U.S. BANK TRUST, N.A., Trustee v. DONALD PERRY.

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

23-P-962

U.S. BANK TRUST, N.A., trustee,1

vs.

DONALD PERRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is a post-foreclosure summary process action in which

the pro se defendant, Donald Perry, appeals from the entry of

judgment by a judge of the Housing Court following the allowance

of the plaintiff's, U.S. Bank's,2 second motion for summary

judgment. Because there are no genuine issues of material fact

in dispute, we affirm the entry of summary judgment for the

plaintiff.

Background. The undisputed facts are as follows. On May

9, 2006, Donald Perry borrowed $397,500 from Washington Mutual

1 For LSF9 Master Participation Trust.

2 We will refer to the plaintiff as U.S. Bank or plaintiff.
Bank and secured the payment through a residential mortgage.

Washington Mutual Bank endorsed the note in blank. On September

25, 2008, Washington Mutual Bank was declared insolvent and the

Federal Deposit Insurance Corporation (FDIC), as receiver of

Washington Mutual Bank, assigned the mortgage to JP Morgan

Chase. A series of assignments of the note and mortgage

followed.

In 2017, Perry defaulted on the mortgage and a foreclosure

sale resulted in U.S. Bank purchasing the property and becoming

the record owner of the premises. In April 2018, U.S. Bank

filed a summary process action in the Housing Court and obtained

summary judgment in its favor. Perry appealed the judgment and,

in a summary decision,3 a panel of this court vacated entry of

summary judgment and remanded the case for further proceedings.

The panel concluded that summary judgment entered in error first

because Perry's discovery requests remained outstanding.

Second, there was a material dispute of fact as to the propriety

of the recorded 2015 assignment from the FDIC to JP Morgan Chase

because the notary jurat did not match the date or signature on

the assignment.

3 U.S. Bank Trust, N.A. v. Perry, 99 Mass. App. Ct. 1111
(2021).

2
On remand, a judge of the Housing Court entered a discovery

order requiring discovery to be completed by April 7, 2021. At

a pretrial conference in October 2022, a different judge found

that U.S. Bank had complied with the discovery order and that

discovery was complete. Perry filed a motion for

reconsideration, claiming that discovery had not been provided,

but he later in open court withdrew his motion, stating that

discovery "at this point should be closed." The judge heard

arguments from both parties and took the matter under

advisement. The judge found that discovery was complete, the

assignment to JP Morgan Chase occurred by operation of law when

the FDIC became receiver, and the 2015 assignment in question

was merely confirmatory in nature and of no consequence. In a

thoughtful memorandum of decision, the judge concluded that U.S.

Bank had established strict compliance with statutory

foreclosure requirements and entered judgment in U.S. Bank's

favor. This appeal followed.

Discussion. 1. Standard of review. We review a grant of

summary judgment de novo to 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 judgment as a matter of law" (quotation omitted).

Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018). Here,

U.S. Bank bears the "burden of affirmatively demonstrating the

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absence of a triable issue." Milliken & Co. v. Duro Textiles,

LLC, 451 Mass. 547, 550 n.6 (2008). If the moving party carries

its burden, then the party opposing the motion (Perry) must

establish the existence of a genuine issue of material fact.

See Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210,

215 (2018), quoting French King Realty Inc. v. Interstate Fire &

Cas. Co., 79 Mass. App. Ct. 653, 659-660 (2011).

2. Summary judgment in a summary process action. Summary

process cases are civil actions with the purpose of enabling the

holder of the legal title to gain lawful possession of the

premises. See Wells Fargo Bank, N.A. v. Cook, 87 Mass. App. Ct.

382, 385 (2015), quoting Bank of N.Y. v. Bailey, 460 Mass. 327,

333 (2011). See also Bank of America, N.A. v. Rosa, 466 Mass.

613, 624 (2013).4 To prevail on a motion for summary judgment,

the moving party has the burden of proving that there are no

material facts in dispute with respect to the title. See

Bailey, supra at 334. In general, the bank must show that it

4 In Adjartey v. Central Div. of the Hous. Court Dep't, 481
Mass. 830, 834 (2019), the Supreme Judicial Court recognized the
unique nature of summary process matters, describing them as
"complex, fast-moving, and generally litigated by landlords who
are represented by attorneys and tenants who are not." While we
recognize that here Perry was the former homeowner and not a
tenant, it remains true that the "challenges inherent in
navigating a complex and fast-moving process are compounded for
those individuals who face summary process eviction without the
aid and expertise of an attorney." Id. at 837.

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obtained the deed to the property and that both the deed and the

affidavit of sale, showing compliance with the statutory

foreclosure requirements, were recorded. See id.

