NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-958
ANTHONY GIANACOPOULOS & another1
vs.
GREGORY FUNDING, LLC, & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Anthony and Tracey Gianacopoulos, commenced
this action against Gregory Funding, LLC (Gregory); AJX Mortgage
Trust I, Wilmington Savings Fund Society, FSB, as trustee
(Wilmington); and U.S. Bank National Association, as indenture
trustee on behalf of and with respect to AJAX Mortgage Loan
Trust 2017-A, Mortgage Backed Notes, Series 2017-A (U.S. Bank);
seeking declaratory judgment that assignments of a mortgage were
invalid and damages for claimed violation of the terms of the
1 Tracey Gianacopoulos.
2AJX Mortgage Trust I, Wilmington Savings Fund Society, FSB, trustee; and U.S. Bank National Association, indenture trustee on behalf of and with respect to AJAX Mortgage Loan Trust 2017-A, Mortgage Backed Notes, Series 2017-A. mortgage regarding notice before foreclosure sale. The
defendants moved to dismiss the plaintiffs' complaint pursuant
to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). A judge
of the Superior Court allowed the motion to dismiss and entered
judgment in favor of the defendants. We affirm.
Background. In 2009, the plaintiffs granted a $520,000
mortgage on their property to Greylock Federal Credit Union
(Greylock). The mortgage was duly recorded in the Berkshire
Middle District registry of deeds (registry). In January 2017,
Greylock assigned the mortgage to Wilmington (first assignment).
In June 2017, Wilmington assigned the mortgage to U.S. Bank
(second assignment). The document recorded for the second
assignment noted that Wilmington acted through Gregory under a
power of attorney (POA) and referred to a POA recorded in the
registry in book 5984, page 225. However, the POA recorded on
that page granted authority from U.S. Bank to Gregory, not from
Wilmington to Gregory. In a separate limited POA executed in
April 2016 and recorded in the registry in book 5912, page 240,
in February 2017, Wilmington granted Gregory, among other
things, authority to assign its mortgage loans. As detailed in
the complaint, about five years later, in May 2022, U.S. Bank as
"mortgagee" sent the plaintiffs a right to cure notice after
2 commencing a case in the Land Court.3 In October 2022, U.S. Bank
assigned the mortgage back to Wilmington (third assignment).
Then, in November 2022, the Land Court issued an order of notice
under the Federal Servicemembers Civil Relief Act, 50 U.S.C.
§§ 3901 et seq. (SCRA), prompting the plaintiffs to commence
this action in Superior Court.
Discussion. 1. Standard of review. "We review the
allowance of a motion to dismiss [for failure to state a claim]
de novo, accepting as true the facts alleged in the plaintiff's
complaint as well as any favorable inferences that reasonably
can be drawn from them" (citation omitted). Braley v. Bates,
100 Mass. App. Ct. 259, 260 (2021). In evaluating a motion to
dismiss under rule 12 (b) (6), we generally limit our
consideration to "the allegations in the complaint, although
matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint, also may be
taken into account" (citation omitted). Schaer v. Brandeis
Univ., 432 Mass. 474, 477 (2000). To survive such a motion, a
complaint must plausibly suggest an entitlement to relief. See
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
3 In their complaint, the plaintiffs referred to a "hybrid 35A right to cure/paragraph 22 default notice." We understand this reference to be to a notice of the mortgagor's right to cure a default of required payment pursuant to G. L. c. 244, § 35A, and under paragraph 22 of the mortgage.
3 2. The plaintiffs' standing to challenge mortgage
assignments. The plaintiffs contend that the incorrect POA
referenced in the second assignment and recorded in the registry
rendered the assignment from Wilmington to U.S. Bank void and
thus was a defect that entitled the plaintiffs as mortgagors to
challenge the second and third assignments. The plaintiffs
assert that they are "entitled to an explanation" through
discovery as to the chain of title for the mortgage. The
defendants do not dispute that the POA recorded in the second
assignment was incorrect but contend that the assignment
nevertheless was valid and enforceable. We agree with the
defendants that the erroneous page reference on the second
assignment was a scrivener's error and therefore it did not make
the otherwise valid second assignment void.4 See Clockedile v.
U.S. Bank Trust, N.A., 189 F. Supp. 3d 312, 315 (D. Mass. 2016)
(reference to expired POA in mortgage assignment was scrivener's
error that did not void assignment where correct, valid POA
4 The plaintiffs do not challenge the first assignment and identify no defects in the second assignment apart from the reference to the wrong POA. We are not persuaded by the plaintiffs' argument that the reference to the wrong POA document in this case was more than a scrivener's error because it was for a different entity, U.S. Bank, as opposed to an expired POA for the same entity, as in Clockedile v. U.S. Bank Trust, N.A., 189 F. Supp. 3d 312, 315 (D. Mass. 2016). The plaintiffs cite no legal authority to support this argument, and we discern no significance in such a distinction.
