If a bank sues to evict you after a foreclosure, you need to raise your defenses early, and a lawsuit you already lost against the bank can block the same arguments in the eviction. In this case the Appeals Court affirmed a judgment for possession against former owners who waited too long to amend their answer and who had already lost a lawsuit challenging the foreclosure. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
A homeowner in North Attleboro gave a mortgage on his home, and the mortgage was later assigned to the bank that brought this case. After a default, the bank sent notice of a foreclosure sale and bought the property at auction in February 2020. Before the sale, the homeowner had sued the bank in the Superior Court, challenging its right to foreclose, and that court entered judgment for the bank. The bank then filed a summary process case in the Housing Court against the homeowner and, later, his spouse. The Housing Court granted summary judgment for the bank on possession and later awarded it use and occupancy.
What the court decided
The Appeals Court affirmed in Deutsche Bank Nat’l Trust Co. v. Bankert, No. 23-P-1180 (Mass. App. Ct. October 16, 2025) (Rule 23.0 decision).
The late motion to amend. Under Mass. R. Civ. P. 15 (a), leave to amend a pleading should be freely given when justice requires, but a judge may deny it for good reasons such as undue delay or futility. Doull v. Foster, 487 Mass. 1 (2021). An unexcused delay is a valid reason to deny a motion to amend. Mathis v. Massachusetts Elec. Co., 409 Mass. 256 (1991). Here the owners moved to amend five months after the spouse was added to the case and months after the bank’s summary judgment motion was filed and taken under advisement. They had already received a continuance. The reasons they gave for the delay, including one owner’s lack of computer skills, did not excuse it. The court noted that procedural rules bind people who represent themselves. The amendment would also have been futile, because it mainly attacked the mortgage transfer, an issue already decided.
Summary judgment for the bank. In a post-foreclosure eviction, the buyer can make its first showing of a right to possession with an attested copy of the recorded foreclosure deed and the affidavit of sale under G.L. c. 244, § 15. The occupant must then answer with an affidavit or other evidence showing a real factual dispute. Federal Nat’l Mtge. Ass’n v. Hendricks, 463 Mass. 635 (2012). The bank produced both documents. The owners’ main answer was that the assignment of the mortgage and its chain of title were flawed.
The earlier lawsuit barred that defense. Claim preclusion stops a party from bringing the same claim again when the parties are the same or closely connected, the claim is the same, and there was a final judgment on the merits. Issue preclusion stops relitigation of an issue that was actually decided and essential to an earlier final judgment. Kobrin v. Board of Registration in Med., 444 Mass. 837 (2005). The homeowner had already sued the bank over its right to foreclose and lost. His spouse was treated as closely connected to that case. So the owners could not relitigate the bank’s authority in the eviction.
New arguments on appeal. The owners argued for the first time on appeal that the sale notices named the wrong mortgage holder and that they never received proper notice before the eviction. Issues not raised in the trial court are generally waived on appeal. Palmer v. Murphy, 42 Mass. App. Ct. 334 (1997). The court did not reach them.
What this means for you
This decision shows two traps for homeowners facing foreclosure. First, a lawsuit against the bank is not a free practice round. If you sue to stop a foreclosure and lose, that judgment can block the same arguments when the bank later tries to evict you. Your first case needs to be your best case.
Second, timing matters in Housing Court. If you want to add defenses or counterclaims, file the motion to amend promptly, and explain any delay with specific reasons. Waiting until after a summary judgment motion is pending gives the judge a strong reason to say no. Arguments you never raised before the trial judge are usually lost on appeal.
What to do now
- Gather every court paper from any earlier case about your mortgage or foreclosure. A lawyer needs them to see what was decided.
- Read the bank’s summary judgment motion as soon as it arrives. Answer it with an affidavit and documents, not just denials.
- If you need to add defenses or counterclaims, move to amend quickly and state why you could not do it sooner.
- Raise every defense, including notice problems, in the trial court. Do not save arguments for an appeal.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
