Massachusetts Housing Finance Agency v. Bass (Dec. 31, 2025)

Case details
Full caption
Massachusetts Housing Finance Agency v. Bradley K. Bass, et al.
Country
United States
Jurisdiction
Massachusetts (MA)
Court
Massachusetts Supreme Judicial Court
Decided
Dec. 31, 2025
Disposition
Motion Denied
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3853300Only the Westlaw citation is currently available.Massachusetts Land Court,Department of the Trial Court,.ESSEX County.MASSACHUSETTS HOUSINGFINANCE AGENCY, Plaintiff,v.BRADLEY K. BASS, JEAN E. BASS, andCATHERINE A. BARRY, individually and aspersonal representatives of the Estate of CindyL. Bass a/k/a Cindy Lucie Bass, Defendants,GUISEPPE CRACCHIOLO and MARIACRACCHIOLO, Parties-In-Interest.MISCELLANEOUS CASE NO. 23 MISC 000206 (RBF)|Dated: December 31, 2025Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.MEMORANDUM AND ORDER DENYING THEDEFENDANT'S MOTION TO STRIKE, DENYINGTHE DEFENDANT'S MOTION TO DISMISS,ALLOWING THE PLAINTIFF'S MOTION TOSTRIKE, ALLOWING IN PART AND DENYING INPART THE PLAINTIFF'S CROSS MOTION FORSUMMARY JUDGMENT, ALLOWING IN PART ANDDENYING IN PART THE DEFENDANT'S MOTIONFOR SUMMARY JUDGMENT(Foster, J.)Introduction*1 Cindy L. Bass (Ms. Bass) owned the property at 8 HarrietRoad, Gloucester, Massachusetts (property). After her deathin 2019, her children Bradley K. Bass, Jean E. Bass, andCatherine A. Barry (the Basses or the Bass siblings) becamethe personal representatives of her estate and ultimately tooktitle to the property. The property is encumbered by a noteand mortgage given by Ms. Bass; the mortgage is currentlyheld by plaintiff Massachusetts Housing Finance Agency(MassHousing). The note and the mortgage are currently indefault.The property was the subject of a separate action for specificperformance brought by Guiseppe and Maria Cracchiolo(the Cracchiolos), which resulted in an order and judgmentenforcing a settlement agreement that the Basses convey theproperty to the Cracchiolos. While that case was pending,MassHousing stayed any actions toward foreclosure, in partbecause the memorandum of lis pendens endorsed in thataction raised an issue of whether MassHousing would haveclear title after a foreclosure. MassHousing brought thisaction in order to resolve the question regarding the lispendens, to determine that the Basses are not entitled torelief under the Servicemembers Civil Relief Act, and forjudgments pursuant to G.L. c. 244, §§ 3 and 11. The Basseshave filed counterclaims. The parties have filed cross-motionsfor summary judgment along with various other motionsto strike, to amend, and to dismiss. As set forth below,after resolving the various motions, the Basses’ counterclaimwill be dismissed. MassHousing will be required to submita revised statement of its legal fees consistent with thismemorandum and order, after which judgment will enter onits complaint.Procedural HistoryThis case is at least the sixth in a series of cases involvingthe property. The first case is Giuseppe Cracchiolo, et al v.Bradley K. Bass, et al, Land Court Misc. Case No. 21 MISC000275 (Foster, J.), which was filed in the Land Court onMay 17, 2021 (specific performance action). The companioncase, Giuseppe Cracchiolo, et al v. Bradley K. Bass, et al,Essex Super. Ct. Civil Action No. 2277CV00063, was filed onJanuary 21, 2022.1 On April 28, 2022, that case was formallyconsolidated with the specific performance action. On June24, 2022, the court issued an order in the consolidated casethat the Cracchiolos’ right to purchase the property wouldsurvive a foreclosure sale. Judgment entered in the specificperformance action on July 1, 2022.MassHousing filed a complaint in this case on May 16, 2023(MassHousing complaint), naming the Basses as defendants.2
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.2The Cracchiolos are named as parties-in-interest. TheMassHousing complaint has four counts. Count I is for relieffrom the order in the specific performance action; Count II isfor a declaration that the Basses are not entitled to the benefitof the Servicemembers Civil Relief Act; Count III is for aconditional judgment that MassHousing can foreclose on themortgage by selling the property; and Count IV is for an orderthat the property can be sold at a foreclosure sale pursuant toG. L. c. 183, § 21.*2 On May 26, 2023, the Basses filed their answer (Bassanswer). The Bass answer contained several counterclaimsagainst both the Cracchiolos and MassHousing (Basscounterclaim). Count I of the Bass counterclaim is to quiettitle to the property in the Basses’ favor and to determinethe status of any debt against the property; Count II seeksrelief from the Bass I specific performance order in thespecific performance action; Count III is a claim of unjustenrichment against MassHousing; Count IV is a claim forwrongful foreclosure; and Count V and Count VI allegethat the Cracchiolos will be unjustly enriched and that theyshould reimburse the Basses for expenses incurred since thecommencement of litigation. On June 8, 2023, MassHousingfiled its reply to the Bass counterclaim (MassHousing reply).By agreement of the parties, Count V and VI of the Basscounterclaim were dismissed without prejudice on September18, 2023. The Cracchiolos filed their reply to the Basscounterclaim on October 10, 2023 (Cracchiolo reply).The Basses filed their Motion to Dismiss (Bass Motion toDismiss) on August 29, 2023, which was followed by thePlaintiff's Memorandum in Opposition to the Defendant,Bradley K. Bass's Motion to Dismiss on September 7, 2023.On September 13, 2023, the Basses filed a Motion forSummary Judgment. The Motion for Summary Judgmentcontained an additional claim that MassHousing's actionswere a breach of the duty of good faith and fair dealing. TheMotion to Dismiss and Motion for Summary Judgment wereconsolidated (Bass Motion for Summary Judgment) at thehearing on September 18, 2023, and the parties agreed to stayconsideration of the motions until the close of discovery.On November 7, 2023, the Basses filed the Request toProceed to Summary Judgment and the Notice of Retractionof Counterclaims (Bass Retraction Motion). On February 16,2024, the Basses followed this motion with the Defendant'sMotion to Dismiss Counterclaims and Withdraw Motion toRecuse (Bass Counterclaim Dismissal Motion) as well as theMotion to Withdraw Summary Judgment and Address TotalDebt. In all these motions, the Basses indicated an intentto withdraw their opposition to the foreclosure process anddismiss their counterclaims without prejudice. At a statusconference on June 26, 2024, the Basses agreed to go forwardwith their summary judgment argument.After additional motion practice and the close of discovery,the parties advanced the dispositive motions that they hadstayed earlier. On July 26, 2024, MassHousing filed thePlaintiff's Opposition to the Defendant's Motion for SummaryJudgment and Cross-Motion for Summary Judgment(MassHousing Cross-Motion for Summary Judgment orMassHousing Motion), the Statement of Undisputed MaterialFacts in Support of the Plaintiff's Opposition to theDefendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment (MassHousing SOF), theMemorandum of Law in Support of the Plaintiff's Oppositionto the Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment (MassHousing Memo),and the Plaintiff's Appendix of Exhibits and Authorities(MassHousing App.).On August 19, 2024, the Basses filed the Oppositionto Plaintiff's Cross-Motion for Summary Judgment (BassOpposition), the Statement of Facts (Bass SOF), and theMemorandum of Law (Bass Memo), which was furthersupported by the Memorandum of Law in Support ofDefendant Bradley K. Bass's Position against MassachusettsHousing Finance Agency (BKB Memo). Included in the BKBMemo was an additional claim against MassHousing forunfair and deceptive trade practices in violation of G. L. c.93A, § 2. The same day, the Basses filed the Motion to StrikePlaintiff's Mortgage Contract Exhibits and References fromMotion for Summary Judgment (Bass Motion to Strike).On September 2, 2024, the Basses also filed the Answer,Counterclaims, and Cross-Claims, (Bass additional claimsor Bass Add. Claims) as well as the Motion to AllowFiling of Counterclaims and Cross-Claims (Bass Motionto Amend Counterclaims), which sought to add additionalcounterclaims to the claims already under considerationSpecifically, the Basses sought to add claims againstMassHousing for (1) a breach of fiduciary duty; (2) fraudulentmisrepresentation; and (3) unjust enrichment.3 The Bassesalso sought to add claims against the Cracchiolos for (1)fraudulent inducement; (2) fraudulent misrepresentation; (3)unjust enrichment; and (4) civil conspiracy against theCracchiolos and their attorney William Heney. The Bassesalso sought to bar any of the Cracchiolos’ claims under
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.3the doctrine of unclean hands. Finally, the Basses sought adeclaratory judgment that the settlement agreement is void.*3 On September 20, 2024, the Cracchiolos filed the Parties-in-Interest's Opposition to Bradley K. Bass’ Motion to AllowFiling of Counterclaims and Cross-Claims (Cracchiolo Opp.to Add. Claims). The same day, MassHousing filed their ownopposition to the Bass additional claims with the Plaintiff'sMemorandum in Opposition to the Defendant, Bradley K.Bass's Motion to Allow Filing of Counterclaims and Cross-Claims (MassHousing Opp. to Add. Claims). MassHousingalso filed the Plaintiff's Memorandum in Opposition to theDefendant, Bradley K. Bass's Motion to Strike Plaintiff'sMortgage Contract Exhibits and References from Motion forSummary Judgment (MassHousing Opp. to Motion to Strike)on September 20, 2024.MassHousing filed the Plaintiff's Response to the Defendant,Bradley K. Bass's Opposition to the Plaintiff's Cross-Motionfor Summary Judgement and Related Memoranda of Law(MassHousing Response) on September 23, 2024. This wasaccompanied by the Plaintiff's Response to the Defendant,Bradley K. Bass's Statement of Facts (MassHousing SOFResponse).The court heard argument on the cross motions for summaryjudgement on October 2, 2024, and took the motions underadvisement. On October 7, 2024, the Basses filed the PostHearing Follow-Up, in which they agreed to withdraw theBass Motion to Strike, at least in part.On August 8, 2025, the Basses filed the Motion to DismissForeclosure Action and Discharge Mortgage (Bass August2025 Motion to Dismiss) and the Defendants’ MotionRequesting Scheduling of Hearing. On August 11, 2025,the Basses filed the Defendants’ Opposition to Plaintiff'sCross-Motion for Summary Judgment, and on August 12 and13, 2025, filed the Defendants’ Statement of Material FactsPursuant to Mass. R. Civ. P. 