Usually not. The Appeals Court held that a former homeowner who had already lost lawsuits against her lender, and another occupant of the home, could not raise the same claims, or claims that could have been raised, as defenses and counterclaims in the post-foreclosure eviction. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The borrower bought a home in Greenfield in 2007 and fell behind on the mortgage within a year. Years of loan modification talks failed. In 2015, she sued to stop a foreclosure auction. The case went to federal court, where her claims against the bank, including federal debt collection and mortgage servicing claims and consumer protection claims under G.L. c. 93A, were dismissed, and the First Circuit affirmed in 2019. In 2021 she sued again to stop a new auction, and the federal court dismissed that case as barred by the earlier one. The bank bought the home at auction, recorded a foreclosure deed and affidavit, served a notice to quit, and filed a summary process case in the Housing Court against the borrower and another adult occupant. The judge dismissed their defenses and counterclaims and granted the bank summary judgment for possession.
What the court decided
In Wells Fargo Bank, N.A. v. Coulsey, No. 24-P-255 (Mass. App. Ct. May 12, 2025) (Rule 23.0 decision), the court affirmed.
Claim preclusion. A valid final judgment bars later litigation of all matters that were or should have been decided in the earlier case. It requires three things: the same parties or their privies, the same cause of action, and a prior final judgment on the merits. TLT Constr. Corp. v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1 (1999).
All three were met. The bank was a party to the earlier cases. It was named in the amended federal complaint and defended every round. The other occupant was not a party before, but he was in privity with the borrower because, as an occupant of the home, he shared her interests in every material way. Privity turns on the relationship between the party and the nonparty and their interests in the case. DeGiacomo v. Quincy, 476 Mass. 38 (2016).
The occupants argued their challenge to the bank’s ownership of the note and mortgage was new. The court found the earlier complaints had raised it, and in any event, the borrower could have raised it in 2015. The same was true of the c. 93A claims. Calling a violation “ongoing” did not get around the rule. The earlier dismissals were final judgments on the merits.
Possession. After a foreclosure sale, the buyer makes its case for possession by showing it got a deed and recorded the deed and an affidavit of sale showing it followed the foreclosure statute. Bank of N.Y. v. Bailey, 460 Mass. 327 (2011); G.L. c. 244, § 15. A deed and statutory affidavit are prima facie evidence of the right to possession. Once that is shown, the occupant must come forward with an affidavit or other evidence creating a genuine factual dispute. Federal Nat’l Mtge. Ass’n v. Hendricks, 463 Mass. 635 (2012). The bank’s affidavit showed it met the notice requirements of G.L. c. 244, § 14. The occupants filed no opposing affidavit, so summary judgment was proper.
The court also rejected an argument that the six-year limitations period in G.L. c. 106, § 3-118 barred the foreclosure. That statute applies to notes, not mortgages. Dorsey v. Rathbun, 102 Mass. App. Ct. 600 (2023). And a separate appeal from the other occupant’s post-judgment motion was not properly before the court because he did not file a new notice of appeal after it was decided.
What this means for you
First, if you sue your lender, you generally have to bring every claim you have in that case. If you lose, you cannot bring those claims back later as defenses in the eviction, even under a new theory. Someone else living in the home who shares your interests may be bound too.
Second, a post-foreclosure eviction often turns on paper. The new owner’s recorded deed and affidavit put the burden on you. If you think the foreclosure was defective, you need evidence, usually an affidavit, not just argument in a brief.
Third, procedure matters. A missing notice of appeal can end an issue before the court looks at it.
What to do now
- Before you file any lawsuit against a lender or servicer, list every possible claim and raise them all together.
- Keep copies of every complaint, order and judgment in any earlier case. They decide what you can still argue.
- If you get a summary process complaint after foreclosure, get the recorded deed and affidavit of sale from the registry and check them line by line.
- If the bank moves for summary judgment, file a sworn affidavit that points to specific facts in dispute.
- After any post-judgment ruling, check whether you need a new notice of appeal and file it on time.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
