United States District Court, D. Massachusetts
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-R11, Plaintiff,
ROBERT GERMINARA, Defendant.
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Deutsche Bank National Trust Company, as Trustee for
Ameriquest Mortgage Securities Inc., Asset-Backed
Pass-Through Certificates, Series 2005-R11 (“Deutsche
Bank”) has filed this lawsuit against Defendant Robert
Germinara (“Germinara”) requesting an order
quieting title to the disputed property in favor of Deutsche
Bank (Count I), seeking a declaratory judgment establishing
Deutsche Bank's standing to foreclose (Count II) and
alleging slander of title (Count III). Deutsche Bank has
moved for summary judgment. D. 22. For the reasons stated
below, the Court ALLOWS IN PART and DENIES IN PART the
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The
movant “bears the burden of demonstrating the absence
of a genuine issue of material fact.” Carmona v.
Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If
the movant meets its burden, the non-moving party may not
rest on the allegations or denials in her pleadings,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986), but “must, with respect to each issue on which
she would bear the burden of proof at trial, demonstrate that
a trier of fact could reasonably resolve that issue in her
favor, ” Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As
a general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in original).
When assessing a motion for summary judgment, the Court will
not consider “conclusory allegations, improbable
inferences, and unsupported speculation.” Galloza
v. Foy, 389 F.3d 26, 28 (1 st Cir. 2004) (internal
citation omitted). The Court “view[s] the record in the
light most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
following undisputed facts are drawn from Deutsche Bank's
Statement of Material Facts and supporting affidavits and
exhibits, D. 24-29. On or about October 26, 2005, Germinara
executed an adjustable rate note (the “Note”) in
favor of Ameriquest Mortgage Company
(“Ameriquest”) in the amount of $288, 000 for the
purchase of the property at 2 Ashland Street, Newburyport,
Massachusetts (the “Property”). D. 24 at ¶
1. On the same day, Germinara also executed a mortgage (the
“Mortgage”) in favor of Ameriquest. D. 24 at
¶ 2. The mortgage was recorded with the Southern Essex
District Registry of Deeds (the “Registry”) on
October 26, 2005. D. 24 at ¶ 5. On December 1, 2005, the
Note and Mortgage (together, the “Loan”) were
transferred to the assets of the Ameriquest Mortgage
Securities Inc., Asset-Backed Pass-Through Certificates,
Series 2005-R11 (the “Trust”), for which Deutsche
Bank acts as trustee. D. 24 at ¶ 7. The assignment of
the Loan was recorded with the Registry on February 18, 2009.
D. 24 at ¶ 8. Deutsche Bank is the current holder of the
Note. D. 24 at ¶ 10.
has failed to make any payments on the Loan since the July 1,
2010 payment. D. 24 at ¶ 11. On or about January 25,
2016, Germinara recorded a “Notification of
Rescission” with the Registry. D. 24 at ¶ 13; D.
25-4. The Notification of Rescission claims Germinara had
rescinded the Mortgage and that it is no longer in force. D.
24 at ¶ 14. On or about June 19, 2018, Germinara
recorded an “Affidavit of Lawful Ownership” with
the Registry. D. 24 at ¶ 15; D. 25- 5. In the Affidavit
of Lawful Ownership, Germinara contended that Deutsche Bank
lacks standing to foreclose on the Property. D. 24 at ¶
Bank instituted this action on November 15, 2018. D. 1.
Deutsche Bank has now moved for summary judgment. D. 24. The
Court heard the parties on the pending motion and took the
matter under advisement. D. 32.
Standing to Foreclose (Count II)
Court turns first to Deutsche Bank's motion for summary
judgment as to Count II, seeking a declaratory judgment
pursuant to 28 U.S.C. § 2201 that it is the holder of
both the Note and the Mortgage and thus entitled to enforce
their terms, including foreclosure. Germinara's arguments
against Deutsche Bank's right to foreclose center on the
assignment and transfer of the Loan. Germinara maintains that
there is insufficient evidence in the record that the
assignment and transfer to the Trust were proper,
specifically pointing to the lack of production of a
“wet-ink” or original promissory note.
See D. 30 at 13-17. Such a showing is not required,
however, even caselaw cited by Germinara does not require
such production at this stage. “[W]hile Massachusetts
law requires a mortgagee to possess the note in order to
avoid having a foreclosure sale rendered void, it does not
require the mortgagee to initiate judicial proceedings or
produce the note before doing so.” Rice v. Wells
Fargo Bank, N.A., 2 F.Supp.3d 25, 36 (D. Mass. 2014).
The record establishes that Deutsche Bank is the current
holder of the Note, D. 24 at ¶ 10, and this matter is
undisputed on this record.
also argues that the assignment of the Loan to the Trust was
invalid or at least not supported by the record here. This
argument is contradicted by the clear record of assignment
from Ameriquest, the original lender, to the Trust.
Id. at ¶¶ 7-9. To establish itself as the
holder of the Mortgage, Deutsche Bank “may provide a
complete chain of assignments linking it to the record holder
of the mortgage, or a single assignment from the record
holder of the mortgage.” U.S. Bank Nat. Ass'n
v. Ibanez, 458 Mass. 637, 651 (2011). Here, Deutsche
Bank has provided just such a chain, see D. 25-1,
25-2. That chain of assignment, plus Deutsche Bank's
possession of the Loan documents, also renders
Germinara's arguments about the blank endorsement of the
Note inapposite. “When indorsed in blank, [the Note]
becomes payable to bearer and ...