Cosel v. Wendt

United States Court of Appeals For the First Circuit No. 25-1575 MOLLY COSEL, Plaintiff, Appellee, v. GEOFFREY C. WENDT, as Trustee of the William G. Wendt 2022 Family Trust, Defendant, Appellant, WILLIAM H. WENDT; DALIA K. WENDT, Defendants. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark G. Mastroianni, U.S. District Judge] Before Aframe, Lynch, and Kayatta, Circuit Judges. Christopher M. Hennessey, with whom Cohen Kinne Valicenti & Cook LLP, David H. Rich, and Todd & Weld LLP were on brief, for appellant. Dennis M. LaRochelle, with whom Cain Hibbard & Myers PC was on brief, for appellee. August 11, 2026  AFRAME, Circuit Judge. At its core, this diversity action is a dispute between Molly Cosel ("Molly") and her former in-laws, the Wendts, over real property located in western Massachusetts. But after several state court proceedings, that central dispute has morphed into complicated questions of state procedural and property law. Below, the district court addressed many of these legal issues to grant Molly summary judgment. In so doing, it resolved unsettled questions of Massachusetts law related to property owned by tenants by the entirety and the meaning of "necessaries" under Massachusetts General Laws, chapter 209, § 1 ("Chapter 209"). We view the district court's decision as a mixed bag. Accordingly, we affirm in part, reverse in part, vacate in part, and remand for further proceedings consistent with this opinion.1 I. Background A. Facts The following facts are undisputed except where otherwise noted. In 2014, Molly and William G. Wendt ("Will") married. About two years later, around the birth of Molly and Will's second child, Molly's parents divided their property and then deeded one 1 This opinion addresses several complex areas of law. For a summary, see infra Part III.C. - 2 - of the subdivisions, 40A McCarthy Road, Tyringham, Massachusetts (the "Property"), to Molly and Will as tenants by the entirety. Upon receiving the Property from Molly's parents, Molly and Will planned to develop it substantially (though Molly disputes the extent to which she participated in planning and budgeting for the developments). They sought to renovate a pre-existing structure on the Property and build a second one. Some of these projects were intended to develop a family home; others aimed at building Will a studio so that he could pursue a career in photography. Initially, Molly and Will financed these projects with gifted funds from Will's parents, William H. and Dalia Wendt ("Bill" and "Dalia," respectively; the "Wendt Parents" together). But by November 2017, the couple had depleted those funds. Starting in February 2018, the Wendt Parents provided over $1.5 million in additional funds for the project (the "Disputed Funds"). In 2019, Molly and Will's marriage started to deteriorate. When the Wendt Parents learned about these marital problems, they memorialized the Disputed Funds as a loan in a promissory note. Will signed the note; Molly did not. Until the Disputed Funds were memorialized in the promissory note, there had been no terms attached to them -- for example, the parties had not established an interest rate on the funds or a payment timeline. - 3 - Nevertheless, Bill, Dalia, and the Wendt family accountant each claimed that the Disputed Funds were always intended to be a loan. In February 2020, as marital conditions worsened, Molly temporarily moved from the Property and filed for divorce. Molly returned to the Property following the conclusion of the divorce proceedings, around October 2022. Starting a few weeks before Molly moved from the Property, several lawsuits were filed, culminating in this action. First, on February 6, 2020, Molly filed for divorce from Will in Berkshire Probate and Family Court (the "Family Court"). Then, in November 2020, the Wendt Parents sued Will, but not Molly, in Massachusetts Superior Court to collect on the promissory note (the "Default Suit"). Will did not appear in court, speak with a lawyer, or present any defense for failing to repay the loan. So, in December 2020, the Superior Court entered a default judgment for the Wendt Parents against their son. Several weeks later, the Superior Court issued a writ of execution on the default judgment, purporting to allow the Wendt Parents to sell Will's interest