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
23-P-962
U.S. BANK TRUST, N.A., trustee,1
vs.
DONALD PERRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is a post-foreclosure summary process action in which
the pro se defendant, Donald Perry, appeals from the entry of
judgment by a judge of the Housing Court following the allowance
of the plaintiff's, U.S. Bank's,2 second motion for summary
judgment. Because there are no genuine issues of material fact
in dispute, we affirm the entry of summary judgment for the
plaintiff.
Background. The undisputed facts are as follows. On May
9, 2006, Donald Perry borrowed $397,500 from Washington Mutual
1 For LSF9 Master Participation Trust.
2 We will refer to the plaintiff as U.S. Bank or plaintiff. Bank and secured the payment through a residential mortgage.
Washington Mutual Bank endorsed the note in blank. On September
25, 2008, Washington Mutual Bank was declared insolvent and the
Federal Deposit Insurance Corporation (FDIC), as receiver of
Washington Mutual Bank, assigned the mortgage to JP Morgan
Chase. A series of assignments of the note and mortgage
followed.
In 2017, Perry defaulted on the mortgage and a foreclosure
sale resulted in U.S. Bank purchasing the property and becoming
the record owner of the premises. In April 2018, U.S. Bank
filed a summary process action in the Housing Court and obtained
summary judgment in its favor. Perry appealed the judgment and,
in a summary decision,3 a panel of this court vacated entry of
summary judgment and remanded the case for further proceedings.
The panel concluded that summary judgment entered in error first
because Perry's discovery requests remained outstanding.
Second, there was a material dispute of fact as to the propriety
of the recorded 2015 assignment from the FDIC to JP Morgan Chase
because the notary jurat did not match the date or signature on
the assignment.
3 U.S. Bank Trust, N.A. v. Perry, 99 Mass. App. Ct. 1111 (2021).
2 On remand, a judge of the Housing Court entered a discovery
order requiring discovery to be completed by April 7, 2021. At
a pretrial conference in October 2022, a different judge found
that U.S. Bank had complied with the discovery order and that
discovery was complete. Perry filed a motion for
reconsideration, claiming that discovery had not been provided,
but he later in open court withdrew his motion, stating that
discovery "at this point should be closed." The judge heard
arguments from both parties and took the matter under
advisement. The judge found that discovery was complete, the
assignment to JP Morgan Chase occurred by operation of law when
the FDIC became receiver, and the 2015 assignment in question
was merely confirmatory in nature and of no consequence. In a
thoughtful memorandum of decision, the judge concluded that U.S.
Bank had established strict compliance with statutory
foreclosure requirements and entered judgment in U.S. Bank's
favor. This appeal followed.
Discussion. 1. Standard of review. We review a grant of
summary judgment de novo to determine whether, "viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving party is
entitled to judgment as a matter of law" (quotation omitted).
Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018). Here,
U.S. Bank bears the "burden of affirmatively demonstrating the
3 absence of a triable issue." Milliken & Co. v. Duro Textiles,
LLC, 451 Mass. 547, 550 n.6 (2008). If the moving party carries
its burden, then the party opposing the motion (Perry) must
establish the existence of a genuine issue of material fact.
See Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210,
215 (2018), quoting French King Realty Inc. v. Interstate Fire &
Cas. Co., 79 Mass. App. Ct. 653, 659-660 (2011).
2. Summary judgment in a summary process action. Summary
process cases are civil actions with the purpose of enabling the
holder of the legal title to gain lawful possession of the
premises. See Wells Fargo Bank, N.A. v. Cook, 87 Mass. App. Ct.
382, 385 (2015), quoting Bank of N.Y. v. Bailey, 460 Mass. 327,
333 (2011). See also Bank of America, N.A. v. Rosa, 466 Mass.
613, 624 (2013).4 To prevail on a motion for summary judgment,
the moving party has the burden of proving that there are no
material facts in dispute with respect to the title. See
Bailey, supra at 334. In general, the bank must show that it
4 In Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 834 (2019), the Supreme Judicial Court recognized the unique nature of summary process matters, describing them as "complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not." While we recognize that here Perry was the former homeowner and not a tenant, it remains true that the "challenges inherent in navigating a complex and fast-moving process are compounded for those individuals who face summary process eviction without the aid and expertise of an attorney." Id. at 837.
4 obtained the deed to the property and that both the deed and the
affidavit of sale, showing compliance with the statutory
foreclosure requirements, were recorded. See id.
A former homeowner is permitted to "challenge the title of
the banks in these summary process actions, and . . . can
require the banks to establish that title was acquired strictly
according to the power of sale provided in the mortgage." Rosa,
466 Mass. at 621. See Bailey, 460 Mass. at 333. A former
homeowner can render a foreclosure sale void by mounting a
successful challenge to the validity of a bank's title. See
Cook, 87 Mass. App. Ct. at 385.