56(c) and their Authorities andNotes. On August 22, 2025, MassHousing filed Plaintiff'sMemorandum in Opposition to the Defendant, Bradley K.Bass's Motion to Dismiss Foreclosure Action and DischargeMortgage (MassHousing Opp. to Bass August 2025 Motionto Dismiss), Plaintiff's Motion to Strike Defendant's August11, 2025, Opposition to Plaintiff's Cross-Motion for SummaryJudgment and August 12, 2025, Statement of Material FactsPursuant to Mass. R. Civ. P. 56(c) (MassHousing Motion toStrike August 2025 Filings), and the Memorandum of Law inSupport of the Plaintiff's Motion to Strike Defendant's August11, 2025, Opposition to Plaintiff's Cross-Motion for SummaryJudgment and August 12, 2025, Statement of Material FactsPursuant to Mass. R. Civ. P. 56(c). On August 22, 2025,the Basses filed Defendants’ Reply to Plaintiff's Oppositionto Motion to Dismiss and to Discharge the Mortgage andDefendants’ Opposition to Plaintiff's Motion to Strike. Thismemorandum and order follows.Summary Judgment StandardThe court will evaluate the cross-motions for summaryjudgment and various motions to dismiss under the standardfor motions for summary judgment, except where it expresslyapplies another standard. Generally, summary judgmentmay be entered if the “pleadings, depositions, answers tointerrogatories, and responses to requests for admission ...together with the affidavits ... show that there is no genuineissue as to any material fact and that the moving party isentitled to a judgment as a matter of law.” Mass. R. Civ.P. 56(c). In viewing the factual record presented as partof the motion, the “court makes ‘all logically permissibleinferences’ in favor of the nonmoving party.” Carroll v. SelectBd. of Norwell, 493 Mass. 178, 192 (2024), quoting Willittsv. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203(1991). “Summary judgment is appropriate when, ‘viewingthe evidence in the light most favorable to the nonmovingparty, all material facts have been established and the movingparty is entitled to a judgment as a matter of law.’ ” RegisCollege v. Town of Weston, 462 Mass. 280, 284 (2012),quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117,120 (1991). Where the non-moving party bears the burden ofproof, the “burden on the moving party may be discharged byshowing that there is an absence of evidence to support thenon-moving party's case.” Kourouvacilis v. General MotorsCorp., 410 Mass. 706, 711 (1991), citing Celotex Corp. v.Catrett, 477 U.S. 317, 322 (1986); see Carroll, 493 Mass. at187-188; Regis College, 462 Mass. at 291-292.*4 “Rule 56 (e) provides that once a motion is made andsupported by affidavits and other supplementary material, theopposing party may not simply rest on [their] pleadings orgeneral denials; [they] must ‘set forth specific facts’ showingthat there is a genuine, triable issue.” Community Nat'l Bankv. Dawes, 369 Mass. 550, 554 (1976) (emphasis added).“A fact is not disputed merely because it has been deniedby a nonmoving party.” Carroll, 493 Mass. at 191. Thus,“mere assertions of disputed facts” are insufficient to defeata motion for summary judgment. LaLonde v. Eissner, 405
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Mass. 207, 209 (1989). A response supported by specific factsis necessary to create a genuine issue of material fact. Carroll,493 Mass. at 191.Undisputed FactsThe following facts are undisputed or deemed admitted.The Bass Mortgage Property1. On February 21, 2017, Ms. Bass, the mother of the Basssiblings, executed a promissory note (note) in favor of BostonPrivate Bank & Trust Company (BPB&T) in the originalprincipal amount of $339,700.00. As security for the note,Ms. Bass gave a mortgage on the property to MortgageElectronic Registration Systems, Inc. (MERS), acting as anominee for BPB&T (mortgage or Bass mortgage). Themortgage was dated February 21, 2017, and registered withthe Essex (South) Registry of Deeds (registry) as DocumentNo. 580397. Complaint ¶¶ 7-8; Complaint, Exhs. B, C; Bassanswer ¶¶ 7-8; MassHousing SOF ¶¶ 1-2; MassHousing App.,Exhs. A, B; Bass SOF at 7.2. At the time the mortgage and note were executed, Ms.Bass held title to the property as noted in both Certificateof Title No. 52616 and Document No. 189203. Both recordsare dated on or about July 25, 1983, and are registered at theregistry. Complaint 8; Complaint Exh. C; Bass answer 8;MassHousing SOF 2; MassHousing App., Exh. B.3. On March 6, 2017, MassHousing acquired the note fromBPB&T. MassHousing provided Ms. Bass with written noticeof the transfer on March 7, 2017. The written notice alsoidentified MassHousing as the new servicer of the account.Complaint ¶¶ 10-12; Complaint, Exh. D; MassHousing SOF¶¶ 4, 5; MassHousing App., Exh. C.4. On April 12, 2017, the Federal National MortgageAssociation (Fannie Mae) acquired the note fromMassHousing. MassHousing remained as the servicer of thenote and continues to service the note as the authorized agent.Complaint ¶¶ 13-14; MassHousing SOF ¶¶ 6-7; Bass SOF 4.5. Ms. Bass passed away on July 22, 2019. Complaint 15;Bass answer 15; Cracchiolo reply 15; MassHousing SOF 8; Bass SOF at 7.6. On October 23, 2019, the Basses were appointed as co-personal representatives of Ms. Bass's estate. Title for theproperty passed to the Basses as personal representativesof the estate. Complaint 16; Complaint, Exh. E; Bassanswer 16; Cracchiolo reply 16; MassHousing SOF 9;MassHousing App., Exh. D; In the matter of Bass, Cindy L.,Essex Prob. & Family Ct., No. ES19P3173EA (Oct 23, 2019)(Black, J.).7. The Basses are not on active duty with the United Statesmilitary. Complaint 51; Bass answer 51; MassHousingSOF 10.8. The loan is in default because no monthly payments weremade on or after January 1, 2020. Complaint 17; Bassanswer 17; Cracchiolo reply 17; MassHousing SOF 11.9. On or about August 14, 2020, the Basses entered intoa purchase and sale agreement (P&S) with the Cracchiolosto convey the property. Complaint 25; Bass counterclaim 25; Cracchiolo reply 25; MassHousing SOF ¶¶ 12, 25;MassHousing App. Exhs. E, M.10. On April 23, 2021, the Basses, through their attorney at thetime, filed a petition in the Land Court seeking the issuanceof a new certificate of title naming the Basses as the ownersof the property. This petition superseded an earlier Petitionfor License to Sell Real Estate that would have allowed theBasses, acting as personal representatives, to sell the propertyas part of Ms. Bass's estate. The Land Court issued therequested certificate of title on July 21, 2021, giving title tothe property to the Basses individually as tenants in common.The new title is noted on Certificate of Title No. 95211, andDocument No. 631797, both registered at the registry. BradleyK. Bass, Land Court Misc. Case No. 21 SBQ 01649 04 - 001(Patterson, Rec.); Cracchiolo v. Bass (Bass I), Land CourtMisc. Case No. 21 MISC 000275 (Oct. 13, 2021) (Foster, J.).*5 11. On May 17, 2021, the Cracchiolos filed thespecific performance action in the Land Court seekingspecific performance of the P&S. On April 7, 2022, thespecific performance action was consolidated, by an Orderof Assignment issued by the Chief Justice of the Trial Court,with a companion case filed on January 21, 2022, in EssexCounty Superior Court. Complaint ¶¶ 26, 28, 29; Complaint,Exhs. A, J, K; Bass answer ¶¶ 26, 28, 29; Cracchiolo reply¶¶ 26, 28, 29; MassHousing SOF ¶¶ 26, 28, 29; MassHousingApp, Exhs. K, L, M.
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.512. As part of the specific performance action, the Land Courtendorsed a Memorandum of Lis Pendens (lis pendens) onOctober 28, 2021. The lis pendens was registered on the titleto the property with the registry on November 1, 2021, asDocument No. 631644. Complaint 27; Complaint, Exh. I;Bass answer 27; Cracchiolo reply 27; MassHousing SOF 27; MassHousing App., Exh. I.13. The mortgage was assigned to MassHousing in anAssignment of Mortgage dated December 21, 2021, andregistered on January 3, 2022, with the registry as DocumentNo. 632720. Complaint ¶¶ 20-21; Complaint, Exh. F;MassHousing SOF ¶¶ 15, 17; MassHousing App., Exh. F;Bass SOF 4.14. On March 16, 2022, MassHousing recorded a pre-foreclosure noteholder affidavit at the registry as DocumentNo. 634688 (noteholder affidavit). The noteholder affidavitstated that MassHousing was the assignee acting as theauthorized agent for Fannie Mae, the noteholder, for thepurpose of foreclosing the mortgage. Complaint 19;Complaint, Exh. G; MassHousing SOF 16; MassHousingApp., Exh. G.15. On May 2, 2022, the Cracchiolos brought a cross-claimagainst MassHousing in the specific performance actionseeking to enjoin the pending foreclosure of the property. Thiswas accompanied by a motion for preliminary injunction. OnMay 9, 2022, the court ordered MassHousing to postponethe sale until July 1, 2022, subject to further extensions.4MassHousing SOF ¶¶ 30-31.16. At the pre-trial conference on June 6, 2022, theparties reported the specific performance action as settled.5Complaint 30; Cracchiolo reply 30; MassHousing SOF 32.17. On June 14, 2022, the Basses filed a documenttitled “Settlement Withdraw,” seeking to withdraw from thesettlement agreement in the specific performance action.Complaint 31; Cracchiolo reply 31; MassHousing SOF 33.18. On June 15, 2022, the Cracchiolos filed a motion inthe specific performance action to enforce the settlementagreement. Complaint 32; Bass answer 32; Cracchioloreply 32; MassHousing SOF 34.19. On June 22, 2022, in the specific performance action,the Land Court issued its Memorandum and Order AllowingMotion to Enforce the Settlement Agreement and DenyingMotion to Dismiss (Bass I specific performance order). TheBass I specific performance order was amended and enteredas a final judgment on July 1, 2022. It was affirmed on appeal.Complaint 33; Bass answer 33; Cracchiolo reply 33;MassHousing SOF 35; MassHousing App., Exhs. L, Q; seeCracchiolo v. Bass, 103 Mass. App. Ct. 1110 (2022).20. At a hearing in the specific performance action on June 24,2022, the Land Court noted that the lis pendens remained ineffect and provided notice of the specific performance actionand the Bass I specific performance order (survival order).Accordingly, the Cracchiolos’ right to purchase the propertywould be preserved in any foreclosure sale.6 Complaint ¶¶34-35; Bass answer ¶¶ 34-35; Cracchiolo reply ¶¶ 34-35;MassHousing SOF ¶¶ 36-38.*6 21. On June 28, 2022, MassHousing voluntarily agreedto postpone the foreclosure sale until at least August 1, 2022.7Bass SOF 6; MassHousing SOF 39;22. On August 24, 2022, the court held a hearing and clarifiedthat the survival order did not adjudicate the extent to whichthe lis pendens survived a foreclosure. MassHousing agreedto further postpone the foreclosure until at least October2022.823. On February 14, 2023, MassHousing served the Basseswith a Notice of Default. The Basses did not cure the defaultby the notice's deadline of March 16, 2023. Complaint ¶¶23-24; Complaint, Exh. H; MassHousing SOF ¶¶ 20-21;MassHousing App., Exh. H.24. On May 16, 2023, MassHousing filed the present action.DiscussionThere are multiple motions before the court: the Bass Motionto Strike, the Bass Motion to Amend Counterclaims, a seriesof cross-motions for summary judgment, the Bass August2025 Motion to Dismiss, and MassHousing Motion to StrikeAugust 2025 Filings. The court will address the motions tostrike and the motion to amend first, as those determinationsare necessary to resolve what arguments and evidence willbe considered in deciding the cross-motions for summary
