NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-569

WELLS FARGO BANK, NATIONAL ASSOCIATION, trustee,1

vs.

ESTHER W. NGOTHO.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

An assignee of a mortgage filed a complaint in the Land 

Court seeking to remove a cloud on title to mortgaged property. 

A Land Court judge dismissed counterclaims of the mortgagor, and 

another judge allowed the assignee's motion for summary 

judgment, dismissed additional counterclaims, and denied other 

motions of the mortgagor. We affirm.3

Background. On May 25, 2004, the defendant mortgagor, 

Esther Ngotho signed an adjustable rate, interest-only note for 

$470,000, secured by a mortgage, to finance her purchase of a 

home in Beverly. The note had a maturity date of June 1, 2034. 

1 For ABFC 2004-OPT5 Trust, ABFC Asset-Backed Certificates, 

Series 2004-OPT5. 

2 Also known as Esther Waigumo Ngotho.

3 We acknowledge the amicus briefs submitted by Dawn Thomson, pro 

se; Registrar of Southern Essex County John L. O'Brien, pro se; 

Gary Yard, pro se; and Jay Lively, pro se.
2

The mortgage did not state a maturity date but referred on its 

face to that of the note. Ngotho soon defaulted on payments and 

obtained a Chapter 7 bankruptcy discharge on April 12, 2006.

In November 2006, the note and mortgage originator, Option 

One Mortgage Corporation (Option One), sent Ngotho a "right to 

cure" letter pursuant to G. L. c. 244, § 35A. The letter 

informed Ngotho of her default and instructed her that the 

default could be cured with a payment of $7,639.76 (amount of 

missed payments plus late charges). The next month, Option One

sent a letter notifying Ngotho of the following: "[T]he note is 

hereby accelerated and the entire balance [of $482,160.19] is 

due and payable forthwith and without further notice." The 

letter also indicated that Ngotho could reinstate the loan by 

bringing it current, that she was not personally liable due to 

the bankruptcy, and that Option One may proceed to foreclose if 

the default was not cured. Ngotho did not cure the default.

Ten years later the plaintiff, Wells Fargo Bank, National 

Association (Wells Fargo), as trustee under a pooling and

servicing agreement (PSA), took possession of the note and 

recorded an assignment of the mortgage by Option One (which by 

then had changed names). Wells Fargo published a notice of 

foreclosure sale, see G. L. c. 244, § 14, but four days before 

the sale, Ngotho recorded an affidavit purportedly "clarifying 

the chain of title." G. L. c. 183, § 5B (§ 5B). The § 5B 
3

affidavit asserted that Ngotho's mortgage was also accelerated 

in 2006, and therefore became unenforceable either (1) in 2011 

by operation of the obsolete mortgage statute, G. L. c. 260, 

§ 33, or (2) in 2012 by operation of the statute of limitations, 

G. L. c. 106, § 3-118. The affidavit also claimed that Ngotho 

held title free and clear of any encumbrance.

Wells Fargo filed a complaint in the Land Court seeking a 

declaration that the § 5B affidavit was void and not a cloud on 

title. Ngotho answered and asserted five counterclaims, three 

of which -- claiming discharge of the mortgage and damages for 

predatory lending, violation of G. L. c. 93A, and discrimination

–- a judge dismissed pursuant to Mass. R. Civ. P. 12 (h) (3), 

365 Mass. 754 (1974). Wells Fargo then moved for summary 

judgment on the complaint and remaining counterclaims, in which 

Ngotho sought declarations (1) that Wells Fargo lacked standing 

to foreclose, and (2) quieting title. Ngotho responded by 

filing two motions to dismiss the complaint and a cross motion 

for summary judgment, all citing Wells Fargo's alleged lack of 

standing.

A different judge denied Ngotho's motions, denied an 

emergency motion to intervene that was filed by the Registrar

for Southern Essex County, and allowed Wells Fargo's motion for 

summary judgment. A judgment entered declaring the § 5B 

affidavit of no force and effect. Ngotho filed unsuccessful 
4

motions for reconsideration, to vacate the judgment pursuant to 

Mass. R. Civ. P. 60 (b) (4), 365 Mass. 828 (1974), and for 

transfer of her counterclaims to a court with jurisdiction.

Ngotho now appeals, and we affirm.

