Opinion
14-P-648
06-03-2015
FV-I, INC. v. BEST RATE FUNDING CORP. & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Defendants Scott and Susan Womble appeal from a declaratory judgment entered by a judge of the Superior Court in favor of the plaintiff, FV-I, Inc. (FV-I). We affirm.
On August 26, 2006, the Wombles granted a mortgage to Best Rate Funding Corp. (Best Rate) to secure a loan evidenced by a note for the purchase of real property. Best Rate then assigned the note to WMC Mortgage Corp. (WMC), which then endorsed the note, in blank. On December 1, 2006, when Best Rate assigned the mortgage in favor of WMC, it did not record the assignment. In addition, the original assignment document is missing. In 2007, WMC assigned the mortgage to Saxon Mortgage Services, Inc., which then assigned it to FV-I in January of 2012. The Wombles defaulted on the note. FV-I is unable to foreclose on the property due to the gap in the recorded assignments.
FV-I filed a verified complaint for declaratory judgment in the Superior Court against Best Rate and the Wombles seeking a declaration that FV-I is the current mortgagee of the mortgage given by the Wombles to Best Rate. The Wombles answered, admitting to executing the note and granting the mortgage to Best Rate. They neither admitted nor denied the remaining allegations in the complaint. Best Rate did not answer and was defaulted. A separate and final judgment entered against Best Rate that permitted a photocopy of the assignment to be recorded and declared that FV-I is the current mortgage holder. From this judgment, Scott Womble noticed an appeal. FV-I then moved to dismiss the Wombles from the action. The motion was allowed; no appeal was taken from the dismissal.
Subsequently, we allowed Susan Womble to join in the appeal.
On appeal, the Wombles contend that the judge erred as a matter of law in allowing FV-I to record a photocopy of the assignment. FV-I counters that the Wombles do not have standing to either challenge the assignment or file an appeal. Even if we were to assume the Wombles have standing, without deciding that issue, there is no evidence in the record to question the authenticity of the assignment. FV-I filed a verified complaint to which it attached a photocopy of the original assignment. The complaint alleges that the Best Rate assignment "was not recorded and an original cannot be located." We accept the facts set forth in the verified complaint and attachments thereto as true in the absence of contrary evidence. "It is settled that the original of a written instrument need not be produced if a judge is satisfied that it is lost other than through the serious fault of the proponent." Capitol Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 520-521 (1985). This rule includes instruments "which may fall within the ambit of the Statute of Frauds." Id. at 521. Secondary evidence admissible to prove the contents of original documents includes photocopies. See, e.g., Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 690 (1993); Buker v. Melanson, 8 Mass. App. Ct. 325, 330-331 (1979); Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 25 Mass. App. Ct. 302, 315 (1988). In the absence of evidence questioning the authenticity of the photocopy of the assignment, the verified complaint was sufficient to establish the assignment. There was no error.
Judgment affirmed.
By the Court (Trainor, Agnes & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 3, 2015.