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.6judgment and the Bass August 2025 Motion to Dismiss. TheBass Motion to StrikeThe Basses seek to strike all references to the mortgagedocuments in MassHousing's exhibits and arguments.9 Theycontend that the mortgage documents are “deeply flawed intheir authenticity and reliability, rendering them unsuitablefor consideration.” Motion to Strike at 2. Specifically, theBasses argue that questions about the validity of the signature,the absence of notarization, the lack of documentary evidencein Ms. Bass’ personal files, the timing of the assignment,and alleged prior misrepresentations in court, precludeconsideration of the documents in the summary judgmenthearing. Id. at 7.In response, MassHousing argues that the Basses are estoppedfrom denying the authenticity of the mortgage documentsbecause of their earlier admissions. MassHousing Opp. toMotion to Strike at 3-4. MassHousing avers the Bassesdo not present sufficient evidence to throw into doubt theevidence that is already in the summary judgment recordestablishing the validity of the loan documents. Id. at 5-10.MassHousing also contests the Basses’ suggestion that thetiming of the assignment of mortgage creates a genuine issueof material fact with respect to its validity. Id. at 10-12.Finally, MassHousing disputes the Basses’ allegation thatMassHousing has ever misrepresented its interest in the loan.Id. at 12.*7 A motion to strike is governed by the same standardsas a motion to dismiss filed pursuant to Mass. R. Civ.P. 12(b)(6) because it challenges the legal sufficiency ofthe pleading. Deutsche Bank Nat. Trust Co. v. Gabriel, 81Mass. App. Ct. 564, 571 (2012). The court therefore takesas true allegations of the challenged pleading, as well asinferences as may be drawn therefrom in the non-movingparty's favor. See id. at 571-572. A motion to strike may begranted where a piece of evidence is irrelevant, insufficient,or inadmissible. Mass. R. Civ. P. 12(f) (“[T]he court may ...order stricken ... any insufficient defense, or any redundant,immaterial, impertinent, or scandalous matter.”); see Arenav. Motta, 13 LCR 380, 381 (Sands, J.) (2005) (striking deedfrom exhibits for lack of admissibility); Frangesh v. Crowley,Land Court Misc. Case No. 17 MISC 000165 (July 25,2018) (2018) (Foster, J.) (striking statements from exhibits forirrelevance and lack of admissibility). As a threshold matter,where disputed evidence is sufficiently supported by exhibitsand affidavits, that evidence should survive a motion to strike.See Guaranteed Builders, Inc. v. Heney, 21 LCR 203, 203(Foster, J.) (2013). The Basses are thus correct that the courtcould strike the mortgage documents if the court finds themto be unreliable.Here, there is sufficient evidence to support the reliabilityof the mortgage documents and a dearth of evidence callingthe authenticity of the mortgage documents into doubt.In addition to a signed copy of the original note and asigned, notarized, and contemporaneously recorded copy ofthe original mortgage and riders, MassHousing has providedthe following attesting to the reliability of the documents:(1) a recorded and sworn affidavit from Gary A. Brown,Senior Manager of Accounting and Asset Management atMassHousing; (2) a sworn affidavit from Kevin P. Mello,Senior Director of HomeOwnership Servicing and Operationsat MassHousing; (3) a sworn affidavit from Brian McGarry,Assistant Vice President at Fannie Mae; and (4) a swornaffidavit from Reneau J. Longoria at Doonan Graves &Longoria, LLC. MassHousing App., Exhs. G, W, X, Y.These affidavits all testify to the reliability of the mortgagedocuments as business records.10In contrast, the Basses have presented insufficient evidenceto question the reliability of the mortgage documents. TheBasses allege that the signatures on the mortgage documentsdo not match Ms. Bass's signature on other documents, butdo not provide examples of her signature for comparison.The Basses also argue that the note is invalid because it isnot notarized, which is contrary to Massachusetts law. See G.L. c. 106, § 3-401 (requiring signature, but not necessarilynotarization).11The arguments that the mortgage documents do not exist inMs. Bass's personal files, that the assignment was invalid,and that MassHousing's lack of credibility undermines thereliability of the mortgage documents are all similarlyunavailing. That the Basses cannot locate the contract in Ms.Bass's personal files does not mean that the document neverexisted or was invalid; this bare conclusory assertion cannotstand in the face of the documentary evidence presented byMassHousing. See Ng Bros. Constr., Inc. v. Cranney, 436Mass. 638, 648 (2002) (holding that adverse party may notmanufacture disputes via conclusory factual assertions). Thatthe assignment of the mortgage occurred five years afterthe execution of the mortgage documents likewise does notitself render the assignment void. A foreclosing entity mayprovide, as proof that the assignment was made, a singleassignment from the record holder of the mortgage. U.S.Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 651 (2011).
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.7Here, MassHousing has provided clear documentation of theassignment of mortgage. MassHousing App., Exh. F. Finally,the Basses have not shown the “pattern of misrepresentations”that they allege undermines MassHousing's credibility. Onthe contrary, MassHousing has provided concrete evidence tocounter the Basses’ claims. MassHousing Opp. to Motion toStrike, Exhs. ¶¶ 8, 11, 13-14.*8 Furthermore, the Basses have previously accepted thevalidity of the mortgage documents. See Bass answer ¶¶ 7-8.Under the Rules of the Land Court, such facts are deemedadmitted. Rule 4 of the Rules of the Land Court (2005). Thecourt is mindful of the Basses’ self-represented status, butthe late filing of a motion to strike previously agreed factsduring summary judgment arguments lends further support tothe court's decision to deny the motion. Locator Servs. Grp.,Ltd. v. Treasurer & Receiver Gen., 443 Mass. 837, 864 (2005)(“Our case law establishes that a party, purely in the hopes ofdefeating summary judgment, may not submit at the eleventhhour an affidavit that contradicts the party's earlier statementsand discovery responses. Such an affidavit is not enough tocreate a triable issue.”). Thus, the court will deny the Motionto Strike.The Bass Motion to Amend CounterclaimsThe Bass counterclaim brings four counterclaims againstMassHousing and two counterclaims against the Cracchiolos.The two counterclaims against the Cracchiolos werewithdrawn by agreement of the parties on September18, 2023, and the four MassHousing counterclaims wereunilaterally withdrawn by the Basses on November 7, 2023.The withdrawn counterclaims against MassHousing were (1)a claim to quiet title to the property and determine the statusof any debt; (2) a claim for relief from the Bass I specificperformance order; (3) a claim for unjust enrichment; and (4)a claim for wrongful foreclosure. Now, the Basses seek toreinstate or bring claims against MassHousing for (1) breachof fiduciary duty; (2) fraudulent misrepresentation; and (3)unjust enrichment. In addition, the Basses want to raise claimsagainst the Cracchiolos for (1) fraudulent inducement; (2)fraudulent misrepresentation; (3) unjust enrichment; and (4)civil conspiracy. The Basses are also seeking declaratoryjudgement against all parties that the settlement agreementenforced by the Bass I specific performance order isvoid. In total, the Basses have raised four claims againstMassHousing, and an additional five claims against theCracchiolos that the court must consider.Both MassHousing and the Cracchiolos have alreadyresponded to the Bass counterclaims, so the Basses cannotamend as a matter of course, and they must seek leave ofcourt to amend. Mass. R. Civ. P. 15(a). “[L]eave shouldbe granted unless there are good reasons for denying themotion.” Mathis v. Massachusetts Elec. Co., 409 Mass. 256,264, (1991). “Such reasons include undue delay, bad faith ordilatory motive on the part of the movant, repeated failure tocure deficiencies by amendments previously allowed, undueprejudice to the opposing party by virtue of allowance ofthe amendment, [and] futility of the amendment.’ ” Doull v.Foster, 487 Mass. 1, 22 (2021), quoting Mathis, 409 Mass. at264 (internal citations omitted).MassHousing and the Cracchiolos argue that good reasonsexist for denying leave to amend the Bass counterclaim toadd the Basses’ additional claims. Cracchiolo Opp. to Add.Claims at 8-11; MassHousing Opp. to Add. Claims at 3-19.In evaluating this argument, the court is mindful of theBasses’ self-represented status. I.S.H. v. M.D.B., 83 Mass.App. Ct. 553, 560–61 (2013) (“While judges must apply thelaw without regard to a litigant's status as a self-representedparty [citation omitted], our courts have recognized that self-represented litigants must be provided the opportunity tomeaningfully present claims and defenses.”). The reasonspresented by MassHousing and the Cracchiolos for denyingleave to amend are discussed below.1. Futilitya. Res JudicataBoth the Cracchiolos and MassHousing argue that the courtshould not consider the additional claims because they arebarred by the doctrine of res judicata. Cracchiolo Opp. to Add.Claims at 10; MassHousing Opp. to Add. Claims at 11. InMassachusetts, the doctrine of res judicata encompasses bothclaim preclusion and issue preclusion. Heacock v. Heacock,402 Mass. 21, 23 n.2 (1988); Davenport v. DennisportPartners, LLC, 21 LCR 686, 691 (2013) (Misc. Case No.11 MISC 456318) (Sands, J.), aff'd, 87 Mass. App. Ct. 1122(2015). Res judicata prevents relitigation of claims and issuesthat were or could have been raised in earlier litigation. SeeBagley v. Moxley, 407 Mass. 633, 636 (1990). The previouslitigation to which the Cracchiolos and MassHousing point isBass I.
