Supreme Judicial Court for the Commonwealth FAR: FAR-27062B Filed: 8/21/2020 2:23 PM

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT DOCKET
NO. FAR-27062B

ANTHONY GIANNASCA
Petitioner/Appellant

vs.

DEUTSCHE BANK NATIONAL TRUST CO & others

Defendants/Appellees

On Appeal from a Judgment of the Middlesex County

Superior Court

APPLICATION FOR FURTHER APPELLATE REVIEW

PURSUANT TO Rule 27.1 M.R.A.P.

Memorandum and Order by the Massachusetts Appeals Court

In Case# 18-P-0349 dated August 21, 2019.
Decision by The Supreme Judicial Court in
Case# FAR-27062 dated February 21, 2020, and
Memorandum and Order by the Massachusetts Appeals Court
In Case# 18-P-0349 dated July 27, 2020

For the Petitioner/Plaintiffs

Glenn F. Russell, Jr., Esq.
BBO # 656914

Glenn F. Russell, Jr., &

Associates, P.C.
38 Rock Street, #12
Fall River, MA 02720
508-324-4545
russ45esq@gmail.com

August 21, 2020

1
 TABLE OF CONTENTS

1) REQUEST FOR LEAVE TO OBTAIN

FURTHER APPELLATE REVIEW 5

2) SUMMARY STATEMENT 15

3) STATEMENT OF THE UNDISPUTED FACTS

RELEVANT TO THIS PETITION 22

4) STATEMENT OF THE PRIOR PROCEEDINGS 25

5) POINTS UPON WHICH FURTHER APPELLATE REVIEW

IS SOUGHT 27
A. Whether The Majority Erred In Failing To
Apply Well Settled And Centuries Old Massachusetts
Real Property Law Regarding Petitioner’s Challenge
To The Assignment As Void In The Defense of His
Title To Real Property 27

1. The Majority Improperly Applied G.L. c.

183, §54B 33

B. The Majority Failed To Consider This Court’s

Direction In Ibanez here Relying Upon A “PSA”
To Assign A Mortgage 34

1. Petitioner Hs Standing To Challenge The

Assignment As Void 37

C. Petitioner’s Election of Surrender Has No Bearing

On His Ability To Defend His Title Under The State
Statutory Remedy 39

6) CONCLUSION 39

7) Appeal Court Rulings 40

2
 TABLE OF AUTHORITIES
STATE CASES

Bank of N.Y. Mellon Corp. v. Wain,

85 Mass. App. Ct. 498 (2014)..............9,33,34

Bevilacqua v. Rodriguez,
460 Mass. 762 (2011).........................3,23

Bongaards v. Millen,
440 Mass. 10 (2003).........................31,37

Eaton v. Fed. Nat’l Mortgage Ass’n

462 Mass. 569 (2012)..................passim
Galiastro v. MERS,
467 Mass. 160 (2014)..............8,9,12,18,29,33

Ressler v. Deutsche Bank Trust Co. Americas,

92 Mass.App. Ct. 502 (2017).............13,14,20

Starkey v. Deutsche Bank N.T. Co., Trustee

94 Mass.App. Ct. 1 (2018).......13,14,17,19,20,36

Strawbridge v. Bank of N.Y.Mellon

91 Mass.App. Ct. 827 (2017)..........12,13,14,20

Sullivan v. Kondaur,
85 Mass.App. Ct. 202(2014)9,18,19,20,21,33,37,38

U.S. Bank Nat’l Ass’n v. Ibanez,

458 Mass. 637 (2011) ..................... passim

FEDERAL CASES

Culhane v. Aurora Loan Sevcs. Of Neb.,

708 F.3d. 282 (1st Cir. 2013) ................28

OTHER STATE CASES

Bank of America v. Greenleaf,

2014 ME 89 (2014)..........................8,32

3
 MASSACHUSETTS STATE STATUTES

Massachusetts General Law

Chapter 183, §21...................16,23,33,37

Massachusetts General Law

Chapter 183, §54B.....................14,33,37

Massachusetts General Law

Chapter 244, § 14.......................passim

4
1) Request for Leave to Obtain Further Appellate
Review

The Petitioner/Plaintiff Anthony Giannasca

(“Petitioner”) herein though undersigned, respectfully

seeks a second request for further appellate review of

the published Opinion issued by the Appeals Court on

August 21, 2019, the majority affirmed the trial court’s

ruling, however a very strong dissent was submitted by

Rubin, J., in which he identifies and opines on many

unresolved issues of Massachusetts state real property

law regarding the use of the statutory remedy under G.L.

c. 244, §14. Indeed, Judge Rubin very clearly stated

that his impression was that the ruling by the majority

may well call into question the title to many pieces of

property, i.e. those in whose chain of title an assignment

or other conveyance was made in the wrong capacity –- say

individually instead of as trustee -– whose subsequent

purchasers have relied on the status of such assignments

and conveyances as a nullity.

Under the decision this Court issued in FAR-27062 on

February 21, 2020, it specifically stating the

following:

“The application for further appellate review is

denied without prejudice. It is further ordered,
that the case is remanded to the Appeals Court for
consideration of the issue of the plaintiff's
standing, in light of the Superior Court's

5
 findings and conclusions regarding the effect of
the plaintiff's bankruptcy. The Appeals Court may,
in its discretion, invite further briefing with
respect to this issue, or with respect to any other
issue presented, including the prudential issues
raised by the dissenting justice. Nothing in this
order precludes either side from seeking further
appellate review after further decision of the
Appeals Court.”

This matter was thereafter remanded back to the

Appeals Court for further review as instructed by

this Court above.

Upon remand to the Appeals Court, the docket

sheet in Ca. No. 18-P-0349 at paper#36 stated as

follows:

“ORDER: In light of the Supreme Judicial Court's

order of February 21, 2020, remanding the case to
this court, the parties are ordered to submit
supplemental briefs, not to exceed twenty pages,
addressing '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.' The parties should make
reference to, as relevant, the discharge of debt,
the notice of intent to surrender, reaffirmation,
if any, the post-discharge loan modification
agreement, the April 14, 2016 letter from the loan
servicer to the appellant, and any post-discharge
payments on the loan by the plaintiff and their
acceptance by the loan servicer. Appellant's
supplemental brief is due on or before on or before
March 17, 2020 and subsequently, Appellee's
supplemental brief is due on or before March 31,
2020. (Rubin, Kinder, Singh, JJ.). *Notice.”

Thus, the Appeals Court solely restricted the

supplemental briefing to the bankruptcy issue, and

declined any opportunity for further briefing on the

6
“prudential issues raised by the dissenting justice.”

Both sides submitted supplemental briefing as to whether

the Plaintiff’s selection of “surrender” in his Chapter

11 bankruptcy petition would operate to estop Plaintiff

from later defending the Defendant’s attempted use of

the Massachusetts extra judicial foreclosure remedy

under Massachusetts state legislatively enacted

protections. The Appeals Court ultimately held that

Plaintiff’s “selection” did not operate as a “knowing

waiver” of his rights. However, the Appeals Court

majority again reaffirmed its decision, subject to the

dissenting judge’s continuing concern over the

majority’s ruling regarding his previously identified

“prudential issues”.

Indeed, since Ibanez, this Court has declined and/or

not entertained any follow up to issues related to a

“pooling and servicing agreement” under its landmark

rulings regarding G.L. c. 244, §14, in U.S. Bank Nat’l

Ass’n v. Ibanez, 458 Mass. 637 (2011). 1 This Court has

1
However, the unnamed party in the caption of U.S. Bank
v. Ibanez, 458 Mass. 637 (2011) (“LaRace”), was
subject to a 2018 foreclosure, where the foreclosing
entity relied upon precisely the same argument that
this Court found deficient in Ibanez, but yet their
challenge thereto was denied by a Land Court Judge,
but currently is pending appeal before the
Massachusetts Appeal Court under Ca. No. 2019-P-1507,

7
also not had the opportunity to revisit issues involving

“MERS” since Eaton v. Fed Nat’l Mortgage Ass’n, 462 Mass.

