WILLIAM T. BARRASSO, JR.
NEW CENTURY MORTGAGE CORPORATION & others.
Heard: October 20, 2016.
Property, Mortgage, Record title. Mortgage,
Foreclosure, Real estate, Assignment. Assignment.
Contract, Assignment, Modification. Negotiable
Instruments, Assignment, Note. Practice, Civil,
Summary judgment. Estoppel.
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.
F. Russell, Jr., for the plaintiff.
Soun for the defendants.
Present: Hanlon, Sullivan, & Blake, JJ.
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.
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
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
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.
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
New Century bankruptcy and the postbankruptcy transfer of
the first mortgage.
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 ...