Opinion
19-P-699
11-03-2020
WELLS FARGO BANK, N.A., trustee, v. Margaly PHILIPPE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this postforeclosure summary process action, the motion judge granted summary judgment in favor of the plaintiff, Wells Fargo Bank, N.A., as trustee for Option One Mortgage Loan Trust 2007-FXD1 (Wells Fargo). The self-represented defendant, Margaly Philippe, appeals, raising a multitude of claims. Discerning no error, we affirm.
Background. Wells Fargo commenced this summary process action against Philippe, Brianna Clerdonna, and Kenzy Clerdonna, seeking possession of property located at 55 Yolanda Drive in Brockton (property). Philippe is the mortgagor of the property. To secure a note in the amount of $304,000, Philippe granted the mortgage on the property in September, 2006. Over the next several years, two mortgage modifications were provided to Philippe to cure her defaults and to lower her interest rate and monthly payment amount. After Philippe defaulted again on her mortgage payments, Wells Fargo foreclosed on the mortgage and purchased the property on October 11, 2017, at a foreclosure sale.
As indicated in Wells Fargo's brief, neither Brianna Clerdonna nor Kenzy Clerdonna appeared at the summary judgment hearing or otherwise opposed entry of judgment in favor of Wells Fargo. They have not participated in this appeal.
Following the commencement of this eviction action, the parties filed cross motions for summary judgment. In a thorough and comprehensive memorandum of decision, a judge of the Housing Court (motion judge) allowed Wells Fargo's motion for summary judgment and denied Philippe's motion. The judge determined that Wells Fargo had made a prima facie showing of legal title and right to possession of the property. The burden then shifted to Philippe to present a genuine issue of material fact. The judge found that Philippe had not provided an affidavit in opposition to Wells Fargo's motion or in support of her own cross motion for summary judgment. Instead, Philippe argued facts which she believed would defeat summary judgment for Wells Fargo. Specifically, she asserted that an assignment of the mortgage to Wells Fargo from Option One Mortgage Corporation was invalid because it omitted the name of the assignee, and that Wells Fargo's purchase of the property was defective. Additionally, Philippe argued that Wells Fargo failed to act in good faith, that the loan was predatory, and that Wells Fargo unfairly denied a loan modification after 2011 because it failed to include Philippe's son's income in its evaluation. After judgment entered in favor of Wells Fargo, Philippe filed a motion for reconsideration. Following a hearing, the judge denied the motion, and this appeal followed.
Together with the notice of appeal, Philippe filed a motion to waive the appeal bond. Wells Fargo filed an opposition and cross-moved for an appeal bond. After a hearing, on January 31, 2019, a second judge ordered Philippe to pay $2,000 per month in use and occupancy and to post a bond of $15,000. On February 22, 2019, a single justice of this court waived the appeal bond and reduced the use and occupancy payments to $1,000 per month.
Discussion. On appeal, Philippe raises a variety of claims, some of which are difficult to discern. We distill from her appellate briefing the following claims: (1) Wells Fargo did not have standing to prosecute this action; (2) the motion judge improperly considered the assignment of the mortgage, the foreclosure deed, and the statutory affidavit of sale in rendering judgment for Wells Fargo; (3) the judge improperly denied her motions to compel and to strike; (4) the judge erroneously rejected her attempt to secure an additional mortgage modification on the ground that the loan was predatory; and (5) the use and occupancy order of the single justice was not proper.
"We review the allowance of a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (quotation omitted). Scarlett v. Boston, 93 Mass. App. Ct. 593, 596-597 (2018). When viewing the evidence in the light most favorable to the nonmoving party, we draw all reasonable inferences in their favor. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). Additionally, we review the rulings on the denial of Philippe's pretrial discovery motions to compel and to strike for an abuse of discretion resulting in prejudicial error. McCarthy v. Slade Assocs., 463 Mass. 181, 190 (2012).