569 (2012) and Galiastro v. MERS, 467 Mass. 160 (2014). 2

Further, Eaton specifically involved the examination as

to whether MERS could “foreclose”. Issues related to

MERS (apparently magical) ability to “assign”

(autonomously) mortgages has never been reached by this

Court. Indeed, the Maine Supreme Court has conducted

such examination of MERS claimed ability to “assign”

title under Maine law, and found such claim to have no

support, see Bank of America v. Greenleaf, 2014 ME 89

(2014).

Such follow-up review to the above issues (as

identified by the dissenting judge) is critical, given

the fact that Eaton changed the previous interpretation

of the statutory definition of the term “mortgagee”. 3

and also pending application for Direct Appellate

Review under Ca. No. DAR-27642.
2 Such examination under further appellate review is

warranted given this Court’s finding in Eaton at n. 24,

n. 10, n. 29, and n. 27. Additionally, under the Eaton
fact pattern this Court was only presented a matter
procedurally postured as a preliminary injunction.
3 Indeed, many of the footnotes from this Court in Eaton

clearly identified issues that are, and still remain,

open issues of undecided Massachusetts state law. The
reason for further appellate review in this matter is
even more critical given that fact that the unresolved
issues of state law identified by this Court in Eaton
were never fully addressed on remand, as FNMA settled

8
The result of the preceding is that the law continues to

remain unsettled regarding the operation of G.L. c. 244,

§14. This situation creates conflicts of opinion, as

evidenced within this very Opinion under review.

Further, issues related to Mortgage Electronic

Registration System, Inc. (“MERS”) have yet to be fully

examined or vetted by this Court under the “post-Eaton”

construction of G.L. c. 244, §14, or under any posture

other than a preliminary injunction context, as was

involved in Eaton [see Eaton at p. 589-590]. 4

The majority cites to two matters: Sullivan v.

Kondaur Capital, Corp., 85 Mass. App. Ct. 202 (2014) and

Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct.

498, 503 (2014). However, the fact patterns of both

matters (despite being decided in 2014) involved a “pre-

Eaton” construction of G.L. c. 244, §14, in which there

the case just prior to trial, [lest a true examination

ensue], see, Eaton v. Fed. Nat’l Mort. Ass’n, et. al.,
Ca. No. 1184CV01382, Memorandum of Decision allowing
Summary Judgment, (Sept. 29, 2016); see the appeal of
this decision at Eaton v. Fed. Nat’l Mort. Ass’n, et.
al. Ca. No 17-P-0359 (Mass. App. Ct. Jan. 12, 2018), and
on remand at Eaton v. Fed. Nat’l Mort. Ass’n, et. al.,
Ca. No. 1184CV01382, (Suff. C., Sup Ct. 2019) [settled
on Feb. 12. 2019]. Undersigned successfully argued on
behalf of the Galiastros before this Court in Galiastro
v. MERS 467 Mass. 160 (2014)
4 Eaton v. Fed. Nat’l Mortgage Ass’n, 462 Mass. 569

(2012)

9
was no requirement to make any examination as to the

note, and only required that a foreclosing entity be

“the holder of the mortgage” to qualify as a

“mortgagee”. 5 Such distinction is critical, given this

Court’s findings in Eaton at note 10:

“Citing In re Marron, 455 B.R. 1, 6-7 (Bankr. D.

Mass. 2011), the defendants suggest that because
a mortgage and note can be separated, with the
mortgage held in trust for the note holder, a
mortgagee with "bare legal title" should be able
independently to foreclose on the mortgage
property as the trustee of the note holder, and
thereafter account to the note holder for the sale
proceeds. The argument, however, fails to take
into account the nature of the trust at issue.
This trust is an equitable device that may qualify
as a resulting trust, see Young v. Miller, 6 Gray
152, 154 (1856); it is not an express trust that
vests specific, independent authority in the
trustee to foreclose on the trust property or to
take other affirmative acts. A resulting trust "is
a reversionary, equitable interest implied by law
in property that is held by a transferee, in whole
or in part, as trustee for the transferor or the
transferor's successors in interest." Restatement
(Third) of Trusts § 7 (2003). The duties of a
trustee of a resulting trust are limited -- he or
she "is under a duty to merely transfer the trust
property or the reversionary portion thereof to
the reversionary beneficiary or in accordance with
that beneficiary's directions. Until the property
is so transferred, the title holder remains
trustee with a duty to preserve the affected
property and its product and to perform any other
duties appropriate to the resulting-trust
relationship." Id. at § 7 comment e.

5 The publication of auction sale in each of these

matters predated the prospective only application of
the Eaton ruling (June 22, 2012).

10
 Further, this Court opined in Eaton that [unlike

under the previous construction of G.L. c. 244, §14],

the “holder” of a mortgage singly (with no connection to

[an identified] note owner) would be in the possession

of nothing of value, see Eaton at p. 577 [quoting Sanger

v. Bancroft, 12 Gray 365, 367 (1859).

In that same vein, issues related to MERS claimed

(apparently magical) ability to circumvent the

historical ratio decidendi of this Commonwealth’s real

property law and judicial rulings have also not been

examined since Eaton, and never within the context of

the assignment of an interest in real property. Indeed,

as noted by the dissenting judge, MERS’ claims to act as

a “nominee” for an open and unidentified class of any or

all unnamed “successor or assign” note owners has no

authority from this Commonwealth. Such claim is clearly

antithetical to this court’s pronouncement in Ibanez at

p. 649 related to assignments of mortgage, [which

requires writings to evidence a transfer of an interest

in land] and Ibanez at pp. 652-653 [unlike a majority of

jurisdictions, in Massachusetts the mortgage does not

follow the note].

Further, the terms of Petitioner’s Mortgage clearly

contain a limitations clause at paragraph 16 that

11
subordinates the contractual terms to “Applicable Law”.

Again, this Court clearly stated in Ibanez (Applicable

Law as that term is defined in the mortgage) that “the

mortgage does not follow the Note in Massachusetts, see

Id. 652-653. Further yet, there continues to exist no

guidance from this Court regarding the open issue of

Massachusetts state law related to the “nominee

question”. The preceding exists despite this Court twice

opining its uncertainty as to the use of the term

“nominee” in the mortgage context, [see Eaton, at n. 29,

and Galiastro v. MERS 467 Mass 160, n. 19 (2014)]. 6

Thus, without further guidance from this Court, it

6
Please see Bank of New York Mellon v. Strawbridge, 91
Mass.App.Ct. 827 (2017) at n. 11, which highlights the
uncertain guidance from this Court, where the
Strawbridge Panel found; ”There is no language in either
Eaton or G. L. c. 244, § 14, that supports Strawbridge's
arguments. Nowhere in Eaton does it say that prior cases
in which the actions of a mortgagee were analyzed under
the "previous statutory construction" of G. L. c. 244,
§ 14, are no longer applicable. The cases decided since
Eaton have applied the full weight of Eaton's
prospective holding when analyzing foreclosure actions
by a mortgagee, including the requirement that the
mortgagee demonstrate that it was in possession of the
mortgage and the underlying note at the time of the
foreclosure, and have not limited their reliance to the
pre-Eaton understanding of a mortgagee, as Strawbridge
argues.” The Strawbridge panel failed to appreciate the
revised definition of the term “mortgagee” post Eaton,
and also failed to examine MERS purported claim to
validly “assign” an interest in land [as opposed to MERS
foreclosing in its name as was the case in Eaton].

12
is currently unclear whether MERS would be deemed to be

an “agent” of the Note owner. And if deemed to be an

agent, what specific Note owner MERS purported to act as

agent for in the transfer of an interest in land. These

issues continue to lack any definitive pronouncement

from this Court to guide the inferior courts as well as

the public.

