U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE OF THE CABANA SERIES III TRUST v. MARSHALL LOPES-POGUE and BENJAMIN LOPES-POGUE

This matter was before the court on January 22, 2020 with respect to a Motion for Summary Judgment (the "SJ Motion") filed by the plaintiff, U.S. Bank Trust National Association, as Trustee of the Cabana Series III Trust (the "Plaintiff"). In support of its SJ Motion, Plaintiff filed a Memorandum of Law incorporating certified copies of certain foreclosure documents recorded with the Barnstable County Registry of Deeds. Defendants Marshall Lopes-Pogue and Benjamin Lopes-Pogue (the "Defendants") filed a written opposition to Plaintiff's SJ Motion for Summary Judgment (the "Opposition"). The parties appeared at the hearing and argued the foregoing SJ Motion and Opposition. Plaintiff was represented by counsel and Defendants appeared self-represented. [Note 1]

As grounds for its SJ Motion, Plaintiff contends that there are no genuine issues of material fact in dispute and that it is entitled to summary judgment in its favor as a matter of law on its claim for possession. Defendants oppose the entry of summary judgment in Plaintiff's favor, but did not file any countervailing evidence or competing affidavit with their Opposition.

This is a post-foreclosure summary process (eviction) action in which the Plaintiff is seeking possession of the property located at 99 Pine View Drive, Cotuit (Barnstable), Massachusetts (the "Property"), together with the fair rental value of the Property since the date of the foreclosure. Defendants are the adult children of the former owners of the Property, both of whom are now deceased. Defendants continue to reside in the Property after their receipt of a 72-hour notice to vacate. Defendants requested transfer of this case from the Barnstable District Court. Prior to such transfer, Defendants timely filed an answer, counterclaims and demand for jury trial.

STANDARD FOR SUMMARY JUDGMENT

The standard of review on summary judgment "is whether, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). See Mass.R.Civ.P. 56(c). The moving party must demonstrate with admissible documents, based upon the pleadings, depositions, answers to interrogatories, admissions, documents, and affidavits, that there are no genuine issues as to any material facts, and that the moving party is entitled to a judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553-56 (1976).

In weighing the merits of a motion for summary judgment, the court must determine whether the factual disputes are genuine, and whether a fact genuinely in dispute is material. Town of Norwood v Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) citing Anderson v Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). The substantive law will identify which facts are material and only disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Carey v New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Comm'r of the Dep't of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether "the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving party." Anderson v Liberty Lobby, Inc., 477 U.S. at 248.

The party opposing summary judgment "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). To defeat summary judgment the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Korouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Madsen v. Erwin, 395 Mass. 715 , 721 (1985), quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney General v. Bailey, 386 Mass. 367 , 371 (1982); see Simplex Techs, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196 , 197 (1999). The court does not "pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts." Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from "pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with . . . affidavits, if any." Mass.R.Civ.P. 56(c). Affidavits "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Mass.R.Civ.P. 56(e). "The requirements of rule 56(e) are mandatory." Madsen v. Erwin, 395 Mass. 715 , 719 (1985).

LEGAL STANDARD APPLICABLE TO POST-FORECLOSURE SUMMARY PROCESS ACTION FOR POSSESSION

"Legal title is established in summary process by proof that the title was acquired strictly according to the power of sale provided in the mortgage; and that alone is subject to challenge." Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct. 374 , 379 (2016), quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775 , 775 (1966). See Reem Property, LLC v. Bigelow, No. 18-P-389, 2019 WL 692713, 94 Mass. App. Ct. 1122 (Rule 1:28 unpublished decision February 20, 2019). To prevail in a summary process action involving foreclosed property where the validity of the foreclosure is challenged, "the plaintiff is required to make a prima facie showing that it obtained a deed to the property at issue and that the deed and affidavit of sale, showing compliance with statutory foreclosure requirements, were recorded." Bank of New York v. Bailey, 460 Mass. 327 , 334 (2011). A foreclosure deed and affidavit that meets the requirements of G.L. c. 244, §15 is evidence that the power of sale was duly executed and constitutes prima facie evidence of the plaintiff's case in chief. Federal Nat'l Mortgage Ass'n v. Hendricks, 463 Mass. 635 , 641-642 (2012).