in the Property in satisfaction of the loan. In due course, the Berkshire County Sheriff's Department recorded the execution at the county registry of deeds, establishing a judgment lien. At this point, Will and Molly's divorce proceedings were ongoing. So, in June 2021, to protect their interest in the Property, the Wendt Parents filed another action in Massachusetts - 4 - Superior Court (the "Quiet Title Suit"). This time, they sued several parties, including Will, Molly, and some of Molly's relatives. In relevant part, the Wendt Parents sought to hold Molly jointly and severally liable for the Disputed Funds and to quiet title on the Property. Molly and her family moved to dismiss the Quiet Title Suit. In the alternative, they sought to stay the action until the divorce proceedings concluded. As in the Default Suit, Will did not appear. The court denied the motion to dismiss the suit but stayed the case until the end of the divorce proceedings. Still seeking to protect their interest in the Property, the Wendt Parents moved to intervene in the divorce proceedings. Molly opposed their intervention, and the Family Court denied the Wendt Parents' motion. Bill then asked to testify, though because he was in poor health, he sought to do so remotely. The Family Court denied Bill's request to testify remotely, but it permitted the Wendt Parents' accountant to testify remotely on their behalf. In July 2022, the Family Court entered a judgment of divorce nisi (the "divorce decree"). As is relevant here, the divorce decree stated that Molly "shall retain the [Property] free and clear from any claim by [Will]" and required Will to "transfer to [Molly] a deed conveying all of his right, title and interest in and to [the Property]." The divorce decree also distributed some of the couple's liabilities. This portion of the decree - 5 - addressed the promissory note that had memorialized the alleged loan, ordering that, to the extent the note "constitute[d] a legal obligation," Will was "solely responsible" for satisfying it. Finally, the decree required Molly to pay Will $250,000 to ensure "an equitable distribution of the marital estate." The Massachusetts Appeals Court affirmed the decree in all relevant parts. In so doing, it noted that the Family Court was not "plainly wrong" in finding that the promissory note for the Disputed Funds had created a "sham obligation." After entering the divorce decree, the Family Court clarified it in a separate order. This order explained that the court did not view the Disputed Funds as a "bona fide marital debt" because Molly was uninvolved in procuring the Disputed Funds or spending them. Nevertheless, the Family Court acknowledged that "it lacked any authority to adjudicate" Will and his parents' rights with respect to the promissory note. Based on this recognition, the Family Court explained that the divorce decree did not "vitiate either the [Wendt Parents'] default judgment or the Execution." After the Family Court issued the divorce decree, the Wendt Parents obtained a voluntary dismissal without prejudice of the Quiet Title Suit. A few weeks later, they assigned their interest in the default judgment to the William G. Wendt 2022 Family Trust (the "Trust") and named Molly and Will's children as - 6 - beneficiaries. They also appointed Geoffrey Wendt ("Geoffrey"), another of their sons, as trustee. In August 2022, the Trust's attorney issued a notice of sheriff's sale stating that Will's purported "undivided one-half interest" in the Property would be sold on September 16, 2022. B. Procedural History That brings us to this suit. On August 19, 2022, after learning that the Sheriff intended to sell the Property, Molly, who is domiciled in Massachusetts, filed suit in Massachusetts Superior Court against the Wendt Parents. She sought a declaratory judgment and an injunction preventing the foreclosure and sale of the Property to pay the judgment lien. The Wendt Parents, who are domiciled in Indiana, removed the case to federal court asserting diversity jurisdiction. See 28 U.S.C. § 1332. Molly then amended her complaint to add Geoffrey, an Indiana domiciliary, in his capacity as Trustee of the Trust, and about two weeks later, the parties stipulated to dismiss the Wendt Parents with prejudice. The Trust answered Molly's amended complaint