The instant ruling would also appear to be in

conflict with Starkey v. Chase Home Finance, LLC &

others, 94 Mass. App. Ct. 1, 5-6; (Sept. 11, 2018),

which also involved issues related to a purported

claimed previous transfer of a mortgage loan under a

pooling and servicing agreement (“PSA”) involving a

failed bank (Washington Mutual, N.A.) and subsequent

takeover by the Federal Depository Insurance Corporation

(“FDIC”). 7 The Starkey Court examined requirements under

the PSA, and requirements to have received the transfer

of assets by the “closing date”. 8 Although the instant

7 Tellingly, in Starkey, unlike Strawbridge and Ressler

(and in the pending LaRace appeal in 2019-P-1507, and
DAR-27642), undersigned was not threatened and/or
sanctioned for merely making cogent legal arguments
regarding transfer of a borrower’s title through named
parties in a PSA, that are foundationally based upon
this very Court’s own ruling in Ibanez.
8 Such examination would also appear to be at odds with

Strawbridge, and Ressler, and in accord with Ibanez, see

n. 12 below Supra. Thus, there is an unexplained

13
matter involves IndyMac Bank FSB, the issues examined

would seem to be somewhat in parallel to Starkey, related

to the “timing question” as to the claim of being the

[legal] “mortgage holder” sufficient to meet

requirements under G.L. c. 183, §54B. 9

Undersigned was brought on by the Petitioner to

solely present oral argument upon the pro-se brief at

the hearing before the Appeals Court. Thus, where the

Appeals Court declined any further briefing on the

“prudential issues” raised by the Dissenting Judge, the

prudential issues continue to have never been fully

vetted under the pro se filed 10-page Appellate Opening

Brief. Lastly, on remand the Appeals Court reversed the

trial Court ruling regarding Petitioner’s selection of

dichotomy re the PSA, where the Strawbridge and Ressler

Courts take the position that there can be no standing
to challenge, yet this Court based its ruling in Ibanez
supported by the PSA on behalf of the borrowers in that
case. Despite claims otherwise, the fact that the bank
trustees in Ibanez were “Plaintiffs” is irrelevant where
this Court found in Ibanez at p. 648 that “For the
plaintiffs to obtain the judicial declaration of clear
title that they seek, they had to prove their authority
to foreclose under the power of sale and show their
compliance with the requirements on which this authority
rests, compare BNYM v. Strawbridge, 91 Mass.App.Ct. 827
(2017) at n. 9 .
9 Undersigned successfully argued this matter on behalf

of the Starkeys before the Massachusetts Appeals Court,

and this matter is presently on remand at the Barnstable
County Superior Court under Ca. No. 0972-CV-00829.

14
“surrender” during an active Chapter 11 bankruptcy and

found that such selection could not operate as a “knowing

waiver” of his state law rights to raise defenses to the

state in rem foreclosure proceeding under G.L. c. 244,

§14.

For the above reasons, and those that will be more

fully set out below, the Petitioner respectful requests

that this Court grant the extraordinary relief requested

to take this matter up on Further Appellate Review.

Petitioner respectfully reiterates this matter presets

significant issues of open and undecided areas of

Massachusetts state law that the Commonwealth

desperately needs official guidance on, and which are

also clearly capable of repetition.

2) Summary Statement

This petition for further appellate review arises

out of the dispute brought by Petitioner (pro-se); in

which under his First Amended Complaint, he alleged

seven (7) counts; 1) Breach of Contract, 2) Lack of

Standing, 3) Fraud In The Inducement, 4) Intentional

Infliction, 5) Slander of Title, 6) Quiet Title, and 7)

Declaratory Relief [Note and Mortgage]. In the ten (10)

page pro-se appellate brief, Petitioner raised Two

primary areas for review; 1) Was the 2011 alleged

15
mortgage assignment from Indymac Bank, FSB to Respondent

valid, and 2) Did substantial facts in controversy still

exist when summary judgment was entered in Respondent’s

favor.

While the Respondent took the position before the

Appeals Court that Petitioner only appealed issues

related to the assignment, while admittedly inartfully

articulated by a non-legal professional, the second

issue would appear to cover some if not all of the

remaining counts in the complaint, should he receive a

finding that the mortgage assignment was not legally

effective to transfer the interest in title to the

Respondent.

The succinct issues raised by Petitioner under

Count II, Count VI, and Count VII of his complaint

specifically involve an examination as to whether the

named Respondent, Deutsche Bank National Trust Co., as

Trustee of The Indymac INDX Mortgage Loan Trust 2005-

AR33 [Trust] stood currently legally seized of any

current authority under statute, by way of a legally

valid assignment, to utilize the remedy of the power of

sale [G.L. c. 183, §21], under the revised statutory

construct of G.L. c. 244, §14.

Thus, where the Respondent claims sole authority

16
through a purported receipt of a valid assignment of

mortgage, the issue squarely presented to the majority

was to examine, [under new statutory construct], whether

the Respondent was currently seized of proper statutory

authority to utilize G.L. c. 244, §14 at the time of the

first publication. Respondent additionally relies upon

earlier purported “transfers” under the PSA. 10

The majority made conclusory findings related to

the claim that the FDIC “sold” the Petitioner’s mortgage

loan as part of “the assets” of Indymac to One West Bank,

F.S.B.. However, there was no document presented within

the record to support this claim related to the specific

transfer of the interest of Petitioner’s title, and thus

genuine issues of dispute remained regarding this

issue. 11 12

10 The preceding examination involved the precise

assignment of mortgage contained within the record upon
summary judgment [and reference to the specific PSA],
which clearly could not have been examined in any other
cited matter by Defendants.
11 This Court also spoke to what requirements are
necessary when relying upon a “PSA” to transfer a
mortgage, see Ibanez, at p. 651; ”However, there must be
proof that the assignment was made by a party that itself
held the mortgage” (IndyMac MBS, Inc.).
12
This is also somewhat similar to the issue in Starkey
where there was also no loan schedule provided that
supported the claim that the Starkey mortgage (in
particular) was part of the certain assets of WaMu
acquired by the FDIC.

17
 The majority also clearly ignored the admonition

twice opined by this Court that it is unsure as to what

the meaning on “nominee” would be in the mortgage context

and could only “assume” that it related to the “agency

question”, [see Eaton at n. 29; Galiastro at n. 19]. The

majority made no inquiry into this open question of law,

or even considered the same under its de novo review, or

upon remand from this Court.

The majority freely refers to the PSA for support

that the “PSA provided that IndyMac transferred its

interest in each mortgage loan without recourse to

Indymac MBS, Inc., which in turn transferred those

interest to “Deutsche Bank”, yet found that the

Plaintiff has no basis to defend his title under the PSA

[regarding claimed assignments of his mortgage], but see

Sullivan v. Kondaur Capital 85 Mass. App. 202, 205-206

(2014).

Again, there was no document submitted by

Respondent in the record that specifically identified

Petitioner’s mortgage as being one transferred to

“Indymac MBS, Inc.”, or one what was transferred from

Indymac MBS, Inc. to Respondent. As this Court stated in

Ibanez, a transfer of a mortgage is a transfer of an

interest in land; [“and must be treated as such”, see

18
Ibanez at p. 649]. To this end, the ancillary claim by

Respondent (and accepted by the majority) is that

Mortgage Electronic Registration Systems Inc. (“MERS”)

somehow has the magical ability to evade centuries old

real property law of this Commonwealth, merely because

its “system” has created rules to be followed. 13 The

majority also focused on the wording contained within

the Petitioner’s Mortgage contract identifying MERS as

the “mortgagee”; and that these terms also ‘authorized’

MERS to act as a representative of Indymac [Bank, N.A.]

AND its successors and assigns, AND the

successor/assigns of MERS, and therefore MERS had the

‘authority’ to ‘represent’ Deutsche Bank. The majority

failed to consider that “post Eaton” the holder of a

mortgage is no longer a “mortgagee” under G.L. c. 244,

§14. The majority also failed to review paragraph 16 of

the mortgage contract which subordinates the contractual

terms of the Mortgage to the “Applicable Law” [defined

term under the contract], rendering such contractual

terms a nullity. Where MERS admits it does not own or

hold notes, and purports to “act” as an undefined

13Petitioner respectfully queries, what authority

stands for the proposition that a company set of rules
is somehow controlling over the requirements of state
law.