Philippe first claims that Wells Fargo lacked standing to foreclose and commence this action. In its summary judgment papers, Wells Fargo established that it took title to the property at a foreclosure auction. The foreclosure deed conveying the property to Wells Fargo was recorded in the Plymouth County registry of deeds. As the Supreme Judicial Court recently explained, "A plaintiff may bring a summary process action to evict a tenant and recover possession of his or her property only if the plaintiff is the owner or lessor of the property." Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 546 (2018). Having established ownership with no evidence presented to the contrary, Wells Fargo had standing to bring this summary process action.
Philippe next claims that the motion judge improperly considered the assignment of the mortgage, the foreclosure deed, and the statutory affidavit of sale as proof of conveyance of the property. Wells Fargo counters that Philippe does not have standing to challenge the assignment; the statutory affidavit of sale complied with G. L. c. 244, § 15 ; and the foreclosure deed was properly executed and admissible. We agree with Wells Fargo. As we have explained, "[W]here the foreclosing entity has established that it validly holds the mortgage, a mortgagor in default has no legally cognizable stake in whether there otherwise might be latent defects in the assignment process." Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 502 (2014). Because Wells Fargo has established that it validly held the mortgage, Philippe cannot challenge the assignment process.
Philippe also argues that the assignment was void because it allegedly violates the terms of the governing pooling and servicing agreement. This court has rejected an identical claim. See Ressler v. Deutsche Bank Trust Co. Ams., 92 Mass. App. Ct. 502, 508-509 (2017). Philippe does not have standing to raise such a claim. See id. at 508.
Next, Philippe contends that the affidavit of sale was not a proper affidavit because it was not based upon personal knowledge of the affiant, constituted hearsay, and was otherwise "illegal." These claims are without merit. Philippe did not present an affidavit or other evidence demonstrating a genuine issue of material fact in this case. She was required to do so when Wells Fargo made out a prima facie case of its right to possession. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 642 (2012). Because her conclusory allegations are not rooted in evidentiary support, we cannot consider them. What is more, G. L. c. 244, § 15, does not require that an affiant personally review the relevant business records before filing an affidavit under that section. Here, as the motion judge recognized, the affidavit of sale complied with § 15. Without evidence in the record to the contrary, we leave that conclusion undisturbed.
We next look to Philippe's pretrial discovery claims. She contends that her motion to compel production of the original note was erroneously denied because the note was the "best evidence." In support of her argument, she relies on U.S. Bank Trust, N.A. v. Johnson, 96 Mass. App. Ct. 291 (2019). However, Johnson expressly declined to reach a similar argument as to whether the failure to produce an original mortgage note for examination rendered the foreclosure invalid because "it [was] enough to observe that the affidavit upon which U.S. Bank relied to establish that it held the note at all relevant times was based on the ‘best ... knowledge, information and belief’ of the affiant." Id. at 297. In this case, the affidavit attesting to Wells Fargo's ownership of the note is sufficient to establish that fact. See Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. Ct. 827, 830-831 (2017). The motion judge did not abuse her discretion in denying Philippe's motion to compel.
Where Philippe cursorily claims that the motion judge improperly denied her motion to strike the affidavit of sale, we have already explained supra that the affidavit complied with the relevant statutory scheme. Thus, her claim fails.
Philippe also claims that she was entitled to an additional mortgage modification in 2014 because her loan was predatory. She analogizes to Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733 (2008). The motion judge rejected her claim because Philippe "was unable to articulate how her mortgage loan fell within any of the four indices of predation set forth in the Fremont decision." We echo the judge's conclusion. In Fremont, the Supreme Judicial Court outlined four characteristics of unfair loans under G. L. c. 93A. See id. at 739, 750. As the motion judge noted, Philippe testified that her loan was a fixed rate loan. The factors in Fremont were directed to a variable rate loan, and therefore, we reject Philippe's claim. See id. at 737 n.10. ,
As Philippe did not file a notice of appeal from the order of the single justice, the matter is not before us. Nevertheless, we observe that, as we have already concluded that Wells Fargo had standing to foreclose and to commence this action because it established ownership of the property by uncontroverted evidence, see Hatcher, 479 Mass. at 546, Philippe's use and occupancy claim -- premised entirely on her standing claim -- necessarily fails.
To the extent we do not address other contentions made by Philippe, they "have not been overlooked. We find nothing in them that requires discussion." Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.
Order denying motion for reconsideration affirmed.