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.8*9 Claim preclusion prevents repetitive litigation as to allmatters that could have or should have been litigated in anearlier action. Charlette v. Charlette Bros. Foundry, Inc., 59Mass. App. Ct. 34, 44 (2003); Zelinsky v. Pontbriand, 15LCR 183, 185 (2007) (Misc. Case No. 310248) (Piper, J.).Claim preclusion requires the showing of three elements: (1)the identity or privity of the parties to the present and earlieractions; (2) the identity of the cause of action; and (3) a priorfinal judgment on the merits. Tynan v. Attorney Gen., 453Mass. 1005, 1005 (2009).The Cracchiolos and MassHousing are able to establish thefirst element of claim preclusion because the parties in BassI and the present action are the same. Both parties arealso able to show the second element because the Bassescould have litigated the fraudulent inducement and fraudulentmisrepresentation claims or, in the case of the civil conspiracyand declaratory judgment claims, did litigate the claims inBass I. Cracchiolo Opp. to Add. Claims at 10; MassHousingOpp. to Add. Claims at 11. Both parties are likewise able toestablish the third element because in the prior action the courtentered judgment that the settlement agreement between theBasses and the Cracchiolos would be enforced. Bass I at 8, 11,aff'd, 103 Mass. App. Ct. 1110 (2023) (“The parties reached afinal, binding settlement agreement on June 6, 2022, and thatagreement remains in full force and effect.”). The Cracchiolosand MassHousing have thus established claim preclusion.Issue preclusion prevents relitigation of an issue determinedin an earlier action where the same issue arises in a lateraction between the same parties or their privies. Heacock, 402Mass. at 23 n.2. Three elements must be shown to establishissue preclusion: (1) a final judgment on the merits in theprior adjudication; (2) the party against whom preclusion isasserted was a party, or in privity with a party, to the prioradjudication; and (3) the issue in the prior adjudication wasidentical to that in the current adjudication, and essential to theearlier judgment. TJR Servs. LLC v. Hutchinson, 495 Mass.142, 145 (2024).The Cracchiolos and MassHousing are able to establish issuepreclusion. The issue of whether Rider I was valid and properwas raised by the Basses in Bass I. See Cracchiolo Opp. toAdd. Claims at 10; MassHousing Opp. to Add. Claims at11-12. The issue was actually litigated in Bass I, as well ason that case's appeal, and it was essential to the judgment. Id.As noted previously, the entry of judgment that the settlementagreement between the Basses and the Cracchiolos would beenforced constituted a final judgment on the merits. See BassI at 8, 11.Thus, the Basses’ counterclaims that arise out of thealleged fraudulent settlement agreement are barred byboth claim preclusion and issue preclusion. Since theBasses’ amended counterclaims against the Cracchiolos forfraudulent inducement, fraudulent misrepresentation, andcivil conspiracy all arise out of the settlement agreementand are therefore precluded, they are futile and will not beconsidered by the court in summary judgment.12 Similarly,the requested declaratory judgment voiding the settlementagreement is also barred and will not be considered by thecourt in summary judgment.b. Failure to State a Claim*10 Although leave to amend should be “freely given whenjustice so requires,” Mass. R. Civ. P. 15(a), such leave maybe denied where the amended claims would not survive amotion to dismiss for failure to state a claim. See Chang v.Winklevoss, 95 Mass. App. Ct. 202, 212 (2019). In order tosurvive a motion to dismiss for failure to state a claim, factualallegations must be sufficient to raise a right to relief abovea speculative level. See Cannata v. Town of Mashpee, 496Mass. 188, 191 (2025) (finding that, to survive a motion todismiss, claims must go beyond mere labels and conclusions);Patriot Group, LLC v. Edmands, 96 Mass. App. Ct. 478, 479(2019).MassHousing argues that the Basses’ proposed counterclaimsagainst it for breach of fiduciary duty and unjust enrichmentare futile because neither would survive a motion to dismiss.MassHousing Opp. to Add. Claims at 8-9. The Cracchiolosmake the same argument with respect to the Basses’ proposedcounterclaim against them for unjust enrichment. CracchioloOpp. to Add. Claims at 11.i. Breach of Fiduciary Duty and Covenant of Good Faith andFair DealingThe crux of MassHousing's argument against the claim forbreach of fiduciary duty is that a non-existent duty cannotbe breached. MassHousing Opp. to Add. Claims at 13. Therelationship between a borrower and a lender generally doesnot give rise to a duty of care under Massachusetts law. Santosv. U.S. Bank Nat Ass'n, 89 Mass. App. Ct. 687, 700-701
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.9(2016). Mortgage holders do, however, have a duty to act ingood faith and use reasonable diligence to protect the interestsof the mortgagor in the context of an extrajudicial foreclosureand exercise of the power of sale. Id. at 701, quoting Williamsv. Resolution GGF Oy, 417 Mass. 377, 382-383 (1994). Thisduty does not apply here because MassHousing filed thepresent action in pursuit of a judicial foreclosure action, notan extrajudicial foreclosure and exercise of the power of sale.MassHousing Opp. to Add. Claims at 13. Until this caseis resolved, MassHousing will be unable to proceed with aforeclosure sale of the property by the statutory power ofsale incorporated in the mortgage. Complaint, Exh. C 22.Therefore, this duty of good faith and reasonable diligencewill not begin unless and until the court enters a judgment inMassHousing's favor on Counts III and IV of the Complaint.MassHousing Opp. to Add. Claims at 13; G. L. c. 244, §§ 3,11.Mortgage holders also have a duty of good faith and fairdealing in the performance of their obligations under themortgage. Santos, 89 Mass. App. Ct. at 701. MassHousingraises three arguments as to why this duty has likewisenot been breached: (1) the Basses have not raised specificallegations or claims regarding this duty; (2) any allegedmisrepresentation relating to the private mortgage insurancepolicy would not be a breach of a duty owed to Ms. Bassor her estate because neither is a party to said policy; and(3) MassHousing's exercise of its contractual rights is not abreach of any duty. MassHousing Opp. to Add. Claims at14-15.1. No Specific Allegations or ClaimsBecause the additional claims raised by the Basses wouldneed to be able to survive a motion to dismiss for failure tostate a claim, Chang, 95 Mass. App. Ct at 212, they must raisemore than mere conclusory allegations. See Iannacchino v.Ford Motor Co., 451 Mass. 623, 636 (2008). The Basses makeonly general conclusory statements regarding MassHousingand an alleged duty, such as “without fulfilling its fiduciaryduties,” “owed a fiduciary duty ... in managing the mortgage,”and “breached its fiduciary duty by failing to manage themortgage.” Bass Add. Claims ¶¶ 10, 13, 15. These statementslack any sort of factual allegations and thus do not “possessenough heft” to show that the Basses are entitled to relief onthis ground. See Iannacchino, 451 Mass. at 636, quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).2. Private Mortgage Insurance Policy*11 The only allegations that the Basses make that gobeyond mere “labels and conclusions,” id., are those relatingto the private mortgage insurance policy. See Bass Add.Claims 14 (alleging Ms. Bass thought she had purchasedinsurance that would cover the mortgage in the event ofher death and that MassHousing's failure to clarify theterms of the insurance and ensure its proper implementationconstitutes a breach of the covenant of good faith and fairdealing and a violation of G. L. c. 93A); MassHousing Opp.to Add. Claims at 14.MassHousing argues that there cannot be a breach of thecovenant of good faith and fair dealing because Ms. Basswas not a party to the private mortgage insurance policy.MassHousing Response at 15-16. “Every contract impliesgood faith and fair dealing between the parties to it (emphasisadded).” Anthony's Pier Four, Inc. v. HBC Associates,411 Mass. 451, 471 (1991), quoting Warner Ins. Co. v.Commissioner of Ins., 406 Mass. 354, 362 n.9 (1990). Theprivate mortgage insurance policy was for the benefit of themortgagee in the event of a default. MassHousing App., Exh.B at 2 (“ ‘Mortgage Insurance’ means insurance protectingLender against the nonpayment of, or default on, the Loan.”).Ms. Bass was not a party to the private mortgage insurancepolicy, and, despite the Basses’ assertion that MassHousingfailed to clarify the terms of the insurance, this fact was madeclear in the mortgage. Id. at 7 (“Borrower is not a party to theMortgage Insurance.”); Bass Add. Claims, 14; see UBS Fin.Servs., Inc. v. Aliberti, 483 Mass. 396, 409 (2019) (finding nofiduciary duty where the contract expressly disclaims such aduty). As Ms. Bass was not a party to the private mortgageinsurance policy, there was neither a common-law fiduciaryobligation, nor any special relationship of trust, confidence,or reliance between her and MassHousing with respect tomortgage insurance. See UBS Fin. Servs., 483 Mass. at 409.The Basses’ claim for breach of the covenant of good faithand fair dealing is thus not valid.The Basses’ claim for a violation of G. L. c. 93A alsocannot stand. The statute provides, in relevant part, “unfairor deceptive acts or practices in the conduct of any tradeor commerce are hereby declared unlawful.” G. L. c. 93A,§ 2(a). The statute further provides, “[a]ny person ... whohas been injured by another person's use ... of any method,act or practice declared to be unlawful by section two ...
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.10may bring an action ... for damages and such equitablerelief ... as the court deems to be necessary and proper.” G.L. c. 93A, § 9. MassHousing asserts that the Basses havenot and cannot show that MassHousing acted unfairly ordeceptively regarding the private mortgage insurance policy.MassHousing Response at 16. In Chervin v. Travelers Ins.Co., 448 Mass. 95, 112-113 (2006), the court affirmed afinding that a claim under G. L. c. 93A was improper wherethere was no relevant business transaction between the partieswhich could serve as a predicate for liability. Similarly, here,because Ms. Bass was not a party to the private mortgageinsurance policy, there is no relevant transaction that can serveas a predicate for the claim under G. L. c. 93A. MassHousingApp., Exh. B at 7; see Chervin, 448 Mass. at 112-113.3. Exercise of Contractual RightsMassHousing finally points out that, in pursuing payment ofthe debt in full, it is simply exercising its contractual rightsarising from the mortgage, not breaching the covenant of goodfaith and fair dealing. MassHousing Opp. to Add. Claims at14. In Massachusetts, a mortgage is a transfer of legal titlein a property to secure a debt. Ibanez, 458 Mass. at 649;Young v. Miller, 72 Mass. 152, 153 (1856) (reasoning thatmortgage is pledge of real estate to secure payment of moneyor performance of some other obligation). A mortgagee isunder no obligation to discharge the mortgage unless anduntil the specified condition, usually payment of the debt, issatisfied by the mortgagor. See Perry v. Miller, 330 Mass.261, 263 (1953) (holding that mortgagee's legal title to aproperty is defeasible upon mortgagor's performance of acertain condition); Goodwin v. Richardson, 11 Mass. 469, 475(1814).