and asserted counterclaims seeking declaratory judgments that (1) Molly is jointly and severally liable for the Disputed Funds and (2) the Berkshire Sheriff could sell the Property at public auction. After discovery, the parties cross-moved for summary judgment. The district court noted that there was a dispute of fact over whether the Disputed Funds arose from a valid loan. - 7 - Cosel v. Wendt, 777 F. Supp. 3d 16, 21 (D. Mass. 2025). So, it continued, should that dispute be material, it "would foreclose summary judgment for either party." Id. But the court held that this dispute was immaterial because even assuming, favorably to the Trust, that the Disputed Funds arose from a valid loan, Molly was entitled to summary judgment on all claims and counterclaims. Id. at 24-26. The court rested its decision on two legal premises. First, the district court interpreted Massachusetts law on tenancies by the entirety to hold that, when the Family Court granted Molly all rights to the Property and required Will to transfer his interest in the Property to Molly in the divorce decree, that distribution of rights and the subsequent divorce extinguished the interests of Will's creditors (i.e., the Trust) in the Property. Cosel, 777 F. Supp. 3d at 24-25. Second, the court concluded that the Disputed Funds were not spent on "necessaries," a term of art under Chapter 209. Id. at 25-26. This conclusion meant that Molly was not jointly and severally liable for the purported loan, even assuming that it was valid. Id.; see Mass. Gen. Laws ch. 209, § 1 ("[B]oth spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse . . . ."). The court then granted summary judgment for Molly. The Trust sought reconsideration and argued that, because the Property had ceased to be Molly's principal residence - 8 - when she moved away during the pendency of the divorce, the Wendt Parents had perfected their judgment lien on the Property under Chapter 209 when they recorded the execution at the registry of deeds. The district court rejected this argument. It reasoned that the execution against Will's interest had not been validly completed before the divorce, and it emphasized that the earlier proceedings occurred without notice to Molly or any determination that the Property had ceased to be her principal residence. On the same day that the district court denied the Trust's motion for reconsideration, it issued a final judgment in Molly's favor declaring that the Trust holds no interest in the Property and that the writ of execution issued in the Default Suit "does not attach any interest in the [P]roperty." The court also dismissed the Trust's counterclaims with prejudice. The Trust timely appealed. We have jurisdiction under 28 U.S.C. § 1291. II. Standard of Review We review a district court's grant of summary judgment de novo.2 Alicea v. Cincinnati Inc., 166 F.4th 245, 253 (1st Cir. 2 Our de novo review extends to the district court's order denying the Trust's motion for reconsideration, which is where the Trust raised its principal residence argument. Though we ordinarily review denials of motions for reconsideration for abuse of discretion, we review de novo whether the principal residence issue precluded summary judgment because the parties' appellate arguments concern "the propriety vel non of summary judgment" rather than "the desirability vel non of reconsideration." Best - 9 - 2026). In conducting this review, we construe all disputes of fact and reasonable inferences in favor of the non-moving party. See id. We will affirm a grant of summary judgment to the moving party only if, under that reading of the record, we conclude that they are "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Where, as here, both parties sought summary judgment, we separately evaluate each motion under this rubric. See Gibson Found., Inc. v. Norris, 88 F.4th 1, 5-6 (1st Cir. 2023). III. Discussion On appeal, the Trust attacks practically every aspect of the district court's orders. Based on these perceived errors, the Trust argues that the court's decision should be reversed and that summary judgment should be granted in its favor. For her part, Molly defends the court's rulings. She further argues that federal courts are barred from hearing the Trust's counterclaims because of the domestic relations