Perry contends that the judge erred in granting U.S. Bank's
motion for summary judgment because the requested discovery was
never provided to him and because of the existence of material
facts in dispute about the 2015 assignment. In essence, Perry
claims that U.S. Bank has failed to show strict compliance with
foreclosure requirements because it never established that the
recorded 2015 assignment was executed by an individual with
proper authority. We address each claim in turn.
We do not discern any material outstanding discovery.
Perry did file a motion for reconsideration on the judge's
discovery order, but he later agreed in open court that
discovery should be closed and he withdrew his motion for
reconsideration. Because he withdrew his motion and agreed that
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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
23-P-962
U.S. BANK TRUST, N.A., trustee,1
vs.
DONALD PERRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is a post-foreclosure summary process action in which
the pro se defendant, Donald Perry, appeals from the entry of
judgment by a judge of the Housing Court following the allowance
of the plaintiff's, U.S. Bank's,2 second motion for summary
judgment. Because there are no genuine issues of material fact
in dispute, we affirm the entry of summary judgment for the
plaintiff.
Background. The undisputed facts are as follows. On May
9, 2006, Donald Perry borrowed $397,500 from Washington Mutual
1 For LSF9 Master Participation Trust.
2 We will refer to the plaintiff as U.S. Bank or plaintiff. Bank and secured the payment through a residential mortgage.
Washington Mutual Bank endorsed the note in blank. On September
25, 2008, Washington Mutual Bank was declared insolvent and the
Federal Deposit Insurance Corporation (FDIC), as receiver of
Washington Mutual Bank, assigned the mortgage to JP Morgan
Chase. A series of assignments of the note and mortgage
followed.
In 2017, Perry defaulted on the mortgage and a foreclosure
sale resulted in U.S. Bank purchasing the property and becoming
the record owner of the premises. In April 2018, U.S. Bank
filed a summary process action in the Housing Court and obtained
summary judgment in its favor. Perry appealed the judgment and,
in a summary decision,3 a panel of this court vacated entry of
summary judgment and remanded the case for further proceedings.
The panel concluded that summary judgment entered in error first
because Perry's discovery requests remained outstanding.
Second, there was a material dispute of fact as to the propriety
of the recorded 2015 assignment from the FDIC to JP Morgan Chase
because the notary jurat did not match the date or signature on
the assignment.
3 U.S. Bank Trust, N.A. v. Perry, 99 Mass. App. Ct. 1111 (2021).
2 On remand, a judge of the Housing Court entered a discovery
order requiring discovery to be completed by April 7, 2021. At
a pretrial conference in October 2022, a different judge found
that U.S. Bank had complied with the discovery order and that
discovery was complete. Perry filed a motion for
reconsideration, claiming that discovery had not been provided,
but he later in open court withdrew his motion, stating that
discovery "at this point should be closed." The judge heard
arguments from both parties and took the matter under
advisement. The judge found that discovery was complete, the
assignment to JP Morgan Chase occurred by operation of law when
the FDIC became receiver, and the 2015 assignment in question
was merely confirmatory in nature and of no consequence. In a
thoughtful memorandum of decision, the judge concluded that U.S.
Bank had established strict compliance with statutory
foreclosure requirements and entered judgment in U.S. Bank's
favor. This appeal followed.
Discussion. 1. Standard of review. We review a grant of
summary judgment de novo to determine whether, "viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving party is
entitled to judgment as a matter of law" (quotation omitted).
Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018). Here,
U.S. Bank bears the "burden of affirmatively demonstrating the
3 absence of a triable issue." Milliken & Co. v. Duro Textiles,
LLC, 451 Mass. 547, 550 n.6 (2008). If the moving party carries
its burden, then the party opposing the motion (Perry) must
establish the existence of a genuine issue of material fact.
See Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210,
215 (2018), quoting French King Realty Inc. v. Interstate Fire &
Cas. Co., 79 Mass. App. Ct. 653, 659-660 (2011).
2. Summary judgment in a summary process action. Summary
process cases are civil actions with the purpose of enabling the
holder of the legal title to gain lawful possession of the
premises. See Wells Fargo Bank, N.A. v. Cook, 87 Mass. App. Ct.
382, 385 (2015), quoting Bank of N.Y. v. Bailey, 460 Mass. 327,
333 (2011). See also Bank of America, N.A. v. Rosa, 466 Mass.
613, 624 (2013).4 To prevail on a motion for summary judgment,
the moving party has the burden of proving that there are no
material facts in dispute with respect to the title. See
Bailey, supra at 334. In general, the bank must show that it
4 In Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 834 (2019), the Supreme Judicial Court recognized the unique nature of summary process matters, describing them as "complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not." While we recognize that here Perry was the former homeowner and not a tenant, it remains true that the "challenges inherent in navigating a complex and fast-moving process are compounded for those individuals who face summary process eviction without the aid and expertise of an attorney." Id. at 837.
