ROBERT E. MURPHY v. U.S. BANK NATIONAL ASSOCIATION, Trustee, & 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

22-P-526

ROBERT E. MURPHY

vs.

U.S. BANK NATIONAL ASSOCIATION, trustee,1 & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In a Superior Court action to rescind a foreclosure sale, a

judge ruled on the parties' cross motions for summary judgment

that the foreclosure sale was invalid because the defendant

banks did not hold the mortgage and the note, nor were they

acting on behalf of the true holder of the note during the

foreclosure process.3 The plaintiff, Robert E. Murphy, appeals

from summary judgment entered against him on his claims for

intentional or negligent infliction of emotional distress

resulting from the defendants' invalid foreclosure of his

property (and asserts, on appeal, the tort of wrongful

1 For Structured Asset Mortgage Investments II Inc., Prime
Mortgage Trust, Certificates, Series 2007-3.
2 PNC Bank, National Association, successor by merger to National

City Mortgage, a division of National City Bank.
3 The banks did not appeal.
foreclosure). Concluding that neither party met its initial

burden of establishing the absence of a triable issue on either

claim, we vacate in part.

1. Standard of review. "Summary judgment is appropriate

where there are no genuine issues of material fact and the

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

Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). See

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

a motion for summary judgment, "[t]he moving party bears the

burden of affirmatively demonstrating the absence of a triable

issue." Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 237

(2010). "Once the moving party satisfies its burden, the burden

shifts to the nonmoving party to show with admissible evidence a

dispute of material fact." Siebe, Inc. v. Louis M. Gerson Co.,

74 Mass. App. Ct. 544, 548 (2009). As the parties have cross-

moved for summary judgment, "we review a grant of summary

judgment de novo." Nguyen v. Massachusetts Inst. of Tech., 479

Mass. 436, 448 (2018). In doing so, we view the evidence "in

the light most favorable to the losing party." Welch v. Barach,

84 Mass. App. Ct. 113, 119 (2013).

2. Plaintiff's motion for summary judgment. a.

Intentional infliction of emotional distress. To prevail on a

claim for intentional infliction of emotional distress, the

plaintiff must show "(1) that the actor intended to inflict

2
emotional distress or that he knew or should have known that

emotional distress was the likely result of his conduct . . . ;

(2) that the conduct was 'extreme and outrageous,' was 'beyond

all possible bounds of decency' and was 'utterly intolerable in

a civilized community' . . . ; (3) that the actions of the

defendant were the cause of the plaintiff's distress . . . ; and

(4) that the emotional distress sustained by the plaintiff was

'severe.'" Howell v. Enterprise Publ. Co., LLC, 455 Mass. 641,

672 (2010), quoting Agis v. Howard Johnson Co., 371 Mass. 140,

144-145 (1976). For purposes of liability, it is insufficient

"that the defendant has acted with an intent which is tortious

or even criminal, or that he has intended to inflict emotional

distress, or even that his conduct has been characterized by

'malice,' or a degree of aggravation which would entitle the

plaintiff to punitive damages for another tort." Polay v.

McMahon, 468 Mass. 379, 385 (2014), quoting Tetrault v. Mahoney,

Hawkes & Goldings, 425 Mass. 456, 466 (1997).

Here, the plaintiff has not met his burden of showing, as a

matter of law, that the defendants are liable for intentional

infliction of emotional distress. See Vacca v. Brigham &

Women's Hosp., Inc., 98 Mass. App. Ct. 463, 473 (2020)

("[defendant's] actions do not constitute the sort of extreme

and outrageous conduct that would allow [the plaintiff] to

recover for intentional infliction of emotional distress"). In

3
the case of the tort of intentional infliction of emotional

distress (as distinguished from the tort of wrongful

foreclosure), a "wrongful foreclosure may be the basis for an

action for intentional infliction of emotional distress."

Reynolds v. CB&T, 342 Ga. App. 866, 871 (2017), quoting Mbigi v.

Wells Fargo Home Mtg., 336 Ga. App. 316, 326 (2016).4 Here,

however, the summary judgment record is devoid of any evidence

that the plaintiff suffered severe emotional distress from the

invalid foreclosure. See Thompson-El v. Bank of Am., N.A., 327

Ga. App. 309, 313 (2014) (plaintiff failed to allege facts "that

her emotional distress was so severe that no reasonable person

could be expected to endure it"). Cf. McGinnis v. American Home

Mtge. Servicing, Inc., 817 F.3d 1241, 1259 (11th Cir. 2016)

(wrongful foreclosure "had a severe effect on [the] [p]laintiff

both emotionally and physically"). Contrary to the plaintiff's

4 For the first time on appeal, the plaintiff asserts that count
nine sets forth the tort of wrongful foreclosure (as opposed to
the wrongful foreclosure merely being the factual basis for the
emotional distress torts). The plaintiff, however, captioned
count nine, "intentional and / or negligent infliction of
emotional distress," and failed to alert the motion judge that
he intended to allege the tort of wrongful foreclosure. See
Jacobs v. Massachusetts Div. of Med. Assistance, 97 Mass. App.
Ct. 306, 311 n.7 (2020) (argument not raised below "has been
waived"). In any event, the plaintiff has already received the
remedy of setting aside the foreclosure sale, and "[a]n action
of tort [for wrongful foreclosure], and a proceeding to set
aside the foreclosure, are alternative and inconsistent
remedies." Cambridge Sav. Bank v. Cronin, 289 Mass. 379, 381
(1935).