exception. We address first the issues as they pertain to Molly's claims. In so doing, we review tenancies by the entirety under Massachusetts law, Chapter 209, the validity of the promissory note with respect to Molly, and Molly's principal residence. We then turn to the Trust's counterclaims, at which point we address Auto Repair Shop, Inc. v. Universal Ins. Grp., 875 F.3d 733, 737 (1st Cir. 2017) (quoting Santiago v. Puerto Rico, 655 F.3d 61, 67-68 (1st Cir. 2011)). - 10 - the domestic relations exception and whether the purported loan was spent on necessaries. Both parties bring their claims under Massachusetts law, so, as a federal court sitting in diversity, we apply the Commonwealth's substantive law. Blakesley v. Marcus, 158 F.4th 90, 95 (1st Cir. 2025). And where Massachusetts law is unclear, we predict how the state's highest court, the Supreme Judicial Court (the "SJC"), would rule. See id.; Abdisalam v. Strategic Delivery Sols., LLC, 171 F.4th 30, 36 (1st Cir. 2026). A. Molly's Claims Molly brought claims for a declaration and an injunction that would prevent the Trust from proceeding with a sheriff's sale of an interest in the Property. Whether she is entitled to this relief requires resolution of multiple issues. The first is whether the loan represented by the promissory note is valid as to Molly. If it is not and instead is the result of a "conspiracy" between Will and his parents "to encumber a marital asset," then it may not be the basis for obtaining a lien on the Property that would dispossess Molly of it. Feldman v. Feldman, 480 N.E.2d 45, 47-48 (Mass. App. Ct. 1985) (citation modified). Below, the district court acknowledged that this was a threshold issue but determined that there was a genuine dispute of material fact that prevented it from being resolved on summary judgment. Cosel, 777 F. Supp. 3d at 21. - 11 -  Nevertheless, the district court granted Molly summary judgment on other grounds. To do so, it held that even if the loan were valid, Molly and Will's divorce and the Family Court's distribution of the Property to Molly extinguished the Trust's interest in the Property. Cosel, 777 F. Supp. 3d at 25. Resolving the case in this manner required the district court to predict Massachusetts law in an area that touches on delicate and complex issues related to divorce and tenancies by the entirety. Below, we explain why the district court should have declined to address this unsettled and difficult issue of Massachusetts law while potentially dispositive factual disputes remained live. Based on this consideration, we vacate the order to the extent it predicted Massachusetts law regarding the effect of a divorce on a creditor's interest in property owned by the entirety. We then turn to two additional concerns raised by the Trust. First, whether Molly is precluded from challenging the validity of the loan as it pertains to her because of the judgment entered in the Default Suit; and second, whether the Wendt Parents effected a valid execution on Will's interest in the Property prior to Molly and Will's divorce. We reject the Trust's arguments. 1. Creditors' Interests, Divorce, and Tenancies by the Entirety The district court's determination that the divorce extinguished the Trust's interest in the Property as Will's - 12 - creditor primarily implicates Massachusetts law on tenancies by the entirety. A tenancy by the entirety is a property estate "of ancient common law origin." Coraccio v. Lowell Five Cents Sav. Bank, 612 N.E.2d 650, 652 (Mass. 1993); see Shaw v. Hearsey, 5 Mass. 521, 522-23 (1809). At common law, the estate applied only to property co-owned by spouses and reflected the unique property interests that flow from marriage; a tenancy by the entirety was "essentially a joint tenancy modified by the common-law theory of the unity of husband and wife." Bernatavicius v. Bernatavicius, 156 N.E. 685, 686 (Mass. 1927). The estate provided spouses with "concurrent ownership" of the property owned by the entirety. Coraccio, 612 N.E.2d at 652-53. This concurrent ownership, however, was gendered -- a husband, but not a wife, could alienate his interest in the property. Licker v. Gluskin, 164 N.E. 613, 614-15 (Mass. 1929), superseded by statute, Mass. Gen. Laws ch. 209, § 1, as recognized in Coraccio, 612 N.E.2d at 653-54. At common law, the