PHOENIX DEVELOPMENT, INC. v. PRINCE GOLPHIN, JR., & Another.

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-693

PHOENIX DEVELOPMENT, INC.

vs.

PRINCE GOLPHIN, JR., & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Phoenix Development, Inc., filed this

postforeclosure summary process action in the Housing Court,

naming the former owners of the property, Prince and Tammy

Golphin, as defendants. Summary judgment entered in favor of

the plaintiff for possession. After an evidentiary hearing on

damages, judgment entered and the defendants appealed.

Defendant Prince Golphin died after filing a brief, and there is

some ambiguity in the record whether Tammy Golphin properly

entered an appeal and joined in that brief. To the extent that

this appeal is properly before us, that we discern preserved

1 Tammy L. Golphin.
challenges to the judge's rulings in the defendants' dense

briefing, and that the defendants have provided us with a record

adequate to review them, we discern no error. As a result, we

affirm.

Background. The plaintiff filed its summary process

complaint on December 10, 2018. The defendants answered the

complaint and later filed an amended answer. 2

The defendants moved to dismiss the complaint in September

2019 and again in December 2019. In the first motion, the

defendants challenged the plaintiff's standing to bring the

summary process action, alleging defects in the chain of

assignments of their mortgage. In the second motion to dismiss,

the defendants reiterated their challenges to the plaintiff's

standing and the chain of assignments; they also argued that the

plaintiff failed to meet statutory requirements for foreclosure

and that the plaintiff's failure to plead and prove a breach of

the defendants' loan modification was fatal to its claims. The

judge held a hearing on each motion and denied each with an

order referring to "the reasons stated on the record." The

defendants have not, however, provided us with the transcripts

of any of those hearings, and so the record is silent on the

2 The defendants were unrepresented in the Housing Court
and, until the filing of an appellate reply brief by Tammy
Golphin, in this court.

2
arguments made at either hearing and on the judge's reasons for

denying the defendants' motions to dismiss. See Mass. R. A. P.

18 (c), as appearing in 481 Mass. 1637 (2019).

On February 2, 2021, the plaintiff moved for partial

summary judgment on the issue of possession. The defendants

opposed the motion, challenging only the validity of the chain

of assignments of their mortgage "from 2009 thru 2017" and "the

veracity of the blank endorsement on the note presented in

2018." Following the summary judgment hearing, 3 the judge denied

the motion based on the plaintiff's failure to produce evidence

"outlining a consistent chain of assignments." 4

In December 2022, after additional motion practice, the

plaintiff filed a second motion for partial summary judgment on

the issue of possession. The docket reflects that the

defendants opposed the motion, but the defendants did not

include a copy of their opposition in the appellate record. See

Commonwealth v. Woody, 429 Mass. 95, 97 (1999) ("it is the

appellant's responsibility to ensure that the record is adequate

for appellate review"). The judge granted summary judgment on

possession in favor of the plaintiff, based on his determination

3 As we have noted, we do not have a copy of the transcript
of that hearing.

4 The judge did not determine that any of the assignments
was void.

3
that the plaintiff had shown that the defendants' mortgage had

been validly assigned from the original mortgagee to the

foreclosing entity. We infer from the record that the

defendants relied on the same argument in their oppositions to

both motions for summary judgment.

Final judgment entered after a determination of the use and

occupancy for which the defendants were responsible, and this

appeal followed.

Discussion. 1. Motion to dismiss. Although the

defendants' briefing focuses on their challenge to the judge's

order allowing the plaintiffs' second motion for summary

judgment, it appears to us that their argument also includes

some claims relating to issues raised in their unsuccessful

motions to dismiss the complaint. To the extent that they do

so, the record is inadequate to allow us to review those

rulings; the judge's explanations were apparently made orally at

motion hearings for which the defendants have not provided

transcripts. See Mass. R. A. P. 18 (a), as appearing in 481

Mass. 1637 (2019); Mass. R. A. P. 8 (b), as appearing in 481

Mass. 1611 (2019). See also Chokel v. Genzyme Corp., 449 Mass.

272, 279 (2007) ("When a party fails to include a document in

the record appendix, an appellate court is not required to look

beyond that appendix to consider the missing document"). Cf.

R.M. Packer Co. v. Marmik, LLC, 88 Mass. App. Ct. 654, 655 n.2

4
(2015) (factual findings of judge in jury-waived trial "are in

essence unreviewable because the trial transcript was not

included in the appellate record"). In the absence of an

adequate record on appeal, we decline to disturb the judgment on

the basis of the defendants' challenge to the orders denying

their motions to dismiss.

2. Partial summary judgment as to possession. a.

Standard of review. Summary judgment is appropriate "if the

pleadings, depositions, answers to interrogatories, and

responses to requests for admission . . . , together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law." Mass. R. Civ. P. 56 (c), as

amended, 436 Mass. 1404 (2002).

