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C O M M O N W E A LT HOF M A S S A C H U S E T T SA P P E A L S C O U RT
S.J.C. NO. 10880
A.C. NO. 2010-P-1912
F R A N C I S 3. BEVILACQUA, 111
Pe t i t ione r-Appe l l an t
V.
PABLO R O D R I G U E Z
Responden t -Appe l l ee
ON APPEAL FROM MASSACHUSETTS LAND COURTCIVIL A C T I O N NO, 10 M I S C 4 2 7 1 5 7
AMICUS C U R I A E BRIEF OFPROFESSORS ADAM J . L E V I T I N , C H R I S T O P H E R L . P ETE R S ON ,
KATHERINE PORTER, 5 JOHN A . E . POTTOW
A d a m J. L e v i t i nA s s o c i a t e P r o f e s s o r of L a wGeorge town Unive r s i ty Law Cente r600 New Je r sey Ave ., N WWashing ton , DC 20001
a dam.levitin@law.georgetown.edu( 2 0 2 ) 6 6 2 - 9 2 3 4
C h r i s t o p h e r L. P e t e r s o n
A s s o c i a t e D e a n for Academic Affa i r sP r o f e s s o r of L a wUniver s i ty o f UtahS . J . Quinney Col l ege of La w3 32 South 1400 East, R o o m 1 01salt Lake C i t y, UT 84112-0730(801)581-6655c hristopher.peterson@law.utah.eduww
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mailto:adam.levitin@law.georgetown.edumailto:christopher.peterson@law.utah.edumailto:christopher.peterson@law.utah.edumailto:adam.levitin@law.georgetown.edu8/7/2019 SJC-10880 06 Amicus Levitin Brief w
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K a t h e r i n e P o r t e rRobert Braucher Visiting ProfessorHarvard Law SchoolP r o f e s s o r of Law
University of Iowa C o l l e g e of Law1575 Massachuse t t s Ave.C a m b r id g e , M A 02138
k atie-porter@uiowa.edu(6 17 ) 496-6710
John A.E. PottowP r o f e s s o r of L a wUniversity of Michigan School of Law625 Sou th S ta te S t ree tA n n Arbor, M I 48109-1215
p ottow@urnich.edu (7 34 ) 647-3736
Apr i l 17, 2011
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mailto:katie-porter@uiowa.edumailto:pottow@urnich.edumailto:pottow@urnich.edumailto:katie-porter@uiowa.edu8/7/2019 SJC-10880 06 Amicus Levitin Brief w
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Table o f Contents
I Statement of Interest of Amicus Curiae ........... 5 I 1 Statement of the Issue ........................... 5I 11 Argument ....................................... 6
A. The Principle of Nemo Dat Must Preva il Over TheRights of a Good Faith Purchaser ................... 6B . The Recording of a Deed Is a Minister ial Act thatCannot Create Title ................................ 8C . Enabling the Laundering of Bad Title to GoodTitle Via Try Title Actions Would Eviscera te This
Court's Ruling in Ibanez and Would EncourageF rivolous and Inequitable Litigation .............. 10I V. Conclusion ...................................... 13
Ta b l e of Author i t i e s
Cases
Barnard v . Norwich & W.R. Co .2 F Cas . 841. 845 (Cir Ct . D . Mass . 1876) ........ 7United States Bank Nat'l Ass' n v Ibanez4 5 8 Mass . 6 3 7 (Mass ZOll).... . . . . . . . . . . . . . . 8 . 10. 1 3
Sta tu tes
M.G.L. c . 106 9-610(a) ........................... 10M.G.L. c 183 8 2 ................................... 8M.G.L. C . 183 4-58 ................................ 9M.G.L. c . 185 S S 6 , 10, 6 8 ........................... 9M.G.L. C . 240. $ 5 1-5 .......................... 5 . 8. 9 www.S
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M . M . G . L . c. 240, SS 6-10.,...........................9
O t h e r A u t h o r i t i e s
JOHN . DoLAN ET AL., CORE CONCEPTS OF COMMERCIAL LAW: PA S T,PRESENT, ND FUTURE: CASES A N D MATERIALS 2 ( T h o m p s o n West ,2 0 0 4 ) ................................................ 6william Warren , C u t t i n g Off Claims of Ownership Undert h e U n i f o r m Commercial Code3 0 IJ. C H I . L. REV. 469, 4 70 ( 1 9 6 3 ) .................... 7
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I. Sta tement of Interes t o f Amicus Curiae
we are professors of law at Georgetown University
Law Center in Washington, D.C., Harvard Law Schoo l in
Cambridge , Massachusetts, the University of Utah S.J.