tenancy endowed the wife with an "indestructible" right of survivorship. Coraccio, 612 N.E.2d at 653. So, even if a husband conveyed his interest, "such an alienation could not defeat the right of the survivor spouse." Id. Practically, this meant that even though "an individual creditor of the husband could levy and sell on execution his interest in the tenancy, [thereby] dispossess[ing] both the husband and wife, the property always remained subject to the - 13 - wife's survivorship right, and if the husband died before the wife, the creditor lost all of his interest." Id. During a marriage, the estate could only be destroyed by "death, . . . a deed of both parties[,] or a deed of one spouse to the other." Campagna v. Campagna, 150 N.E.2d 699, 703 (Mass. 1958). Upon divorce, a tenancy by the entirety dissolved into a tenancy in common. Bernatavicius, 156 N.E. at 687. In 1979, the Massachusetts legislature modernized the estate by enacting Massachusetts General Laws, chapter 209, § 1. 1979 Mass. Acts 768 [https://perma.cc/KR4Q-83NC]; see Coraccio, 612 N.E.2d at 652-54. As is relevant here, Chapter 209 states: A husband and wife shall be equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety. The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family. Mass. Gen. Laws ch. 209, § 1. Although Chapter 209 equalized the estate with respect to husband and wife, "[t]he statute did not . . . alter the characteristics of the estate itself." Coraccio, 612 N.E.2d at - 14 - 654. The SJC thus has interpreted Chapter 209 to permit each individual spouse to convey and encumber his or her own interest in property owned by the entirety, including by mortgaging it. Id. at 654-55. So long as the property remains held by the spouses as tenants by the entirety and is the nondebtor spouse's principal residence, a creditor may attach the debtor spouse's interest but may not seize or execute on it. See Peebles v. Minnis, 521 N.E.2d 1372, 1373 (Mass. 1988); Coraccio, 612 N.E.2d at 653-55 & n.9. Moreover, the estate is not severable or subject to voluntary partition. Coraccio, 612 N.E.2d at 654. Under Chapter 209, each spouse retains a right of survivorship, which means that if the debtor spouse predeceases the nondebtor spouse, then the nondebtor spouse will obtain full ownership of the property, free and clear of any interests belonging to the deceased spouse's creditors. Bakwin v. Mardirosian, 6 N.E. 3d 1078, 1084 (Mass. 2014). Against this legal backdrop, the district court took on the following question: when a creditor (the Trust, as successor-in-interest to the Wendt Parents) holds a judgment lien on one spouse's (Will's) interest in property held by the entirety (the Property), what happens to the lien when that property is distributed to the nondebtor spouse (Molly) as part of a divorce decree? The court ruled that the creditor's interest is extinguished. Cosel, 777 F. Supp. 3d at 25. Other jurisdictions have decided differently -- one has developed a rule that would - 15 - allow a mortgagee, after divorce dissolved a tenancy by the entirety, to foreclose on the interest mortgaged by one spouse, with the purchaser becoming a tenant in common entitled to seek partition, see V.R.W., Inc. v. Klein, 503 N.E.2d 496, 499-501 (N.Y. 1986); another has adopted a rule that would tie the creditor's interest to whether the nondebtor spouse survives the debtor spouse even after the divorce, see Freda v. Com. Tr. Co., 570 A.2d 409, 414-15 (N.J. 1990). So far as we can tell, no other jurisdiction has adopted the district court's rule.3 That is not to say that the SJC would reject the district court's prediction of Massachusetts law; it does, however, suggest that it is far from certain that the SJC would adopt it. In the past, where resolution of factual disputes could potentially obviate the need to address a sensitive and complex question of state law, we have held that considerations of "comity and federalism" counsel for federal courts addressing the factual disputes first. Ruiz-Sánchez v. Goodyear Tire & Rubber Co., 717 F.3d 249, 251 (1st Cir. 2013). And in the event a district court has skipped ahead to resolve the case based on a prediction of a difficult question of state law, we have vacated the court's 3 A New Jersey intermediate appellate court did adopt the district court's rule. See