*12 Here, the settlement agreement between the Cracchiolosand the Basses, previously declared valid and enforceable bythis court in the Bass I specific performance order, requiresthe Basses to convey marketable title free from encumbrancesto the Cracchiolos. See MassHousing App., Exh. E. In orderto satisfy the terms of the settlement agreement, and thuscomply with the Bass I specific performance order, the Bassesmust pay the debt owed under the terms of the mortgage.MassHousing App., Exh. L at 8 (holding that portions ofthe settlement agreement pertaining to sale of the propertyto the Cracchiolos “remain open and must be performed”).That obligation, however, is an obligation for the Bassesto satisfy in conveying the property to the Cracchiolospursuant to the settlement agreement. It is not part of themortgage, which is an agreement between Ms. Bass and theassignee MassHousing. MassHousing is under no obligationto discharge the mortgage unless and until it receives paymentin full for the outstanding debt. Complaint, Exh. C 23(“Upon payment of all sums secured by [the Bass mortgage],Lender shall discharge the [Bass mortgage] ....”); see Pineo v.White, 320 Mass. 487, 488 (1946) (“[U]pon the fulfillment ofthe conditions of the mortgage, the mortgagor is entitled to thenote and a discharge of the mortgage ....”); Perry, 330 Mass.at 263. MassHousing is entitled to exercise its rights under themortgage whether or not the settlement agreement is compliedwith. Because, in exercising its rights under the mortgage,MassHousing is not injuring the rights of the Basses, it hasnot breached the covenant of good faith and fair dealing. SeeUno Rests., Inc. v. Boston Kenmore Realty Corp., 441 Mass.376, 385 (2004).ii. Unjust EnrichmentThe Basses raise claims of unjust enrichment against boththe Cracchiolos and MassHousing. Bass Motion to AmendCounterclaims at 5-6. For a party to prevail on a claimof unjust enrichment, it must establish that the other partyreceived a benefit and that such a benefit was unjust. SeeMetropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 644(2013). The claims against each party suffer from the sameflaw: neither party has yet to receive any of the benefitsidentified by the Basses. Cracchiolo Opp. to Add. Claimsat 11; MassHousing Opp. to Add. Claims at 16. Neitherthe Cracchiolos nor MassHousing have received any of thealleged benefits because the Basses have not complied withthe Bass I specific performance order and the sale of theproperty is not complete. Cracchiolo Opp. to Add. Claims at11; MassHousing Opp. to Add Claims at 16.Even if the Cracchiolos and/or MassHousing had receiveda benefit, there is still not a valid claim against either partyfor unjust enrichment. In most cases, a claim of unjustenrichment will not lie where a valid contract defining theobligations between the parties exists. See Metro. Life Ins.Co., 464 Mass. at 641; Global Invs. Agent Corp. v. NationalFire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 826(2010) (reasoning that whether benefit is unjust turns onreasonable expectations of the parties). Regarding the claimsagainst the Cracchiolos, it was determined by this courtthat the P&S agreement is valid and enforceable. Facts ¶¶19-20. The Basses cannot argue that any benefit receivedby the Cracchiolos as a consequence of the P&S would be
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.11unjust because that contract is valid, defines the obligationsof each party, and the Cracchiolos’ obtaining title to theproperty pursuant to the P&S is completely aligned with bothparties’ reasonable expectations at the time of contracting.MassHousing App., Exh. E; see Metropolitan Life Ins. Co.,464 Mass. at 641; Global Invs. Agent Corp., 76 Mass. App.Ct. at 826.Regarding the claims against MassHousing, the Bassmortgage serves as the “valid contract that defines theobligations of the parties.” Metro. Life Ins. Co., 464 Mass. at641. The Bass mortgage clearly provides that MassHousing isunder no obligation to discharge the mortgage unless and untilthe underlying debt is satisfied. Pl. App., Exh B at 12 (“Uponpayment of all sums secured by this [mortgage], Lender shalldischarge this [mortgage]”). Any benefit to MassHousing thatwould result from a sale to the Cracchiolos or a foreclosuresale cannot be categorized as unjust because it is aligned withthe reasonable expectations of a mortgagor and mortgageeat the time of contracting. Id.; see Global Invs. Agent Corp.,76 Mass. App. Ct. at 826. For these reasons, the Basses’claims of unjust enrichment against both the Cracchiolosor MassHousing would not survive a motion to dismiss forfailure to state a claim, and, therefore, leave to amend will notbe granted. The Bass Motion to Amend Counterclaims will bedenied. MassHousing Motion to Strike August 2025 Filings*13 On August 8, 2025, the Basses filed the Bass August2025 Motion to Dismiss. On August 11, 2025, they filedthe Defendants’ Opposition to Plaintiff's Cross-Motion forSummary Judgment, and on August 12 and 13, 2025, filedthe Defendants’ Statement of Material Facts Pursuant toMass. R. Civ. P. 56(c) and their Authorities and Notes.MassHousing responded with an opposition to the BassAugust 2025 Motion to Dismiss and the MassHousing Motionto Strike August 2025 Filings. MassHousing is correct thatthe August 11, 2025 opposition comes long after the time forresponding to the summary judgment motions passed, andthat, in any event, the arguments and claims made in thatopposition are also raised in the Bass August 2025 Motion toDismiss. The Bass August 2025 Motion to Dismiss will beaddressed in this memorandum and order. The MassHousingMotion to Strike August 2025 Filings is allowed, andthe Defendants’ Opposition to Plaintiff's Cross-Motion forSummary Judgment, the Defendants’ Statement of MaterialFacts Pursuant to Mass. R. Civ. P. 56(c), and the Authoritiesand Notes are struck.Cross-Motions for Summary JudgmentThe court now turns to the cross-motions for summaryjudgment. The court will first consider the MassHousingCross-Motion for Summary Judgment, and then turn to theBass Motion for Summary Judgment.1. MassHousing Cross-Motion for Summary JudgmentMassHousing seeks summary judgment on all four countsin the complaint. As a reminder, Count I is for relief fromthe order in the specific performance action. Count II isfor a declaration that the Basses are not entitled to thebenefit of the Servicemembers Civil Relief Act. Count IIIis for a conditional judgment under G.L. c. 244, § 3, thatMassHousing can foreclose on the mortgage by selling theproperty. Count IV is for an order under G.L. c. 244, § 11,that the property can be sold at a foreclosure sale pursuant tothe power of sale of G. L. c. 183, § 21. The Basses opposesummary judgment. The court will consider each claim inturn.a. Relief from the Order in the Specific Performance ActionMassHousing argues it is entitled to judgment as a matterof law on its claim for relief from the order entered inthe specific performance action. MassHousing Memo at 22.First, MassHousing contests the notion that the Cracchiolos’rights from the P&S and lis pendens could survive aforeclosure because the Bass mortgage is the priority lien. Id.at 23. Second, MassHousing argues that the Bass I specificperformance order interferes with its obligation to conducta foreclosure sale in a commercially responsible manner.Id. at 23-24. For the following reasons, the court will grantMassHousing's requested relief.i. Priority of LiensMassachusetts is a title theory state, meaning a mortgage isa transfer of legal title in a property to secure a debt. Ibanez,458 Mass. at 649. For purchase and sale agreements, after theagreement has been executed and until the deed is transferred,the seller holds the legal title to the property “subject to anequitable obligation to convey” it to the buyer “on payment ofthe purchase money.” Laurin v. De Carolis Constr. Co., 372Mass. 688, 691 (1977), quoting Barrell v. Britton, 244 Mass.273, 278-279 (1923). At that point, the rights of the buyer arecontract rights rather than rights of ownership of real property.See id. The rights of a buyer arising out of a purchase and sale
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.12agreement are enforceable against a subsequent purchaserwith notice thereof. See Queeno v. Colonial Co-Op. Bank,63 Mass. App. Ct. 392, 396-397 (2005). The general rulein Massachusetts for determining priority of liens is “firstin time is first in right.” See East Boston Savings Bank v.Ogan, 428 Mass. 327, 329 (1998) (identifying first-in-timerule as basic principle for determining priority among twomortgages); PGR Mgt. Co., Inc. v. Credle, 427 Mass. 636,640 (1998) (finding that an attorney's lien had priority over ajudgment for a landlord because it arose first); see also Pehlv. BAC Home Loan Servicing, LP, 85 Mass. App. Ct. 1102(2014) (concluding that mortgage dated 2006 had priorityover mortgage dated 2007).*14 The Bass mortgage is dated February 21, 2017, Facts 1, and the P&S was executed in August 2020. MassHousingApp., Exh. E. The court approved the lis pendens in thespecific performance action in October 2021. MassHousingApp., Exh. I at 3. The property has never been conveyed fromthe Basses to the Cracchiolos. Complaint 46. Moreover,the P&S, by its own terms, cannot be executed without themortgage being discharged. See Pl. App., Exh. E (requiringthe Basses to convey marketable title free from encumbrancesto the Cracchiolos). As discussed above, MassHousing has noobligation to discharge the Bass mortgage unless and until thedebt is satisfied, and, further, MassHousing has the right toforeclose pursuant to the express terms of the Bass mortgage.Complaint, Exh. C 23; MassHousing Opp. to Add. Claims at14. Because it predates both the P&S and lis pendens, the Bassmortgage is the priority lien. See Ogan, 428 Mass. at 329.ii. MassHousing's Duty in a Foreclosure SaleIn a foreclosure, the mortgagee has a duty to make acommercially reasonable sale, based on the market value ofthe property, thereby protecting the interests of the mortgagor.See Williams v. Resolution GGF OY, 417 Mass. 377, 382-383(1994) (stating that mortgagee has duty to obtain as large aprice as possible for the property); Clark v. Simmons, 150Mass. 357, 360 (1890) (finding that mortgagee cannot, ingood faith, sell property for only a small part of its value).The lis pendens has been understood as preserving theCracchiolos’ rights to purchase th property in the event of aforeclosure sale. MassHousing App., Exh. N at 17 (“[T]heCourt considers the lis pendens to provide notice of thisaction .... [I]f the property is sold at the foreclosure sale,[the Cracchiolos’] rights to purchase the property will bepreserved.”). Under the terms of the P&S, the Cracchioloshave the right to purchase the property for $445,000.MassHousing App., Exh. E at 31, 7. At the time thisaction was filed, MassHousing believed the property to havea fair market value of $639,000. Complaint 42. As ofJuly 18, 2024, the total debt owed under the Bass mortgagewas approximately $521,500, and it has continued to accrueinterest and fees. MassHousing Memo. at 25. AllowingMassHousing to conduct a sale and obtain a price closer tomarket value would fulfill its duty to protect the mortgagor'sinterests. See Williams, 417 Mass. at 382-383; Clark, 150Mass. at 360. In this scenario, the Basses would apply anysales proceeds in excess of the debt owed to MassHousingto satisfy their obligations to the Cracchiolos, including theappellate attorneys’ fees ordered by the Appeals Court andthe attorneys’ fees owed under the settlement agreement. SeeWiggin v. Heywood, 118 Mass. 514, 514-516 (1875) (holdingthat someone with subsequent interest in the property could,in equity, enforce their lien against surplus proceeds of saleconducted by first mortgagee). In light of its lien's priority andits duty to protect the interests of the Basses, MassHousingwill be permitted to conduct a sale of the property, with anyexcess proceeds going to the Cracchiolos.b. Servicemembers Civil Relief ActThe Servicemembers Civil Relief Act provides forthe temporary suspension of judicial and administrativeproceedings involving servicemembers. 50 U.S.C. § 3902.The law applies to active-duty soldiers, members of theNational Guard under a call to active service, and members ofthe uniformed services on active service. 50 U.S.C. § 3911.In the Bass Answer, the Basses admit they are not currentlyon active duty with the United States military. Bass Answer 51. Therefore, the Basses are not entitled to the benefit of theServicemembers Civil Relief Act.c. Conditional Judgment on Foreclosure Pursuant to G. L. c.244, § 3MassHousing seeks a conditional judgment on foreclosureunder G. L. c. 244, § 3. The statute provides that “[t]hemortgagee in an action for possession may declare on [their]own seisin, stating that it is in mortgage; and if the courtfinds upon verdict or otherwise that the plaintiff is entitled topossession of the land for breach of condition, it shall uponmotion of either party ... award a conditional judgment.” G. L.