19
“nominee” for no specifically identified note owner, the

contractual language of the Mortgage describing MERS as

“the mortgagee”, is now clearly subject to this Court’s

ruling in Eaton that changed the statutory

interpretation of this term. 14 Purported “transfers”

14
Thus, cases like Strawbridge v. Bank of N.Y. Mellon, 91
Mass. App. Ct. 827 (2017) and Ressler v. Deutsche Bank
Trust Co. Americas, 92 Mass. App. Ct. 502 (2017)”, which
held that the prospective effect of Eaton had no bearing
on previously decided case law under the pre-Eaton
paradigm (no examination of note) and equally
controlling post Eaton, misstep the current state of the
law. Indeed, at oral argument in Starkey when the
financial industry counsel attempted to attack
undersigned with these holdings, Judge Rubin responded
that he was “not a fan” of those decisions. Indeed many
case law decisions merely parrot other holdings finding
that claims that a borrower “lacks standing to challenge
an assignment on those grounds”. Reliance upon the
theory expressed under these rulings completely missteps
both procedurally and on the statement of the law.
Petitioner does not seek to enforce any “rights” under
the terms of the PSA, but rather he seeks to defend his
title on the basis of the invalidity of the assignment
that Respondent solely relies upon; [compare Sullivan v.
Kondaur Capital, LLC, 85 Mass. App. Ct. 85 Mass. App.
Ct. 202, 205-207 (2014)] (“However, that is not the
position the Sullivans occupy, since they are not
seeking to enforce any rights under either assignment.
Instead, by their complaint they seek to challenge
Kondaur's claim of title to the property the Sullivans
formerly owned, which derives from foreclosure of the
mortgage Kondaur claims to have acquired by virtue of
the first and second assignments. Kondaur held legal
authority to conduct the foreclosure, under the
statutory power of sale contained in the mortgage, only
if it held a valid title to the mortgage at the time it
gave the notice of foreclosure required under G. L. c.
244, § 14, and at the time it exercised the power of
sale. See U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637
, 647-648 (2011). If it did not hold a valid title to

20
under a PSA are not immune from Massachusetts real

property law, [see Ibanez at p. 649]. Additionally, the

trial court findings related to its position that

electing “surrender” in bankruptcy would somehow estop

the Petitioner from defending the Massachusetts in rem

foreclosure process is also not consistent with decided

case law and/or common sense.

The instant request for extraordinary relief by

Application to this Court is also based on the open

issues that have never been independently addressed by

this court after its decisions in U.S. Bank Nat’l Ass’n

v. Ibanez, 458 Mass. 637 (2011), and Eaton v. Fed. Nat’l

Mortgage Ass’n 462 Mass. 569 (2012).

Respectfully submitted, the trial court opinion and

Affirmance by the majority misstep both factually and

procedurally. Unlike prior decisions from the Appeals

Court that have sought further Appellate Review, here

the mortgage at the relevant times, the foreclosure

would be void, as would Kondaur's claim to have
extinguished the Sullivans' equity of redemption. Id.
Put another way, the legally cognizable interest the
Sullivans seek to protect by their complaint is their
ownership interest in the property, based on their claim
that Kondaur's purported foreclosure was void by reason
of its lack of legal authority to conduct it. [Note 7]
We accordingly conclude that the Sullivans have standing
to challenge the validity of the assignments by which
Kondaur claims to have acquired the mortgage. [Note 8]
.

21
there is a very strong dissent presented by Rubin, J..

Indeed, Judge Rubin respectfully discusses these issues,

and challenges the majority as to its findings. Judge

Rubin goes further than merely opining as to his

subjective viewpoint, as he supplies “black letter law”

from this Commonwealth that clearly supports both his

dissent, and his concern that the instant ruling may

create mischief to potentially invalidate titles to real

property within this Commonwealth.

3 Statement of the Undisputed Facts Relevant to

this Petition

On November 18, 2005, the Petitioner entered into

a mortgage loan transaction, whereby he executed a

promissory Note specifically in favor of Indymac Bank,

FSB, as the “Lender” and payee in the amount of

$322,500.00, [RA0503 to RA0519]. On the same date, the

Petitioner also entered into a bargained for bilateral

Security Instrument contractual agreement specifically

naming Indymac Bank, FSB, as “the Lender” [RA0521 to

RA0538]. The said agreement consisted of a Security

Instrument Contract [Mortgage], whereby the Petitioner

deeded a defeasible fee title interest in their real

property and granted the contractual right to the power

of sale, to “the Lender”. However, at paragraph (C), P.

22
1, the bargained for terms of the mortgage contract

between the parties states that “MERS is a separate

corporation that is acting solely as a nominee for Lender

and Lender’s assigns. MERS is the mortgagee under this

Security Instrument” [RA0521]. The Mortgage contract

terms include the paragraph 16 Governing Law paragraph

[RA530] that specifically include a “limitations

clause”, whereby such terms of the Mortgage contract are

subordinated to “Applicable Law”, [RA0522, at (I)

“Applicable Law”] a contractually defined term within

the mortgage contract . 15 The Respondent repeatedly

claims that “after origination the Petitioner’s specific

Note was “pooled with other notes in a securitized

trust”, but fails to definitively establish that

Petitioner’s Note was among those purportedly “pooled”.

The Respondent appears to rely upon the fact that the

assignment is recorded to establish its validity. 16 There

are no writings associated with purported numerous

transfers of the interest in Petitioner’s real property,

save the purported solitary assignment that Respondent

15 See also [Power of Sale] G.L. c. 183, §21, “....first

complying with the terms of the mortgage and the statutes
relating to the foreclosure of mortgages......”
16 But see Bevilacqua v. Rodriguez, 460 Mass. 762, 771

(SJC 2011)

23
relies upon. The preceding is alleged, despite

Respondent admitting that there were numerous

sales/transfers of Petitioner’s mortgage loan.

On December 06, 2011, a purported “assignment” is

executed, claiming on its face that MERS as “nominee”

[specifically] for Indymac Bank F.S.B. does hereby

grant, sell, assign, transfer, and convey unto

Respondent “it’s right title and interest” in

Plaintiff’s Mortgage [together with the Notes and

obligations therein described...] [RA0540]. The

Respondent thereafter published the notice of auction

sale, which relied solely on obtaining the above

described assignment from a non-existent legal entity

[Indymac Bank FSB was no longer in existence at the time

of the execution].

Subsequently, October 05, 2011, Respondent filed

for relief under Chapter 13, under Ca. No. 11-19499

[RA0542]. Respondent thereafter filed a Motion to

convert the Chapter 13 bankruptcy to one under Chapter

11, which was granted on November 29, 2011, [RA0579].

The Debtor elected to provide the Trustee in the

bankruptcy with the remedy of Surrender [not

Respondent], and so elected, [RA0581]. Thereafter,

Respondent filed a Motion to convert the Chapter 11

24
proceeding to one under Chapter 7, which was granted by

the Court on February 26, 2013 [RA0583]. Thereafter, the

Chapter 7 Trustee filed his Notice to Abandon the

Property as it was of no benefit or value to the

bankruptcy estate [RA0585]. On December 03, 2013, the

Respondent received a discharge under the Chapter 7 case

[RA0588]. Thereafter, the Respondent received a 150-day

Right to Cure Mortgage Default letter dated January 30,

2015 [RA0592]. The letter deceptively only provided

notice under a small paragraph in a “Disclosures”

section, first para. [which was not emboldened] that

“..if you have received an order of discharge, please be

advised that this is not an attempt to collect a pre-

petition or discharged debt.” [RA0595]. 17 Thereafter,

Petitioner received correspondence that provided a copy

of the Notice of auction sale, which also specifically

identified that MERS acted “solely” as “nominee” for

Indymac Bank, FSB under the purported assignment

(secondary evidence of the claimed capacity in which

MERS purported to “act”) [RA0615].

4) Statement of the Prior Proceedings

17Of course, should a least sophisticated borrower miss

or fail to understand this admonition and then make a
“payment to cure”, the discharged debt would again
become fully animated much like Frankenstein’s monster.

