ANTHONY IANACOPOULOS & Another v. GREGORY FUNDING, LLC, & Others.

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

24-P-958

ANTHONY GIANACOPOULOS & another1

vs.

GREGORY FUNDING, LLC, & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Anthony and Tracey Gianacopoulos, commenced

this action against Gregory Funding, LLC (Gregory); AJX Mortgage

Trust I, Wilmington Savings Fund Society, FSB, as trustee

(Wilmington); and U.S. Bank National Association, as indenture

trustee on behalf of and with respect to AJAX Mortgage Loan

Trust 2017-A, Mortgage Backed Notes, Series 2017-A (U.S. Bank);

seeking declaratory judgment that assignments of a mortgage were

invalid and damages for claimed violation of the terms of the

1 Tracey Gianacopoulos.

2AJX Mortgage Trust I, Wilmington Savings Fund Society,
FSB, trustee; and U.S. Bank National Association, indenture
trustee on behalf of and with respect to AJAX Mortgage Loan
Trust 2017-A, Mortgage Backed Notes, Series 2017-A.
mortgage regarding notice before foreclosure sale. The

defendants moved to dismiss the plaintiffs' complaint pursuant

to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). A judge

of the Superior Court allowed the motion to dismiss and entered

judgment in favor of the defendants. We affirm.

Background. In 2009, the plaintiffs granted a $520,000

mortgage on their property to Greylock Federal Credit Union

(Greylock). The mortgage was duly recorded in the Berkshire

Middle District registry of deeds (registry). In January 2017,

Greylock assigned the mortgage to Wilmington (first assignment).

In June 2017, Wilmington assigned the mortgage to U.S. Bank

(second assignment). The document recorded for the second

assignment noted that Wilmington acted through Gregory under a

power of attorney (POA) and referred to a POA recorded in the

registry in book 5984, page 225. However, the POA recorded on

that page granted authority from U.S. Bank to Gregory, not from

Wilmington to Gregory. In a separate limited POA executed in

April 2016 and recorded in the registry in book 5912, page 240,

in February 2017, Wilmington granted Gregory, among other

things, authority to assign its mortgage loans. As detailed in

the complaint, about five years later, in May 2022, U.S. Bank as

"mortgagee" sent the plaintiffs a right to cure notice after

2
commencing a case in the Land Court.3 In October 2022, U.S. Bank

assigned the mortgage back to Wilmington (third assignment).

Then, in November 2022, the Land Court issued an order of notice

under the Federal Servicemembers Civil Relief Act, 50 U.S.C.

§§ 3901 et seq. (SCRA), prompting the plaintiffs to commence

this action in Superior Court.

Discussion. 1. Standard of review. "We review the

allowance of a motion to dismiss [for failure to state a claim]

de novo, accepting as true the facts alleged in the plaintiff's

complaint as well as any favorable inferences that reasonably

can be drawn from them" (citation omitted). Braley v. Bates,

100 Mass. App. Ct. 259, 260 (2021). In evaluating a motion to

dismiss under rule 12 (b) (6), we generally limit our

consideration to "the allegations in the complaint, although

matters of public record, orders, items appearing in the record

of the case, and exhibits attached to the complaint, also may be

taken into account" (citation omitted). Schaer v. Brandeis

Univ., 432 Mass. 474, 477 (2000). To survive such a motion, a

complaint must plausibly suggest an entitlement to relief. See

Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

3 In their complaint, the plaintiffs referred to a "hybrid
35A right to cure/paragraph 22 default notice." We understand
this reference to be to a notice of the mortgagor's right to
cure a default of required payment pursuant to G. L. c. 244,
§ 35A, and under paragraph 22 of the mortgage.

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2. The plaintiffs' standing to challenge mortgage

assignments. The plaintiffs contend that the incorrect POA

referenced in the second assignment and recorded in the registry

rendered the assignment from Wilmington to U.S. Bank void and

thus was a defect that entitled the plaintiffs as mortgagors to

challenge the second and third assignments. The plaintiffs

assert that they are "entitled to an explanation" through

discovery as to the chain of title for the mortgage. The

defendants do not dispute that the POA recorded in the second

assignment was incorrect but contend that the assignment

nevertheless was valid and enforceable. We agree with the

defendants that the erroneous page reference on the second

assignment was a scrivener's error and therefore it did not make

the otherwise valid second assignment void.4 See Clockedile v.

U.S. Bank Trust, N.A., 189 F. Supp. 3d 312, 315 (D. Mass. 2016)

(reference to expired POA in mortgage assignment was scrivener's

error that did not void assignment where correct, valid POA

4 The plaintiffs do not challenge the first assignment and
identify no defects in the second assignment apart from the
reference to the wrong POA. We are not persuaded by the
plaintiffs' argument that the reference to the wrong POA
document in this case was more than a scrivener's error because
it was for a different entity, U.S. Bank, as opposed to an
expired POA for the same entity, as in Clockedile v. U.S. Bank
Trust, N.A., 189 F. Supp. 3d 312, 315 (D. Mass. 2016). The
plaintiffs cite no legal authority to support this argument, and
we discern no significance in such a distinction.

