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
25-P-443
U.S. BANK, N.A., trustee,1
vs.
KEVIN LASHUA & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kevin Lashua,3 appeals from a grant of
summary judgment in favor of the plaintiff, U.S. Bank, N.A., as
trustee for Truman 2016 SC6 Title Trust (U.S. Bank/Truman
Trust), in this summary process action. Because there are no
material facts in dispute, we affirm.
Background. On September 24, 2004, the defendant and his
wife, Virginia Lashua, executed a promissory note payable to
Household Finance Corporation II (Household), secured by a
1 Of the Truman 2016 SC6 Title Trust.
2 Virginia Lashua. 3Despite being a party to the case below, Virginia Lashua did not file a notice of appeal. mortgage on their property and residence located in Ashburnham,
Massachusetts (property). Household duly recorded the mortgage
in the Worcester County registry of deeds.
On August 20, 2014, Household assigned the mortgage to U.S.
Bank, N.A., as trustee for LSF8 Master Participation Trust (LSF8
Trust). On October 15, 2021, LSF8 Trust assigned the mortgage
to the plaintiff, U.S. Bank/Truman Trust, and the assignment was
subsequently recorded in the Worcester County registry of deeds.
By February 2022, the defendant had been in default on the
mortgage loan payment obligations for approximately nine years.
On February 24, 2022, the plaintiff's loan servicer, Rushmore
Loan Management Services LLC (Rushmore), sent the defendant and
his wife notices regarding their right to cure the default
within ninety days and their right to request a modified
mortgage, in accordance with the mortgage's terms and G. L.
c. 244, §§ 35A and 35B.
On October 13, 20, and 27, 2022, the plaintiff published
notice of a foreclosure sale originally scheduled to be held on
January 10, 2023. Thereafter, on May 22, 2023, the plaintiff
conducted a foreclosure sale of the property, where the
plaintiff was the highest bidder. The plaintiff executed and
delivered a foreclosure deed to itself on June 16, 2023.
2 The defendant and his wife were served with a notice to
quit and vacate the property on July 14, 2023. On August 21,
2023, the plaintiff commenced the present summary process
action. In turn, the defendant filed an answer wherein he
asserted, inter alia, that the plaintiff did not foreclose upon
the property in strict compliance with G. L. c. 244, thereby
giving the defendant a superior right to possession of the
property.4
Both parties moved for summary judgment.5 The judge allowed
the plaintiff's motion for summary judgment and denied the
defendant's cross motion for summary judgment. Accordingly, the
judge entered judgment for possession in favor of the plaintiff.
The defendant appeals.
4 The defendant also asserted a counterclaim alleging that the plaintiff engaged in unfair and deceptive practices, in violation of G. L. c. 93A, by violating the automatic stay provision of the Bankruptcy Code. See 11 U.S.C. § 362.
5 The defendant did not submit any affidavits in support of his cross motion for summary judgment or in opposition to the plaintiff's motion for summary judgment. Appended to his cross motion and opposition, the defendant submitted several exhibits, including a twenty-page "report" by William Paatalo regarding an "investigation" connected to an unrelated proceeding involving different parties and a property in Connecticut. The plaintiff moved to strike these exhibits as unauthenticated, inadmissible hearsay, not submitted in affidavit form. The judge allowed the motion to strike, and the defendant does not argue on appeal that the judge erred in this respect.
3 Discussion. We review the judge's grant of summary
judgment de novo. See Galenski v. Erving, 471 Mass. 305, 307
(2015). While we view the evidence in the light most favorable
to the opposing party, "the opposing party 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 (1989), citing Community Nat'l Bank v. Dawes, 369 Mass.
550, 554 (1976).
In a postforeclosure summary process case, a plaintiff "may
make a prima facie showing of its right to possession by
producing an attested copy of the recorded foreclosure deed and
affidavit of sale under G. L. c. 244, § 15." Federal Nat'l
Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012) (Hendricks).
Moreover, where, as here, the mortgage contains a power of sale,
"[l]egal 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." Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011),
quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966).
"If a plaintiff makes a prima facie case, it is then
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 to avoid summary judgment. . . ."
4 Hendricks, 463 Mass. at 642. "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.
Here, the plaintiff properly presented a prima facie case
of its right to possession by providing the court with an
attested copy of its recorded foreclosure deed and the statutory
affidavit of sale. See Hendricks, 463 Mass. at 637.
Additionally, the plaintiff submitted a detailed affidavit of
continuing noteholder status and strict compliance with the
mortgage terms. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226,
240 (2015) (foreclosing party must strictly comply with
mortgage's power of sale provisions). Thus, the burden shifted
to the defendant to show a genuine issue of material fact
regarding the plaintiff's right to possession. See Hendricks,
supra at 642. Based on the summary judgment record, we agree
with the judge that the defendant failed to meet this burden.
