a 2011 mortgage foreclosure on his former home

in Holliston (property). He now appeals from a judgment issued

by a judge of the Land Court dismissing his complaint against

the defendants with prejudice pursuant to Mass. R. Civ. P.

12 (b) (6), 365 Mass. 754 (1974), and the denial of his motion

1Michael C. Marge; Edward C. Griffin; Jennifer Hugueley;
Golden Gates Properties, LLC; Nationstar Mortgage LLC; Aurora
Bank FSB; Aurora Loan Services, LLC; Homecoming Financial
Network, Inc.; and Presidential Mortgage Corporation.
to void the judgement pursuant to Mass. R. Civ. P. 60 (b), 365

Mass. 828 (1974). We affirm.2

Background.3 In 2005, the plaintiff secured the property

through mortgage financing. In 2011, Aurora Loan Services, LLC

(Aurora), the holder of the mortgage on the property at the

time, foreclosed on the property after the plaintiff failed to

provide adequate income verification. Aurora sold the property

to Nationstar Mortgage LLC (Nationstar) in 2012; Nationstar sold

the property to Golden Gates Properties, LLC (Golden Gates) in

2019; Golden Gates sold the property to Edward Griffin and

Jennifer Hugueley in 2020; and Hugueley sold the property to

Christina C. Ferguson Marge and Michael C. Marge (together, the

Marges) in 2020. The Marges are the current owners of the

property.

The plaintiff, who appears pro se, has extensively

litigated the foreclosure of the property. In November 2015, he

filed a complaint against Aurora, Nationstar, and others,

alleging improper foreclosure. The defendants removed the case

to the United States District Court for the District of

2 Our review is impeded by the plaintiff's brief and record
appendices, which lack clarity and are difficult to understand.

3 Because the appeal depends, in part, on issues raised and
decided in prior litigation, we reference the facts in those
matters to the extent they are relevant.

2
Massachusetts and filed a motion for summary judgment. A United

States District Court judge allowed the defendants' motion for

summary judgment and entered judgment in favor of Nationstar on

its claim for possession of the property.4 The plaintiff

appealed, but the United States Court of Appeals for the First

Circuit ruled that he lacked standing and dismissed the appeal.5

In 2020, the plaintiff brought an action against the Marges

seeking, inter alia, a preliminary injunction to enjoin the

Marges from evicting him from the property. A Housing Court

judge denied that request and the plaintiff appealed. A panel

of this court affirmed in an unpublished decision pursuant to

our Rule 23.0. See Mitri v. Marge, 102 Mass. App. Ct. 1120

(2023). In that decision, the panel noted that "this is the

plaintiff's fifth lawsuit challenging the validity of the 2011

foreclosure sale of [the] property." Id. The panel further

concluded that the plaintiff had "no likelihood of succeeding on

the merits of any claim that relies on the foreclosure being

unlawful." Id.

The plaintiff filed the present case in 2023. The

complaint restated the facts of the foreclosure and alleged four

4 See Mitri vs. Aurora Loan Servs., LLC, U.S. Dist. Ct., No.
15-cv-14178-DJC (D. Mass. Feb 16, 2018).

5 See Mitri vs. Aurora Loan Servs., LLC, U.S. Ct. App., No.
18-1236 (1st Cir. Oct. 1, 2018).

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counts against Aurora: unfair and deceptive practices in

violation of G. L. c. 93A, fraud, breach of contract, and

negligence. The Marges, Hugueley, Nationstar, and Golden Gates

all filed motions to dismiss, asserting the claims were barred

by the doctrine of res judicata. In addition, the Marges,

Hugueley, and Golden Gates sought dismissal because the

plaintiff had not asserted any claims against them. A Land

Court judge allowed the motions and dismissed the complaint with

prejudice as to all defendants.6

In March 2024, the plaintiff filed a motion pursuant to

Mass. R. Civ. P. 60 (b), seeking to void the judgment based on

fraud on the court. The judge held a hearing and subsequently

denied the motion.

The plaintiff appeals from both the judgment of dismissal

and the order denying his motion for relief from the judgment.

Discussion. "We review the allowance of a motion to

dismiss de novo, accepting as true all well-pleaded facts

alleged in the complaint." Osborne-Trussell v. Children's Hosp.

Corp., 488 Mass. 248, 253 (2021), quoting Ryan v. Mary Ann Morse

6 While certain defendants did not file a motion to dismiss,
the judge noted these defendants did not respond to the
complaint, either because they were not served or were no longer
in existence. Moreover, the judge concluded that the claims
against these defendants were likewise barred by the doctrine of
res judicata.

4
Healthcare Corp., 483 Mass. 612, 614 (2019). "We draw all

reasonable inferences in the plaintiff's favor, and determine

whether the allegations plausibly suggest that the plaintiff is

entitled to relief on that legal claim" (quotations and citation

omitted). Id. We review the denial of the plaintiff's rule

60(b) motion for abuse of discretion. See Saade v. Wilmington

Trust, Nat'l Ass'n, 494 Mass. 1013, 1014 (2024).

1. Motion to dismiss. Res judicata is a term that

includes both claim preclusion and issue preclusion. See Santos

v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 692 (2016).

The doctrine of claim preclusion bars further litigation on

matters that were or should have been adjudicated in an action

that has a valid, final judgment. See Duross v. Scudder Bay

Capital, LLC, 96 Mass. App. Ct. 833, 836 (2020).

