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18-P-433 Appeals Court

ITHACA FINANCE, LLC vs. WANDA E. LOPEZ & another.1

No. 18-P-433.

Suffolk. January 7, 2019. - May 6, 2019.

Present: Hanlon, Lemire, & Wendlandt, JJ.

Taxation, Real estate tax: foreclosure of right of redemption.

Land Court, Vacation of judgment. Due Process of Law, 

Notice. Practice, Civil, Vacation of judgment. Notice, 

Tax taking.

Petition filed in the Land Court Department on May 9, 2014.

A motion for relief from judgment was heard by the 

recorder.

Carl E. Fumarola for the defendant.

John Connolly, Jr., for the plaintiff.

WENDLANDT, J. This case requires us to construe G. L. 

c. 60, §§ 62 and 63, which set forth procedures by which a 

person may redeem property that has been taken for nonpayment of 

 

1 Wells Fargo Financial Massachusetts, Inc. (Wells Fargo),

interested party. Only Wells Fargo has appealed.
2

taxes and extinguish a tax taking of the property. More 

specifically, we are called on to determine whether one of these 

procedures -- namely, recording an instrument of redemption --

is available after the assignee of the tax taking on the 

property has filed a petition to foreclose the right of 

redemption in the Land Court. Because the commencement of the 

foreclosure action vests exclusive jurisdiction in the Land 

Court with regard to the right of redemption, we hold that once 

a foreclosure action is commenced in the Land Court, a property 

may not be redeemed by paying the outstanding tax liability 

directly to the municipality in which the property is located; 

instead, a party seeking to redeem must follow the procedure 

specified by the Land Court.

Background. In 2005, the defendant, Wanda Lopez, granted 

Wells Fargo Financial Massachusetts, Inc. (Wells Fargo), a 

mortgage on her property (property) in the city of Lawrence

(city). Lopez failed to pay real estate taxes for fiscal years 

2008 and 2009 to the city. In 2009, the city assigned the 

municipal tax receivables on Lopez's property to Plymouth Park 

Tax Services LLC (Plymouth Park) as part of a bulk sale pursuant 

to G. L. c. 60, § 2C.2 The assignment was duly recorded. In 

 

2 General Laws c. 60, § 2C, provides, in relevant part:

"(b) The appropriate financial official of a municipality 

may arrange for and assign or transfer to a purchaser the 
3

2010, because the taxes remained unpaid, Plymouth Park effected 

a tax taking of the property and recorded an instrument of 

taking on Lopez's property.3 In 2014, Plymouth Park assigned the

instrument of taking to the plaintiff, Ithaca Finance, LLC 

(Ithaca), and (like the assignment from the city to Plymouth 

Park) this assignment was duly recorded. 

In May 2014, Ithaca filed the present action in Land Court 

to foreclose the right of redemption on the property. Lopez and 

Wells Fargo were served with notice of the pending action. The 

notice informed them that the action was to foreclose all rights 

of redemption and that failure to appear by no later than March 

7, 2016, would result in a default, "forever barr[ing Lopez and 

 

municipality's right to receive payments owed by a taxpayer 

on tax receivables . . . ."

Plymouth Park is a "purchaser" under this statute.

3 Pursuant to G. L. c. 60, § 2C, as the purchaser of the tax 

receivable on the property, Plymouth Park was subrogated to the 

rights of the city to take tax title. The relevant provision of 

§ 2C provides:

"(e) . . . The rights and remedies of the purchaser of the 

right to receive payment of any individual taxpayer 

receivable shall be subrogated to all the rights and 

remedies of the municipality to receive and enforce payment 

of such individual taxpayer receivable and any related tax 

and interest accrued and to accrue thereon, including, 

without limitation, the right to take tax title in its own 

name in the same manner that the municipality is authorized 

to take tax titles."
4

Wells Fargo] from contesting said complaint or any judgment 

entered thereon." 

Neither Lopez nor Wells Fargo entered an appearance. 

Instead, in February 2016, Wells Fargo contacted Plymouth Park, 

which referred Wells Fargo to its lien servicer, Propel 

Financial Services LLC (Propel). Propel, in turn, informed 

Wells Fargo that the instrument of taking had been redeemed. 

The record does not reflect the basis for Propel's statement, 

and Wells Fargo does not suggest that it made any payment to 

satisfy the taxes owed. Nonetheless, Wells Fargo received a

certificate of redemption4 in March 2016, which it recorded in 

May 2016 while the Land Court action was pending. There is no 

indication in the record that either Lopez or Wells Fargo

informed Ithaca or the Land Court judge of this recording.

Meanwhile, having received no response from any interested 

person, Ithaca moved for a general default. The motion was 

allowed, and final judgment entered in June 2016. Over one year 

later, Wells Fargo filed a motion to vacate the judgment. The 

judge denied the motion, and this appeal followed.