Daeschler v. Daeschler, 520 A.2d 777, 778 (N.J. Super. Ct. App. Div. 1986). But the New Jersey Supreme Court later rejected it in favor of one that preserved some of the creditor's interests. See Freda, 570 A.2d at 412-15. - 16 - judgment and remanded for resolution of the antecedent factual questions, recommending that the court consider certification if it became necessary to resolve the legal issue. Id. at 255-56. We think that approach fits under the unusual circumstances presented here. If the district court concludes that the loan is a sham, then that loan cannot be enforced against Molly, including through the judgment lien. Similarly, if the Wendt Parents and Will colluded to use the Default Suit to encumber Will's interest in the Property and frustrate its award to Molly, then the resulting lien could be set aside as against Molly. See Feldman, 480 N.E.2d at 47-48. Were either of these situations the case, then Molly would own the Property free and clear of any encumbrance so derived, and the court would not need to decide the difficult legal question about the effect of the divorce under Massachusetts law. Accordingly, we vacate the court's order insofar as it predicted the effect of Molly and Will's divorce on the Trust's interest in the Property and remand for a determination on the threshold question of the validity of the loan as to Molly. 2. The Trust's Responses The Trust believes that, though favorable to it, vacating the district court's decision on this point does not go far enough. First, it argues that the district court must treat the loan as valid with respect to Molly. The Trust primarily believes this is so because the Default Suit judgment is predicated - 17 - on a conclusion that the loan is valid, and it is too late now for Molly to challenge that determination. As a fallback position, the Trust asserts that even if Molly could challenge the validity of the loan in this suit, the record compels a finding that the loan is valid. If the Trust is right on either contention, then remanding for further factual development about the bona fides of the loan would be pointless, and we would have to address the difficult question of Massachusetts law that we just described. Second, the Trust renews the argument from its motion to reconsider that the Wendt Parents perfected a valid judgment lien on Will's interest in the Property before the Family Court distributed the Property to Molly in the divorce. It argues that the lien was valid because, when it was perfected, the Property was not Molly's principal residence. We reject both arguments.4 4 The Trust also argues that Molly should be judicially estopped from making some of her arguments. "[J]udicial estoppel . . . generally prevents a party from assuming inconsistent positions in successive litigation" to obtain an unfair advantage. Keathley v. Buddy Ayers Constr., Inc., 608 U.S.___, 146 S. Ct. 1532, 1536 (2026); see Díaz-Báez v. Alicea-Vasallo, 22 F.4th 11, 21 (1st Cir. 2021). The Trust asserts that Molly obtained a stay in the Quiet Title Suit pending the conclusion of the divorce action and then successfully opposed the Wendt Parents' intervention in the divorce proceedings in part by agreeing that the divorce decree would not have a "conclusive effect" on the Wendt Parents' interests. This, the Trust continues, prevented the Wendt Parents, the Trust's predecessors-in-interest, from presenting evidence regarding the validity of the alleged loan. The Trust contends that these positions judicially estop Molly from arguing in this - 18 -  a. Validity of the Loan The Trust contends that Molly cannot contest the validity of the loan in this action because to do so would effectively challenge the judgment in the Default Suit. To challenge that default judgment, it continues, Molly would have had to try to vacate the judgment either by intervening in the Default Suit and filing a timely motion under Massachusetts Rule of Civil Procedure 60(b), or by initiating an "independent action," a term of art under Rule 60(b). The Trust concludes that because Molly did not timely avail herself of either option, she may not obtain the relief in this action that she could have obtained in state court.5 In response, Molly argues that she suit that the divorce decree settled that Molly owns the Property "free