The defendant asserts several arguments on appeal, which we
address in turn. First, the defendant contends that the
plaintiff lacked standing to foreclose upon the property because
the plaintiff had no "financial stake" in the mortgage. For
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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
25-P-443
U.S. BANK, N.A., trustee,1
vs.
KEVIN LASHUA & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kevin Lashua,3 appeals from a grant of
summary judgment in favor of the plaintiff, U.S. Bank, N.A., as
trustee for Truman 2016 SC6 Title Trust (U.S. Bank/Truman
Trust), in this summary process action. Because there are no
material facts in dispute, we affirm.
Background. On September 24, 2004, the defendant and his
wife, Virginia Lashua, executed a promissory note payable to
Household Finance Corporation II (Household), secured by a
1 Of the Truman 2016 SC6 Title Trust.
2 Virginia Lashua. 3Despite being a party to the case below, Virginia Lashua did not file a notice of appeal. mortgage on their property and residence located in Ashburnham,
Massachusetts (property). Household duly recorded the mortgage
in the Worcester County registry of deeds.
On August 20, 2014, Household assigned the mortgage to U.S.
Bank, N.A., as trustee for LSF8 Master Participation Trust (LSF8
Trust). On October 15, 2021, LSF8 Trust assigned the mortgage
to the plaintiff, U.S. Bank/Truman Trust, and the assignment was
subsequently recorded in the Worcester County registry of deeds.
By February 2022, the defendant had been in default on the
mortgage loan payment obligations for approximately nine years.
On February 24, 2022, the plaintiff's loan servicer, Rushmore
Loan Management Services LLC (Rushmore), sent the defendant and
his wife notices regarding their right to cure the default
within ninety days and their right to request a modified
mortgage, in accordance with the mortgage's terms and G. L.
c. 244, §§ 35A and 35B.
On October 13, 20, and 27, 2022, the plaintiff published
notice of a foreclosure sale originally scheduled to be held on
January 10, 2023. Thereafter, on May 22, 2023, the plaintiff
conducted a foreclosure sale of the property, where the
plaintiff was the highest bidder. The plaintiff executed and
delivered a foreclosure deed to itself on June 16, 2023.
2 The defendant and his wife were served with a notice to
quit and vacate the property on July 14, 2023. On August 21,
2023, the plaintiff commenced the present summary process
action. In turn, the defendant filed an answer wherein he
asserted, inter alia, that the plaintiff did not foreclose upon
the property in strict compliance with G. L. c. 244, thereby
giving the defendant a superior right to possession of the
property.4
Both parties moved for summary judgment.5 The judge allowed
the plaintiff's motion for summary judgment and denied the
defendant's cross motion for summary judgment. Accordingly, the
judge entered judgment for possession in favor of the plaintiff.
The defendant appeals.
4 The defendant also asserted a counterclaim alleging that the plaintiff engaged in unfair and deceptive practices, in violation of G. L. c. 93A, by violating the automatic stay provision of the Bankruptcy Code. See 11 U.S.C. § 362.
5 The defendant did not submit any affidavits in support of his cross motion for summary judgment or in opposition to the plaintiff's motion for summary judgment. Appended to his cross motion and opposition, the defendant submitted several exhibits, including a twenty-page "report" by William Paatalo regarding an "investigation" connected to an unrelated proceeding involving different parties and a property in Connecticut. The plaintiff moved to strike these exhibits as unauthenticated, inadmissible hearsay, not submitted in affidavit form. The judge allowed the motion to strike, and the defendant does not argue on appeal that the judge erred in this respect.
3 Discussion. We review the judge's grant of summary
judgment de novo. See Galenski v. Erving, 471 Mass. 305, 307
(2015). While we view the evidence in the light most favorable
to the opposing party, "the opposing party 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 (1989), citing Community Nat'l Bank v. Dawes, 369 Mass.
550, 554 (1976).
In a postforeclosure summary process case, a plaintiff "may
make a prima facie showing of its right to possession by
producing an attested copy of the recorded foreclosure deed and
affidavit of sale under G. L. c. 244, § 15." Federal Nat'l
Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012) (Hendricks).
Moreover, where, as here, the mortgage contains a power of sale,
"[l]egal 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." Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011),
quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966).
"If a plaintiff makes a prima facie case, it is then
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 to avoid summary judgment. . . ."
4 Hendricks, 463 Mass. at 642. "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.
Here, the plaintiff properly presented a prima facie case
of its right to possession by providing the court with an
attested copy of its recorded foreclosure deed and the statutory
affidavit of sale. See Hendricks, 463 Mass. at 637.
Additionally, the plaintiff submitted a detailed affidavit of
continuing noteholder status and strict compliance with the
mortgage terms. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226,
240 (2015) (foreclosing party must strictly comply with
mortgage's power of sale provisions). Thus, the burden shifted
to the defendant to show a genuine issue of material fact
regarding the plaintiff's right to possession. See Hendricks,
supra at 642. Based on the summary judgment record, we agree
with the judge that the defendant failed to meet this burden.
