As a result of the First Circuit’s recent decision in Lemelson v. U.S. Bank National Ass’n., 721 F.3d 18 (2013), U.S. District Court Judge William G. Young was forced to reconsider his prior ruling in a “try title” case filed by a homeowner who claimed that the bank seeking to foreclose was not, in fact, thetrouble ahead, trouble behind . . . holder of the mortgage.  In such a case, brought under M.G.L. c. 240, §§ 1-5, a holder of land can file a petition which, in effect, forces an adverse claimant to come forward and itself file a lawsuit to prove it has a valid interest in the land.  

In his September 18, 2013 reconsideration decision in Jepson v. Deutsche Bank Nat’l Trust (pdf), Judge Young noted that the state Land Court has split on this issue:  Abate v. Freemont Investment & Loan, 2012 WL 6115613 (Foster, J.) ruled that mortgagors could not file such a claim, whereas Varian v. Bank of New York Mellon, 2013 WL 4537421 (Piper, J.) held that such an action could proceed. 

Judge Young took the opportunity to explain at length why he sees Varian as the preferable outcome.  He also noted that he normally would consider certifying the question to the Massachusetts Supreme Judicial Court (SJC), but was declining to do so here as “such a manuever would smack of attempting an ‘end run’ around binding [First Circuit] precedent.”  Accordingly, he dismissed the case without prejudice.

It will be interesting to see if Judge Young’s view – that a mortgagor should be able to challenge a foreclosing entity’s right to foreclose by filing a try title action – will carry the day when the SJC resolves the Abate/Varian split on this issue.