and clear of the alleged debt owed by Will Wendt." We do not believe that judicial estoppel applies to Molly's arguments before us. To the extent the Trust seeks to prevent Molly from arguing that the divorce decree has a preclusive effect on these proceedings, we do not see that Molly has made that argument in this Court. And to the extent the Trust seeks to prevent Molly from arguing about the validity of the loan, we do not believe that the judicial estoppel standard has been met, as Molly has consistently claimed that Will is bound by the judgment in the Default Suit, but that the loan should be understood as invalid as to her. 5 A party has one year to file a motion under Massachusetts Rule of Civil Procedure 60(b) to vacate a judgment for fraud. Mass. R. Civ. P. 60(b). An independent action premised on fraud similarly has a one-year statute of limitations in most cases. See Sahin v. Sahin, 758 N.E.2d 132, 137 (Mass. 2001). Molly filed this suit over a year after the judgment issued in the Default Suit. - 19 - should not be so constrained. She points out that she was not a party to the Default Suit. Relatedly, she contends that she does not want to challenge the default judgment insofar as it assigns legal rights between Will and his parents; rather, she seeks only to limit the judgment so that it cannot be applied to force the sale of the Property. Cf. Feldman, 480 N.E.2d at 47-48 (upholding a decision to prevent a fraudulent mortgage from dispossessing a spouse). We agree with Molly. Though the Trust does not expressly invoke preclusion, it essentially argues that Molly is stuck with the judgment in the Default Suit and that Rule 60(b) was her only way to avoid its binding effect. Because that judgment was rendered in Massachusetts, we look to the Commonwealth's law to determine its preclusive effect with respect to Molly. See In re Sonus Networks, Inc, S'holder Derivative Litig., 499 F.3d 47, 56 (1st Cir. 2007). Massachusetts Rule of Civil Procedure 60(b) provides mechanisms to "relieve a party or his legal representative from a final judgment, order, or proceeding." Under the Rule, a party may seek relief from judgment either directly, i.e., in the same suit in which judgment was rendered, or collaterally, through what is known as an "independent action." See Mass. R. Civ. P. 60(b); Sahin v. Sahin, 758 N.E.2d 132, 137-38 (Mass. 2001); see also Harker v. City of Holyoke, 457 N.E.2d 1115, 1117 n.3 (Mass. 1983) (delineating between direct and collateral attacks). To interpret - 20 - Rule 60(b), courts look to its federal "cognate." Sahin, 758 N.E.2d at 137 n.7.6 In effect, both direct and collateral attacks on a judgment under Rule 60(b) are "escape hatch[es]" from the preclusive effect of a judgment. Lundborg v. Phoenix Leasing, Inc., 91 F.3d 265, 270 (1st Cir. 1996); see id. at 270-72 (discussing independent actions). But a judgment typically carries preclusive effect only with respect to the parties to that judgment and those parties' privies. See DeGiacomo v. City of Quincy, 63 N.E.3d 365, 369-71 & n.5 (Mass. 2016). Consistent with that principle, Rule 60(b) is generally only applicable and available to parties and their privies. See 11 Wright & Miller's Federal Practice & Procedure § 2865 & nn.6-7 (3d Ed. 2012).7 6 In federal court, direct attacks on judgments are addressed in Federal Rule of Civil Procedure 60(b), while independent actions are covered in Rule 60(d)(1). Previously, however, independent actions were also addressed in Rule 60(b). See Fed. R. Civ. P. 60(b) advisory committee's note to 2007 amendment. 7 In rare circumstances, some courts have permitted litigants who were neither parties nor their privies to intervene and file Rule 60(b) motions when their "interests were directly or strongly affected by the judgment." Bridgeport Music, Inc. v. Smith, 714 F.3d 932, 940 (6th Cir. 2013); see, e.g., id. at 940-41 (collecting federal cases); Butts v. Zoning Bd. of Appeals of Falmouth, 464 N.E.2d 108, 110, 112-13 (Mass. App. Ct. 1984). But none of those cases has stated that nonparties to underlying judgments are required to pursue that path, and the Trust cites no case so holding. - 21 -  Here, Molly was not a party to the Default Suit, so the only way she would be bound by the resulting judgment is if she had been in privity with a party who