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, theref ore, 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
A n 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 ho me in Beverly
. The note had a maturity date of June 1, 2034
.

1 For ABFC 2004

- OPT5 T rust, 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

T he mortgage did not state a maturity date but refer red on its face to th at of the note
. Ngotho soon defaulted on payment s 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 n ext month , Option One
sent a letter notifying Ngotho of the following: "[T]he note is hereby accelerated and the e ntire 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 m ay 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 a nd servicing agreement (PSA), took possession of the note and recorded an assign ment of t he mortgage by Option One ( which by then had changed names )
. Wells Fargo published a notice of foreclosure sale , s ee G. L. c. 244, § 14 , but four days before the sale , Ngotho recorded an affidavit purportedly "clar if y ing the chain of title
. " G. L. c. 183, § 5B (§ 5B) . The § 5B3

affidavit assert ed 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 n ot a cloud on title
. Ngotho answered and asserted five counterclaims , t hree 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 d eclaration s (1) that Wells Fargo lacked st anding to foreclose , a nd (2) quiet ing 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 t he 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 unsuccessful4

mo tions 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 t he rulings on the motions for summary judgment , HSBC Bank USA, N.A . v. Morris , 490 Mass. 322, 326 (20 22 ) , and to
vacate . Dumas v. Tenacity Constr. Inc ., 95 Mass. App. Ct. 111, 114 (2019 )
. T he denial of the motion s for reconsideration and transfer are review ed 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 f alls outside the range of reasonable alternatives. L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014). 2. § 5B Affidavit and Limitation of A ction
. 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 ) . T he "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.
T he 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 s how that Ngotho signed a thirty

- year loan in 2004 , secured by a mortgage that she used to buy a home
. 4 In 2006 , t he n ote was accelerated . A s a matter of law t hat acceleration d id not affect the maturity date of the mortgage , however, because t he 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, 3 2 9 (2021)
. We need not decide whether the note became unenforc eable when discharged in bankruptcy , Nims ,

4 The second judge correctly "assume d a legal debt existed" w here 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. T h ough the second judge did use the words "find" and "findings , " we are not persuaded that she misapplied the summary judgment standard as Ngotho alleges
. L ater, in her decision to deny reconsideration o r relief under rule 60 (b) (4) , the judge clarified that t he 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 e n forceability 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, 5 75

- 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, t he obsolete mortgage stat ute and statute of limitations simply have "no bearing on Wells Fargo's ability to enforce the mortgage
. "
LaRace , supra at 329 . T he second judge neither ignore d nor misunderst and the law when she concluded that "the statements set forth in the 5B Affidav it 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. H aving 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 h e ld title to the property until the mortgage wa s satisfied or foreclosed , Abate

v. Fremont Inv. & Loan , 470 Mass. 821, 832 (2015) , and cases7

cited , at w hich point title w ould pass either to Ngotho , as mortgagor, or to a purchaser following a sale
. Wells Fargo ha d

" 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 § 5 B affidavit , therefore, is w h a t g a ve Wells Fargo standing to bring this suit
. G. L. c. 231A, § 1
. Ngotho's myriad arguments to the contrary "obliter ate [] the distinction between " th e concept of standing and the merits of her title challenges , Abate , supra a t 826, and w ere properly rejected by both judges
. 4. Jurisdiction
. The first judge aptly discerned that
q uestions of predatory lending, violation of G. L. c. 93A, and discrimination we re 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 , 2 24 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 Ju dicial 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, c ontrary to N gotho's assertion in the brief
.8

(2013), or in the Land Court in an action to try title, Abate , 470 Mass. at 826, but t he Legislature's exclus ion 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).
D ismiss al of the counterclaims pursuant to rule 12 (h) (3) was appropriate , s ee 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 the m . 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 den ial 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 ha s no standing as the Registrar's motion was9

not hers and o nly 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 dispo sed of Ngotho's second counterclaim
. As t he 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 be lated 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
. T he 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 fi nd 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 judgme nt affirmed
. By the Court (Desmond, Hand & Hodgens, JJ. 6 ),

Assistant Clerk

Entered: March 26, 2024.

6 The panelists are listed in order of seniority.