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Giannasca v. Deutsche Bank National Trust Co.

Appeals Court of Massachusetts, Middlesex

August 21, 2019

ANTHONY GIANNASCA
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee, [1] & others. [2]

          Heard: March 6, 2019.

         Civil action commenced in the Superior Court Department on April 13, 2016. The case was heard by Peter B. Krupp, J., on motions for summary judgment.

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

          James P. Ponsetto for the defendants.

          Present: Rubin, Kinder, & Singh, JJ.

          KINDER, J.

         This action arises from a home mortgage foreclosure. The plaintiff, mortgagor Anthony Giannasca, brought the underlying complaint seeking, among other things, a declaratory judgment that defendant Deutsche Bank National Trust Company (Deutsche Bank) had no enforceable mortgage interest in Giannasca's property at 9 Joseph Street in Medford (property). Specifically, Giannasca claimed that the assignment of his mortgage from the original mortgagee, Mortgage Electronic Registration Systems, Inc. (MERS), to Deutsche Bank was invalid and that, as a consequence, Deutsche Bank had no mortgage interest to foreclose upon. A Superior Court judge disagreed and allowed summary judgment in favor of Deutsche Bank. Giannasca challenges that conclusion on appeal. We affirm.

         Background.

         We summarize the facts contained in the summary judgment record in the light most favorable to Giannasca. See Barrasso v. New Century Mtge. Corp, 91 Mass.App.Ct. 42, 43 (2017). In November 2005, in connection with his purchase of the property, Giannasca executed a promissory note in the amount of $332, 500 in favor of IndyMac Bank, F.S.B. (IndyMac), and a mortgage to secure repayment of the loan. MERS was named as the mortgagee, "solely as a nominee for Lender [IndyMac] and Lender's successors and assigns." The mortgage instrument further stated, "Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, with power of sale" the property. In 2005, the promissory note was pooled with other such instruments in a securitized trust, IndyMac INDX Mortgage Loan Trust 2005-AR33 Mortgage Pass-Through Certificates, Series 2005-AR33. Deutsche Bank was trustee for the trust. The pooling and servicing agreement provided that IndyMac transferred its interest in each mortgage loan without recourse to IndyMac MBS, Inc., which, in turn, transferred those interests to Deutsche Bank.

         In 2008, IndyMac failed and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver of its assets and obligations. In 2009, the FDIC sold the assets of IndyMac to OneWest Bank, F.S.B. In December 2011, MERS, acting "solely as nominee for IndyMac Bank, F.S.B.," assigned the "[m]ortgage . . . executed by . . . Giannasca" to Deutsche Bank.

         On October 5, 2011, Giannasca filed a petition for personal bankruptcy. On January 7, 2013, he filed a notice of intent to surrender the property "to the mortgagee, [OneWest Bank, F.S.B.]"[3] On November 18, 2013, the bankruptcy trustee filed a notice of intent to abandon the property because it had no equity. The property had a fair market value of $244, 700, but the outstanding mortgage debt was $415, 686.48. On December 3, 2013, Giannasca's personal liability on the debt was discharged in the bankruptcy proceeding.

         In a letter dated January 30, 2015, after Giannasca failed to make five consecutive mortgage payments, Deutsche Bank's loan servicer notified him of his right to cure the past due amount within 150 days. Giannasca failed to do so, and Deutsche Bank commenced foreclosure proceedings in September 2015.

         In April 2016, Giannasca filed a complaint in the Superior Court seeking, among other things, declaratory relief that Deutsche Bank had no enforceable mortgage interest in the property. Ultimately, on cross motions for summary judgment, a Superior Court judge allowed summary judgment in favor of Deutsche Bank, reasoning that Giannasca's filing of a notice of intent to surrender the property in the bankruptcy action estopped him from contesting the foreclosure. The judge also concluded that the assignment of the mortgage interest to Deutsche Bank was valid. On appeal, Giannasca challenges only the validity of the assignment.

         D ...


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