25
 In response to the Respondent’s initiation of the

statutory foreclosure process by publication, on April

13, 2016, the Petitioner filed an emergency Motion for

Preliminary Injunction, along with an underlying

verified complaint. On April 22, 2016, the Petitioner

filed the operative first amended complaint. After

several issues related to hearings and scheduling, on

August 17, 2016, Respondent filed an Answer to

Petitioner’s first amended complaint. On January 17,

2017, Respondent filed his pro se Motion for Summary

Judgment. On February 10, 2017, Respondent filed its

cross Motion for Summary Judgment, Manning Affidavit,

Statement of Material Facts, and Joint Appendix, as well

as Motion to Strike Petitioner’s Affidavit of William

Paatalo. Also filed on February 10, 2017, was

Petitioner’s Opposition to Respondent’s Motion for

Summary Judgment, with Affidavit of William Paatalo. On

February 17, 2017, Respondent filed its Reply Brief. On

February 21, 2017 Respondent filed its Motion to Strike

Petitioner’s Affidavit. On February 23, 2017 hearing was

held on the parties cross motions for Summary Judgment.

On June 26, 2017, the trial court issued its Order

Denying Petitioner’s R. 56 Motion and Allowing the R. 56

Motion of Respondent. On June 26, 2017, the Court issued

26
its Order relative to Respondent’s Motion to Strike the

Petitioner’s Paatalo Affidavit, which was allowed in

part and denied in part relative only to “legal opinions”

expressed therein. On July 06, 2017 the Court entered

its ruling on Summary Judgment. On August 04, 2017,

Petitioner filed his Notice of Appeal. After numerous

post judgment Motions, on March 06, 2018, the trial court

finished its assembly of the record on appeal. On March

15, 2018, Petitioner officially entered the appeal on

the Appeals Court docket. On August 21, 2019, the Appeals

Court Issued its Full Opinion, which also included the

Dissent of Rubin, J.

5. Points Upon Which Further Appellate Review

Is Sought

A. Whether The Majority Erred In Failing To Apply

Well Settled And Centuries Old Massachusetts
Real Property Law Regarding Petitioner’s
Challenge To The Assignment As Void In The
Defense of The Title To His Real Property

Respectfully submitted, the majority merely

resorted to making conclusory findings of law

unsupported by the evidence within the summary judgment

record. For instance, the majority freely and repeatedly

states that the terms of the mortgage allowed MERS to

act as “mortgagee”, and therefore because the terms

authorized MERS to act for the Lender and the Lender’s

27
successors/assigns, the assignment was not void:

"Because the mortgage instrument gave MERS the authority

to act as representative of IndyMac or its "successors
or assigns, "MERS had the authority to represent
Deutsche Bank in the 2011 assignment. The assignment was
therefore valid, and not void."

The majority failed to even consider the impact of

this Court’s ruling in Eaton under paragraph 16 of the

Petitioner’s Mortgage contract [RA0051], which clause

indisputably subordinates the operative effect of the

contractual language to “Applicable Law”, a

contractually defined term, which includes deference to

all final, non-appealable, judicial rulings [RA0043, at

¶(I)]. Post Eaton, the holder of a mortgage [only] des

not fin=t the definition of a “mortgagee”. Clearly the

Eaton ruling fits the preceding criteria of “Applicable

Law”.

It is undisputed that MERS admits that it does

not own or hold Notes, see Eaton at n. 27, and Culhane

v. Aurora Loan Servcs. of Neb., 708 F. 3d. 282, 287 (1st

Cir. 2013);

“The upshot of this arrangement is that MERS holds the

legal title to the mortgage as mortgagee of record, but
it does not have any beneficial interest in the loan.”

In addition, this Court has twice opined its uncertainty

as to the purported “nominee” status of MERS:

“MERS accepted, for purposes of the motion to dismiss,

28
the Galiastros' allegation that it was not an authorized
agent of the note holder. See note 8, supra. On appeal,
MERS argues for the first time that it was an agent of
the note holder and thus should prevail even if the
conclusion reached in Eaton applies. As support, MERS
points to a clause in the Galiastros' mortgage providing
that MERS is a "nominee for Lender and Lender's
successors and assigns." As was the case in Eaton, supra
at 590 n.4, "[i]t is not clear what 'nominee' means in
this context, but the use of the word may have some
bearing on the agency question.", Galiastro v. MERS, 467
Mass. 160, at n. 29 (SJC 2014)

Thus, where MERS admits; 1) that it is not a note owner,

and 2) this Court has never definitively stated that

MERS is an “agent” of a note holder, [Eaton at n. 29]

MERS cannot currently meet the definition of a

“mortgagee”. Thus, despite contractual language stating

MERS is the “mortgagee”, said language is clearly

subject to the preceding and paragraph 16 of the

Mortgage. Therefore, the majority’s sole reliance upon

the terms of the Mortgage is misplaced. 18

In this same vein the Mortgage terms stating that

MERS can simultaneously act as a “nominee” for the Lender

[note owner] and the successors/assigns of the Lender

[note owners] and the successor assigns of MERS also

18Even if MERS is deemed to be an “agent” of a Note

owner, there would need to be documentary indicia
submitted as to what specific note owner MERS acted as
agent for. Previous case rulings saying that such
examination is not necessary were decided under the
previous construction of G.L c. 244, §14 that defined
a “mortgagee” as solely the “holder of the mortgage”.

29
would be subordinated to the law of this Commonwealth.

The Panel restricted its examination of MERS “mortgagee”

status related to conducting a foreclosure sale, and

failed to examine the precise issue presented, which was

that MERS could not assign an interest in land without

a connection to a singular identified Note owner. In

Eaton, this Court stated that a purported mortgage

holder (solely) would be a mere reversionary trustee

without any independent authority to take “affirmative

acts”; see Eaton, n. 10:

“Citing In re Marron, 455 B.R. 1, 6-7 (Bankr. D. Mass. 2011),

the defendants suggest that because a mortgage and note can
be separated, with the mortgage held in trust for the note
holder, a mortgagee with "bare legal title" should be able
independently to foreclose on the mortgage property as the
trustee of the note holder, and thereafter account to the
note holder for the sale proceeds. The argument, however,
fails to take into account the nature of the trust at issue.
This trust is an equitable device that may qualify as a
resulting trust, see Young v. Miller, 6 Gray 152, 154 (1856);
it is not an express trust that vests specific, independent
authority in the trustee to foreclose on the trust property
or to take other affirmative acts.”

It is also undisputed that this Court definitively

stated in Ibanez that the mortgage does not follow the

Note in this Commonwealth, see Ibanez at p. 651:

“In Massachusetts, where a note has been assigned but

there is no written assignment of the mortgage
underlying the note, the assignment of the note does not
carry with it the assignment of the mortgage. Barnes v.
Boardman, 149 Mass. 106, 114 (1889).”

In addition, in Ibanez, this Court clearly

30
identified that as Massachusetts is a title theory

jurisdiction, which requires a writing from the grantor:

“Where, as here, mortgage loans are pooled together in

a trust and converted into mortgage-backed securities,
the underlying promissory notes serve as financial
instruments generating a potential income stream for
investors, but the mortgages securing these notes are
still legal title to someone's home or farm and must be
treated as such.” Ibanez, at 649. 19

The Dissent authored by Judge Rubin picks up on this

theme at p. 1

"It is black letter law in this Commonwealth that one

who holds an interest in property in one capacity may
convey it only when acting in that capacity. See, e.g.,
Bongaards v. Millen, 440 Mass. 10, 14 (2003) ("D'Amore
held the property as trustee for the beneficiaries of
the trust, and she lacked power to convey the property
in her individual capacity").

Plaintiff challenged the assignment as being void [not

a completed foreclosure auction as was examined in

Eaton]. Unlike Eaton, Petitioner’s claims that the

assignment Is void due to the fact that it states on its

face that the grantor was MERS as nominee for Indymac

Bank, FSB, [at a time when Indymac Bank, FSB no longer

existed]. As Judge Rubin finds in his dissent; that

through the decided case law of this Commonwealth, MERS

could only convey an interest in property in the capacity

19 In fact. this Court in Eaton went so far as to say

that a holder of a mortgage unconnected to a note is in
possession of nothing of value, see Eaton at p. 577

31
as a “nominee” resulting trustee specifically for

Indymac Bank, FSB, [despite contractual language

purporting to authorize it to act for any or all later

[undefined] successors/assigns.