Quinney College of L aw in Salt Lake Cit y, Utah, and
the University of Michigan School of Law in Ann Arbor,
Michigan. We teach courses in commercia l law,
contracts, structured finance, consumer law and
finance, and bankruptcy. We have written extensively
on mortgage servicing and testified before Congress
repeatedly on problems in the foreclosure process. we
have no affiliati on with any party in this case and
have had no contact with any party to the case. we
write to the Court as a m i c i concerned with the case's
implications for commercial law and the foreclosure
process and urge the a ffirmation of the Land Court's
opinion.
11. Statement of the Issue
Whether a Land Court judge correctly dismissed a
petition under M.G.L. c. 240, 1, to "try title",
where the plaintiff held a quitclaim deed conveyed
after an invalid foreclosure sale of the property by
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U.S. Bank National Association, which did not hold the
mortgage at the time of the sale.
III. Argument
A. The Principle of Nemo D a t Must Prevail Over Th e
R i g h t s of a Good F a i t h Purchaser
This case presents an unusually stark contest
between two o f the most fundamental principles of
commercia l law: the principle of nemo d a t and the
principle o f the bona f i d e purchase. The principle of
nemo dat quod non habet-that you can't give what you
don't have-is the bedrock principle on which all
commercia l law is built. S e e , e.g., JOHN , DoLAN ET A L . ,
CORE CONCEPTS F COMMERCIAL AW: PAST, RESENT, ND FUTURE:
CASES AN D MATERIALS 2 (Thompson West, 2004) ("The First
Rule of Conveyancing-Nemo oat"),
Nemo d a t means that a s ale of the John Adams
Courthouse is ineffective, unless the seller holds
title to the Courthouse. So too, under the nemo d a t
principle, one cannot convey good title to a
neighbor's house in a sale. As the Circuit Court fo r
the District of Massachusetts noted 135 years ago, "No
person can sell a thing he does not own, unless as the
duly authorized agent of the owner. NemO d a t quod non
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habet." Barnard v . Norwich & W.R. Co., 2 F. Cas. 841,
845 (Cir. Ct . D. Mass. 1876).
The bona f i d e purchaser principle protects
parties who take for value in good faith. I n this
case, i t is not cle ar whether Mr, Bevilacqua was a
good faith purchaser; no finding of fact was made in
th is regard.'
For the purposes o f this amicus curiae brief,
however, it is irrelevant whether Mr. Bevklacqua was a
good faith purchaser, as the nemo d a t doctrine trumps
the bond fide purchase doctrine. It is well-
established, black letter law that the "good fai th
purchaser from a thief or a mere bailee took subject
to claims of ownership". W i l l i a m warren, Cutting Off
Claims of Ownership Under the Uniform Commercial Code,
3 0 U. CHI. L. REV. 469, 470 (1963). This case f i ts
squarely within that description.
There is no contention in this case that U.S.