4 existed at time of assignment). The POA that authorized Gregory
to execute assignments on behalf of Wilmington was recorded in
the registry nearly four months prior to the second assignment
and was still in effect when Wilmington assigned the mortgage to
U.S. Bank. Because the second assignment was not void, but
instead voidable at the election of one of the parties to the
assignment, the plaintiffs did not have standing to challenge it
nor to discover the particulars regarding the "pathway" of the
chain of title. See Shea v. Federal Nat'l Mtge. Ass'n, 87 Mass.
App. Ct. 901, 903 n.9 (2015) (mortgagor's standing to challenge
mortgage assignment limited to defects making assignment void,
not merely voidable at election of one party). Cf. Sullivan v.
Kondaur Capital Corp., 85 Mass. App. Ct. 202, 205 (2014)
(plaintiff who is neither party nor beneficiary to mortgage
assignment ordinarily lacks standing to challenge it). There
was thus no error in the motion judge's determination that the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-958
ANTHONY GIANACOPOULOS & another1
vs.
GREGORY FUNDING, LLC, & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Anthony and Tracey Gianacopoulos, commenced
this action against Gregory Funding, LLC (Gregory); AJX Mortgage
Trust I, Wilmington Savings Fund Society, FSB, as trustee
(Wilmington); and U.S. Bank National Association, as indenture
trustee on behalf of and with respect to AJAX Mortgage Loan
Trust 2017-A, Mortgage Backed Notes, Series 2017-A (U.S. Bank);
seeking declaratory judgment that assignments of a mortgage were
invalid and damages for claimed violation of the terms of the
1 Tracey Gianacopoulos.
2AJX Mortgage Trust I, Wilmington Savings Fund Society, FSB, trustee; and U.S. Bank National Association, indenture trustee on behalf of and with respect to AJAX Mortgage Loan Trust 2017-A, Mortgage Backed Notes, Series 2017-A. mortgage regarding notice before foreclosure sale. The
defendants moved to dismiss the plaintiffs' complaint pursuant
to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). A judge
of the Superior Court allowed the motion to dismiss and entered
judgment in favor of the defendants. We affirm.
Background. In 2009, the plaintiffs granted a $520,000
mortgage on their property to Greylock Federal Credit Union
(Greylock). The mortgage was duly recorded in the Berkshire
Middle District registry of deeds (registry). In January 2017,
Greylock assigned the mortgage to Wilmington (first assignment).
In June 2017, Wilmington assigned the mortgage to U.S. Bank
(second assignment). The document recorded for the second
assignment noted that Wilmington acted through Gregory under a
power of attorney (POA) and referred to a POA recorded in the
registry in book 5984, page 225. However, the POA recorded on
that page granted authority from U.S. Bank to Gregory, not from
Wilmington to Gregory. In a separate limited POA executed in
April 2016 and recorded in the registry in book 5912, page 240,
in February 2017, Wilmington granted Gregory, among other
things, authority to assign its mortgage loans. As detailed in
the complaint, about five years later, in May 2022, U.S. Bank as
"mortgagee" sent the plaintiffs a right to cure notice after
2 commencing a case in the Land Court.3 In October 2022, U.S. Bank
assigned the mortgage back to Wilmington (third assignment).
Then, in November 2022, the Land Court issued an order of notice
under the Federal Servicemembers Civil Relief Act, 50 U.S.C.
§§ 3901 et seq. (SCRA), prompting the plaintiffs to commence
this action in Superior Court.
Discussion. 1. Standard of review. "We review the
allowance of a motion to dismiss [for failure to state a claim]
de novo, accepting as true the facts alleged in the plaintiff's
complaint as well as any favorable inferences that reasonably
can be drawn from them" (citation omitted). Braley v. Bates,
100 Mass. App. Ct. 259, 260 (2021). In evaluating a motion to
dismiss under rule 12 (b) (6), we generally limit our
consideration to "the allegations in the complaint, although
matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint, also may be
taken into account" (citation omitted). Schaer v. Brandeis
Univ., 432 Mass. 474, 477 (2000). To survive such a motion, a
complaint must plausibly suggest an entitlement to relief. See
Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
3 In their complaint, the plaintiffs referred to a "hybrid 35A right to cure/paragraph 22 default notice." We understand this reference to be to a notice of the mortgagor's right to cure a default of required payment pursuant to G. L. c. 244, § 35A, and under paragraph 22 of the mortgage.
3 2. The plaintiffs' standing to challenge mortgage
assignments. The plaintiffs contend that the incorrect POA
referenced in the second assignment and recorded in the registry
rendered the assignment from Wilmington to U.S. Bank void and
thus was a defect that entitled the plaintiffs as mortgagors to
challenge the second and third assignments. The plaintiffs
assert that they are "entitled to an explanation" through
discovery as to the chain of title for the mortgage. The
defendants do not dispute that the POA recorded in the second
assignment was incorrect but contend that the assignment
nevertheless was valid and enforceable. We agree with the
defendants that the erroneous page reference on the second
assignment was a scrivener's error and therefore it did not make
the otherwise valid second assignment void.4 See Clockedile v.