4
existed at time of assignment). The POA that authorized Gregory

to execute assignments on behalf of Wilmington was recorded in

the registry nearly four months prior to the second assignment

and was still in effect when Wilmington assigned the mortgage to

U.S. Bank. Because the second assignment was not void, but

instead voidable at the election of one of the parties to the

assignment, the plaintiffs did not have standing to challenge it

nor to discover the particulars regarding the "pathway" of the

chain of title. See Shea v. Federal Nat'l Mtge. Ass'n, 87 Mass.

App. Ct. 901, 903 n.9 (2015) (mortgagor's standing to challenge

mortgage assignment limited to defects making assignment void,

not merely voidable at election of one party). Cf. Sullivan v.

Kondaur Capital Corp., 85 Mass. App. Ct. 202, 205 (2014)

(plaintiff who is neither party nor beneficiary to mortgage

assignment ordinarily lacks standing to challenge it). There

was thus no error in the motion judge's determination that the

plaintiffs' complaint failed to set forth a plausible

entitlement to declaratory judgment that Wilmington was "not a

record mortgagee who [could] exercise the statutory power of

sale."5

5 The plaintiffs' challenge to Wilmington's status as a
mortgagee is unavailing even if the second and third assignments
were invalid. Where the plaintiffs do not claim any defect in
the first assignment from Greylock to Wilmington, we agree with
the motion judge's conclusion that Wilmington would "remain[] as
record holder of the [m]ortgage" under the first assignment.

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3. Breach of contract claim. The plaintiffs additionally

argue that it was error for the judge to dismiss their claim

that the defendants committed a breach of the terms of the

mortgage by foreclosing prior to meeting the mortgage's notice

requirements. To begin, we disagree with the plaintiffs'

assertion that the judge's analysis improperly considered the

"challenged default notice" as a right to cure notice under

G. L. c. 244, § 35A, to the exclusion of paragraph 22 of the

mortgage. The judge's analysis addressed both § 35A and

paragraph 22, and properly concluded that the plaintiffs did not

plausibly allege in their complaint that the defendants

commenced a foreclosure.

Further, even if the plaintiffs had standing to challenge

U.S. Bank's status as the mortgagee, they did not detail a

foreclosure took place. The complaint alleged that the

defendants sent a "hybrid" default notice intended to meet the

notice requirements of § 35A and paragraph 22, but it was

deficient for paragraph 22 purposes because it incorrectly

listed U.S. Bank as the mortgagee.6 Notice of a right to cure a

See U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 651 (2011)
("foreclosing entity may provide a complete chain of assignments
linking it to the record holder of the mortgage, or a single
assignment from the record holder of the mortgage").

6 A default notice that lists the incorrect lender can
satisfy G. L. c. 244, § 35A, requirements but still fall short
of the notice requirements in the mortgage, which must be

6
mortgage default under § 35A does not commence foreclosure

proceedings and therefore is not part of the statutory power of

sale process. See U.S. Bank Nat'l Ass'n v. Schumacher, 467

Mass. 421, 430-431 (2014) (§ 35A designed to give mortgagor fair

opportunity to cure default before debt accelerates and before

foreclosure process commences). Similarly, notice and an

opportunity to cure before foreclosing under paragraph 22 of the

mortgage was not an exercise of the defendants' right to

foreclose as part of their statutory power of sale. See Pinti

v. Emigrant Mtge. Co., 472 Mass. 226, 240 (2015) (notice

requirements in mortgage are steps that must precede

foreclosure). The plaintiffs did not allege in their complaint

that the defendants sent notice of a foreclosure sale, published

a mortgagee's sale of real estate, or otherwise conducted or

attempted to conduct a sale of the plaintiffs' property. See

G. L. c. 244, § 14. Finally, to the extent the plaintiffs rely

on a reference in their complaint to an order of notice filed

pursuant to the SCRA and recorded in the registry, it is

unavailing where SCRA proceedings occur independently of

foreclosure. See Beaton v. Land Court, 367 Mass. 385, 390

(1975).

strictly complied with before foreclosure. See Pinti v.
Emigrant Mtge. Co., 472 Mass. 226, 239-240 (2015).

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In sum, because the allegations in the complaint were that

the defendants filed a preforeclosure notice of default rather

than a foreclosure, the plaintiffs' breach of contract claim was

properly dismissed for failing to state a claim that plausibly

suggested entitlement to relief.7

Judgment affirmed.

By the Court (Henry, Hand &
Brennan, JJ.8),

Clerk

Entered: December 2, 2025.

7 Because this appeal does not address the sufficiency of
the notice or a foreclosure itself, it does not bar the
plaintiffs from contesting any foreclosure that may take place.

8 The panelists are listed in order of seniority.

8