Bank, N . A . , the trustee of the se curitization trust
' Leaving asi de the possibility of actual knowledge oft i t le defects , i t is questionable whether, as a mattero f law, a purchaser of a quitclaim deed at anonjudicial foreclosure sale can ever be a good faithpurchaser. Nonjudicial foreclosure sales are subjectto legal requirements beyond those of regular privatesales , and absent due diligenc e, a foreclosure salepurchaser cannot be sure that the sal e complied withthe law and therefore was ca pable of passing goodtitle.www.S
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that claimed to hold the Rodriguez note and associated
security instrument did not properly forecl ose on the
Rodriguez property. U . S . Bank, N,A. fai led to show
that i t was the mortgagee, just as i t did in United
States Bank Na t ' l Ass 'n v. Ibanez, 458 Mass. 6 3 7
(Ma SS. 2011). Accor dingl y, U.S. Ban k, N.A., was no
more capable of passing on good title to the Rodriguez
property th an a c ommo n thief.2
B . The Recordfng of a Deed Is a Ministerial A c t that
Cannot Create T i t l e
Mr. Bevilacqua argues that the filing of a
recorded quitclaim deed gives him record title to the
property and therefore the ability to petition to try
title under M.G.L. c. 240, SS 1-5. Mr. Bevilacqua's
argument places to o much importance on the existence
of a recorded deed. There is nothing magical about a
*
quit claim de ed , M.G.L. c . 183 2 provides that "A deedo f quitclaim and release shall be sufficient to convey
all the estate which could lawfully be conveyed by adeed of bargain and sale." In other words, aquitclaim deed, such as the one conveyed from U . S .Bank, N . A . to Mr. Bevilacqua at the nonjudicialforeclosure sale could only convey such title as U.S.Bank , N.A. could have conveyed thro ugh a regular deedof sale. Th us , if U.S. Bank , N.A. lack ed th e abil ityto convey through a r egular deed of sale, i t alsolacked ability to convey through a quitclaim deed.
Thi s concl usion is not altered by the use of a
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deed , however. The recording of a deed does not make
a deed valid. Recording is a ministeri al rather than
an adjudicative function. See M.G.L. c. 1 8 3 4-58;
M.G.L. C. 185 5 5 6, 10, 68.
Thus, Professor Levitin could type up a quitclaim
deed on his computer and convey Fenway Park to
Professor Pottow, which Professor Pottow could then
reco rd, making him the "record title holder." All a
recorded title does is provide notice to third parties
of a possible claim to a property: it does not confer
ownership.
According ly, Mr. Bevilacqua's argument simply
proves too much. By its logic, Professor Pottow could
record the quitclaim deed to Fenway Park from
Professor Levitin and then use that recorded deed as
the basis for bringing a "try title'' peti tion under
M.G.L. c. 240 5 1. By his l ogic, if the Boston Red
Sox failed to answer h i s petition, for whatever
reason, he could take title to Fenway Park. The
effect would be t o short circuit the adverse
possession provisions of the Massachusetts General
Law s, M.G.L, c. 240 SS 6-10, and enable Professor
Pottow (in connivance with Professor Levitin) to use
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the courts to e -- x ti ve ly steal Fenway Park.'
Interpret ing the la w as Mr. Bevilacqua would have it
would permit "try title" plaintiffs to crea te good
legal title out o f thin air.
C . E n a b l i n g th e L a u n d e r i n g of Bad T i t l e t o Good T i t l e
V i a Try T i t l e Actions Would Eviscerate T h i s Court's
R u l i n g i n I b a n e e a n d Wo u ld E n c o u r a g e F r i v o l o u s and
Xnequ i t ab l e L i t i ga t i on
Adopting Mr. Bevilacqua's position would a lso
seriously undermine this Court's recent ruling in
Ibanez, 458 Mass. 637. If the purchaser o f a property
at an invalid foreclosure sale can conjure up good
title through a "try title" petition, it will make the
strictures o f Ibanez meaningle ss by permitting
financial institutions and foreclosure sale purchasers
to "launder" title through invalid foreclosures and
try title petitions.' The "try title" statute is meant
Mr. Bevilacqua's position would similarly mean that weprofessors could engage in a self-help repossessionsof the cars of every Justice on the Supreme JudicialCourt and then sell them in a commercially reasonable
manner, pursuant to M.G.L. c. 106 5 9-610(a)(Massachusetts version of the Uniform Commercial Co de)and thereby pass good title to the cars to theirpurchasers. Such a result would be patentlyridiculous.4 1 n this case, Mr. Bevilacqua knowingly bought into theclouded title via a quitclaim deed at a nonjudicialforeclosu re sale , and presumably purchased at a steepwww.S
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e use4 !fens rely, as a E ? , not o fens .Y
as a sword to deprive others of thei r property.