The majority based its ruling solely upon the

terms of the mortgage contract but failed to review those

same terms at paragraph 16 of the mortgage, but failed

to examine MERS ability to “assign” an interest in land

[as the Panel merely took at face value that MERS could

magically act to assign an interest in land for an open

and unidentified class of note owners. Again, as the

Dissent points out, the majority’s finding finds no

authority under Massachusetts state law or any case law

decision from this Court examining the same:

“I note, however, that I am aware of no authority, and

the majority cites none, answering the question whether
an assignment like that purporting to be by a nominee
acting on behalf of some nonspecific open and indefinite
class, rather than on behalf of the actual note holder,
would suffice to identify the capacity in which the
assignor was acting." Dissent at 2. 20

The majority failed to properly apply very long

Indeed, The Supreme Court of Maine sems to have made a

20

similar finding as the dissenting Judge, see Bank of

America v. Greenleaf, 2014 ME 89 (2014) “When MERS then
assigned its interest in the mortgage to BAC, it
granted to BAC only what MERS possessed—the right to
record the mortgage as nominee—because MERS could not
have granted to another person or entity any greater
interest in the mortgage than that enjoyed by MERS.”.

32
held tenants of Massachusetts real property law by

failing to properly examine the terms of the Mortgage

contract, specifically paragraph 16 [as required under

G.L. c. 183, §21], which was compounded by a further

failure to carefully review and apply the direction from

this Court under the Ibanez, Eaton, and Galiastro,

decisions. Again, the Commonwealth desperately needs

direction from this Court regarding these open areas of

Massachusetts state law.

1. The Majority Improperly Applied G.L. c. 183, §54B

As correctly identified by the Dissent, the

majority correctly identifies that G.L. c. 183, §54B

determines whether an assignment is void;

"As the majority notes, "Whether a mortgage assignment

in Massachusetts is valid or void is determined by
statute. See G. L. c. 183, § 54B. See also Bank of N.Y.
Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 503 (2014)."
Dissent at 3

The Dissent then correctly identifies the majority

error in the application of G.L. c. 183, §54B, see
Dissent at p. 2:

"[N]owhere on the face of the instrument is there any

indication or evidence that [the signatory] was, or in
any manner purported to be, an officer or other
authorized agent of "the owner of the interest in the
mortgage, MERS as nominee for Deutsche Bank. [citing]
Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct.
202, 213 (2014). 21

21 Also see Kondaur at pp. 205-206, and at n. 8.

33
The majority clearly erred by failing to apply and/or

consider well settled Massachusetts state law that

leaves the purported assignment void:

“Indeed, the majority recognizes that an assignment "is

effective to pass legal title and 'cannot be shown to be
void'" when "the assignment is (1) made by the mortgage
holder or its representative, (2) executed before a
notary public, and (3) rather than signed by an
authorized employee of the mortgage holder." Ante at ,
quoting Wain, 85 Mass. App. Ct. at 503. Here the
assignment was not made by the mortgage holder.” Dissent
at 3-4

B. The Majority Failed To Consider This Court’s

Direction In Ibanez Where Relying Upon A PSA To
Assign A Mortgage

The majority freely refers to the PSA for support

of proof of the transfer of Petitioner’s “mortgage loan”

happened in 2005 [prior to Indymac Bank FSB failure]:

"Pursuant to the pooling and servicing agreement,

IndyMac transferred its interest in Giannasca's mortgage
loan to Deutsche Bank in 2005, long before IndyMac's
failure. Thus, in 2005 Deutsche Bank became the
successor to IndyMac's interest in Giannasca's mortgage
loan."

However, it is undisputed that the face of the purported

assignment that Respondent relies upon identifies that

it was executed on December 06, 2011, not 2005

[RA0067]. 22 Indeed, the majority also finds the

22If Respondent claims that this is a “confirmatory

assignment”, this Court spoke to those requirements in
Ibanez at p. 654. The majority did not point to any
writing from 2011 that assigned any interest in

34
following:

“In 2008, IndyMac failed and the Federal Deposit

Insurance Corporation (FDIC) was appointed receiver of
its assets and obligations. In 2009, the FDIC sold the
assets of Indymac to One West Bank, F.S.B. In December
2011, MERS, acting "solely as nominee for IndyMac Bank,
F.S.B.," assigned the "[m]ortgage . . . executed by . .
. Giannasca" to Deutsche Bank." Majority at p. 6.

Yet at p. 3 of the same majority opinion, the Court

incongruently states:

"In 2005, the promissory note was pooled with other such
instruments in a securitized trust, IndyMac INDX
Mortgage Loan Trust 2005-AR33 Mortgage Pass-Through
Certificates, Series 2005-AR33. Deutsche Bank was
trustee for the trust. The pooling and servicing
agreement provided that IndyMac transferred its interest
in each mortgage loan without recourse to IndyMac MBS,
Inc., which, in turn, transferred those interests to
Deutsche Bank".

Thus, here at p. 3, the majority clearly makes a finding

that “Indymac [Bank FSB]” transferred its interest in

“each mortgage loan” to IndyMac MBS, Inc in 2005, and

then IndyMac MBS,Inc. transferred ITS interests to

Respondent. Thus, according to the Court’s finding, it

was Indymac MBS, Inc., not Indymac Bank FSB that

purportedly assigned its interest in Petitioner’s

Mortgage to the Respondent in 2005. 23 There is no writing

Petitioner’s mortgage in 2005, compare Ibanez at p.

649.
23
If this was so, why is the purported assignment
grantor specifically identified as MERS as nominee for
IndyMac Bank FSB [not IndyMac MBS, Inc.] that
purportedly assigned the Mortgage Loan to Respondent

35
that supports that MERS acted as “nominee” for Indymac

MBS, Inc. under any purported “assignment” to

Respondent, as stated as relied upon under the PSA by

the majority. 24 Further there are no writings supporting

the Respondent’s claim that Petitioners mortgage was 1)

part of the “mortgage assets” sold to respondent by

Indymac MBS Inc. in 2005. Again, this Court examined the

requirements necessary when relying upon the PSA to

assign a mortgage; see Ibanez at p. 651, “However, there

must be proof that the assignment was made by a party

that itself held the mortgage” (Here IndyMac MBS, Inc.).

Under the trial court’s own findings there were

numerous purported sales/transfers of the Petitioner’s

“mortgage loan”. In Starkey v. Deutsche Bank N.T. Co. as

Trustee, et. al., 94 Mass. App.Ct. 1, 5 (2018); that

Court examined a similar PSA involving Deutsche Bank and

determined that the term “Mortgage Loan” was defined to

include both the note and the mortgage. However, even

if “mortgage loan” is read to be the Note, the majority

clearly agreed that there were numerous transfers of

in 2011.
24 If Respondent attempts to rely upon the PSA itself,

this Court has previously stated that there must be proof

that the entity assigning the mortgage [here IndyMac
MBS, Inc.]”, actually owned the mortgage being assigned
under the PSA; see Ibanez at p 651.

36
Petitioners Note. Additionally, as this Court noted in

Eaton at n. 10, MERS capacity on the assignment would

solely be one of a “resulting trustee” to act as a

“nominee” solely for Indymac Bank FSB, a non-existent

legal entity at the time of the purported assignment.

The preceding leaves the assignment void as representing

nothing of value, see Eaton at p. 577 (mortgage

unconnected to a note is a nullity), see also Dissent at

p. 1, quoting Bongaards v. Millen, 440 Mass. 10, 14

(2003). See also Eaton at n. 10, (holder of a mortgage

singly lacks capacity to undertake any [autonomous]

“affirmative act”).

1. Petitioner Has Standing To Challenge Assignment

As Void

The Dissent correctly identifies that the

assignment is void under G.L. c. 183, §54B, where MERS

claims to act as a “nominee” for a legally defunct

entity, and the terms claiming that MERS could act for

any all of a future open class of “successor/assigns has

no foundational basis under the law of this

Commonwealth, or under paragraph 16 of the mortgage

contract. The preceding also voids the power of sale

under G.L. c. 183, §21, [“...first complying with the

terms of the mortgage and with the statutes relating to

37
the foreclosure of mortgages by the exercise of a power

of sale…”]

The appeals court has previously opined on a

borrower’s standing to challenge an assignment (albeit

not under the PSA), see Sullivan v. Kondaur Capital Corp.

