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Barrasso v. New Century Mortgage Corp.

Appeals Court of Massachusetts, Suffolk

February 8, 2017

WILLIAM T. BARRASSO, JR.
v.
NEW CENTURY MORTGAGE CORPORATION & others.[1]

          Heard: October 20, 2016.

         Real Property, Mortgage, Record title. Mortgage, Foreclosure, Real estate, Assignment. Assignment. Contract, Assignment, Modification. Negotiable Instruments, Assignment, Note. Practice, Civil, Summary judgment. Estoppel.

         Civil action commenced in the Land Court Department on March 30, 2012. The case was heard by Howard P. Speicher, J., on a motion for summary judgment.

          Glenn F. Russell, Jr., for the plaintiff.

          Roger Soun for the defendants.

          Present: Hanlon, Sullivan, & Blake, JJ.

          SULLIVAN, J.

         The plaintiff, William T. Barrasso, Jr., brought this quiet title action, alleging that two mortgages on his condominium unit constitute a cloud on his title. See G. L. c. 240, § 6. He claimed that the encumbrances should be stricken from the land records because the original mortgagee no longer exists and the identity of any present mortgagee cannot be ascertained. A judge of the Land Court awarded summary judgment to the defendants, determining that U.S. Bank, National Associates (U.S. Bank), holds the first mortgage as trustee for the C-BASS Mortgage Loan Asset-Backed Certificates Series 2007-SP2 and that Deutsche Bank National Trust Company (Deutsche Bank) holds the second mortgage as trustee for the New Century Home Equity Loan Trust Series 2005-C, Asset-Backed Pass-Through Certificates.

         We affirm those portions of the judgment entered in favor of the defendants dismissing the claims asserted by Barrasso and granting affirmative relief to U.S. Bank. We vacate the portion of the judgment granting Deutsche Bank affirmative relief in the form of a declaration as to the validity of its title.

         Background.

         We set out the facts in the summary judgment record viewed in the light most favorable to the plaintiff. See Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 522 (2001). On or about September 16, 2005, Barrasso purchased unit 315 of the Walnut Place Condominium, located at 8 Walnut Street in Peabody (property), for $264, 000. To finance the purchase, Barrasso obtained two loans from New Century Mortgage Corporation (New Century), memorialized with two promissory notes and secured by two mortgages on the property. The larger of the two notes is in the amount of $211, 200 (first note), and the smaller is in the amount of $52, 800 (second note) --together, they comprised the entire purchase price.

         The original of the first note is now physically in the possession of U.S. Bank. Although the location of the original second note cannot be ascertained from the record, there appears to be no controversy between the parties about whether it is in Deutsche Bank's control.

         In connection with the notes, Barrasso granted a first mortgage to New Century, and a second mortgage to New Century, both of which are dated September 16, 2005, and both of which were recorded in the registry of deeds. Before the execution of the second mortgage, on or about March 2, 2005, New Century granted Ocwen Loan Servicing, LLC (Ocwen), a limited power of attorney, with Ocwen's enumerated powers including the authority to "execute, acknowledge, seal and deliver . . . assignments of deed of trust/mortgage and other recorded documents."

         1. New Century bankruptcy and the postbankruptcy transfer of the first mortgage.

         New Century filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the District of Delaware (Bankruptcy Court) on or about April 2, 2007. U.S. Bank contends (and Barrasso disputes) that, notwithstanding New Century's bankruptcy, the first mortgage was transferred to the C-BASS Mortgage Loan Asset-Backed Certificates Series 2007-SP2 (C-BASS Trust) shortly thereafter, on or before June 29, 2007, via a pooling and servicing agreement dated June 1, 2007 (2007 PSA). The 2007 PSA listed C-BASS ABS, LLC, as "Depositor"; Credit-Based Asset Servicing and Securitization LLC as "Seller"; Litton Loan Servicing LP (Litton) as "Servicer"; and LaSalle Bank National Association (LaSalle) as "Trustee." A mortgage loan schedule associated with the 2007 PSA specifically identified the first mortgage by loan number as included in the assets transferred to the C-BASS Trust. Additionally, a limited power of attorney dated June 22, 2007, granted Litton the power to "execute, acknowledge, seal and deliver" mortgage ...


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