U.S. Bank Trust, N.A., 189 F. Supp. 3d 312, 315 (D. Mass. 2016)
(reference to expired POA in mortgage assignment was scrivener's
error that did not void assignment where correct, valid POA
4 The plaintiffs do not challenge the first assignment and identify no defects in the second assignment apart from the reference to the wrong POA. We are not persuaded by the plaintiffs' argument that the reference to the wrong POA document in this case was more than a scrivener's error because it was for a different entity, U.S. Bank, as opposed to an expired POA for the same entity, as in Clockedile v. U.S. Bank Trust, N.A., 189 F. Supp. 3d 312, 315 (D. Mass. 2016). The plaintiffs cite no legal authority to support this argument, and we discern no significance in such a distinction.
4 existed at time of assignment). The POA that authorized Gregory
to execute assignments on behalf of Wilmington was recorded in
the registry nearly four months prior to the second assignment
and was still in effect when Wilmington assigned the mortgage to
U.S. Bank. Because the second assignment was not void, but
instead voidable at the election of one of the parties to the
assignment, the plaintiffs did not have standing to challenge it
nor to discover the particulars regarding the "pathway" of the
chain of title. See Shea v. Federal Nat'l Mtge. Ass'n, 87 Mass.
App. Ct. 901, 903 n.9 (2015) (mortgagor's standing to challenge
mortgage assignment limited to defects making assignment void,
not merely voidable at election of one party). Cf. Sullivan v.
Kondaur Capital Corp., 85 Mass. App. Ct. 202, 205 (2014)
(plaintiff who is neither party nor beneficiary to mortgage
assignment ordinarily lacks standing to challenge it). There
was thus no error in the motion judge's determination that the
plaintiffs' complaint failed to set forth a plausible
entitlement to declaratory judgment that Wilmington was "not a
record mortgagee who [could] exercise the statutory power of
sale."5
5 The plaintiffs' challenge to Wilmington's status as a mortgagee is unavailing even if the second and third assignments were invalid. Where the plaintiffs do not claim any defect in the first assignment from Greylock to Wilmington, we agree with the motion judge's conclusion that Wilmington would "remain[] as record holder of the [m]ortgage" under the first assignment.
5 3. Breach of contract claim. The plaintiffs additionally
argue that it was error for the judge to dismiss their claim
that the defendants committed a breach of the terms of the
mortgage by foreclosing prior to meeting the mortgage's notice
requirements. To begin, we disagree with the plaintiffs'
assertion that the judge's analysis improperly considered the
"challenged default notice" as a right to cure notice under
G. L. c. 244, § 35A, to the exclusion of paragraph 22 of the
mortgage. The judge's analysis addressed both § 35A and
paragraph 22, and properly concluded that the plaintiffs did not
plausibly allege in their complaint that the defendants
commenced a foreclosure.
Further, even if the plaintiffs had standing to challenge
U.S. Bank's status as the mortgagee, they did not detail a
foreclosure took place. The complaint alleged that the
defendants sent a "hybrid" default notice intended to meet the
notice requirements of § 35A and paragraph 22, but it was
deficient for paragraph 22 purposes because it incorrectly
listed U.S. Bank as the mortgagee.6 Notice of a right to cure a
See U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 651 (2011) ("foreclosing entity may provide a complete chain of assignments linking it to the record holder of the mortgage, or a single assignment from the record holder of the mortgage").
6 A default notice that lists the incorrect lender can satisfy G. L. c. 244, § 35A, requirements but still fall short of the notice requirements in the mortgage, which must be
6 mortgage default under § 35A does not commence foreclosure
proceedings and therefore is not part of the statutory power of
sale process. See U.S. Bank Nat'l Ass'n v. Schumacher, 467
Mass. 421, 430-431 (2014) (§ 35A designed to give mortgagor fair
opportunity to cure default before debt accelerates and before
foreclosure process commences). Similarly, notice and an
opportunity to cure before foreclosing under paragraph 22 of the
mortgage was not an exercise of the defendants' right to
foreclose as part of their statutory power of sale. See Pinti
v. Emigrant Mtge. Co., 472 Mass. 226, 240 (2015) (notice
requirements in mortgage are steps that must precede
foreclosure). The plaintiffs did not allege in their complaint
that the defendants sent notice of a foreclosure sale, published
a mortgagee's sale of real estate, or otherwise conducted or
attempted to conduct a sale of the plaintiffs' property. See
G. L. c. 244, § 14. Finally, to the extent the plaintiffs rely
on a reference in their complaint to an order of notice filed
pursuant to the SCRA and recorded in the registry, it is
unavailing where SCRA proceedings occur independently of
foreclosure. See Beaton v. Land Court, 367 Mass. 385, 390
(1975).
strictly complied with before foreclosure. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 239-240 (2015).
7 In sum, because the allegations in the complaint were that
the defendants filed a preforeclosure notice of default rather
than a foreclosure, the plaintiffs' breach of contract claim was
properly dismissed for failing to state a claim that plausibly
suggested entitlement to relief.7
Judgment affirmed.
By the Court (Henry, Hand & Brennan, JJ.8),
Clerk
Entered: December 2, 2025.
7 Because this appeal does not address the sufficiency of the notice or a foreclosure itself, it does not bar the plaintiffs from contesting any foreclosure that may take place.
8 The panelists are listed in order of seniority.