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.13c. 244, § 3. Failure to make payments pursuant to a mortgagecontract is one example of a breach of condition. See Negronv. Gordon, 373 Mass. 199, 205 (1977).*15 MassHousing has provided clear evidence that it is theholder of the mortgage and an authorized agent of FannieMae, the noteholder. MassHousing App., Exhs. F, G. It isalso undisputed that the Bass mortgage is in default becausepayments have not been made since January 2020. Facts 8.For these reasons, MassHousing is entitled as a judgment oflaw to a conditional judgment pursuant to G. L. c. 244, § 3.d. Foreclosure Sale Pursuant to G. L. c. 183, § 21MassHousing seeks an order that the property can be sold ata foreclosure sale. When a conditional judgment is enteredpursuant to G. L. c. 244, § 3, the court generally mustdetermine the amount due to the mortgagee on the mortgage,and the defendant mortgagor has two months to pay saidamount or the mortgagee may take possession of the land.G. L. c. 244, § 5. When, however, the mortgage subject to aconditional judgement contains a power of sale, at the requestof the mortgagee, the court shall order the property to be soldpursuant to such power. G. L.c. 244, § 11.A power of sale is expressly included in the mortgage.Pl. App., Exh. B at 18, 22 (“Lender ... may invoke theSTATUTORY POWER OF SALE ....”). Because the court hasfound that MassHousing is entitled to a conditional judgmentunder G. L. c. 244, § 3, the court will order the property to besold pursuant to MassHousing's power of sale.2. Bass Motion for Summary JudgmentThe Basses seek summary judgment on five grounds: (1)that MassHousing is liable for breach of the mortgage; (2)that MassHousing is liable for a breach of the covenantof good faith and fair dealing; (3) that the foreclosureinitiated by MassHousing should be dismissed; (4) thatMassHousing is not entitled to the legal fees claimed; and (5)that an enforcement of the mortgage would unjustly enrichMassHousing.a. Breach of Contract by MassHousingThe Basses first argue that MassHousing has breached themortgage by failing to seek to foreclose on the propertypromptly after declaring the mortgage in default. In particular,the Basses argue that the fact that interest accrues on theunpaid balance in the amount of approximately $39.00per day shows that MassHousing is intentionally delayingforeclosure to run up the interest. MassHousing has notbreached its obligations under the mortgage because it is notobligated to foreclose immediately upon default. Section 12of the mortgage expressly provides that “[a]ny forbearanceby [MassHousing] in exercising any right or remedyincluding, without limitation, [MassHousing's] acceptance ofpayments ... in amounts less than the amount then due, shallnot be a waiver of or preclude the exercise of any right orremedy.” MassHousing App., Exh. B, at 9. This provision isconsistent with Massachusetts law that mere inaction or delayby a mortgagee in enforcing a mortgage is not a breach anddoes not discharge the mortgage. See Seppala & Aho Constr.Co. v. Petersen, 373 Mass. 316, 324 (1977); Lewis v. Blume,226 Mass. 505, 508 (1917); North End Sav. Bank v. Snow,197 Mass. 339, 342 (1908). While MassHousing has a dutyto exercise reasonable diligence, that duty “has never beenconstrued to compel a mortgagee at [its] peril to commenceforeclosure proceedings promptly after default.” Seppala &Aho Constr. Co., 373 Mass. at 326.In any event, there is no evidence that MassHousingunreasonably delayed foreclosure or acted in bad faith.Ms. Bass died on July 22, 2019, but the mortgage loanpayments stopped only after January 1, 2020. The Basses’certificate of title as heirs was issued on July 21, 2021. Themortgage was assigned to MassHousing on December 21,2021. MassHousing registered its preforeclosure noteholderaffidavit on March 16, 2022, and scheduled a foreclosuresale for May 20, 2022. MassHousing SOF, 30. On May 9,2022, the court in the specific performance action orderedMassHousing to postpone the sale until July 1, 2022. Thecourt entered an order for specific performance to enforce thesettlement agreement between the Basses and the Cracchioloson June 22, 2022; that order was entered as a judgmenton July 1, 2022. At a hearing in the specific performanceaction on June 24, 2022, the court noted that the lis pendensendorsed in October 2021 might survive foreclosure. On June28, 2022, MassHousing postponed the foreclosure sale toAugust 1, 2022. The Basses timely appealed the judgmentin the specific performance action. On August 24, 2022,the court in the specific performance action held a furtherhearing at which it clarified that it had not adjudicated theextent to which the lis pendens would survive a foreclosureof the mortgage. MassHousing agreed to further postponethe foreclosure until October 2022. On February 14, 2023,
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.14MassHousing served a notice of default on the Basses, whichthey did not cure by the March 16, 2023. MassHousing filedthis action on May 16, 2023, seeking authority to foreclose.Given this history, there can be no reasonable inference thatMassHousing unreasonably or in bad faith delayed bringingthis action seeking to foreclose the mortgage. Any delay inseeking foreclosure was occasioned by the uncertainty arisingfrom the court's orders in the specific performance action.MassHousing has not breached the mortgage.*16 MassHousing has also not breached the mortgage bycharging daily interest. Section 1 of the mortgage expresslyrequires that interest be paid. MassHousing App., Exh. B, at3. All interest must be paid to reinstate the mortgage afterdefault, and MassHousing is not required to discharge themortgage until all principal, interest, and applicable fees arepaid. Id. at 10, 12.b. Breach of the Implied Covenant of Good Faith and FairDealing by MassHousingAll contracts, including the mortgage, imply a covenant ofgood faith and fair dealing between the parties to it. T.W.Nickerson, Inc. v. Fleet Nat'l Bank, 456 Mass. 562, 569-570(2010); Anthony's Pier Four, Inc., 411 Mass. at 471. This“implied covenant of good faith and fair dealing provides‘that neither party shall do anything that will have the effectof destroying or injuring the right of the other party to receivethe fruits of the contract.’ ” Anthony's Pier Four, Inc., 411Mass. at 471-472, quoting Drucker v. Roland Wm. JutrasAssocs., 370 Mass. 383, 385 (1976). The Basses argue thatMassHousing breached its implied covenant of good faith andfair dealing by advising the Basses to terminate their purchaseand sale agreement with the Cracchiolos, which led to thespecific performance action, and by assessing interest in theamount of $39 per day on the unpaid balance of the mortgage.The Basses have presented no evidence that MassHousingtold any of them to terminate the purchase and sale agreement,and MassHousing denies that it did so. It is thereforean undisputed fact that MassHousing did not make thosestatements, and this allegation cannot form the basis fora claim of breach of the implied covenant of good faithand fair dealing. As for the daily interest, as stated above,MassHousing has the right under the mortgage to continueto assess interest on the unpaid balance after default as acondition of discharging the mortgage. The scope of theimplied covenant of good faith and fair dealing is only asbroad as the rights and duties in the contract, and onlyconcerns the manner of performance of the contract; it doesnot create rights and duties not otherwise provided for in thecontract. Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367,385 (2005); Uno Rests., Inc., 441 Mass. at 385. MassHousingis charging interest consistent with the mortgage, and it is notbad faith for it do so.c. The Foreclosure Should Be DismissedThe Basses challenge MassHousing's right to foreclose onthe mortgage. They argue that MassHousing does not holdthe note, that the assignment of the mortgage is invalid, andthat MassHousing cannot impose personal liability on theBasses for the debt under the note and mortgage. None ofthese objections bars MassHousing from foreclosing on themortgage.In order to foreclose on the mortgage, MassHousing musthold the mortgage and either hold the note or demonstratethat it is acting on behalf of the noteholder. See Eaton v.Fannie Mae, 462 Mass. 569, 583-584, 586 (2012); Ibanez,458 Mass. at 650-651. MassHousing holds the mortgage byan assignment from MERS as nominee for BPB&T datedDecember 21, 2021, and registered on January 3, 2022,before this action was filed. The March 16, 2022, noteholderaffidavit states that MassHousing is acting on behalf of FannieMae, the holder of the note. The assignment and noteholderaffidavit are sufficient to establish on a motion for summaryjudgment that MassHousing holds the mortgage and is actingon behalf of the noteholder. See Strawbridge v. The Bankof N.Y. Mellon, 91 Mass. App. Ct. 827, 830-831 (2017)(concluding that assignment and noteholder affidavit togetherare sufficient to establish defendant's compliance with G. L.c. 183, § 54B).*17 The Basses face no personal liability on the note or forthe foreclosure on the mortgage. The note was given by Ms.Bass, and it is only her estate that might bear liability. TheBasses face no individual liability on the obligation underthe note. MassHousing seeks only to foreclose the mortgageso that it can obtain title to and convey the property. TheBasses will not be personally liable for any deficiency. Thischallenge by the Basses does not prevent MassHousing fromforeclosing on the mortgage.