Where these documents meet the requirements of G.L. c. 244, §15, it is "incumbent on a defendant to counter with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact." Id. at 642. Once a plaintiff makes a prima facie case, the burden shifts to the opposing party to demonstrate, through the use of evidence that would be admissible at trial, specific facts showing that there exists a genuine issue for trial with regard to plaintiff's compliance with G.L. c. 244, §14. "If a defendant fails to show the existence of a genuine issue of material fact in response to a motion for summary judgment by contesting factually a prima facie case of compliance with G.L. c. 244, §14, such failure generally should result in judgment for the plaintiff." Id.

UNDISPUTED MATERIAL FACTS

The following facts necessary to resolve the legal issues raised in the Plaintiff's SJ Motion and Defendants' Opposition are based on facts set forth in the record that the Court concludes are not in dispute.

1. On December 26, 2007, Pearl W. Lopes and Michele P. Lopes (the "Mortgagors" or "Borrowers"), obtained a mortgage loan from GN Mortgage, LLC ("GNM") in the principal amount of $267,400.00, the repayment of which was secured by a mortgage on the Property in favor of GNM (the "Loan").

2. Pursuant to the Loan transaction, the Borrowers executed a promissory note dated December 26, 2007 in favor of GNM in the amount of $267,400.00 (the "Note").

3. As security for their obligations under the Note, the Mortgagors granted a mortgage on the Property in favor of Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for GNM. The mortgage is dated December 26, 2007 and was recorded with the Barnstable County Registry of Deeds (the "Registry") on December 31, 2007 in Book 22578, Page 136 (the "Mortgage"). (Certified copy of Mortgage, Exhibit A to Plaintiff's SJ Motion).

4. By assignment dated June 8, 2011 and recorded with the Registry on June 14, 2011 in Book 25506, Page 285, MERS, as nominee for GNM, assigned the Mortgage to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing LP ("BAC") (the "1st Assignment"). (Certified copy of 1st Assignment, Exhibit B to Plaintiff's SJ Motion).

5. On October 15, 2011, Michele P. Lopes passed away. (Opposition, Defendants' Statement of Material Facts ¶4).

6. By assignment dated July 12, 2013 and recorded with the Registry on July 30, 2013 in Book 27580, Page 88, Bank of America, N.A. assigned the Mortgage to Nationstar Mortgage, LLC ("Nationstar") (the "2nd Assignment").

7. On July 9, 2014, Pearl W. Lopes passed away. (Opposition, Defendants' Statement of Material Facts ¶6).

8. By corrective assignment dated January 31, 2017 and recorded with the Registry on the same date in Book 30270, Page 129, Nationstar took assignment of the Mortgage from Bank of America, N.A., successor-by-merger to BAC (the "Corrective Assignment"). (Certified copy of Corrective Assignment, Exhibit C to Plaintiff's SJ Motion).

9. By assignment dated May 17, 2018 and recorded with the Registry on the same date in Book 31272, Page 142, US Bank Trust N.A., as Trustee of the Bungalow Series III Trust ("US Bank - Bungalow") took assignment of the Mortgage from Nationstar (the 3rd Assignment"). (Certified copy of 3rd Assignment, Exhibit D to Plaintiff's SJ Motion).

10. By assignment dated February 15, 2019 and recorded with the Registry on March 6, 2019 in Book 31872, Page 128, US Bank – Bungalow assigned the Mortgage to Plaintiff, U.S. Bank Trust National Association, as Trustee of the Cabana Series III Trust (the "Final Assignment"). (Certified copy of Final Assignment, Exhibit E to Plaintiff's SJ Motion).

11. On or about April 26, 2019, O'Connell, Attmore & Morris, LLC, on behalf of Plaintiff, sent notices of default to Defendants. (Exhibit F to Plaintiff's SJ Motion).

12. On July 17, 2019, Plaintiff held a foreclosure auction pursuant to the power of sale in the Mortgage granted by Mortgagors. Plaintiff was the highest bidder at the foreclosure sale.

13. A foreclosure deed (the "Foreclosure Deed") dated October 4, 2019, was recorded in the Registry on October 22, 2019 in Book 32398, Page 236. (Certified copy of Foreclosure Deed, Exhibit G to Plaintiff's SJ Motion).