 

4 The certificate of redemption provided that Plymouth 

released the property for consideration of $11,215.16, which was 

the amount Ithaca had paid to Plymouth in consideration for the

assignment of the tax taking.
5

Discussion. 1. Standard of review. A petition to vacate 

a judgment of foreclosure of the right of redemption is governed 

by G. L. c. 60, § 69A, which provides, in relevant part:

"No petition to vacate a decree of foreclosure . . . shall 

be commenced by any person . . . except within one year 

after the final entry of the decree."

A petition to vacate a final judgment of foreclosure is 

"extraordinary in nature and ought to be granted only after 

careful consideration and in instances where [it is] required to 

accomplish justice" (citation omitted). Lynch v. Boston, 313 

Mass. 478, 480 (1943). Absent a showing of a due process 

violation, strict adherence to this one-year period is 

mandatory. See Brewster v. Sherwood Forest Realty, Inc., 56 

Mass. App. Ct. 905, 905-906 (2002). We review the denial of a 

motion to vacate for abuse of discretion and error of law. See

Worcester v. AME Realty Corp., 77 Mass. App. Ct. 64, 67 (2010)

(AME Realty).

2. Judgment void ab initio. Wells Fargo contends that the 

judge abused her discretion in denying its motion to vacate

because, according to Wells Fargo, its motion was timely. In 

particular, Wells Fargo claims that the one-year period does not 

apply to its motion because the Land Court judgment (which 

otherwise started the clock running under § 69A) was void ab 

initio. This position rests on a novel reading of G. L. c. 60, 

§§ 62 and 63.
6

Section 62 provides two procedures by which a person who 

has an interest in land that has been taken due to unpaid taxes

may redeem the property in the case where the tax taking has 

been assigned. It states, in relevant part:

"Any . . . person [having an interest in land taken or sold 

for nonpayment of taxes] may . . . redeem [the same] by 

paying or tendering to a purchaser . . . or [its] assigns, 

. . . at any time prior to the filing of such petition for 

foreclosure, in the case of a purchaser the original sum 

and intervening taxes and costs paid by him and interest on 

the whole at said rate . . . . He may also redeem the land 

by paying or tendering to the treasurer the sum which he 

would be required to pay to the purchaser . . . ."

G. L. c. 60, § 62, second par. Pursuant to the first procedure

(payment directly to the assignee), the statute expressly states 

that the payment to the assignee redeems the property only if it 

occurs "prior to the filing of such petition for foreclosure." 

G. L. c. 60, § 62, second par. Wells Fargo contends that 

because the statute does not expressly set forth that the second 

procedure must be effected prior to the filing of the petition 

for foreclosure, it can be done even after a petition to 

foreclose has been filed. Based on this premise, Wells Fargo 

maintains further that the treasurer and Plymouth Park, as the 

purchaser of the tax receivables on Lopez's property,5 were

 

5 Wells Fargo contends that Plymouth Park, as subrogee to

the city pursuant to G. L. c. 60, § 2C, is authorized to issue 

the certificate of redemption under G. L. c. 60, § 63. See note 

3 supra. We need not reach this issue, but note that § 2C 

provides that a purchaser (like Plymouth Park) is subrogated to 
7

authorized to receive payments of the amounts owed and issue a 

certificate of redemption, which, if recorded pursuant to G. L. 

c. 60, § 63,6 extinguished Ithaca's tax taking.

Notably, there is no evidence that any payments for the 

fiscal year 2008-2009 taxes were received by Ithaca, the city 

treasurer, or Plymouth Park to redeem the property either before 

the commencement of the Land Court action or afterward. Indeed, 

Wells Fargo does not contend that any payments have ever been 

made to satisfy the outstanding taxes at issue in this case. 

Moreover, once a petition to foreclose the right of 

redemption has been filed, the Land Court has exclusive 

jurisdiction over the foreclosure of rights of redemption. See 

G. L. c. 60, § 64, which provides in pertinent part:

"The title conveyed . . . by a taking of land for taxes 

shall be absolute after foreclosure of the right of 

redemption by decree of the land court as provided in this 

chapter. The land court shall have exclusive jurisdiction 

 

only some rights of the city -- specifically, "to receive and 

enforce payment" of the tax receivable. G. L. c. 60, § 2C (e).

6 Section 63 provides, in relevant part:

"The treasurer shall receive money paid to him instead of 

the purchaser or assignee of a tax title . . . and give to 

the person paying it a certificate . . . and the recording 

of the certificate in said registry shall extinguish all 

right and title acquired under the collector's deed or 

evidence of taking. The treasurer shall forthwith pay over 

all money so paid, to the person entitled thereto as 

determined by him . . . ."

G. L. c. 60, § 63.
8

of the foreclosure of all rights of redemption from titles

conveyed by . . . a taking of land for taxes, in a 

proceeding provided for in sections sixty-five to seventyfive, inclusive" (emphasis added).

