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Deutsche Bank National Trust Co. v. Germinara

United States District Court, D. Massachusetts

January 2, 2020

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERIQUEST MORTGAGE SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-R11, Plaintiff,
v.
ROBERT GERMINARA, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff 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 motion.[1]

         II. Standard of Review

         The 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).

         III. Factual Background

         The following undisputed facts are drawn from Deutsche Bank's Statement of Material Facts and supporting affidavits and exhibits, D. 24-29.[2] 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.

         Germinara 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 ¶ 16.

         IV. Procedural History

         Deutsche 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.

         V. Discussion

         A. Standing to Foreclose (Count II)

         The 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.

         Germinara 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 ...


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