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Appeals Court of Massachusetts.

U.S. BANK TRUST, N.A., trustee 1 v. Donald PERRY.


Decided: February 18, 2021

By the Court (Vuono, Rubin & Sullivan, JJ.2)


The defendant, Donald Perry, appeals from the entry of judgment following the allowance of the plaintiff's motion for summary judgment in this postforeclosure summary process action. Because, on the record before us, there was a question of material fact regarding the assignment, and because the motion was granted when the defendant's discovery requests were still outstanding, we vacate the judgment and remand for further proceedings.

In support of its motion, the plaintiff submitted an affidavit with attachments purporting to show a seamless series of assignments of the mortgage from J.P. Morgan Chase Bank, National Association, as attorney in fact for the Federal Deposit Insurance Corporation (FDIC), as receiver, to J.P. Morgan Chase Bank, National Association; then to Bayview Loan Servicing; and then to the plaintiff. See generally U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 654 (2011). An assignment dated February 13, 2015, was signed by Brandon Prachyl, vice-president of J.P. Morgan Chase Bank, National Association, as attorney in fact for the FDIC as receiver, assigning the mortgage to J.P. Morgan Chase Bank, National Association. However, the notary jurat appearing in the record before us, dated October 8, 2014, states that John Bidol has appeared before the notary and is the person authorized to act on behalf of the assignor. On this record, we cannot say that this assignment was executed by a person with authority to do so. Moreover, the affidavit in support of the motion for summary judgment states that the assignment occurred in 2011, but the assignment in the record was dated February 13, 2015.

Another assignment, this time from J.P. Morgan Chase, National Association to Bayview Loan Servicing, was signed by Bidol on behalf of J.P. Morgan Chase. This assignment was made on October 8, 2014. From the affidavit in support of the motion for summary judgment, it appears that the plaintiff claims that this assignment was subsequent to what it claims was the 2011 assignment from the FDIC to J.P. Morgan Bank, National Association. However, as noted above, the dates on the assignments in the record before us call into question whether the assignment was made in 2011, and therefore whether J.P. Morgan Chase, National Association was in fact the assignee of the mortgage at the time the assignment to Bayview was made.

The plaintiff also filed a “Post Sale Affidavit Regarding Note ‘Eaton/Pinti Affidavit,’ ” stating that, based on the affiant's review of the pertinent business records, the plaintiff was the “holder/owner” of the note securing the mortgage at all times from the date of the notice of sale to the date of foreclosure. If left undisputed, the plaintiff's showing would be sufficient to establish the pertinent facts regarding the note for purposes of summary judgment. See Ibanez, 458 Mass. at 654; Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct. 824, 828 (2015).

The defendant attempted, however, to place facts in dispute concerning the note at the time of foreclosure by propounding a request for production of documents and interrogatories. He requested, among other things, that the plaintiff “describe the physical custody and ownership/holding of the Note in detail including but not limited to: (a) the physical location(s) of the original Note at all times from the date of the Mortgage through the present.”

“[N]othing 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). However, the plaintiff was required to show that it held the note at the time of the foreclosure. Id.3 To this extent, the discovery request was pertinent.4 While the lender's affidavit was sufficient to satisfy its initial burden on summary judgment regarding the note, the defendant was entitled to test the accuracy of the affidavit. And because all of the evidence pertaining to the physical location of the note was in the hands of the plaintiff, the defendant was entitled to put the plaintiff to its proof by requesting further explanation and documentation of the evidence contained in its business records. See Khalsa, 88 Mass. App. Ct. at 828-829.

The docket does not disclose that any motion for protective order was filed; accordingly, the plaintiff's discovery responses were due. The pro se defendant did not file a motion to compel, but did oppose the motion for summary judgment on the ground that discovery was outstanding. The defendant also filed a motion for reconsideration on this ground (among others), which was denied. On appeal, the argument has been reasserted, and the plaintiff has provided no response to it. Therefore, while we recognize that the defendant's task in placing facts in dispute on this point is not an easy one, see Eaton v. Federal Nat'l Mtge. Ass'n, 93 Mass. App. Ct. 216, 220-221 (2018), it remains his right to attempt to do so.

Therefore, for both of the reasons stated, the judgment is vacated and the case is remanded for further proceedings.

So ordered.

Vacated and remandee


3.   This requirement may be satisfied by a demonstration of physical possession. Whether ownership alone suffices is an unanswered question. Eaton v. Federal Nat'l Mtge. Ass'n, 93 Mass. App. Ct. 216, 219 (2018).

4.   As previously noted, it does not appear on this record (or our review of the docket) that the plaintiff filed a response or objections to the scope of the request.

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