Opinion
16-P-692
05-05-2017
BEAU GRASSIA v. GMAC MORTGAGE, LLC, & another.
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
A judge of the Superior Court granted the motion of Green Tree Servicing, LLC (Green Tree), for summary judgment in this preforeclosure action. On Green Tree's complaint for declaratory judgment, the judge ordered that, as a matter of law, the mortgage signed by the plaintiff, Beau Grassia, was valid and enforceable, and that Green Tree had the right to foreclose. Grassia appeals, claiming that the judge erred in (1) concluding that Green Tree was a proper intervener, (2) finding that a default had occurred, and (3) ordering the entry of summary judgment. We affirm.
Green Tree intervened in this case after GMAC Mortgage, LLC, filed a suggestion of bankruptcy and transferred its servicing rights to Green Tree.
The judge also allowed Green Tree's motion to dissolve the injunction.
The judge further ordered that Grassia was entitled to certain offsets, which the judge ruled were not barred by the statute of limitations.
1. Intervention. Grassia contends that the judge abused his discretion by allowing Green Tree to intervene in the action. We disagree. After Grassia's former loan servicer, GMAC Mortgage, LLC (GMAC), declared bankruptcy, Green Tree acquired its servicing rights for Grassia's loan through a servicing transfer agreement. See note 2, supra. GMAC granted Green Tree a limited power of attorney and appointed Green Tree its attorney-in-fact in connection with mortgage loans and mortgage servicing rights purchased by Green Tree from GMAC. Accordingly, Green Tree had an interest in the enforcement of Grassia's mortgage and, absent intervention, its ability to protect that interest would have been impaired. See Cosby v. Department of Social Servs., 32 Mass. App. Ct. 392, 394-395 (1992). Nothing in the record indicates that Green Tree was not a proper intervener; as such, the judge properly allowed Green Tree's motion to intervene. See Peabody Fedn. of Teachers, Local 1289 v. School Comm. of Peabody, 28 Mass. App. Ct. 410, 412-413 (1990).
While the judge requested additional documents, which were not forthcoming, the validity of the servicing transfer agreement is not at issue.
2. Default. For the first time on appeal, Grassia challenges the existence of a default, claiming that the underlying mortgage and note are invalid due to the effects of GMAC's alleged wrongful conduct. "An issue not raised or argued below may not be argued for the first time on appeal." Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). Grassia did not contest below the validity of the mortgage or the note. Accordingly, we decline to consider this issue on appeal.
3. Summary judgment. After ordering the entry of summary judgment, the judge reserved, for further determination, the question of the amount of offsets against the indebtedness to which Grassia may be entitled. Grassia contends that the fact that the precise amount of the outstanding indebtedness remains undetermined constitutes a genuine issue of material fact, making summary judgment inappropriate. To the contrary, as the judge observed, there is no dispute that the amount of indebtedness exceeds the amount of any offsets to which Grassia may be entitled, and there likewise is no dispute that Grassia is in default. Accordingly, determination of the precise amount owed by Grassia on the debt, and secured by the mortgage, is immaterial to the question of Green Tree's right to foreclose the mortgage, and may be resolved by an accounting following the foreclosure.
To the extent that Grassia contends that the fact that he is entitled to offsets supports his claim that the mortgage and the note are invalid in their entirety, as we have observed, supra, the claim is waived. See Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. at 421 n.2.
Judgment affirmed.
By the Court (Green, Blake & Lemire, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 5, 2017.