Discussion. 1. Standards of review. We review the 

rulings on the motions to dismiss de novo. Lanier v. President 

& Fellows of Harvard College, 490 Mass. 37, 43 (2022). We also 

review de novo the rulings on the motions for summary judgment,

HSBC Bank USA, N.A. v. Morris, 490 Mass. 322, 326 (2022), and to 

vacate. Dumas v. Tenacity Constr. Inc., 95 Mass. App. Ct. 111, 

114 (2019). The denial of the motions for reconsideration and 

transfer are reviewed for an abuse of discretion. See Audubon 

Hill S. Condominium Ass'n v. Community Ass'n Underwriters of 

Am., 82 Mass. App. Ct. 461, 470 (2012) (reconsideration); 

Worcester v. Sigel, 37 Mass. App. Ct. 764, 766-767 (1994) 

(interdepartmental transfer exercised on "ad hoc, case specific" 

basis). An abuse of discretion is an error in weighing the 

factors relevant to the decision, such that the decision falls 

outside the range of reasonable alternatives. L.L. v. 

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

2. § 5B Affidavit and Limitation of Action. Affidavits 

may be recorded under § 5B "to explain a set of existing facts 

relevant to the chain of title where the facts had not been 

stated explicitly in the property record." Bank of Am., N.A. v. 
5

Casey, 474 Mass. 556, 565 n.19 (2016) (Casey). The "affidavit 

must be limited to facts that explain what actually occurred,

and are not inconsistent with the substantive facts contained in 

the original document." Id. at 565. The affidavit here 

concluded that action on the mortgage was time-barred. 

The affidavit did not comport with the governing statute 

and improperly clouded title to the mortgaged property. 

Contrary to the conclusory allegations in the affidavit, the

note and mortgage show that Ngotho signed a thirty-year loan in 

2004, secured by a mortgage that she used to buy a home.4 In 

2006, the note was accelerated. As a matter of law that

acceleration did not affect the maturity date of the mortgage, 

however, because the two instruments have "separate viability 

and enforceability." Nims v. Bank of N.Y. Mellon, 97 Mass. App. 

Ct. 123, 127 (2020). See LaRace v. Wells Fargo Bank, N.A., 99 

Mass. App. Ct. 316, 329 (2021). We need not decide whether the 

note became unenforceable when discharged in bankruptcy, Nims, 

4 The second judge correctly "assumed a legal debt existed" where 

this information appeared in the § 5B affidavit, counterclaims,

and summary judgment materials. "[A] wet ink note" was not 

required to prove the debt, and no credibility determinations 

were involved. Though the second judge did use the words "find" 

and "findings," we are not persuaded that she misapplied the 

summary judgment standard as Ngotho alleges. Later, in her 

decision to deny reconsideration or relief under rule 60 (b)

(4), the judge clarified that the initial "[d]ecision was based 

on the undisputed documentary record and the court's application 

of the governing law to those documents."
6

supra at 129, or when Ngotho asked to see it, as Ngotho argues 

in the brief, because enforceability of the mortgage did not 

depend on Ngotho's continuing liability on the note. Id. See 

Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 575-576

(2012), and cases cited (mortgage is transfer of title to secure 

note or obligation; title defeasible when debt is paid). Never 

modified, the mortgage will mature on June 1, 2034. Thus, the 

obsolete mortgage statute and statute of limitations simply have 

"no bearing on Wells Fargo's ability to enforce the mortgage."

LaRace, supra at 329. The second judge neither ignored nor

misunderstand the law when she concluded that "the statements 

set forth in the 5B Affidavit regarding the obsolete mortgage 

statute [and statute of limitations] are incorrect as a matter 

of law, act to cloud title, and are of no force and effect." 

See Bevilacqua v. Rodriguez, 460 Mass. 762, 771 (2011) ("there 

is nothing magical in the act of recording an instrument with 

the registry that invests an otherwise meaningless document with 

legal effect").

3. Standing of Wells Fargo. Wells Fargo had standing to 

file its complaint. Having recorded "a single assignment from 

the recordholder of the mortgage,” U.S. Bank Nat'l Ass'n v. 

Ibanez, 458 Mass. 637, 651 (2011), Wells Fargo held title to the 

property until the mortgage was satisfied or foreclosed, Abate

v. Fremont Inv. & Loan, 470 Mass. 821, 832 (2015), and cases 
7

cited, at which point title would pass either to Ngotho, as 

mortgagor, or to a purchaser following a sale. Wells Fargo had

"a definite interest" in whether it can pass clear title

following a sale. Bonan v. Boston, 398 Mass. 315, 320 (1986). 

