Opinion
14-P-385
04-27-2015
DEBRA A. ROUSSEAU v. CITIMORTGAGE, INC., & 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
Debra Rousseau, pro se, appeals from a summary judgment entered for the defendants CitiMortgage, Inc. (Citi), and Mortgage Electronic Registration Systems, Inc. (MERS). We affirm.
Background. The summary judgment record reflects the following undisputed facts. In April, 2006, the plaintiff executed a promissory note in favor of Citi in the amount of $343,000. As security for the note, the plaintiff agreed to "mortgage, grant and convey to MERS (solely as nominee for [Citi] and [Citi]'s successors and assigns) and to the successors and assigns of MERS, with power of sale," her property located in Dudley. In executing the mortgage, the plaintiff "underst[ood] and agree[d] that MERS holds only legal title to the Interests granted by [the plaintiff] in this Security Instrument," but that MERS, as nominee for Citi, "has the right[] to exercise any or all of those Interests, including, but not limited to, the right to foreclose and sell the property."
In 2009, the plaintiff defaulted under the terms of the note and mortgage. On November 16, 2010, MERS assigned the mortgage to Citi. The assignment was recorded in the Worcester County registry of deeds on December 23, 2010. On July 21, 2011, Citi sent the plaintiff a notice of foreclosure sale to take place on August 11, 2011. After cancelling that sale, Citi notified the plaintiff on October 28, 2011, that the sale would take place on November 18, 2011. On November 23, 2011, after the November 18 sale was postponed by public proclamation, Citi sent the plaintiff a third notice of foreclosure sale, which took place as scheduled on December 15, 2011.
In April, 2012, the plaintiff filed the instant action against MERS and Citi, seeking a declaration that the foreclosure was invalid as a matter of law (count I); damages for the defendants' alleged breach of the covenant of good faith and fair dealing (count II); to quiet title (count III); and damages for alleged violations of G. L. c. 93A (count IV). After some discovery and a hearing, a Superior Court judge allowed motions for summary judgment by MERS and Citi.
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). "[W]e then determine whether the moving party has affirmatively shown that there is no real issue of fact," ibid., and that it is "entitled to judgment as a matter of law," id. at 328 (citation omitted).
1. Validity of the assignment. The plaintiff argues that summary judgment should not have entered because the validity of the November 16, 2010, assignment is disputed. In support of their motions, Citi and MERS submitted the note, the mortgage, the assignment, and the notices of foreclosure sale. The mortgage states that MERS is the mortgagee. The assignment was signed by the assistant secretary for MERS before a notary public and recorded in the Worcester County registry of deeds. It therefore was sufficient to pass title. See G. L. c. 183, § 54B, as appearing in St. 2010, c. 282, § 2. Affidavits submitted by the plaintiff to show that the signer is a known "robo-signer" do not affect the validity of the assignment. See Butler v. Deutsche Bank Trust Co. Americas, 748 F.3d 28, 33-34 (1st Cir. 2014) (applying Massachusetts law). See also Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 293-294 (1st Cir. 2013) (applying Massachusetts law and holding that an assignment that complies with G. L. c. 183, § 54B, is valid). The plaintiff's contention that assigning the mortgage separately from the note nullified the assignment is incorrect as a matter of law; "the legal interest in a mortgage permissibly may be separated from the beneficial or equitable interest in the debt it secures." Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 210 (2014). See U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 652-653 (2011) (Ibanez). Because the undisputed facts demonstrate that Citi held the note and could "provide a . . . single assignment from the record holder of the mortgage" at the time it sent notice of the foreclosure sale, the foreclosure was valid. Id. at 651. See G. L. c. 183, § 21; G. L. c. 244, § 14.
2. General Laws c. 93A claims. The plaintiff's claims under G. L. c. 93A, § 9, are based upon Citi's statement in a September 27, 2010, "Mortgagee's Affidavit" that it was the mortgagee. It is undisputed that the mortgage had not yet been assigned as of that date. While "[a] practice may be deceptive if it reasonably could be found to have caused the plaintiff to act differently than [s]he otherwise would have acted," Duclersaint v. Federal Natl. Mort. Assn., 427 Mass. 809, 814 (1998), the plaintiff neither alleged nor offered evidence to support a claim that she knew of the September 27, 2010, affidavit before it was filed on December 21 (after the assignment had been executed), or that she acted differently than she otherwise would have because Citi executed, but did not file, the affidavit before it had been assigned the mortgage. Even if she had, "[t]here is nothing in the record to indicate that the defendant[s] acted unfairly." Id. at 814-815. Citi was not required to hold both the mortgage and the note when foreclosure proceedings were instituted, see Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 588-589 (2012) (new interpretation of the term "mortgagee" applies prospectively); Galiastro v. Mortgage Electronic Registration Sys., Inc., 467 Mass. 160, 167 & n.4 (2014) (interpretation announced in Eaton applicable to cases pending on appeal as of June 22, 2012); Sullivan, supra at 209 (same), and it was the mortgagee when the "Mortgagee's Affidavit" was filed. "[T]he defendant[s] did not deceive the plaintiff in any way," Duclersaint, supra at 815; MERS held the mortgage in trust for Citi on September 27, 2010, when the affidavit was executed, as Citi "ha[d] an equitable right to obtain an assignment of the mortgage." Ibanez, supra at 652. While the plaintiff claims that she was "damaged in her person and Property" as a result of Citi's alleged misrepresentation on September 27, 2010, there is nothing in the record to support an inference "that there was a causal connection between the [alleged] deception and the loss and that the loss was foreseeable as a result of the [alleged] deception." Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309, 317 (2004). Rather, it is undisputed on this record that the plaintiff's loss was caused by her failure to make payments on the note or to cure the delinquency.
This document, executed on September 27, 2010, was filed in the Land Court Department on December 21, 2010.
3. Remaining arguments. While the plaintiff claims that summary judgment was improper because discovery was outstanding, her failure to file an affidavit as required by Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), "is fatal." Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 458 (1997), and cases cited. We have considered the plaintiff's remaining arguments and find them to be without merit.
Judgment affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: April 27, 2015.