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.15d. MassHousing Is Not Entitled to Legal FeesSection 9 of the mortgage (Section 9) provides, in relevantpart:“If (a) Borrower fails to perform the covenants andagreements contained in [the mortgage, or] (b) thereis a legal proceeding that might significantly affectLender's interest in the Property and /or rights under [themortgage] (such as a proceeding in bankruptcy, probate,for condemnation or forfeiture, for enforcement of a lienwhich may attain priority over [the mortgage] or to enforcelaws or regulations), ... then Lender may do and pay forwhatever is reasonable or appropriate to protect Lender'sinterest in the Property and rights under [the mortgage] ....Lender's actions can include, but are not limited to: . . (b)appearing in court; and (c) paying reasonable attorneys’fees to protect its interest in the Property and/or rightsunder [the mortgage], including its secured position in abankruptcy proceeding ....Any amounts disbursed by Lender under this Section 9shall become additional debt of Borrower secured by [themortgage]. These amounts shall bear interest at the Noterate from the date of disbursement and shall be payable,with such interest, upon notice from Lender to Borrowerrequesting payment.”MassHousing App., Exh. B, at 7. Thus, the mortgageentitles the lender to recover attorneys’ fees under certaincircumstances. MassHousing invokes Section 9 to add to theamount due on the mortgage its legal fees incurred in thisaction and the specific performance action. As of the dateof the original summary judgment motion on July 18, 2024,MassHousing claims legal fees and costs in the amount of$94,726.09.The Basses object to MassHousing's recovering its legal feeson several grounds: (1) they argue that MassHousing is onlythe servicer of the mortgage, and therefore cannot recoverfees under the mortgage; (2) they argue that MassHousing'sclaimed debt, including legal fees, cannot exceed the price inthe settlement agreement enforced in the specific performanceaction; (3) they claim the MassHousing's fees are the resultof its own misconduct; (4) they argue that MassHousing didnot attempt to recover its attorneys’ fees until 2023; and (5)they argue that MassHousing is not entitled to recover thefees it incurred in the specific performance action. The courtaddresses these arguments in turn.Section 9 of the mortgage provides that the “Lender” mayrecover its attorneys’ fees. The “Lender” is defined in themortgage as BPB&T, the original lender under the noteand mortgage. MassHousing App., Exh. B, at 2. The noteand mortgage, however, have been assigned. The currentnoteholder is Fannie Mae, which constitutes the “Lender” forthe purposes of Section 9. MassHousing is now the mortgageeby assignment and, according to the noteholder affidavit, isacting on behalf of Fannie Mae. As an agent for Fannie Mae,it can incur attorneys’ fees acting on Fannie Mae's behalf andseek to recover those fees under Section 9.There is nothing in the mortgage that limits the total amountdue after default, including attorneys’ fees, to the price forthe property in the specific performance action. Nor hasMassHousing engaged in any misconduct that would limit itsattorneys’ fees. Much of the fees incurred by MassHousingin this action were a result of the need to respond to theBasses’ multiple filings and motions. That MassHousing didnot attempt to recover its attorneys’ fees until 2023 doesnot mean it cannot seek to recover those fees under Section9 at this time. The Basses seem to be referring to the factthat MassHousing provided payoff amounts for the mortgageduring the specific performance action that did not includeattorneys’ fees. In doing so, MassHousing did not waive itsright to seek to recover attorneys’ fees during a foreclosureprocess. The mortgage expressly provides in Section 12 that“[a]ny forebearance by Lender in exercising any right orremedy including, without limitation, Lender's acceptance ofpayments from third persons, entities or Successors in Interestof Borrower or in amounts less than the amount then due, shallnot be a waiver of or preclude the exercise of any right orremedy.” MassHousing App., Exh. B at 9.*18 Finally, the Basses object to MassHousing's seeking torecover attorneys’ fees it incurred in the specific performanceaction. In the specific performance action, the Cracchiolossought to enforce the P&S between them and the Basses forthe sale of the property to the Cracchiolos. MassHousingwas given notice of this action as the mortgagee of themortgage, and participated in hearings in that case. Thequestion is whether the specific performance action is thekind of proceeding contemplated by Section 9 as entitlingMassHousing to recover its attorneys’ fees. Section 9allows MassHousing to take appropriate action in “a legalproceeding that might significantly affect [the lender's]interest in the Property and/or rights under” the mortgage,including a proceeding “for enforcement of a lien which mayattain priority over” the mortgage. MassHousing App., Exh. B
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.16at 7. The specific performance action concerned the propertysubject to the mortgage, but—with one exception—it didnot have the potential to significantly affect MassHousing'sinterest in the mortgage. In the specific performance action,the Cracchiolos sought to compel the sale of the property tothem by the Basses. That sale, like any other sale of real estate,would involve satisfying the mortgage from the proceeds ofthe sale so that the mortgage could be discharged and theCracchiolos take title free and clear of the mortgage. Thus,for the most part, MassHousing did not need to be involvedin the specific performance action to protect its interest in themortgage, and thus does not have authority under Section 9to charge its attorneys’ fees in that action against the amountdue under the mortgage. To the extent MassHousing agreedto postpone foreclosure sales, those actions were taken for thebenefit of the parties in the specific performance action, notMassHousing.The one exception concerns the lis pendens that the courtendorsed in the specific performance action. The court'sJune 24, 2022 survival order suggested that MassHousing'smortgage interest might be affected by a sale under thejudgment in the specific performance action. MassHousing'sactions in the specific performance action to address thesurvival order—actions that led to the filing of this case—were taken in order to protect its interest in the mortgage.Attorneys’ fees incurred by MassHousing in addressing the lispendens and the survival order are recoverable under Section9.In short, MassHousing is entitled to add its attorneys’ fees inthis action to the debt under the mortgage pursuant to Section9 of the mortgage. The only attorneys’ fees in the specificperformance action that it is entitled to add to the debt arethose incurred in addressing the lis pendens and the survivalorder. MassHousing shall submit an updated attorneys’ feestatement, showing attorneys’ fees incurred in this actionto the date of this memorandum and order and fees in thespecific performance action related only to the lis pendens andsurvival order.e. Unjust EnrichmentThe Basses finally argue that MassHousing will be unjustlyenriched by a foreclosure of the mortgage. As discussedabove, for a party to prevail on a claim of unjust enrichment, itmust establish that the other party received a benefit and thatsuch a benefit was unjust. See Metropolitan Life Ins. Co., 464Mass. at 644. In most cases, a claim of unjust enrichment willnot lie where a valid contract defining the obligations betweenthe parties exists. See id. at 641; Global Invs. Agent Corp., 76Mass. App. Ct. at 826.The Basses first claim that MassHousing's attempts to enforcethe mortgage constitute unjust enrichment, because theyreceived no benefit from the mortgage contract. The note andmortgage were given by Ms. Bass, the Basses’ late mother.The Basses inherited the property and now have title. Asdiscussed, while the mortgage encumbers the property, theBasses have no personal or individual liability for the debtunder the note, and the note cannot be enforced againstthem. The mortgage, on the other hand, encumbers theirtitle to the property, and MassHousing is entitled to enforcethe mortgage, including foreclosing on the mortgage. ThatMassHousing seeks to foreclose on the mortgage does notconstitute unjust enrichment.The Basses also claim that MassHousing has unjustlyenriched itself by allowing attorneys’ fees to accumulate andto be added to the debt under the note and mortgage. Asdiscussed, MassHousing is entitled to recover its attorneys’fees incurred in connection with protecting its interest in themortgage, and the scope of those fees is addressed above.Much of MassHousing's fees in this action have been incurredby the need to respond to the Basses’ motions. In any event,before any judgment is entered on MassHousing's attorneys’fees, it will be asked to submit an updated fee affidavit forreview by the court. In short, MassHousing is not beingunjustly enriched by seeking foreclosure of the mortgage orits attorneys’ fees.*19 The Bass Motion for Summary Judgment will beallowed in part and denied in part. MassHousing is requiredto file an updated fee affidavit reflecting the recoverableattorneys’ fees as set forth in this memorandum and order.The remainder of the Bass Motion for Summary Judgment isdenied.Bass August 2025 Motion to DismissThe Bass August 2025 Motion to Dismiss raises severalarguments on why MassHousing's complaint should bedismissed. Specifically, the Basses set forth seven groundson which they believe the complaint should be dismissed:(1) coercion and duress; (2) laches; (3) reliance, equitableestoppel, and waiver; (4) unclean hands; (5) violation offederal mortgage servicing rules; (6) failure to comply withMassachusetts foreclosure requirements; and (7) lack of
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.17standing. While some of these arguments have been discussedabove, others are new. The court addresses each argument inturn.1. Coercion and DuressThe Basses allege that they are the victims of “economicduress and coercion of the highest order.” Bass August 2025Motion to Dismiss at 8. “To show economic duress (1) aparty ‘must show that he has been the victim of a wrongfulor unlawful act or threat, and (2) such act or threat mustbe one which deprives the victim of his unfettered will.’ ”International Underwater Contractors, Inc. v. New EnglandTel. & Tel. Co., 8 Mass. App. Ct. 340, 342 (1979), quotingWilliston, Contracts § 1617, at 704 (3d. ed. 1970). “As adirect result of these elements, the party threatened must becompelled to make a disproportionate exchange of values.”Id. Put differently, the elements of economic duress are that(1) that one side involuntarily accepted the terms of another,(2) that the circumstances permitted no other alternative, and(3) that those circumstances were the result of coercive actsof the other party. Id.First, the Basses say there was a wrongful threat of contempt.Specifically, they argue that MassHousing has manipulatedthe Basses’ liability in the specific performance action toextract an unwarranted benefit of obtaining payment onthe note underlying the mortgage. The Bass I specificperformance order obligates the Basses to convey theproperty to the Cracchiolos with clear title; that is, notencumbered by the mortgage. This would obligate the Bassesto satisfy the mortgage before conveying the property tothe Cracchiolos. There is no evidence that MassHousing isleveraging the Basses’ obligation under the Bass I specificperformance order for its own benefit. No matter what theBasses might be obligated to do under the Bass I specificperformance order, the mortgage remains as an encumbranceon the property that they own. While MassHousing cannotmake the Basses personally liable for the note underlying themortgage—that is an obligation of Ms. Bass's estate—it isentitled to enforce the terms of the mortgage and seek eitherpayment of the debt or foreclosure of the mortgage accordingto its terms. In other words, there is no wrongful or unlawfulact by MassHousing, and the Basses’ dilemma is not the resultof coercive acts of MassHousing.The Basses then argue that they have been deprived of theirfree will because they had no reasonable alternative. Theystate that they cannot comply with the under the Bass Ispecific performance order because they do not have the fundsto pay the amount needed to discharge the mortgage anddeliver the property free and clear. They say that they hadno obligation to pay the debt underlying the mortgage. Asdiscussed, it is correct that they are not personally liable toMassHousing for that debt, but contrary to their assertion,they are obligated under the Bass I specific performanceorder to deliver the property without the mortgage. To theextent that they feel they are “over a barrel,” Bass August2025 Motion to Dismiss at 8, that is a situation of their ownmaking in not complying with the Bass I specific performanceorder before the amount owed on the mortgage exceededthe purchase price. That interest continued to accrue on thenote and mortgage while they delayed compliance is a resultof their own actions, not any action of MassHousing. Forthe same reasons, there is no disproportionate exchange orunjust enrichment. MassHousing is entitled to enforce themortgage. The Basses’ obligations under the Bass I specificperformance order are separate from MassHousing's rightsunder the mortgage.*20 Nor has MassHousing done anything that could beconsidered abuse of process. Abuse of process requiresa showing that the defendant used the civil process toaccomplish some ulterior purpose for which it was notdesigned or intended, or which was not the legitimate purposeof the particular process employed. Ladd v. Polidoro, 424Mass. 196, 198 (1997); Gabriel v. Borowy, 324 Mass. 231,236 (1949). MassHousing has have not brought this action foran ulterior or illegitimate purpose. It is seeking to enforce itsrights under the mortgage, and is not coercing the Basses orseeking a windfall.2. Laches and AbandonmentThe Basses argue that MassHousing slept on its rights toforeclose the mortgage, and therefore has either abandonedits rights or is barred by the doctrine of laches from enforcingthe mortgage. As discussed above, there is no evidencethat MassHousing unreasonably delayed seeking foreclosure.Also as discussed above, the extent to which the debt underthe mortgage now exceeds the purchase price under thespecific performance action judgment is due to the Basses’own delay in complying with that judgment. It is not due toany actions of MassHousing.3. Reliance, Equitable Estoppel, and WaiverThe Basses argue that MassHousing's claims are barred underthe doctrines of reliance, equitable estoppel, and waiver.Their argument is that from 2020 to 2022, MassHousing
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.18consistently represented payoff figures using an interestaccrual rate of $39.99 per day with no attorney's fees included,and they relied on this estimate. Thus, they argue, theover $120,000 in legal fees goes far beyond reasonableexpectations. Bass August 2025 Motion to Dismiss at 13,16. The Basses further argue that by acquiescing to theBass I specific performance order ordering a $450,000 sale,MassHousing indicated that it would allow this sale, underthese terms, to go forward; that MassHousing's demandfor $573,000 strays from its prior three-year course ofperformance; and that MassHousing's failure in 2022 toindicate to the Basses its intent to collect legal fees deprivedthem of the opportunity to seek other alternatives, such asseeking a higher offer on the property. Id. at 14-15. Theyallege that these actions by MassHousing have resulted inincreased financial burden to the Basses, creating delayswhich resulted in a buyer exiting the deal. Id. at 15. TheBasses claim that principles of equity prevent MassHousingfrom “springing surprises” upon them in this manner. Id at16. Finally, they argue that MassHousing waived its right toseek more than $39.99 per day in fees by failing to object tothe 2022 sale price, and as such cannot use alternative meansto increase its payout now. Id. As a result of MassHousing'sviolation of these equitable principles, “the only fair result isto disallow foreclosure entirely.” Id at 17.Equitable estoppel requires that the Basses show that by itsacts, representations, admissions, or silence when it shouldhave spoken out, MassHousing intentionally or throughculpable negligence induced the Basses to believe certainfacts to exist and that the Basses reasonably relied onand acted on that belief. Rabassa v. Cerasuolo, 97 Mass.App. Ct. 809, 816 (2020). The Basses fail to point to anyevidence that MassHousing, expressly or impliedly, everagreed to discharge the mortgage for any amount less thanthe total debt owed. That attorney's fees were not includedin MassHousing's statements through April 2022 reflectsthe fact that MassHousing has not yet received an invoicefor legal services, and did not prevent it from charginglegal fees in later statements. MassHousing Opp. to BassAugust 2025 Motion to Dismiss at 10-11. As discussedabove, MassHousing was entitled to collect its fees underthe mortgage and has consistently maintained that it cando so. Finally, MassHousing could have recovered the$387,041.61 owed under the mortgage at the time of the BassI specific performance order and the judgment in the specificperformance action, but the Basses challenged that judgmentand would not comply with it. There are no grounds to suggestthat interest and fees under the mortgage should not haveaccrued during their appeal and subsequent challenges. Inshort, the Basses have not identified statements or omissionsof MassHousing on which they relied, and in any event, thereliance they allege was unreasonable.4. Unclean Hands*21 The Basses argue that MassHousing comes to thecourt with unclean hands by coercively extorting fees,sabotaging the court-ordered sale of the property, paddingits fees, not being candid with the court or the parties, andengaging in overall bad-faith litigation and misconduct. Asdiscussed, MassHousing is entitled to recover its fees underthe mortgage, and its claim for fees is not coercive. The courthas addressed the amount and category of fees it can recoverabove. MassHousing has not misled the court or the parties; ithas consistently stated that it will add interest and fees to theamount due under the mortgage as they accrue. MassHousingdid not sabotage the sale of the property as ordered in thespecific performance action, because it was the Basses whofailed to perform. Finally, as discussed above, MassHousingdid not unreasonably drag its feet or wait for an opening. TheBasses cannot show that MassHousing acted with uncleanhands.5. Violation of Federal Mortgage Servicing RulesThe Basses allege that MassHousing has failed to complywith two federal regulations concerning mortgages. The firstis 12 C.F.R § 1024.38, which requires mortgage servicersupon receiving notice of the death of the borrower to promptlycommunicate with the borrower's successor, determine whatdocuments are required to confirm the successor's identity andownership interest, provide the documents to the successor,and make a confirmation determination and notify thesuccessor. 12 C.F.R. § 1024.38(b)(vi) (2018). The secondis 12 C.F.R. § 1026.41, which requires mortgage servicersto provide periodic statements to the borrower. 12 C.F.R. §1026.41(a)(2) (2018).MassHousing learned of the death of Ms. Bass, the mortgagor,in October 2019. MassHousing Opp. to Bass August 2025Motion to Dismiss at 16, Exh. K at 4-6. By December 2019,MassHousing had contacted Bradley Bass and made him anauthorized third party on the Bass Mortgage Loan. Jean Basswas also recognized as an authorized third party by May 2020.Id. at 16, Exh. K at 1-2. In doing so, MassHousing fulfilled§ 1024.38 by promptly identifying and communicating withsuccessors in interest. 12 C.F.R. § 1024.38(b)(vi).
