Opinion
13-P-1294
12-08-2014
MARK A. KITNER & another v. MORTGAGE LENDERS NETWORK USA INC. & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiffs Mark and Julie Kitner (the Kitners) appeal from a Superior Court judgment dismissing their complaint, raising the correctness of the order granting summary judgment to U.S. Bank National Association as Trustee (U.S. Bank). We affirm.
Background. The following material facts are undisputed. On April 6, 2006, the Kitners executed a promissory note for $382,500 in favor of Mortgage Lenders Network USA Inc. (MLN), and granted a mortgage on their residence in favor of Mortgage Electronic Registration System, Inc. (MERS). The note and the mortgage were subsequently endorsed to U.S. Bank. American Servicing Company (ASC) services the loan. The Kitners defaulted under the terms of the mortgage and note, and Harmon Law Offices P.C. (Harmon) was retained by U.S. Bank to institute foreclosure proceedings.
Because the Kitners did not file a response to U.S. Bank's statement of material facts as required by Superior Court Rule 9A, the facts set forth in U.S. Bank's statement are deemed admitted. See Rule 9A(b)(5)(ii) of the Rules of the Superior Court (2009); Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 401 (2002).
The Kitners filed a twelve-count complaint against the five entities, including, as relevant on appeal, two counts for declaratory and injunctive relief alleging that U.S. Bank did not have standing to foreclose, because assignments of the note and mortgage were invalid. By decision dated February 16, 2012, a judge in the Superior Court allowed a motion to dismiss all claims against ASC and MERS, and all but the two aforementioned claims against U.S. Bank. An order of dismissal later entered on all claims against MLN, because the Kitners failed to provide proof of service. A second judge then allowed U.S. Bank's motion for summary judgment on the remaining claims against it, and, in the same memorandum and order dated February 8, 2013, allowed a motion to dismiss all claims against Harmon. Final judgment then entered dismissing the Kitners' action. On appeal, the Kitners claim the second judge erred in granting summary judgment to U.S. Bank.
Discussion. "In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party." Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014). "Viewing the facts in this light, we then determine whether the moving party has affirmatively shown that there is no real issue of fact," ibid., and whether on the undisputed facts the moving party is entitled to judgment as a matter of law, Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474 (2013).
To the extent the Kitners attempt to raise arguments claiming error in the decision dated February 16, 2012, these matters are not properly before us because the Kitners' notice of appeal identified only the court's February 8, 2013, decision as the basis for their appeal. See Robinson v. Boston, 71 Mass. App. Ct. 765, 771 (2008).
The Kitners' mortgage allows for foreclosure by power of sale. Prior to the Supreme Judicial Court decision in Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012), a party seeking to foreclose by power of sale was required to demonstrate either that it was the original mortgagee or that it was "the assignee[] of the mortgage[] at the time of the notice of sale and the subsequent foreclosure sale." U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 648 (2011). In Eaton, the court held prospectively that, in addition to holding the mortgage, a foreclosing entity also must show that it holds the note or is authorized to act on behalf of the note holder. Eaton, supra at 571, 583-584 & n.20. Thus, "to be valid, a foreclosure effected through the statutory power of sale . . . [now] requires the mortgagee to hold the note or to act on behalf of the note holder." Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 166 (2014), citing Eaton, supra at 579-581.
While the Kitners argue on appeal that assignments of the mortgage and note to U.S. Bank were invalid, they did not file a response to U.S. Bank's statement of undisputed facts as required by Superior Court Rule 9A, resulting in U.S. Bank's statement of facts being admitted. See note 3, supra. It therefore is undisputed that U.S. Bank holds both the mortgage and the note. U.S. Bank is entitled to foreclose under both Ibanez and Eaton, and summary judgment properly was awarded to U.S. Bank.
The Kitners make no argument on appeal regarding the dismissal of all claims against Harmon, and we "need not pass upon questions or issues not argued in the brief." Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Arguing that the appeal is frivolous, Harmon asks for an award of reasonable appellate attorney's fees and costs, in light of the facts that: Harmon asked the Kitners whether they were appealing the order dismissing all claims against Harmon; the Kitners did not respond, requiring Harmon to file a brief in this court; and the Kitners make no argument on appeal regarding the judgment in Harmon's favor. While the Appeals Court has "wide discretion to determine when a party or attorney before them has acted in a manner warranting the imposition of sanctions," Avery v. Steele, 414 Mass. 450, 457 (1993), "[w]e are hesitant to deem an appeal frivolous and grant sanctions except in egregious cases." Symmons v. O'Keeffe, 419 Mass. 288, 303 (1995). While this appeal is close to the line, we decline to make an award.
Judgment affirmed.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 8, 2014.