14. On October 4, 2019, Cheryl Mallory, AVP of Servis One, Inc. d/b/a BSI Financial Services, as attorney-in-fact for Plaintiff, executed an affidavit of sale (the "Affidavit of Sale") which attests to Plaintiff's compliance with all statutory foreclosure requirements pursuant to G.L. c. 244, §14. The Affidavit of Sale was subsequently recorded with the Foreclosure Deed in the Registry on October 22, 2019 in Book 32398, Page 238. (Certified copy of Affidavit of Sale, Exhibit H to Plaintiff's SJ Motion).

15. On October 4, 2019, Cheryl Mallory, AVP of Servis One, Inc. d/b/a BSI Financial Services, as attorney-in-fact for Plaintiff, executed an Affidavit of Compliance with Terms of Mortgage (the "Affidavit of Compliance") which attests that all notices, requirements and conditions precedent were made or satisfied in strict compliance with the terms of the Mortgage. The Affidavit of Compliance was subsequently recorded on October 22, 2019 in Book 32398, Page 224. (Certified copy of Affidavit of Compliance, Exhibit I to Plaintiff's SJ Motion).

16. On October 4, 2019, Cheryl Mallory, AVP of Servis One, Inc. d/b/a BSI Financial Services, as attorney-in-fact for Plaintiff, executed an Affidavit of Continuing Noteholder Status (the "Affidavit re Note") which attests that Plaintiff was the holder of the Note at from April 22, 2019 up to and including the date of the foreclosure sale. The Affidavit re Note was subsequently recorded on October 22, 2019 in Book 32398, Page 227. (Certified copy of Affidavit of Compliance, Exhibit J to Plaintiff's SJ Motion).

17. Plaintiff served a 72-hour notice to quit (the "NTQ") on each of the Defendants by deputy sheriff on October 30, 2019, which NTQs were filed with the Barnstable District Court (the "District Court"). (NTQs, Docket Entry No. 3 dated November 12, 2019).

18. After service of the summary process summons and complaint on Defendants by deputy sheriff on November 4, 2019, the summons and complaint was filed with the District Court on November 12, 2019 pursuant to G.L. c. 239, §1. (See Docket entry No. 2 dated November 12, 2019).

19. On November 13, 2019, Defendants filed their answer and counterclaim, demand for jury trial and requests for discovery. (See Docket entry No. 4-6 dated November 13, 2019). At the same time, Defendants filed their request to transfer the case to the Housing Court.

20. Defendants' answer, affirmative defenses and counterclaim generally challenge the foreclosure. Using a "check-the-box" answer and counterclaim form, Defendants checked boxes alleging unfair and deceptive acts by Plaintiff, that Defendants were required to pay for water in violation of G.L. c. 186, §22, that the foreclosure is void, that they were treated unfairly with respect to the loan modification/preforeclosure/alternative to foreclosure processes and that "Plaintiff/its agent treated me unfairly in the loan modification process."

21. Defendants continue to occupy the Property.

DISCUSSION, FINDINGS AND RULING

Although Defendants filed what they styled as "Defendants' Motion in Opposition to Plaintiff's Motion for Summary Judgment" (the "Opposition"), Defendants' Opposition has several components: 1) it was in the nature of a motion to compel or enforce discovery; and 2) it included an attached "Defendants' Statement of Material Facts" which statement acknowledges as true all but one of Plaintiff's statement of material facts as set forth in its SJ Motion. While Defendants' Opposition is not a sworn affidavit, the Court takes Defendants' assertions therein as true for purposes of discussion of the SJ Motion.

As a threshold matter, the Court notes that the Defendants are not the Borrowers or the Mortgagors; but rather the adult children of same. To the extent Defendants have standing to challenge the foreclosure [Note 2], Defendants' Opposition disputes only the Corrective Assignment in Plaintiff's chain of title, stating "[i]t is the Defendants' position that the Corrective Assignment raises suspicions." The argument section of Defendants' Opposition then goes on to question the authority of certain persons to discuss a loan modification with Defendants. The Defendants' conclude that they need further discovery to properly defend against Plaintiff's action. [Note 3] Defendants' bare assertions are not enough to avoid summary judgment, as a matter of law.