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.19There are certain exemptions to the § 1026.41 requirements.See 12 C.F.R. § 1026.41(a)(1), (e). Among these is anexemption for “small servicers.” 12 C.F.R. § 1026.41(e)(4)(i), (ii). A housing finance agency is a small servicer underthis section, and MassHousing is a “housing finance agency”as defined by the regulations. 12 C.F.R. § 1026.41(e)(4)(i),(ii); 24 C.F.R. § 266.5. MassHousing is exempt from therequirements of 12 C.F.R. § 1026.41(a)(2).6. Failure to Comply with Massachusetts ForeclosureRequirementsThe Basses allege that MassHousing has failed to complywith certain requirements for undertaking a foreclosure. Theypoint to G. L. c. 244, §§ 14 (§ 14), 35A (§ 35A), and 35B(§ 35B). With respect to § 14, the Basses argue that anynotice for the 2022 foreclosure that was postponed is nowstale and cannot go forward. Thus, they argue, any foreclosurethat MassHousing seeks is void. In this case, MassHousingis seeking a declaration concerning the lis pendens in thespecific performance action, a declaration that the Basses arenot entitled to the protections of the Servicemembers CivilRelief Act, and a conditional judgment and declaration thatthey may exercise the statutory power of sale and an orderthat the property be sold. G. L. c. 183, § 21; c. 244, §§3, 11. None of these requested declarations or orders are aforeclosure sale under § 14. If the court enters an order underG. L. c. 244, § 11, for the sale of the property, that order willinclude the requirement that MassHousing comply with allthe requirements of § 14 for foreclosure under a power of sale.MassHousing is not obligated to comply with § 35A. Section35A only applies to residential property that is the principalresidence of a person. § 35A(a). At the time of default, Ms.Bass had died and was therefore no longer living at theproperty. In any event, MassHousing did send a 30-day Noticeof Default to each of the Basses as co-personal representativesof Ms. Bass's estate. MassHousing Opp. to Bass August 2025Motion to Dismiss at 18, Exh. L. While MassHousing issubject to § 35B because it did not “finance[ ]” the mortgageloan but is rather an assignee of the mortgage, see § 35B(a),the note and mortgage are not a “certain mortgage loan”as defined in § 35B. Id. Nevertheless, MassHousing didengage the Basses with respect to potential pre-foreclosuremitigation options, while communicating with Jeanne Bass.MassHousing Opp. to Bass August 2025 Motion to Dismiss19, Exh. K. MassHousing has not failed to comply with anyforeclosure requirements.7. Standing*22 The Basses argue that MassHousing lacks standingbecause it has not established that it holds the mortgage or thenote. As discussed, MassHousing does hold the mortgage byassignment, and is acting on behalf of the noteholder. It maytake steps to foreclose the mortgage, including bringing thisaction. Eaton, 462 Mass. at 583-584, 586.For the foregoing reasons, the Bass August 2025 Motion toDismiss will be denied.ConclusionFor the foregoing reasons, the Bass Motion to Strike isDENIED. The Bass Motion to Amend Counterclaims isDENIED. The MassHousing Motion to Strike August 2025Filings is ALLOWED. The Bass August 2025 Motionto Dismiss is DENIED. The MassHousing Cross-Motionfor Summary Judgment is ALLOWED IN PART andDENIED IN PART. The Bass Motion for SummaryJudgment is ALLOWED IN PART and DENIED IN PART.MassHousing is ORDERED to submit a revised statementof attorneys’ fees consistent with this Memorandum andOrder and a proposed form of judgment by January 21,2026, after which the Basses shall have 21 days to respond.After review and approval by the court, judgment shall enter(a) on the MassHousing complaint declaring on Count Ithat the mortgage and foreclosure are not subject to the lispendens in the specific performance action; declaring onCount II that the Basses are not entitled to the protections ofthe Servicemembers Civil Relief Act; entering a conditionaljudgment under Count III pursuant to G.L. c. 244, §§ 3 and 5,determining the amount due MassHousing on the mortgage;and, under Count IV, ordering pursuant to G.L. c. 244, § 11,that MassHousing may exercise the power of sale under G.L.c. 183, § 21 and the mortgage and conduct a foreclosure saleunder the procedures of G.L. c. 244, § 14; and (b) dismissingCounts I through IV of the Bass counterclaim with prejudiceand Counts V and VI of the Bass Counterclaim withoutprejudice.SO ORDERED.By the CourtAttest:
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.20Deborah J. Patterson, RecorderAll CitationsNot Reported in N.E. Rptr., 2025 WL 3853300Footnotes1The other three cases, aside from the instant action, are Bradley K. Bass v. Jennifer DiCarlo, et al., Essex Super. Ct.Civil Action No. 2277CV00171, Jean E. Bass, et al. v. Giuseppe Cracchiolo, et al., Essex Super. Ct. Civil Action No.2277CV00683, and Bradley K. Bass v. Maria Cracchiolo, et al., Essex Super. Ct. Civil Action No. 2477CV00258. All threeconcern the property but are not relevant here.2Although all three Basses are named, Bradley K. Bass has effectively acted as the spokesperson of the three Basssiblings.3The Basses’ counterclaims are not precisely defined. This court will liberally construe the plaintiff's pro se complaintbased on the allegations within. See Judicial Guidelines for Civil Cases with Self-Represented Litigants § 5.1 (2025);Warren v. Massachusetts Bay Transp. Auth., 93 Mass. App. Ct. 1110 (2018).4See Bass I docket entry dated May 9, 2022.5See Bass I docket entry dated June 6, 2022.6See Bass I docket entry dated June 24, 2022.7See Bass I docket entry dated June 28, 2022.8See Bass I docket entry dated August 24, 2022; Oral Argument at 11:19:52 a.m., Bass I, (Aug.24, 2022) https://app.fortherecord.com/court-system/ef130348-9965-4b46-b4d1-94a9dd735182/recording-playback/adcffcad-3757-4975-8beb-5c8fd4194d85?tab=logSheet (postponement).9Following the hearing on the Motion to Strike, the Basses filed the Post Hearing Follow-Up, which withdrew the BassMotion to Strike. Despite this, the Basses continued to question the validity of the mortgage in the Post-Hearing Follow-Up. For completeness, the court will address the arguments raised in both the Motion to Strike and the Post HearingFollow-Up.10“A business record shall not be inadmissible because it is hearsay or self-serving if the court finds that (i) the entry, writing,or record was made in good faith; (ii) it was made in the regular course of business; (iii) it was made before the beginningof the ... proceeding in which it is offered; and (iv) it was the regular course of such business to make such ... record at thetime of such act, transaction, occurrence, or event, or within a reasonable time thereafter.” Mass. Guide Evid. § 803(6)(A).11The Basses cite McMahon v. Westinghouse Broadcasting Co., 351 Mass. 573, 578 (1967) for the proposition that theabsence of notarization is a ground for rendering a contract void. Such a case does not appear in the Supreme JudicialCourt's reported decisions, nor at the citation provided by the Basses. See Commonwealth v. Abbott Eng'g, Inc., 351Mass. 568, 573 (1967). This is one of several cases in the Bass Motion to Strike that do not appear to be grounded inlegal precedent. The Basses have previously been warned about citing non-existent case law.12While fraud can possibly be a ground to revisit a claim barred by res judicata, see Mani v. United Bank, 79 Mass. App.Ct. 1127 (2011), the Basses counterclaims are for fraudulent inducement and fraudulent misrepresentation. In any case,fraud must be pleaded with particularity, and the Basses bring no new evidence aside from an unsubstantiated claimthat “it is anticipated that William Rochford, the Cracchiolo Defendant's realtor, will testify that he never received a wetsignature copy of Rider I from the Cracchiolos [contrary to their assertions].” Bass Add. Claims at 3. Whether Rochfordreceived a copy of Rider I has no bearing on the validity on the questioned documents. And as this court noted in itsjudgment in the specific enforcement action, the Cracchiolos later made the original signed Riders available to the Basses
MASSACHUSETTS HOUSING FINANCE AGENCY, Plaintiff,..., Not Reported in N.E.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.21for their inspection. See Amended Memorandum & Order Allowing Motion to Enforce Settlement Agreement & DenyingMotion to Dismiss at 7, Bass I (July 1, 2022).End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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