The defendant asserts several arguments on appeal, which we
address in turn. First, the defendant contends that the
plaintiff lacked standing to foreclose upon the property because
the plaintiff had no "financial stake" in the mortgage. For
support, the defendant points to a 2018 correspondence from a
5 U.S. Bank entity to an unidentified recipient wherein the author
states, "the Trust is the owner of the mortgage and note, not
the trustee or us in our individual capacity."6 The defendant
argues that this statement, taken from an unauthenticated
source, and unrelated to the parties, establishes that the
plaintiff is not an "active trustee" and lacked standing to
foreclose. To the extent we can discern a legal argument, we
disagree. Pursuant to Eaton v. Federal Nat'l Mtge. Ass'n, 462
Mass. 569, 584-586 (2012), a foreclosing party must be both the
mortgagee of record, and the holder of the underlying promissory
note or the note holder's authorized agent. Here, the plaintiff
properly submitted a recorded affidavit, executed by an
authorized agent of the plaintiff, which states that "the
[f]oreclosing mortgagee was the holder of the promissory note
secured by the . . . mortgage." The defendant's argument, based
primarily on a letter of no relevance to the subject mortgage,
fails to establish a genuine issue of material fact whether the
plaintiff was the mortgagee of record and the holder of the
note. See LaLonde, 405 Mass. at 209.
Next, the defendant alleges that he entered into a loan
modification agreement with Caliber Home Loans, Inc. (Caliber),
6 The defendant also supports his argument by referring to the "report" authored by Paatalo, which was struck by the judge.
6 which the plaintiff -- and Rushmore as the plaintiff's loan
servicer -- failed to honor as a matter of policy. To the
extent that this claim is material to the question of whether
the plaintiff has a superior right to possession, the defendant
failed to produce or identify any evidence in the record that
establishes the existence of a loan modification agreement with
Caliber or payments made to Rushmore. Accordingly, we agree
with the judge that the defendant failed to raise a genuine
issue of material fact related to any loan modification
agreement.
The defendant also alleges that LSF8 Trust never "held" the
subject mortgage, thereby rendering LSF8 Trust's assignment of
the mortgage to the plaintiff void. Again, the defendant failed
to produce any evidence to dispute LSF8's assignment of the
subject mortgage to the plaintiff, relied only on hypothetical
argument, and thus, failed to raise an issue of material fact.
In any event, we conclude, as a matter of law, that the
defendant lacks standing to challenge the validity of LSF8's
assignment to the plaintiff because any purported defect would
render the assignment voidable between LSF8 and the plaintiff,
not void. See Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App.
Ct. 827, 832 (2017) (former owner was without standing to
challenge assignment where purported defect "would, at most,
7 only make the assignment voidable between the parties to the
transaction, not void as a matter of law"); Bank of N.Y. Mellon
Corp. v. Wain, 85 Mass. App. Ct. 498, 502 (2014) ("[W]here the
foreclosing entity has established that it validly holds the
mortgage, a mortgagor in default has no legally cognizable stake
in whether there otherwise might be latent defects in the
assignment process").
The defendant also contends that, because there was no
"marking on the photocopy [of the allonge] to indicate that it
was ever permanently affixed to the mortgage note," a genuine
issue of material fact was raised regarding its legitimacy,
requiring the judge to hold an evidentiary hearing on the issue.
General Laws c. 106, § 3-204 (a) provides that "for the purpose
of determining whether a signature is made on an instrument, a
paper affixed to the instrument is a part of the instrument."
Thus, based on the statute's plain language, there is no
requirement that the allonge be permanently affixed to the note,
as the defendant insinuates. G. L. c. 106, § 3-204 (a).
Moreover, the defendant again points to nothing in the record to
support his claim that the plaintiff was not the rightful holder
of the note. The plaintiff provided unchallenged evidence that
it acquired the note and was the mortgage note's holder at all
times pertinent to the foreclosure. The defendant submitted no
8 evidence to support his vague allegations, and we conclude that
there is no genuine issue of material fact regarding the note's
allonge.
Lastly, because the defendant advances no appellate
argument as to his counterclaim alleging unfair and deceptive
practices under G. L. c. 93A, we treat the issue as waived. See
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628
(2019).7,8
Judgment affirmed.
By the Court (Shin, Walsh & Allen, JJ.9),
Clerk
Entered: March 11, 2026.
7 To the extent that we do not address the defendant's other contentions, we see nothing in them that warrants overturning the judgment. Those include the defendant's arguments that certain signatories of the allonge were "robo-signers," and that the plaintiff was required under the Uniform Commercial Code to detail the value given when the subject loan was assigned.
8 The plaintiff has asked the court, in its discretion, to award attorney's fees, arguing that the defendant's claims are frivolous. The request is denied. 9 The panelists are listed in order of seniority.