was. The Trust, however, does not argue that Molly was in privity with either Will or the Wendt Parents. Because the Trust bears the burden to establish the default judgment's preclusive effect, we proceed with the understanding that Molly is not in privity with a party to the Default Suit. See Sarvis v. Bos. Safe Deposit & Tr. Co., 711 N.E.2d 911, 922 (Mass. App. Ct. 1999) ("As the defendants are the parties asserting both claim and issue preclusion, they bear the burden of proof on the elements.").8 Because Molly was neither a party to the Default Suit nor in privity with a party who was, she did not need to avail herself of Rule 60(b) and instead was free to pursue alternative avenues for relief. See In re Lovitt, 757 F.2d 1035, 1039-40 (9th Cir. 1985). Historically, Massachusetts recognized such alternatives and permitted a nonparty to challenge a prior, 8 On appeal, the Trust cites only Matter of Childress, 851 F.2d 926 (7th Cir. 1988), to support its argument that Molly must rely on Rule 60(b). There, the court affirmed an order construing a pleading filed by a third party as a Rule 60(b) motion and held that the plaintiff could seek Rule 60(b) relief because she was in privity with a party to the underlying action. Id. at 927-29. This case is distinguishable because, as we explained, the Trust has not demonstrated that Molly was in privity with any party to the Default Suit. Moreover, Childress says nothing about what avenues of relief exist for nonparties who are not in privity with a party to the suit. - 22 - allegedly defective judgment. For example, in Old Colony Trust Co. v. Porter, the SJC permitted a nonparty to argue that a prior judgment could not affect it because that judgment was issued by a court lacking subject matter jurisdiction, even as the parties to that judgment remained bound by it. 88 N.E.2d 135, 139 (Mass. 1949). And in Connor v. Morse, the SJC permitted nonparties to obtain equitable relief from the consequences of a judgment "collusive[ly] or fraudulent[ly]" entered in an action "in which they could not be heard." 20 N.E.2d 424, 426-27 (Mass. 1939). While these cases predate the Massachusetts Rules of Civil Procedure, which became effective in 1974, State Bd. of Ret. v. Woodward, 847 N.E.2d 298, 303 (Mass. 2006), the SJC has since cited Old Colony to illustrate that parties bound by a prior judgment generally may not challenge that prior judgment for lack of subject matter jurisdiction through an independent action even though nonparties may still "collateral[ly] attack" it. Harker, 457 N.E.2d at 1118 (quoting Old Colony, 88 N.E.2d at 139). Today, the principles embodied in Old Colony and Connor, among cases from other jurisdictions, have been crystallized and elaborated on in the Restatement (Second) of Judgments § 76. See Restatement (Second) of Judgments § 76 Reporter's Note cmts. (b)-(c) (citing Old Colony and Connor). Though it does not appear that Massachusetts courts have yet addressed Section 76, they have often relied on the Restatement (Second) of Judgments to - 23 - interpret Massachusetts law.9 Based on this reliance and the Restatement's citation to Commonwealth cases, we believe that the SJC would adopt Section 76 to evaluate whether Molly may sue to prevent the judgment in the Default Suit from serving as the basis for the sheriff's sale of the Property. Section 76 would permit Molly to "obtain a determination that the judgment is ineffective as to [her] through an action to restrain enforcement of the judgment." Restatement (Second) of Judgments § 76. To do so, Molly must show that (1) the prior judgment does not have a preclusive effect on her; (2) "the existence of the judgment jeopardizes a protectible interest of" hers; and (3) the nature of her interest "warrants" imminent, rather than future, relief.10 Id. Molly satisfies the first 9 See, e.g., Laramie v. Philip Morris USA Inc., 173 N.E.3d 731, 745-46 (Mass. 2021) (relying on Restatement (Second) of Judgments § 24); Mullins v. Corcoran, 172 N.E.3d 759, 768-74 (Mass. 2021) (relying on Restatement (Second) of Judgments §§ 27, 28(4)-(5), 53(b), 59); Commonwealth v. Sanchez, 151 N.E.3d 404, 415 (Mass. 2020) (relying on Restatement (Second) of Judgments § 28); DeGiacomo, 63 N.E.3d at 370 (relying on Restatement (Second) of Judgments § 62 cmt. a); Cohen v. Cohen, 25 N.E.3d