Indeed, the concern about "try title" petitions
being used offensively is also a concern for
mortgagees. If anyone can record a deed and bring a
try title action and win by mere default, it creates
an incentive for legitimately foreclosed homeowners to
file try title actions after foreclosure and hop that
the foreclosure sale purchaser (frequent ly the
foreclosing mortgagee ) will fail to answer the
petition for whatever reaso n, resulting in the
homeowner getting his or her house back, Opening up
try title to those without a colorable claim could
flood the courts with actions.
There is also a particular equity concern that
arises if "try title" actions are used in an attempt
to kosher otherwise illegitimate foreclosures.
Defending against a "try title" action creates a
particular burden for homeowners who are in default on
their mortgages, but where a proper foreclosure has
not yet taken place. These homeowners still have
title to their home until a proper fo reclosure is
discount from the price in a normal arms-length sale.U.S. Bank, N.A., received the proceeds of the sale inexchange for transferring dubious title.www.S
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c mF ?ked. Often, Dwever , t :Y ick t 3 fun' to
effectively defend against a "try title" petition.
Permitting "try title" petitions via invalid
foreclosure sales would have the effe ct of permitting
indirectly what is fo rbidden directly-the deprivat ion
of a homeowner's property without proper procedure.
It is particularly troubling if this could be done
solely because the homeowner lacks the funds to defend
his or her title. Homeowners in default on their
mortgages are among the most vulnerable of populations
and shou ld be protected from costly and vexatious
litigation such as "try title" petitions by
opportun istic foreclosure sale purchasers.
The Land Court sensibly interpreted the "try
title" provision to apply only to colorable claims to
title, not to the recording of quitclaim deeds from
faulty foreclosures.' Affirmation of the Land Court
might chil l the market in foreclosure sales in
Massachusetts.6 But reversal would have a far more
At wors t, the Land Court "jumped the gun" by ruling
on standing rather than by formally trying title. Itis possible, however , to read the Land Court's rulingon standing as being the actual trying of title,Moreover , in light of th is Court' ruling in Ibanez,458 Mass. 637, Mr, Bevilacqua cannot prevail in aformal trial of title.'Affirmation might a lso have the salutary effect ofencouraging lenders t o attempt negotiated
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deleterious impact on the legal and economic system,
as parties' confidence i n their tenure in their
property would be impaired. Whatever the effect on the
Massachusetts foreclosure sale market, affirmation of
the Land Court's opinion i s essential in order to
avoid doing serious harm to the fund amental principles
of commercial law and from undermining the Court's
recent ruling in I banez, 458 Mass. 6 3 7 .
Iv. Conclusion
For the reasons set f o r above, the judgment of the
Land Court dismissing Mf. Bevilacqua's action, dated
A u g u s t 26, 2010, should be affirmed.
Respectfully submitted,
Associate Professor of LawGeorgetown University Law Center6 0 0
New J erse y Ave., NwWashington, DC 20001
adam.~ L e v i tine law. ~?g>i"~ke,wn. cdu( 2 0 2 ) 662-9234
restructurings of defaulted mortgages instead o fproceeding to foreclosure.
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Bssocia te Dean or Academic AffairsProfessor of LawUniversi ty o f UtahS.J. Quinney College of L a w332 South 1400 East, Room 101Salt Lake City, UT 84112-0730
Chr is topher. p e t e r s o n @ aw.utah.edu(801)581-6655
Robdrt Braucher Vis i t ing ProfessorHarvard Law SchoolProfessor of LawUniversi ty of Iowa College of Law1575 Massachuset ts Ave.Cambridge, M A 02138
k atie-portereuiowa.edu(61 7) 496-6710
ProfessVor of Lawuniversi ty of Mich igan School o f Law625 South S ta te S t ree tAnn Axbor, MI 48109-1215( 7 3 4 ) 647-3736pot t w@ mic h . du
Dated Apri l u, 011
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