NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.

0, as
appearing in 97 Mass. App. Ct., 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

18-P-349

ANTHONY GIANNASCA

vs.

DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This matter is before us pursuant to the February 21, 2020,

order of the Supreme Judicial Court, denying without prejudice

the plaintiff, mortgagor Anthony Giannasca's, petition for

further appellate review in Giannasca v. Deutsche Bank Nat'l

Trust Co., 95 Mass. App. Ct. 775 (2019) (Giannasca I), and

remanding the case to us "for consideration of the issue of the

plaintiff's standing, in light of the Superior Court's findings

and conclusions regarding the effect of the plaintiff's

bankruptcy." Upon consideration of this issue, and the parties'

1 Of the IndyMac INDX Mortgage Loan Trust 2005-AR33, Mortgage

Pass Through Certificates, Series 2005-AR33.

2 OneWest Bank, F.S.B., formerly known as IndyMac Bank, F.S.B.;

Mortgage Electronic Registration Systems, Inc.; and Ocwen Loan
Servicing, LLC.
supplemental briefing, our disposition of the case in Giannasca

I remains unchanged.

Much of the procedural history of this case appears in

Giannasca I. On April 13, 2016, Giannasca "brought the

underlying complaint seeking, among other things, a declaratory

judgment that defendant Deutsche Bank National Trust Company

(Deutsche Bank) had no enforceable mortgage interest in

Giannasca's property at 9 Joseph Street in Medford (property).

Specifically, Giannasca claimed that the assignment of his

mortgage from the original mortgagee, Mortgage Electronic

Registration Systems, Inc. (MERS), to Deutsche Bank was invalid

and that, as a consequence, Deutsche Bank had no mortgage

interest to foreclose upon." Giannasca I, 95 Mass. App. Ct. at

775-776.

On January 17, 2017, Giannasca filed a motion for summary

judgment based on that argument. On June 26, 2017, a Superior

Court judge denied the motion. In the same memorandum of

decision and order, the judge allowed Deutsche Bank's cross

motion for summary judgment on two grounds. First, the judge

concluded that Giannasca was precluded from contesting the

foreclosure because he had noticed his intent to surrender the

property in a bankruptcy proceeding. Second, the judge

concluded that "[e]ven assuming Mr. Giannasca has standing to

contest the assignment, the assignment to Deutsche Bank was

2
procedurally valid." On appeal, Giannasca challenged only the

validity of the assignment. We affirmed the judgment in favor

of Deutsche Bank in a split decision (Rubin, J., dissenting),

addressing only the validity of the assignment. See Giannasca

I, supra.

As noted above, on February 21, 2020, the Supreme Judicial

Court denied Giannasca's application for further appellate

review without prejudice and remanded the case to us. After

consideration of supplemental briefs from the parties and the

facts related to the bankruptcy proceeding, we disagree with the

motion judge regarding the preclusive effect of Giannasca's

notice of intent to surrender the property in bankruptcy.

Background. The facts relevant to the validity of Deutsche

Bank's mortgage interest were set forth in our prior decision

and we need not repeat them. We summarize the facts related to

Giannasca's bankruptcy proceeding.

On October 5, 2011, prior to the initiation of the

foreclosure action on the property, Giannasca filed a petition

for personal bankruptcy pursuant to Chapter 13 of the United

States Bankruptcy Code. The petition identified the property as

one of Giannasca's assets and stated that there was a claim

secured by the mortgage on the property in the amount of

$332,500. On November 29, 2011, Giannasca's bankruptcy was

converted to a Chapter 11 proceeding. On January 7, 2013,

3
Giannasca filed a notice of intent to surrender the property to

the mortgagee. On February 26, 2013, the Chapter 11 proceeding

was converted to a Chapter 7 proceeding. The next day,

Giannasca filed a statement of intention to retain the property

and to reaffirm the debt.3

"On November 18, 2013, the bankruptcy trustee filed a

notice of intent to abandon the property because it had no

equity. The property had a fair market value of $244,700, but

the outstanding mortgage debt was $415,686.48. On December 3,

2013, Giannasca's personal liability on the debt was discharged

in the bankruptcy proceeding."4 Giannasca I, supra at 776-777.

On June 29, 2014, Ocwen Loan Servicing (Ocwen), Deutsche

Bank's loan servicer, proposed a loan modification agreement to

Giannasca.5 Pursuant to that agreement, Giannasca agreed to make

monthly payments of $2,309.09 on the mortgage loan. Giannasca

3 Giannasca did not file a reaffirmation agreement with the

bankruptcy court as required by 11 U.S.C. § 524(c) (2012).
Giannasca I, supra at 776 n.3 .

4 The discharge cancelled Giannasca's personal liability on the

promissory note, but did not impair Deutsche Bank's ability to
proceed in rem by foreclosing on the mortgage. See Johnson v.
Home State Bank, 501 U.S. 78, 83 (1991) (creditor's right to
foreclose survives bankruptcy, and is unaffected by discharge of
personal liability).

5 It is not clear from the summary judgment record why a loan

modification agreement was proposed to Giannasca by Ocwen after
the discharge was ordered. A discharge in bankruptcy enjoins a
creditor from continuing efforts to collect or recover a debt as
a personal liability of a debtor. 11 U.S.C. § 524(a)(2).

4
made payments on July 1, 2014, and July 16, 2014, but made none

thereafter. On January 30, 2015, Ocwen "notified [Giannasca] of

his right to cure the past due amount within 150 days.

Giannasca failed to do so, and Deutsche Bank commenced

foreclosure proceedings in September 2015." Giannasca I, supra

at 777.