85 Mass App Ct. 202, 205-206 (2014):

“Observing that the Sullivans are neither parties to nor

intended beneficiaries of the first assignment or the
second assignment, Kondaur contends that they are
without standing to challenge the validity of either
instrument. It is of course true that a nonparty who
does not benefit from a contract generally is without
standing to enforce rights under it. See, e.g., Cumis
Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 455 Mass.
458 , 464 (2009). However, that is not the position the
Sullivans occupy, since they are not seeking to enforce
any rights under either assignment. Instead, by their
complaint they seek to challenge Kondaur's claim of
title to the property the Sullivans formerly owned,
which derives from foreclosure of the mortgage Kondaur
claims to have acquired by virtue of the first and second
assignments. Kondaur held legal authority to conduct the
foreclosure, under the statutory power of sale contained
in the mortgage, only if it held a valid title to the
mortgage at the time it gave the notice of foreclosure
required under G. L. c. 244, § 14, and at the time it
exercised the power of sale. See U.S. Bank Natl. Assn.
v. Ibanez, 458 Mass. 637 , 647-648 (2011). If it did not
hold a valid title to the mortgage at the relevant times,
the foreclosure would be void, as would Kondaur's claim
to have extinguished the Sullivans' equity of
redemption.

This Court clearly found in Ibanez that the preceding

would also hold true under a PSA:

“Where, as here, mortgage loans are pooled together in

a trust and converted into mortgage-backed securities,
the underlying promissory notes serve as financial
instruments generating a potential income stream for

38
investors, but the mortgages securing these notes are
still legal title to someone's home or farm and must be
treated as such.”

C. On Remand The Appeals Court Found That Petitioner’s

Election of Surrender Was Not A Knowing Waiver of
His State Law Right To Defend The Respondents Use
of G.L. c. 244, §14

6. Conclusion

For all the foregoing reasons, it is respectfully

requested that this Petition for Further Appellate Review

be Allowed.

Respectfully Submitted,
Petitioner,
by their Attorney

__________________
Glenn F. Russell, Jr.
BBO# 656914
Glenn F. Russell, Jr., &
Associates, P.C.
38 Rock Street, #12
Fall River, MA 02720
Phone: (508) 324-4545
Fax: (508) 938-0244
russ45esq@gmail.com

CERTIFICATE OF SERVICE

I, Glenn F. Russell, Jr., hereby certify that on this

21st day of August 2020, I emailed a copy of the preceding
Application for Further Appellate Review to the Defendants
counsel of record listed below, , on the following counsel
of record:

James A. Ponsetto Esq.

Cliff Anderson Esq.
GREENBERG TRAUIG, LLP
One International Place, 20th Floor
Boston, MA 02110

__________________
Glenn F. Russell, Jr.

39
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.

9
 Commonwealth of Massachusetts
Appeals Court for the Commonwealth

At Boston

In the case no. 18-P-349

ANTHONY GIANNASCA

vs.

DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee, & others.

Pending in the Superior

Court for the County of Middlesex

Ordered, that the following entry be made on the docket:

The disposition of this case

is stated in Giannasca v.
Deutsche Bank Nat'l Trust
Co., 95 Mass. App. Ct. 775,
778 (2019).

By the Court,

, Clerk
Date July 20, 2020.
NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

18-P-349 Appeals Court

ANTHONY GIANNASCA vs. DEUTSCHE BANK NATIONAL TRUST COMPANY,

trustee,1 & others.2

No. 18-P-349.

Middlesex. March 6, 2019. - August 21, 2019.

Present: Rubin, Kinder, & Singh, JJ.

Assignment. Mortgage, Assignment, Foreclosure. Real Property,

Mortgage. Practice, Civil, Standing.

Civil action commenced in the Superior Court Department on

April 13, 2016.

The case was heard by Peter B. Krupp, J., on motions for

summary judgment.

Glenn F. Russell, Jr., for the plaintiff.

James P. Ponsetto for the defendants.

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.
 2

KINDER, J. This action arises from a home mortgage

foreclosure. The plaintiff, mortgagor Anthony 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. A Superior Court judge disagreed

and allowed summary judgment in favor of Deutsche Bank.

Giannasca challenges that conclusion on appeal. We affirm.

Background. We summarize the facts contained in the

summary judgment record in the light most favorable to

Giannasca. See Barrasso v. New Century Mtge. Corp. 91 Mass.

App. Ct. 42, 43 (2017). In November 2005, in connection with

his purchase of the property, Giannasca executed a promissory

note in the amount of $332,500 in favor of IndyMac Bank, F.S.B.

(IndyMac), and a mortgage to secure repayment of the loan. MERS

was named as the mortgagee, "solely as a nominee for Lender

[IndyMac] and Lender's successors and assigns." The mortgage

instrument further stated, "Borrower does hereby mortgage, grant

and convey to MERS (solely as nominee for Lender and Lender's

 3

successors and assigns) and to the successors and assigns of

MERS, with power of sale" the property. In 2005, the promissory

note was pooled with other such instruments in a securitized

trust, IndyMac INDX Mortgage Loan Trust 2005-AR33 Mortgage Pass-

Through Certificates, Series 2005-AR33. Deutsche Bank was

trustee for the trust. The pooling and servicing agreement

provided that IndyMac transferred its interest in each mortgage

loan without recourse to IndyMac MBS, Inc., which, in turn,

transferred those interests to Deutsche Bank.

In 2008, IndyMac failed and the Federal Deposit Insurance

Corporation (FDIC) was appointed receiver of its assets and

obligations. In 2009, the FDIC sold the assets of IndyMac to

OneWest Bank, F.S.B. In December 2011, MERS, acting "solely as

nominee for IndyMac Bank, F.S.B.," assigned the "[m]ortgage

. . . executed by . . . Giannasca" to Deutsche Bank.

On October 5, 2011, Giannasca filed a petition for personal

bankruptcy. On January 7, 2013, he filed a notice of intent to

surrender the property "to the mortgagee, [OneWest Bank,

F.S.B.]"3 On November 18, 2013, the bankruptcy trustee filed a

3 The day after Giannasca's bankruptcy proceeding was

converted to a proceeding under Chapter 7 of the United States
Bankruptcy Code, he filed a notice of intention to retain the
property and to reaffirm the debt. He did not however, enter
into a reaffirmation agreement with the creditor or file any
such agreement with the Bankruptcy Court, the statutory
requirements for reaffirmation of the debt. See 11 U.S.C.
§ 524(c) (2012).
 4

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.

In a letter dated January 30, 2015, after Giannasca failed

to make five consecutive mortgage payments, Deutsche Bank's loan

servicer notified him 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.

In April 2016, Giannasca filed a complaint in the Superior

Court seeking, among other things, declaratory relief that

Deutsche Bank had no enforceable mortgage interest in the

property. Ultimately, on cross motions for summary judgment, a

Superior Court judge allowed summary judgment in favor of

Deutsche Bank, reasoning that Giannasca's filing of a notice of

intent to surrender the property in the bankruptcy action

estopped him from contesting the foreclosure. The judge also

concluded that the assignment of the mortgage interest to

Deutsche Bank was valid. On appeal, Giannasca challenges only

the validity of the assignment.

Discussion. Giannasca claims that the assignment to

Deutsche Bank was invalid because IndyMac, on whose behalf MERS

purported to act when it assigned the mortgage, did not, because

 5

of its 2009 dissolution, have any interest in the mortgage at

the time of the assignment.4 We review a grant of summary

judgment de novo, and determine "whether, viewing the evidence

in the light most favorable to the nonmoving party, all material

facts have been established and the moving party is entitled to

a judgment as a matter of law." Augat, Inc. v. Liberty Mut.

Ins. Co., 410 Mass. 117, 120 (1991).

"[A] foreclosing mortgagee must demonstrate an unbroken

chain of assignments in order to foreclose a mortgage, see U.S.

Bank Natl. Assn. v. Ibanez, [458 Mass. 637,] 651 [2011], and

. . . that it holds the note (or acts as authorized agent for

the note holder) at the time it commences foreclosure, see Eaton

[v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 586 (2012)], [but]

nothing in Massachusetts law requires a foreclosing mortgagee to

demonstrate that prior holders of the record legal interest in

the mortgage also held the note at the time each assigned its

interest in the mortgage to the next holder in the chain."

Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 210

(2014).