4
view, severe emotional distress is not merely a method of

proving damages but is an element of the cause of action, an

element that the plaintiff must prove to establish liability for

intentional infliction of emotional distress. See Polay, 468

Mass. at 388. Accordingly, the plaintiff has not met his burden

on this claim.

b. Negligent infliction of emotional distress. To prevail

on a claim for negligent infliction of emotional distress, "a

plaintiff must prove '(1) negligence; (2) emotional distress;

(3) causation; (4) physical harm manifested by objective

symptomatology; and (5) that a reasonable person would have

suffered emotional distress under the circumstances of the

case.'" Lanier v. President & Fellows of Harvard College, 490

Mass. 37, 44 (2022), quoting Payton v. Abbott Labs., 386 Mass.

540, 557 (1982).

"The record here is bereft of physical harm manifested by

objective symptomatology." Shea v. Cameron, 92 Mass. App. Ct.

731, 739 (2018). See Lanier, 490 Mass. at 44, quoting Sullivan

v. Boston Gas Co., 414 Mass. 129, 137-138 (1993) (physical harm

requirement broadly interpreted; "what is required is only

enough 'objective evidence' to 'corroborate [plaintiffs'] mental

distress claims'"). Accordingly, the plaintiff "has not shown

that [he] would be entitled to judgment as a matter of law."

Psychemedics Corp. v. Boston, 486 Mass. 724, 746 (2021).

5
3. Defendants' cross motion for summary judgment. "[T]he

defendants, as the moving parties, have assumed 'the burden of

affirmatively demonstrating that there is no genuine issue of

material fact on every relevant issue, even if [they] would have

no burden on an issue if the case were to go to trial,' and

demonstrating further that they are entitled to judgment as a

matter of law." Howcroft v. Peabody, 51 Mass. App. Ct. 573, 583

(2001), quoting Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).

Accord Siebe, Inc., 74 Mass. App. Ct. at 548 (moving party bears

burden "even if it would not have that burden at trial"). The

plaintiff's "failure to show that [he] was entitled to summary

judgment does not mean that the [defendants] [a]re entitled to

the allowance of their cross motion for summary judgment."

Winbrook Communication Servs., Inc. v. United States Liab. Ins.

Co., 89 Mass. App. Ct. 550, 558 (2016).

Here, the defendants failed to affirmatively demonstrate

the absence of liability on either of the plaintiff's emotional

distress claims. See Boazova, 462 Mass. at 350 (moving party

must show that opposing party has "no reasonable expectation of

proving an essential element of its case"). In their cross

motion for summary judgment, the defendants argued that the

foreclosure was proper. See O'Brien v. Wilmington Trust N.A.,

506 F. Supp. 3d 82, 101 (D. Mass. 2020) (bank's lawful

foreclosure eliminated plaintiff's intentional infliction of

6
emotional distress claim). The judge rejected this argument,

however, and on other claims entered a judgment declaring the

foreclosure invalid, from which the defendants have not

appealed. At no point did they suggest that the plaintiff

otherwise lacked support for his emotional distress claims. See

Winbrook Communication Servs., Inc., 89 Mass. App. Ct. at 558

(defendant "failed to satisfy [its] burden where it produced no

evidence").

To be sure, the plaintiff failed to "come forward with

admissible evidence setting forth specific facts showing that

there is a genuine issue for trial" on the emotional distress

claims. Ortiz v. Morris, 97 Mass. App. Ct. 358, 362 (2020).

That duty, however, comes into play only "[o]nce the defendants

met their burden in moving for summary judgment." Bardige v.

Performance Specialists, Inc., 74 Mass. App. Ct. 99, 102 (2009),

quoting Godbout v. Cousens, 396 Mass. 254, 261 (1985). Here,

where the defendants never even asserted that the plaintiff

lacked evidence to show the elements of the emotional distress

torts, much less affirmatively demonstrated the absence of a

genuine issue of material fact on each one, the plaintiff had no

burden -- or reason -- to come forward with admissible evidence

to show those elements.

At base, the defendants' true claim on appeal seems to be

that the plaintiff's complaint fails to allege enough facts to

7
make out the emotional distress torts. That claim, however,

suffers from the same problem, that the defendants litigated

this case solely on the ground that the foreclosure was proper

and not on any substantive defect in the plaintiff's complaint

or proof of the emotional distress torts. The defendants moved

to dismiss the plaintiff's complaint but made no argument that

the complaint failed to allege sufficient facts to make out the

emotional distress torts. Similarly, the defendants made no

claim in their cross motion for summary judgment that the

plaintiff had failed to allege facts to support the elements of

his claims for intentional or negligent infliction of emotional

distress. "[H]aving failed to meet its burden of showing the

absence of a triable issue, [the defendants are] not entitled to

summary judgment." Drakopoulos v. United States Bank Nat'l

Ass'n, 465 Mass. 775, 785 (2013).

4. Conclusion. We vacate the judgment with respect to

count nine of the plaintiff's complaint. In all other respects,

8
the judgment is affirmed. The case is remanded for further

proceedings consistent with this decision.

So ordered.

By the Court (Sullivan,
Sacks & Ditkoff., JJ.5),

Clerk

Entered: April 14, 2023.

5 The panelists are listed in order of seniority.

9