A former homeowner is permitted to "challenge the title of

the banks in these summary process actions, and . . . can

require the banks to establish that title was acquired strictly

according to the power of sale provided in the mortgage." Rosa,

466 Mass. at 621. See Bailey, 460 Mass. at 333. A former

homeowner can render a foreclosure sale void by mounting a

successful challenge to the validity of a bank's title. See

Cook, 87 Mass. App. Ct. at 385.

Perry contends that the judge erred in granting U.S. Bank's

motion for summary judgment because the requested discovery was

never provided to him and because of the existence of material

facts in dispute about the 2015 assignment. In essence, Perry

claims that U.S. Bank has failed to show strict compliance with

foreclosure requirements because it never established that the

recorded 2015 assignment was executed by an individual with

proper authority. We address each claim in turn.

We do not discern any material outstanding discovery.

Perry did file a motion for reconsideration on the judge's

discovery order, but he later agreed in open court that

discovery should be closed and he withdrew his motion for

reconsideration. Because he withdrew his motion and agreed that

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discovery should be closed, Perry cannot now complain about what

he agreed to. See Commonwealth v. Simmonds, 386 Mass. 234, 241-

242 (1982). On appeal, Perry asserts that the judge took his

statement out of context -- he meant that discovery should have

been closed long ago were it not for U.S. Bank's continuing

failure to produce documentation showing a seamless assignment

of the mortgage. Even if Perry has not waived this argument, we

do not discern any material matter that requires further

discovery.

We disagree with Perry's fundamental premise that summary

judgment was improper because material issues of fact exist as

to the recorded assignment from the FDIC to JP Morgan Chase. In

his appeal, Perry mainly focuses on the propriety of the

signature (lacking a consistent notary jurat) on the 2015

assignment that was called into question by a panel of this

court in the prior appeal. Under Federal law, however, the FDIC

acquired its assets by operation of law when Washington Mutual

Bank failed in 2008. As receiver, the FDIC has the authority

under 12 U.S.C. § 1821(d)(2)(G)(i)(II) to transfer or merge the

assets and liabilities of a failed financial institution

"without any approval, assignment, or consent with respect to

such transfer." Id. Here, when Washington Mutual Bank failed

and the FDIC became the receiver, the FDIC was not required to

record an assignment of Perry's mortgage to JP Morgan Chase.

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Thus, any error in the notary jurat on that recorded assignment

was immaterial and of no legal effect. We agree with the judge

of the Housing Court that, since the FDIC did not need to

separately assign each note it acquired when Washington Mutual

Bank became insolvent, the assignment in 2015 was only

confirmatory in nature and does not affect the chain of title.

Perry offers no persuasive support for his position that

the transfer did not occur by operation of law. Instead, he

argues that U.S. Bank's "new" theory regarding the chain of

title should be precluded because the bank did not advance it in

its original motion for summary judgment despite possessing all

the relevant documents. When this court remanded the case to

the Housing Court, it merely held that the prior allowance of

summary judgment was inappropriate based on the two issues

described above. The remand therefore placed the case into the

same posture it had before summary judgment was allowed.

Accordingly, it was entirely appropriate for the judge of the

Housing Court to hear U.S. Bank's second motion for summary

judgment. U.S. Bank was not limited to arguing what it had

filed in its original motion, and the judge was not constrained

to only consider the initial argument advanced by U.S. Bank.

Ultimately, the Housing Court judge's allowance of summary

judgment was appropriate. In a summary process matter, legal

title is established "by proof that the title was acquired

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strictly according to the power of sale provided in the

mortgage; and that alone is subject to challenge" (quotation

omitted). Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct.

374, 379 (2016). Here, Perry has failed to establish the

existence of a genuinely disputed issue of material fact

regarding the propriety of the transfer of the title to the

property. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass.

635, 642 (2012) ("If a defendant fails to show the existence of

a genuine issue of material fact in response to a motion for

summary judgment by contesting factually a prima facie case of

compliance with G. L. c. 244, § 14, such failure generally

should result in judgment for the plaintiff").5

In conclusion, we agree with the judge of the Housing Court

that the 2015 assignment was confirmatory in nature and does not

affect the chain of title because the transfer occurred by

operation of law. Therefore, we are satisfied that no defect

5 To the extent that Perry argues that the judge of the
Housing Court and counsel for U.S. Bank committed ethical
violations, his argument does not rise to the level of appellate
argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in
481 Mass. 1628 (2019). To the extent we have not specifically
addressed any of Perry's remaining arguments, they have not been
overlooked; we find nothing in them that requires discussion.
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

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exists in the chain of title to warrant the reversal of summary

judgment.

Judgment affirmed.

By the Court (Blake, Walsh &
Hodgens, JJ.6),

Clerk

Entered: October 31, 2024.

6 The panelists are listed in order of seniority.

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