See also G. L. c. 185, § 1, first par., which provides in 

pertinent part:

"The land court department shall have exclusive original 

jurisdiction of the following matters: . . . (b) 

Proceedings for foreclosure of and for redemption from tax 

titles under chapter sixty." 

Once a petition to foreclose the right of redemption is filed in 

the Land Court, "[a]ny person claiming an interest . . . shall, 

if he desires to redeem, file an answer [in the foreclosure 

action] setting forth his right in the land, and an offer to 

redeem upon such terms as may be fixed by the court." G. L. 

c. 60, § 68. To permit a person to redeem the tax taking by 

recording an instrument of redemption (as Wells Fargo did here) 

runs contrary to this statutory scheme. Accordingly, we decline 

Wells Fargo's invitation to construe the statute to allow for 

this result. See Baker Transport, Inc. v. State Tax Comm'n, 371 

Mass. 872, 876 (1977) (court determines legislative intent by 

"an examination of the entire statutory scheme"). Instead, 

consistent with the statutory scheme, we construe the second 

procedure for redemption under G. L. c. 60, § 62, as simply 

permitting a change in the payee (the city treasurer instead of 

the purchaser or assignee); it does not alter the additional 
9

limitation of § 62, that any payments to redeem must be made 

before a petition to foreclose the right of redemption is filed.7

Because, inter alia, Wells Fargo's recording did not 

extinguish the tax taking, Wells Fargo's contention that the 

Land Court judgment was void ab initio fails. Accordingly, the 

clock started running under § 69A on the date the final judgment 

entered, and Wells Fargo's motion to vacate, having been filed 

after the one-year statutory period, was untimely. Absent a 

showing of a due process violation, the motion was properly 

denied.

3. Due process. We turn next to Wells Fargo's contention 

that its due process rights were violated because it was led to 

 

7 Notably, in addition to setting forth the aforementioned 

procedures for redemption in the case where there has been an 

assignment of the tax taking, § 62 also sets forth a procedure 

for redeeming property in the case where the city effects the 

tax taking and has not assigned it. In such a case, a person 

may redeem the property by paying or tendering to the city 

treasurer the amount owed, but only "prior to the filing of a 

petition for foreclosure" under G. L. c. 60, § 65. See G. L. 

c. 60, § 62, first par. Thus, our construction limiting § 62 to 

preforeclosure action redemptions is consistent with the 

apparent scope of § 62. Wells Fargo points to nothing that 

would support the anomalous result it advocates –- namely, that 

in situations where there has been no assignment, or where 

payment is made directly to the assignee, the payments must be

made prior to institution of a foreclosure action, but when the 

tax taking has been assigned and payment is made directly to the 

treasurer, the payment may be made after institution of a 

foreclosure action. We decline to adopt this anomalous 

construction in the absence of a clear indication that that was 

the Legislature's intent.
10

believe (by either Plymouth Park or Propel) that the outstanding 

taxes had been paid and therefore Wells Fargo believed that the 

recording of the certificate of redemption was effective to 

purge the tax taking under G. L. c. 60, § 63. "An elementary 

and fundamental requirement of due process in any proceeding 

which is to be accorded finality is notice reasonably 

calculated, under all of the circumstances, to apprise 

interested parties of the pendency of the action and afford them 

an opportunity to present their objections" (citation omitted). 

Andover v. State Fin. Servs., Inc., 432 Mass. 571, 574 (2000). 

Here, there can be no doubt that Wells Fargo received due 

process.

First, Wells Fargo had, at the least, constructive notice 

of the assignment from Plymouth Park to Ithaca at the time Wells 

Fargo alleges it received the misleading notice from Propel, the 

lien servicer for Plymouth Park. See Bank of Am., N.A. v. 

Casey, 474 Mass. 556, 560-561 (2016) (recorded mortgage provides 

constructive notice). Both the assignment from the city to 

Plymouth Park and the assignment from Plymouth Park to Ithaca

were recorded.

Second, Wells Fargo received actual notice of Ithaca's 

petition to foreclose the right of redemption. The notice 

warned that failure to appear could result in a default judgment 

against it. Rather than appear in the Land Court action, Wells 
11

Fargo determined to record a certificate of redemption it had 

received knowing that (i) it had not paid anything to anyone in 

relation to the tax debt, (ii) Ithaca was the owner of the tax 

taking, (iii) Ithaca had commenced an action in the Land Court 

to foreclose any right of redemption, and (iv) Wells Fargo's 

failure to appear in the Land Court action would result in a 

default judgment against it. On this record, Wells Fargo has 

not shown a due process violation. See AME Realty, 77 Mass. 

App. Ct. at 67.8

Order denying motion to

 vacate judgment affirmed.

 

8 To the extent that we have not specifically addressed any

argument raised by Wells Fargo on appeal, these arguments "have 

not been overlooked. We find nothing in them that requires 

discussion." Commonwealth v. Brown, 479 Mass. 163, 168 n.3 

(2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 

(1954).