"The elements of claim preclusion are: (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" (quotation and citation omitted).

Saade, 494 Mass. at 1015.

"[I]ssue preclusion 'prevents relitigation of an issue

determined in an earlier action where the same issue arises in a

later action, based on a different claim, between the same

parties or their privies.'" Petrillo v. Zoning Bd. Of Appeals

of Cohasset, 65 Mass. App. Ct. 453, 457 (2006), quoting Heacock

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v. Heacock, 402 Mass. 21, 23 n.2 (1988). "Before precluding the

party from relitigating an issue, a court must determine that

(1) there was a final judgment on the merits in the prior

adjudication; (2) the party against whom preclusion is asserted

was a party (or in privity with a party) to the prior

adjudication; and (3) the issue in the prior adjudication was

identical to the issue in the current adjudication" (quotation

and citation omitted). Petrillo, supra. "Additionally, the

issue decided in the prior adjudication must have been essential

to the earlier judgment[, and i]ssue preclusion can be used only

to prevent relitigation of issues actually litigated in the

prior action" (citation omitted). Id.

As the Land Court judge correctly found, all of Mitri's

claims stem from his assertion that Aurora's 2011 foreclosure on

the property was unlawful. That claim was fully litigated and

decided in the Federal District Court case. The judge there

ruled that the foreclosure was legal and awarded possession of

the property to Nationstar. The doctrine of issue preclusion

bars the plaintiff's current claims. See Petrillo, 65 Mass.

App. Ct. at 457.

Similarly, the doctrine of claim preclusion bars the

plaintiff's claims where the plaintiff again challenges the

legality of the foreclosure, there was a final judgment on the

merits of that claim in Federal District Court and defendants

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were parties to or in privity with parties to that claim. See

Duross, 96 Mass. App. Ct. at 836.

The plaintiff cannot avoid the doctrine of res judicata by

now introducing new evidence, presenting new legal theories, or

seeking different remedies. See Heacock, 402 Mass. at 23. The

judge did not err in allowing the motion to dismiss on this

basis.

The judge also found the plaintiff's complaint must be

dismissed against defendants Nationstar, Golden Gates, the

Marges, and Hugueley because it failed to allege any wrongdoing

by them. "A motion to dismiss will be allowed only where it is

certain that the plaintiff is not entitled to relief under any

combination of facts that could be drawn, or reasonably

inferred, from the allegations contained in the complaint."

Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 286 (2007). As

the judge aptly noted, "[e]ven the most generous view of the

facts alleged by [the plaintiff] cannot make out a cause of

action against Nationstar, Golden Gates, the Marges or

Hugueley." The motion judge did not err in allowing the motion

to dismiss on these additional grounds.

2. Motion pursuant to rule 60 (b). In his motion for

relief from judgment pursuant to Mass. R. Civ. P. 60 (b), the

plaintiff alleged that the defendants' counsel had filed their

appearances before the defendants were served and that

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defendants' counsel did not provide the plaintiff with a copy of

the engagement agreements. "A party seeking to demonstrate

fraud on the court must prove the most egregious conduct

involving a corruption of the judicial process itself"

(quotation and citation omitted). Paternity of Cheryl, 434

Mass. 23, 36 (2001).

The judge, after a hearing, denied the motion, finding

that, even if the plaintiff's allegations were true, they would

not constitute fraud on the court for the purposes of declaring

the judgment void. Likewise, we perceive no basis, at least on

this record, for inferring that a lawyer's mere act of entering

an appearance as counsel for a party prior to actual service of

process is either "egregious conduct involving a corruption of

the judicial process" or was intended to "interfere with the

judicial system's ability" to impartially adjudicate the matter

(citations omitted). Paternity of Cheryl, 434 Mass. at 35-36.

Furthermore, the plaintiff has not provided any authority for

his claim that he was entitled to copies of the defendants'

engagement agreements with their lawyers. To the contrary,

these would normally be protected by the attorney-client

privilege. In any event, the judge reasonably concluded that

the plaintiff did not demonstrate the "extraordinary

circumstances" that warrant relief under rule 60 (b), and

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therefore the judge did not abuse his discretion in denying the

motion. See Saade, 494 Mass. at 1014.

2. Defendants' motion for attorney's fees. The Marges and

Hugueley seek attorney's fees on the grounds that the

plaintiff's appeal of the judgment dismissing the complaint

against them is frivolous. We agree.

We note that the Federal District Court resolved the

legality of the foreclosure here in 2018, and that Hugueley did

not buy the property until two years later, in 2020. Hugueley

sold the property to the Marges later in 2020.

The complaint does not plausibly allege that Hugueley and

the Marges were involved in the 2011 foreclosure; all of the

claims are based on the foreclosure (the legality of which was

resolved in 2018) and do not allege wrongdoing by Hugueley or

the Marges; and the plaintiff's appellate brief does not show,

or even argue, that the judge erred by dismissing the claims

against Hugueley and the Marges on this basis. For these

reasons, the plaintiff's appeal of the dismissal of his claims

against these defendants is frivolous.

Hugueley and the Marges may file a verified and itemized

application for such fees and costs within fourteen days of the

date of this decision, and Mitri will have fourteen days

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thereafter in which to file any opposition to the amounts

requested. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

Judgment affirmed.

Order denying motion for
relief from judgment
affirmed.

By the Court (Neyman, Shin &
Wood, JJ.7),

Clerk

Entered: April 16, 2025.

7 The panelists are listed in order of seniority.

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