4 Although Giannasca's brief is not clear on this point, we

interpret his argument to be that the assignment was flawed
because MERS made the assignment "solely as nominee for IndyMac
Bank, F.S.B.," rather than "solely as nominee for IndyMac Bank,
F.S.B., and its successors and assigns."
 6

For a mortgagor to have standing to challenge an assignment

purporting to give a foreclosing mortgagee legal title and the

authority to conduct a foreclosure sale, a mortgagor must claim

the assignment was void and not merely voidable. See Sullivan,

85 Mass. App. Ct. at 206 n.7. Whether a mortgage assignment in

Massachusetts is valid or void is determined by statute. See

G. L. c. 183, § 54B. See also Bank of N.Y. Mellon Corp. v.

Wain, 85 Mass. App. Ct. 498, 503 (2014). If the assignment is

(1) made by the mortgage holder or its representative, (2)

executed before a notary public, and (3) signed by an authorized

employee of the mortgage holder, it is effective to pass legal

title and "cannot be shown to be void." Id.

Here, it is undisputed that the assignment was executed by

an authorized employee of MERS, and that the execution was

verified by a notary public. Giannasca has not shown, and

nothing in the record suggests, that MERS was not a

representative of the legal mortgage holder at the time of its

assignment to Deutsche Bank. Pursuant to the pooling and

servicing agreement, IndyMac transferred its interest in

Giannasca's mortgage loan to Deutsche Bank in 2005, long before

IndyMac's failure. Thus, in 2005 Deutsche Bank became the

successor to IndyMac's interest in Giannasca's mortgage loan.

Because the mortgage instrument gave MERS the authority to act

as representative of IndyMac or its "successors or assigns,"

 7

MERS had the authority to represent Deutsche Bank in the 2011

assignment. The assignment was therefore valid, and not void.

Accordingly, "[b]ecause the record title holder of the mortgage

satisfied the dictates of the statute governing the assignment

of mortgages, [Giannasca has] no basis for arguing that the

assignment is void. Regardless of whether any hidden problems

[he seeks] to raise might provide a basis for a third party to

claim that the assignment was potentially voidable, [Giannasca

himself has] no right to raise such issues."5 Wain, 85 Mass.

App. Ct. at 504.

Judgment affirmed.

5 In light of our conclusion that the assignment from MERS

to Deutsche Bank was valid and binding, we need not reach the
question whether Giannasca was estopped from challenging the
foreclosure by virtue of his notice of intent to surrender the
property in the bankruptcy proceeding.
 RUBIN, J., dissenting. The assignment in this case

purports to be from Mortgage Electronic Registration Systems,

Inc. (MERS), acting "solely as nominee for IndyMac Bank, F.S.B."

But at the time of the alleged assignment, IndyMac Bank, F.S.B.,

had no interest in the mortgage. Indeed, it had failed and did

not exist. The mortgage holder was apparently MERS, as nominee

for Deutsche Bank National Trust Company (Deutsche Bank), as

trustee for the IndyMac INDX Mortgage Loan Trust 2005-AR33,

Mortgage Pass-Through Certificates, Series 2005-AR33, under the

pooling and servicing agreement dated December 1, 2005.1

It is black letter law in this Commonwealth that one who

holds an interest in property in one capacity may convey it only

when acting in that capacity. See, e.g., Bongaards v. Millen,

440 Mass. 10, 14 (2003) ("D'Amore held the property as trustee

for the beneficiaries of the trust, and she lacked power to

convey the property in her individual capacity"). "Like a sale

of land itself, the assignment of a mortgage is a conveyance of

an interest in land that requires a writing signed by the

1 I am assuming here that the majority is correct that the

note was transferred as the majority describes to Deutsche Bank.
There may be a dispute as to this fact; Giannasca appears to
assert that ownership of the note actually passed to IndyMac
Bank, F.S.B.'s, successor, OneWest Bank, F.S.B., because it was
one of IndyMac Bank, F.S.B's assets when it failed, was taken
into receivership by the Federal Deposit Insurance Corporation,
and its assets sold to OneWest Bank, F.S.B. The issue, however,
is immaterial for present purposes because, whoever held the
note, it was not the defunct entity, IndyMac Bank, F.S.B.
 2

grantor." U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 649

(2011). The grantor, MERS, solely as nominee for IndyMac Bank,

F.S.B., did not hold the mortgage, that is, legal title to the

property. See id. ("Where, as here, mortgage loans are pooled

together in a trust and converted into mortgage-backed

securities, the underlying promissory notes serve as financial

instruments generating a potential income stream for investors,

but the mortgages securing these notes are still legal title to

someone's home or farm and must be treated as such"). "Where,

as here, the grantor has nothing to convey, . . . [t]he

purported conveyance is a nullity, notwithstanding the parties'

intent." Bongaards, supra at 15.

"[N]owhere on the face of the instrument is there any

indication or evidence that [the signatory] was, or in any

manner purported to be, an officer or other authorized agent of"

the owner of the interest in the mortgage, MERS as nominee for

Deutsche Bank. Sullivan v. Kondaur Capital Corp., 85 Mass. App.

Ct. 202, 213 (2014).2 It therefore was void, and Giannasca has

2 The majority suggests that this flaw could have been

addressed by stating that MERS acted "solely as nominee for
IndyMac Bank F.S.B. and its successors and assigns," rather than
as nominee for Deutsch Bank. Ante at . Because the
assignment did not say that, I need not determine whether the
majority is correct. I note, however, that I am aware of no
authority, and the majority cites none, answering the question
whether an assignment like that purporting to be by a nominee
acting on behalf of some nonspecific open and indefinite class,
 3

standing to challenge it. As the majority notes, "Whether a

mortgage assignment in Massachusetts is valid or void is

determined by statute. See G. L. c. 183, § 54B. See also Bank

of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 503

(2014)." Ante at . That statute provides, in relevant part,

that an assignment "by a person purporting to hold the position

of president, vice president, treasurer, clerk, secretary,

cashier, loan representative, principal, investment, mortgage or

other officer, agent, asset manager, or other similar office or

position, including assistant to any such office or position, of

the entity holding such mortgage, or otherwise purporting to be

an authorized signatory for such entity, or acting under such

power of attorney on behalf of such entity, acting in its own

capacity or as a general partner or co-venturer of the entity

holding such mortgage, shall be binding upon such entity and

shall be entitled to be recorded, and no vote of the entity

affirming such authority shall be required to permit recording"

(emphasis added). G. L. c. 183, § 54B.

Indeed, the majority recognizes that an assignment "is

effective to pass legal title and 'cannot be shown to be void'"

when "the assignment is (1) made by the mortgage holder or its

representative, (2) executed before a notary public, and (3)

rather than on behalf of the actual note holder, would suffice

to identify the capacity in which the assignor was acting.
 4

signed by an authorized employee of the mortgage holder." Ante

at , quoting Wain, 85 Mass. App. Ct. at 503. Here, the

assignment was not made by the mortgage holder.

I therefore must dissent from the majority holding that

this assignment was not void. Perhaps the signature on behalf

of MERS in the incorrect capacity is the result of nothing more

than the sloppy work of the party purporting to hold the

mortgage. See Sullivan, 85 Mass. App. Ct. at 213, quoting

Ibanez, 458 Mass. at 655 (Cordy, J., concurring) ("what is

surprising about these cases is . . . the utter carelessness

with which the [foreclosing lenders] documented the titles to

their assets"). But the majority's decision upsets settled law:

"Massachusetts is a title theory state," Faneuil Investors

Group, Ltd. Partnership v. Selectmen of Dennis, 458 Mass. 1, 6

(2010), and today's decision may call into question the title to

many pieces of property, those in whose chain of title an

assignment or other conveyance was made in the wrong capacity –-

say individually instead of as trustee -– whose subsequent

purchasers have relied on the status of such assignments and

conveyances as a nullity. So although today's decision may give

the impression of cleaning up a technical flaw, i.e., a minor

misstep in the scheme of the multitude of mortgage foreclosures

precipitated by the financial crisis of 2007 and 2008, I fear

that, compared with requiring a new, proper assignment, today's

 5

decision may create an enormous amount of mischief. With

respect, I therefore dissent.