Breaking News: Supreme Judicial Court Issues Bank of America v. Rosa Decision; Permits Counterclaims in Post-Foreclosure Summary Process

The Supreme Judicial Court issued its long awaited decision on whether counterclaims can be brought in post-foreclosure summary process cases.  In Bank of America v. Rosa, the Court held that alleged former homeowners may bring these claims in Housing Court.

A little recap on Massachusetts foreclosure law.  Summary process, a fancy legal term for “eviction,” is an action to obtain possession of property.  In the context of foreclosure cases, summary process comes after the foreclosing entity has performed a foreclosure and is seeking to remove the occupants from the property.  The Supreme Judicial Court has held that a defendant in one of these cases may challenge the foreclosure as a defense to this proceeding.  The question for the Court was whether a defendant could bring a counterclaim in one of these cases (an action where a defendant raises a separate cause-of-action against the plaintiff in the same proceeding).

Summary process law seemed to suggest that counterclaims were permitted only for tenants, and not alleged former homeowners. The Court, however, took a broader interpretation of the law and held that “Housing Court has jurisdiction to hear defenses and counterclaims that challenge the title of a postforeclosure summary process plaintiff, which previously only could have been the subject of an independent equity action in the Superior Court.”

Of course, it is important to remember that in summary process, counterclaims are not compulsory (unlike other civil actions).  So, even though counterclaims now can be brought in these cases, they do not need to be (and, in some circumstances, probably should not be). More on this to come . . .

A few questions remain from Rosa.  The Court’s opinion seems limited to Housing Court, and does does not address summary process cases in District or Superior Court.  Is Rosa limited only to Housing Court, or does it include these other courts as well?  I also wonder whether the Court’s holding is limited solely to summary process cases in Housing Court, or would also cover Housing Court’s general jurisdiction for matters related to a foreclosure.  Rosa, to me, suggests that Court may be open to expanding Housing Court’s jurisdiction to all civil actions challenging a foreclosure, and not merely defenses/counterclaims in summary process.