MONIKA M. RESSLER
DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,  & others.
Heard: October 4, 2017.
action commenced in the Superior Court Department on July 7,
motion to dismiss was heard by Mitchell H. Kaplan, J.
F. Russell, Jr., for the plaintiff.
M. Mendillo for Deutsche Bank Trust Company Americas &
C. Ross, pro se, amicus curiae, submitted a brief.
Present: Agnes, Sacks, & Lemire, JJ.
plaintiff Monika M. Ressler (the borrower) appeals a Superior
Court judgment dismissing her complaint for declaratory and
other relief based on her claim that the defendant Deutsche
Bank Trust Company Americas, trustee of Residential Accredit
Loans Inc. Mortgage Asset-Backed Pass-Through Certificates,
Series 2006-QS18 (Deutsche Bank) had acquired her mortgage in
violation of a governing pooling and service agreement,
making its foreclosure on her mortgage invalid. Because the
borrower's various arguments are either squarely barred
by precedent or border on the frivolous, we affirm. Although
we deny Deutsche Bank's request that, as a sanction for a
frivolous appeal, we award attorney's fees and costs
against the borrower and her counsel jointly and severally,
we caution counsel here that such a sanction is within an
appellate court's authority and is more likely to be
imposed if counsel fails to heed warnings against repetitive
pursuit of unmeritorious appeals.
review the sufficiency of the borrower's complaint de
novo, taking as true its factual allegations and drawing all
reasonable inferences in her favor. Curtis
v. Herb Chambers 1-95, Inc., 458 Mass. 674,
676 (2011). "[W]e look beyond the conclusory allegations
in the complaint and focus on whether the factual allegations
plausibly suggest an entitlement to relief."
Ibid., citing Iannacchino v.
Ford Motor Co., 451 Mass. 623, 635-636 (2008). In
doing so, we consider, among other things, exhibits attached
to the complaint. Schaer v. Brandeis
Univ., 432 Mass. 474, 477 (2000).
the borrower took a $500, 000 mortgage loan from Lendia, Inc.
(the lender), giving the lender a promissory note for that
amount and a mortgage on her property in West Tisbury to
secure the loan. The mortgage was duly and promptly recorded
at the appropriate registry of deeds. The copy of the
mortgage attached to the complaint indicates that in March,
2012, the lender assigned the mortgage to Deutsche Bank, as
trustee for Residential Accredit Loans, Inc. (RALI), Mortgage
Asset-Backed Pass-Through Certificates, Series 2006-QS18,
which assignment was also duly and promptly recorded at the
appropriate registry. A copy of the original note, likewise
attached to the complaint, indicates that the lender assigned
the note, which passed through the hands of two
intermediaries before being assigned to Deutsche Bank as
2016, Deutsche Bank, asserting that the borrower was in
default, sent her a notice of mortgage foreclosure sale,
citing G. L. c. 244, § 14. The notice attached a
certification from Deutsche Bank's loan servicer,
SunTrust Mortgage Co. (the servicer), pursuant to 209 Code
Mass. Regs. § 18.21A(2) (2013), asserting that
Deutsche Bank had the right to foreclose because it owned
both the mortgage and the note. The certification, which was
attached to the complaint, described "the chain of title
and ownership of the note and mortgage from the date of the
recording of the mortgage being foreclosed upon, "
Id. at § 18.21A(2)(c), including by attaching a
copy of the note with all endorsements forming the chain
between the lender and Deutsche Bank. See ibid.
borrower then filed this action against Deutsche Bank, the
servicer, and the lender, seeking to enjoin the foreclosure.
She alleged that Deutsche Bank acted as trustee for mortgages
and notes placed in trust by RALI pursuant to a trust
document, also known as a pooling and service agreement
(PSA), attached to the complaint. She asserted that the PSA
allowed mortgages and notes to be placed in the trust only if
they had first been assigned by lenders to an entity known as
Residential Funding Company, LLC (RFC), and then by RFC to
RALI, and then by RALI to Deutsche Bank as trustee, all prior
to the trust closing date of December 20, 2007. She asserted
that because Deutsche Bank had not documented that it had
received her mortgage and note through this chain of
assignments, or before the closing date, the assignments were
unauthorized by the PSA and thus were void under governing
New York law and the common law of trusts.
the borrower claimed, Deutsche Bank did not validly hold the
mortgage and note and so was not a "mortgagee"
entitled to foreclose upon her property under G. L. c. 244,
§ 14, and the statutory power of sale set forth in G. L.
c. 183, § 21. See Eaton v. Federal
Natl. Mort. Assn., 462 Mass. 569, 584-586 (2012)
(construing term "mortgagee" in G. L. c. 244,
§ 14, to mean entity that also holds underlying mortgage
note or acts under note holder's authority). She also
claimed that because the PSA required the mortgage and note
to follow a particular chain of assignment through RFC and
RALI, yet the certification from Deutsche Bank's loan
servicer pursuant to 209 Code Mass. Regs. § 18.21A(2)
had failed to list such a chain, the certification violated
the regulation and thus G. L. c. 93A.She sought
declaratory relief as well as damages under G. L. c. 93A and
for slander of title.
borrower moved for a preliminary injunction to bar the
scheduled August 11, 2016, foreclosure sale. Concluding that
the borrower lacked standing to assert noncompliance with the
PSA, and that no violation of the regulation had been shown,
a judge denied the motion for failure to show a likelihood of
success on the merits. Thereafter, a different judge (motion
judge) allowed Deutsche Bank's motion to dismiss under
Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The motion
judge concluded, based in particular on the decision in
U.S. Bank Natl. Assn. v.Boiling,
90 Mass.App.Ct. 154 (2016), that the borrower had no basis to
argue that the ...