In its summary judgment motion, Deutsche Bank argued that

by surrendering the property in the bankruptcy proceeding,

Giannasca "voluntarily waived entirely his ability to contest

any foreclosure." The judge agreed, reasoning that "Giannasca's

notice of intent to surrender the [p]roperty was never

superseded or withdrawn."

Discussion. Under 11 U.S.C. § 521(a)(1), a bankruptcy

debtor must file a schedule of assets and liabilities with the

bankruptcy court. If, as in Giannasca's case, the schedule

includes debts secured by property in the bankruptcy estate, the

debtor must file a statement of his intention to retain or

surrender the property, redeem it, or reaffirm the debts secured

by the property within thirty days of the petition. 11 U.S.C.

§ 521(a)(2)(A). The debtor must then "perform his intention"

within thirty days. 11 U.S.C. § 521(a)(2)(B).

There is a conflict in the case law regarding the effect of

a notice of intent to surrender on the debtor's right to contest

a subsequent foreclosure action. The Eleventh Circuit Court of

5
Appeals has held that debtors who surrender their property in

bankruptcy may not oppose foreclosure on that property in State

court. See In re Failla, 838 F.3d 1170, 1174-1178 (11th Cir.

2016). The Failla court reasoned that "[o]therwise, debtors

could obtain a discharge in bankruptcy based, in part, on their

sworn statement to surrender and enjoy possession of the

collateral indefinitely while hindering and prolonging the state

court process" (quotation and citations omitted). Id. at 1177.

See Ibanez v. U.S. Bank Nat'l Ass'n, 856 F. Supp. 2d 273, 276

(D. Mass. 2012) (debtor judicially estopped from contesting

foreclosure after surrendering property in bankruptcy action).

In a case decided after Failla, the bankruptcy court in

Hawaii held that the requirement under § 521(a)(2) that the

debtor file a statement of intent to surrender the property,

redeem it, or reaffirm the debt, "is a notice provision that

does not affect the respective rights of the debtor and the

secured creditor." In re Ryan, 560 B.R. 339, 350 (Bankr. D.

Haw. 2016), vacated on other grounds, In re Ryan, No. HI-16-

1391-TaLB (Bankr. 9th Cir. Jan. 4, 2018).6 The Ryan court

explicitly rejected the holding of Failla and concluded that a

6 In Ryan, the United States Bankruptcy Appellate Panel for the

Ninth Circuit dismissed the appeal as moot and vacated the
bankruptcy court's order. The appellate panel did not consider
whether a notice of intent to surrender in bankruptcy precludes
a postdischarge challenge to foreclosure.

6
declaration of an intent to surrender does not, as a matter of

law, preclude a debtor from challenging a postdischarge

foreclosure. Ryan, supra at 348-350. In Everbank v. Chacon, 92

Mass. App. Ct. 1101 (2017), another panel of this court found

the Ryan court's analysis persuasive. While the panel did not

reach a definitive conclusion regarding the meaning of a

bankruptcy surrender in this context, the panel concluded (in an

unpublished decision) that the debtor did not, by stating his

intention to surrender his property in bankruptcy, waive his

right to challenge a subsequent foreclosure action.

We agree with our colleagues in Everbank that we need not

resolve the conflict in these cases regarding the effect of a

notice of intent to surrender property in bankruptcy. To

determine whether Giannasca's statement of his intention to

surrender the property constituted a waiver of his right to

challenge the foreclosure, we ask whether he intentionally

relinquished a known right. See Normandin v. Eastland Partners,

Inc., 68 Mass. App. Ct. 377, 388 (2007). Here, after Giannasca

filed a form providing notice of his intent to surrender the

property in bankruptcy, he took no action to follow through with

the surrender. On the contrary, his actions were inconsistent

with an intent to surrender the property. He continued living

there. He filed a notice of intention to retain the property

7
and to reaffirm the debt,7 and he entered into a loan

modification agreement and made two payments pursuant to that

agreement. Viewing these facts in the light most favorable to

Giannasca, see Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991), and bearing in mind the disagreement among

courts regarding the meaning of "surrender" in the United States

Bankruptcy Code, we conclude that the summary judgment record

does not support a conclusion that Giannasca intentionally

relinquished a known right to contest foreclosure on the

property.8

This conclusion does not affect our decision on the merits

of the cross motions for summary judgment. Because we have

already concluded that the assignment of the mortgage to

Deutsche Bank was valid, see Giannasca I, supra, our decision

affirming the judgment in favor of Deutsche Bank remains

7 We agree with the judge that in order for Giannasca to reaffirm

the debt he was required to enter into a reaffirmation agreement
with the creditor prior to discharge. See 11 U.S.C. § 524(c).
There is no dispute that Giannasca did not do so. We consider
his statement of intent to reaffirm the debt only insofar it
bears on the question whether he voluntarily relinquished a
known right.
8 In light of our conclusion, we need not determine the
significance of a creditor entering into a post-discharge loan
modification agreement and accepting payments from the debtor
pursuant to that agreement, where the debtor's action in the
bankruptcy court would otherwise have waived his right to
contest foreclosure.

8
unchanged; with respect to that decision, Justice Rubin adheres

to the view expressed in his previous dissent.

Conclusion. The disposition of this case is stated in

Giannasca I, 95 Mass. App. Ct. at 778.

So ordered.

By the Court (Rubin, Kinder &

Singh, JJ.9),

Clerk

Entered: July 20, 2020.

9 The panelists are listed in order of seniority.