4 obtained the deed to the property and that both the deed and the
affidavit of sale, showing compliance with the statutory
foreclosure requirements, were recorded. See id.
A former homeowner is permitted to "challenge the title of
the banks in these summary process actions, and . . . can
require the banks to establish that title was acquired strictly
according to the power of sale provided in the mortgage." Rosa,
466 Mass. at 621. See Bailey, 460 Mass. at 333. A former
homeowner can render a foreclosure sale void by mounting a
successful challenge to the validity of a bank's title. See
Cook, 87 Mass. App. Ct. at 385.
Perry contends that the judge erred in granting U.S. Bank's
motion for summary judgment because the requested discovery was
never provided to him and because of the existence of material
facts in dispute about the 2015 assignment. In essence, Perry
claims that U.S. Bank has failed to show strict compliance with
foreclosure requirements because it never established that the
recorded 2015 assignment was executed by an individual with
proper authority. We address each claim in turn.
We do not discern any material outstanding discovery.
Perry did file a motion for reconsideration on the judge's
discovery order, but he later agreed in open court that
discovery should be closed and he withdrew his motion for
reconsideration. Because he withdrew his motion and agreed that
5 discovery should be closed, Perry cannot now complain about what
he agreed to. See Commonwealth v. Simmonds, 386 Mass. 234, 241-
242 (1982). On appeal, Perry asserts that the judge took his
statement out of context -- he meant that discovery should have
been closed long ago were it not for U.S. Bank's continuing
failure to produce documentation showing a seamless assignment
of the mortgage. Even if Perry has not waived this argument, we
do not discern any material matter that requires further
discovery.
We disagree with Perry's fundamental premise that summary
judgment was improper because material issues of fact exist as
to the recorded assignment from the FDIC to JP Morgan Chase. In
his appeal, Perry mainly focuses on the propriety of the
signature (lacking a consistent notary jurat) on the 2015
assignment that was called into question by a panel of this
court in the prior appeal. Under Federal law, however, the FDIC
acquired its assets by operation of law when Washington Mutual
Bank failed in 2008. As receiver, the FDIC has the authority
under 12 U.S.C. § 1821(d)(2)(G)(i)(II) to transfer or merge the
assets and liabilities of a failed financial institution
"without any approval, assignment, or consent with respect to
such transfer." Id. Here, when Washington Mutual Bank failed
and the FDIC became the receiver, the FDIC was not required to
record an assignment of Perry's mortgage to JP Morgan Chase.
6 Thus, any error in the notary jurat on that recorded assignment
was immaterial and of no legal effect. We agree with the judge
of the Housing Court that, since the FDIC did not need to
separately assign each note it acquired when Washington Mutual
Bank became insolvent, the assignment in 2015 was only
confirmatory in nature and does not affect the chain of title.
Perry offers no persuasive support for his position that
the transfer did not occur by operation of law. Instead, he
argues that U.S. Bank's "new" theory regarding the chain of
title should be precluded because the bank did not advance it in
its original motion for summary judgment despite possessing all
the relevant documents. When this court remanded the case to
the Housing Court, it merely held that the prior allowance of
summary judgment was inappropriate based on the two issues
described above. The remand therefore placed the case into the
same posture it had before summary judgment was allowed.
Accordingly, it was entirely appropriate for the judge of the
Housing Court to hear U.S. Bank's second motion for summary
judgment. U.S. Bank was not limited to arguing what it had
filed in its original motion, and the judge was not constrained
to only consider the initial argument advanced by U.S. Bank.
Ultimately, the Housing Court judge's allowance of summary
judgment was appropriate. In a summary process matter, legal
title is established "by proof that the title was acquired
7 strictly according to the power of sale provided in the
mortgage; and that alone is subject to challenge" (quotation
omitted). Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct.
374, 379 (2016). Here, Perry has failed to establish the
existence of a genuinely disputed issue of material fact
regarding the propriety of the transfer of the title to the
property. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass.
635, 642 (2012) ("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").5
In conclusion, we agree with the judge of the Housing Court
that the 2015 assignment was confirmatory in nature and does not
affect the chain of title because the transfer occurred by
operation of law. Therefore, we are satisfied that no defect
5 To the extent that Perry argues that the judge of the Housing Court and counsel for U.S. Bank committed ethical violations, his argument does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). To the extent we have not specifically addressed any of Perry's remaining arguments, they have not been overlooked; we find nothing in them that requires discussion. Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
8 exists in the chain of title to warrant the reversal of summary
judgment.
Judgment affirmed.
By the Court (Blake, Walsh & Hodgens, JJ.6),
Clerk
Entered: October 31, 2024.
6 The panelists are listed in order of seniority.