I. Challenge of the Corrective Assignment

The Defendants failed to provide any admissible evidence to support their challenge as to the validity of the Corrective Assignment. The mere assertion by Defendants that the Corrective Assignment "raises suspicions" is not enough to defeat summary judgment. The Corrective Assignment is, by definition, a document intended to correct a prior recorded assignment, and it is clothed with the presumption of validity established by G.L. c. 183, §54B. Finally, even accepting Defendants' vague assertion questioning the validity of the Corrective Assignment, any infirmities in the instrument could only render the document voidable, rather than void, and only the parties to the Corrective Assignment themselves have standing to declare it void. See Culley v. Bank of Am., N.A., No. 18-CV-40099-DHH, 2019 WL 1430124, at *14 (D. Mass. Mar. 29, 2019); Strawbridge v. Bank of New York Mellon, 91 Mass. App. Ct. 827 , 832 (2017).

The Court finds that Plaintiff has proven its prima facie case by showing that it obtained a Foreclosure Deed to the Property and that the Foreclosure Deed and Affidavit of Sale, showing compliance with statutory foreclosure requirements, were recorded. Bank of New York v. Bailey, 460 Mass. 327 , 334 (2011). The Court finds the Foreclosure Deed and Affidavit of Sale meet the requirements of G.L. c. 244, §15. Where these documents meet the requirements of G.L. c. 244, §15, it is "incumbent on a defendant to counter with his own affidavit or acceptable alternative demonstrating at least the existence of a genuine issue of material fact." Federal Nat'l Mortgage Ass'n v. Hendricks, 463 Mass. 635 , 642 (2012). Here, the Defendants failed to meet their burden. Defendants failed to provide any countervailing evidence, by way of affidavit or otherwise, showing that there exists a genuine issue for trial. Defendants' unsupported allegation concerning the questionable invalidity of the Corrective Assignment is meritless.

After reviewing the evidence set forth in the summary judgment record, the Court finds there are no genuine issues as to any material facts with respect to the superior right of possession by Plaintiff. The Court concludes as a matter of law that Plaintiff acquired legal title to the Property after foreclosure and has a superior right to possession of the Property over the right to possession asserted by the Defendants.

II. Defendant's Counterclaims

Defendants' counterclaims generally challenge their treatment during the loan modification process. As a threshold matter, Defendants have not demonstrated that they have a right to a modification, as they are neither the Borrowers nor the Mortgagors. Assuming, without finding, that Defendants have standing to bring a claim for unfair and deceptive acts in the modification process; such claim cannot invalidate the foreclosure. See U.S. Bank Nat. Ass'n v. Schumacher, 467 Mass. 421 , 431 (2014). Accordingly, such claim cannot defeat Plaintiff's right to possession and shall be dismissed without prejudice. See Fed. Nat. Mortg. Ass'n v. Rego, 474 Mass. 329 , 339 (2016).

As for Defendants' claim for violation of G.L. c. 186, §22, the statute governs when a landlord may charge a tenant for water usage. Here, it is undisputed that Defendants are tenants at sufferance following a foreclosure. Accordingly, G.L. c. 186, §22 does not apply. C.f. Deutsche Bank Nat. Trust Co. v. Gabriel, 81 Mass. App. Ct. 564 (2012) (defenses and counterclaims pursuant to G.L. c. 238, §8A are not available to occupants following a foreclosure where premises was never rented or leased). The claim is meritless.

III. Rulings

For the foregoing reasons, Plaintiff's SJ Motion is ALLOWED for Plaintiff on its claim for possession and on Defendants' counterclaim for violation of G.L. c. 186, §22. Defendants' remaining counterclaims are dismissed without prejudice.

Plaintiff's Claim for Use and Occupancy

While Plaintiff's complaint seeks damages in an amount to be determined at trial, Plaintiff's SJ Motion does not seek use and occupancy from Defendants from the date of the foreclosure and no evidence was presented as to the fair rental value of the Property. Accordingly, Plaintiff's claim for damages is dismissed without prejudice. [Note 4]

ORDER FOR JUDGMENT

Based upon all the credible evidence submitted as part of the summary judgment record in light of the governing law, the Court finds there are no genuine issues of material fact and Plaintiff is entitled to summary judgment as a matter of law. It is ORDERED that:

1. Plaintiff's Motion for Summary Judgment on its complaint for possession is ALLOWED, plus costs.

2. Plaintiff's claim for damages is dismissed without prejudice.

3. Plaintiff's Motion for Summary Judgment as to Defendants' counterclaim for violation of G.L. c. 186, §22 is ALLOWED.

4. The remaining counterclaims of Defendants are dismissed without prejudice.

5. Execution for possession and costs only shall issue ten (10) days after the date on which judgment enters.

SO ORDERED.