Heard: March 6, 2019.
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.
F. Russell, Jr., for the plaintiff.
P. Ponsetto for the defendants.
Present: Rubin, Kinder, & Singh, JJ.
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.
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.
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.
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.]" 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
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
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.