The "actual controversy" presented by Ngotho's recording of the 

§ 5B affidavit, therefore, is what gave Wells Fargo standing to 

bring this suit. G. L. c. 231A, § 1. Ngotho's myriad arguments 

to the contrary "obliterate[] the distinction between" the

concept of standing and the merits of her title challenges, 

Abate, supra at 826, and were properly rejected by both judges.

4. Jurisdiction. The first judge aptly discerned that 

questions of predatory lending, violation of G. L. c. 93A, and 

discrimination were outside the "strictly limited jurisdiction" 

of the Land Court on this preforeclosure request for a 

declaration under G. L. c. 231A.5 Riverbank Improvement Co. v. 

Chapman, 224 Mass. 424, 425 (1916). See U.S. Bank Nat'l Ass'n

v. Schumacher, 467 Mass. 421, 429 (2014) (discussing 

preforeclosure action in Superior Court). Even after 

foreclosure, such claims are limited to the Superior, Housing, 

Probate and Family, or Supreme Judicial Courts, see G. L. 

c. 93A, § 9 (1); G. L. c. 151B, § 9; G. L. c. 183C, § 18 (a), 

(b), (d); Bank of Am., N.A. v. Rosa, 466 Mass. 613, 623-624 

5 There was no request for equitable relief, contrary to Ngotho's 

assertion in the brief.
8

(2013), or in the Land Court in an action to try title, Abate, 

470 Mass. at 826, but the Legislature's exclusion of the Land 

Court from the jurisdictional statutes we have just listed, and 

the exclusion of Ngotho's counterclaims from the grant of G. L. 

c. 185, § 1, means that the Land Court had no authority to 

adjudicate the claims before foreclosure. Skawski v. Greenfield 

Investors Prop. Dev. LLC, 473 Mass. 580, 587-588 (2016); Bagley

v. Illyrian Gardens, Inc., 401 Mass. 822, 824-825 (1998). 

Dismissal of the counterclaims pursuant to rule 12 (h) (3) was 

appropriate, see HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 199 

(2013), and the second judge was not "ignoring her obligation as 

a Court of Equity to give complete justice" when she declined to 

consider them.

5. Standing of Ngotho. As the second judge explained, 

Ngotho has no standing to raise claims that the assignment 

violated the PSA or that Wells Fargo violated the PSA and laws 

governing trusts. See LaRace, 99 Mass. App. Ct. at 327 n.13. 

Thus, that judge did not err by "ignoring" those documents. 

To the extent Ngotho seeks to challenge the denial of the 

Registrar's motion to intervene, the argument has not been 

properly briefed and is waived. Mass. R. A. P. 16 (a) (9) (A), 

as appearing in 481 Mass. 1628 (2019). Even if we considered 

the claim, Ngotho has no standing as the Registrar's motion was 
9

not hers and only the party "aggrieved by" an adverse ruling 

"may appeal therefrom." G. L. c. 231, § 113.

At bottom, the question before the Land Court was whether 

the § 5B affidavit was effective to cloud title. Because the 

statements in the affidavit were inconsistent with the 

substantive facts in the original note and mortgage, the second 

judge correctly declared the affidavit null and void. Casey, 

474 Mass. at 565. This determination quieted Wells Fargo's 

title and disposed of Ngotho's second counterclaim. As the 

second judge faced no "serious jurisdictional issue" when Ngotho 

finally asked for a transfer, Konstantopoulos v. Whately, 384 

Mass. 123, 129 (1981), she did not abuse her discretion in her 

denial of Ngotho's belated motion seeking that relief. See 

Joseph's Polish Nat'l Catholic Church v. Lawn Care Assocs., 414 

Mass. 1003, 1004 (1993) ("Such requests should be promptly 

made"). The second judge also did not abuse her discretion in 

denying the motions for reconsideration and to vacate. The

judgment was not void for all the reasons we have explained.
10

To the extent that Ngotho makes additional arguments, "they 

'have not been overlooked. We find nothing in them that 

requires discussion.'" Commonwealth v. Sosa, 493 Mass. 104, 124 

n.12 (2023), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 

(1954).

Judgment affirmed.

Orders denying motions for 

transfer, reconsideration, 

or to vacate the judgment 

affirmed.

By the Court (Desmond, Hand & 

Hodgens, JJ.6),

Assistant Clerk

Entered: March 26, 2024.

6 The panelists are listed in order of seniority.