JOSEPHUS GRANT, JR. v. MID-ISLAND MORTGAGE CORPORATION (And a Consolidated Case). ( 2024 )

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-267
JOSEPHUS GRANT, JR.
vs.
MID-ISLAND MORTGAGE CORPORATION (and a consolidated case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Housing Court, Josephus
Grant, Jr., (homeowner) appeals from a judgment in favor of Mid-
Island Mortgage Corporation (Mid-Island), and a judgment for
possession of his home in favor of Vitaly Gladysh (buyer). We
affirm.
Background. On September 27, 2012, the homeowner granted a
residential mortgage to Mortgage Electronic Registration
Systems, Inc. (MERS). MERS later assigned the mortgage to Mid-
Island. In 2015, the homeowner defaulted. On June 22, 2016,
Mid-Island foreclosed through a power of sale and purchased the
property. Mid-Island filed a summary process complaint on
1 Vitaly Gladysh vs. Tasia Grant & others.
December 5, 2016, and the homeowner filed an answer and
counterclaims raising, among other things, challenges to the
validity of the foreclosure process. While that case was
pending, Mid-Island sold the property on July 23, 2018, to the
buyer. Following the sale of the property, a judge of the
Housing Court dismissed Mid-Island's summary process complaint,
but preserved the homeowner's counterclaims by transferring them
to a new docket as a civil action. In the meantime, the buyer
brought his own summary process complaint against the homeowner
and other occupants of the residence. The homeowner filed an
answer and counterclaims, and the judge consolidated the civil
action and the summary process action for trial.
The jury trial focused on whether Mid-Island satisfied its
preforeclosure obligations under Federal regulations.
Specifically, before three monthly installments on a mortgage
are due and unpaid on a mortgage insured by the United States
Department of Housing and Urban Development (HUD), a lender must
"have a face-to-face interview with the [borrower], or make a
reasonable effort to arrange such a meeting." 24 C.F.R.
§ 203.604(b) (2012). At a minimum, a "reasonable effort" must
consist of dispatching a certified letter from the borrower to
the lender "to arrange a face-to-face meeting" and "at least one
trip to see" the borrower at the mortgaged property. 24 C.F.R.
§ 203.604(d). Addressing three questions on Mid-Island's
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compliance with these regulations, the jury determined the
following on a special verdict: (1) Mid-Island did not conduct
a face-to-face meeting with the homeowner; (2) Mid-Island sent
by certified mail a letter to the homeowner regarding the
opportunity for a face-to-face meeting; and (3) Mid-Island
dispatched a person to the homeowner's residence as a reasonable
effort to arrange a face-to-face meeting. Following this
special verdict, the judge entered a judgment for Mid-Island in
the civil action and entered a judgment for possession for the
buyer in the summary process action.
Discussion. 1. Compliance with HUD regulations. The
homeowner claims two trial errors related to evidence of Mid-
Island's compliance with HUD regulations. First, he contends
that the jury did not hear credible evidence that Mid-Island
complied with HUD's face-to-face requirement. Second, he
contends that the judge erred by permitting Mid-Island to
introduce late-disclosed evidence of such compliance.
We discern no errors related to this evidence. The special
verdict by the jury is conclusive on the issue of credibility
because the weight and credibility of evidence is clearly
"within the province of the jury" and not ours. Pina v. McGill
Dev. Corp., 388 Mass. 159, 166 (1983). To the extent the
homeowner is challenging the sufficiency of the evidence at
trial, the failure to move for a directed verdict at the close
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of all the evidence precludes appellate review. See Hatton v.
Meade, 23 Mass. App. Ct. 356, 361 (1987). As to the late
disclosure of evidence, the homeowner argues that Mid-Island
maintained during five years of discovery that it sent a letter
regarding the face-to-face meeting by first-class mail, but
abruptly changed course "on the eve of trial" and produced
evidence that it sent the letter by certified mail. This claim
is waived because the homeowner did not object to this evidence
on this basis at trial. See Abraham v. Woburn, 383 Mass. 724,
726 n.1 (1981) (objection affords the trial judge the
"opportunity to act promptly" to remove evidence from jury's
consideration).
Even considered on the merits, the claim of late disclosure
fails. While "[m]utual knowledge of all the relevant facts
gathered by both parties is essential to proper litigation,"
Strom v. American Honda Motor Co., Inc., 423 Mass. 330, 336
(1996), quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947),
rules of procedure contemplate instances where the late
disclosure of such facts may occur. See, e.g., Mass. R. Civ. P.
26 (e) (2), 365 Mass. 772 (1974) (duty to correct erroneous
discovery response). Contrary to the homeowner's claim,
exclusion of evidence in such circumstances was not required,
and sanctions for any alleged discovery violations were
entrusted to the "sound discretion" of the judge. Solimene v.
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B. Grauel & Co., K.G., 399 Mass. 790, 799 (1987). Here, we
discern no abuse of discretion by the judge who delayed the
trial for seven months after the disclosure, and thus provided
the homeowner ample time to adjust his trial strategy. We also
note that the homeowner thoroughly cross-examined Mid-Island's
witness on the subject, and the judge noted that the homeowner,
despite being pro se, "did a phenomenal job" throughout years of
litigation.
2. Other claimed errors. We disagree with the homeowner's
contention that the judge erred in allowing Mid-Island's request
for a jury trial. The homeowner cites Mass. R. Civ. P. 38, as
amended, 423 Mass. 1406 (1996), for the proposition that Mid-
Island failed to make a timely request for a jury trial. This
rule, however, cannot be read in isolation. "[N]otwithstanding
the failure of a party to demand a jury in an action in which
such a demand might have been made of right, the court in its
discretion upon motion may order a trial by jury of any or all
issues." Mass. R. Civ. P. 39 (b), 365 Mass. 801 (1974). "A
judge's discretion under rule 39(b) to order a jury trial is
'largely unlimited.'" Senior Hous. Props. Trust v. HealthSouth
Corp., 447 Mass. 259, 270 (2006), quoting Reporters' Notes to
Mass. R. Civ. P. 39 (b). The homeowner has not articulated, and
we do not discern on this record, how the judge abused his
discretion, especially given the posture of the case that began
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as a summary process action commenced by Mid-Island and evolved
into a civil action and trial on the homeowner's counterclaims.
A belated request for a jury trial under these circumstances
appears to be exactly the type of situation contemplated by rule
39 (b).
Finally, we do not review the homeowner's claim that the
judge erred by denying his motion for summary judgment. "After
a trial on the merits, as here, the denial of a motion for
summary judgment may not be reviewed on appeal." Johnson v.
Massachusetts Bay Transp. Auth., 418 Mass. 783, 785 (1994).
"The purpose of summary judgment is to bring litigation to an
early conclusion without the delay and expense of a trial when
no material facts are at issue, and it goes without saying that
that purpose cannot be served after the case has gone to trial."
Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass.
118, 126 (1986). "The merits of a claim are better tested on
appeal on the record as it exists after an evidentiary trial
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than on the record in existence at the time the motion for
summary judgment was denied." Id.Judgments affirmed.
By the Court (Milkey,
Hodgens & Toone, JJ.2),
Clerk
Entered: July 30, 2024.
2 The panelists are listed in order of seniority.
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