In conducting our de novo review of the judge's decision,

we "view[] the evidence in the light most favorable to the

nonmoving party" (citation omitted), Bank of N.Y. v. Bailey, 460

Mass. 327, 331 (2011), resolving any doubts about the existence

of a genuine issue of material fact against the plaintiff, as

the moving party. 5 Milliken & Co. v. Duro Textiles, LLC, 451

5 Given this standard, neither the motion judge nor an
appellate judge makes determinations as to the weight or
credibility of the evidence supporting or opposing summary
judgment, and no evidentiary hearing is conducted. See Kernan
v. Morse, 69 Mass. App. Ct. 378, 382 (2007).

5
Mass. 547, 550 n.6 (2008). "Once the moving party establishes

the absence of a triable issue, the party opposing the motion

must respond and allege specific facts establishing the

existence of a material fact in order to defeat the motion."

Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777-778

(2013), quoting SCA Servs., Inc. v. Transportation Ins. Co., 419

Mass. 528, 531 (1995). Having conducted the required review, we

discern no basis on which to disturb the judgment.

b. Arguments preserved for review. As we have noted, the

defendants provided us with neither a copy of their opposition

to the plaintiff's second motion for summary judgment nor a

transcript of the summary judgment motion hearing. 6 In a

postforeclosure summary process action, "the only legal issue

for the court is whether the mortgagee obtained title to the

property in strict accordance with the power of sale." U.S.

Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 429 (2014). "[A]

plaintiff in a postforeclosure summary process case may make a

prima facie showing of its right to possession by producing an

attested copy of the recorded foreclosure deed and affidavit of

sale under G. L. c. 244, § 15." Federal Nat'l Mtge. Ass'n v.

Hendricks, 463 Mass. 635, 637 (2012) (Hendricks). The

6 This despite the fact that the defendants ordered a
transcript of that hearing and the Housing Court's docket
reflects that the transcripts were prepared and received.

6
defendants do not appear to challenge the plaintiff's prima

facie case, and to the extent that they do, their arguments are

unpersuasive. The summary judgment record includes copies of

the required documents. 7

On the limited record before us, we infer that the

defendants' challenge to the second motion for summary judgment

was limited to arguing that the plaintiff lacked standing

because one or more of the assignments in the chain of

assignments from the original mortgagee to the foreclosing

entity was allegedly void. Accordingly, we limit our review to

that issue. See Carey v. New England Organ Bank, 446 Mass. 270,

285 (2006) (arguments not raised in trial court are deemed

7 Indeed, the plaintiff's showing that it acted in strict
compliance with the power of sale in the defendants' mortgage
and the related statutes is well beyond the prima facie level.
The record includes a notice of default and ninety-day right to
cure that met the requirements of paragraph 22 of the
defendants' mortgage. See Pinti v. Emigrant Mtge. Co., 472
Mass. 226, 237 (2015). It also includes notarized affidavits by
duly authorized representatives of the foreclosing entity
averring that it complied with the notice requirements of G. L.
c. 244, § 14, and G. L. c. 244, §§ 35B, and 35C, as inserted by
St. 2012, c. 194, § 2, before the foreclosure, as well as a
certification pursuant to 209 Code Mass. Regs. § 18.21A(2)(c)
(2013), concerning unfair loan servicing practices. See, e.g.,
U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 647-648 (2011).
Finally, as we note below, the plaintiff established that the
foreclosing entity held both the mortgage and the note at the
time of the foreclosure, see Eaton v. Federal Nat'l Mtge. Ass'n,
462 Mass. 569, 582-583 (2012), and the plaintiff submitted an
affidavit of sale complying with G. L. c. 244, § 15. See
Hendricks, 463 Mass. at 641-642.

7
waived on appeal). See also Commonwealth v. Keevan, 400 Mass.

557, 562 n.4 (1987) (appellate argument "cannot be raised for

the first time in the reply brief").

c. Chain of assignments. The summary judgment record

establishes an unbroken chain of valid assignments of the

defendants' mortgage, from the original mortgagee to the

foreclosing entity. 8 It is undisputed that in July 2006 the

plaintiffs granted a note to WMC Mortgage Corp., secured by a

mortgage on 248 King Street in Springfield, with Mortgage

Electronic Registration Systems, Inc. (MERS), acting as a

nominee for the lender and as the mortgagee. The mortgage was

recorded in the Hampden County registry of deeds (registry).

The plaintiff provided evidence -- in the form of attested

copies of notarized documents executed by authorized signatories

for the transferring parties and recorded at the registry, see

G. L. c. 183, § 54B -- to show that the defendants' mortgage was

assigned by MERS to Deutsche Bank National Trust Company, as

Trustee for HASCO Mortgage Pass-Through Certificates, Series

8 Although we discern no defects in the chain of assignments
here, we note that even if we were to do so, the defendants'
ability "to challenge the validity of the assignment process"
would be limited to demonstrating that the challenged
assignments were void, and not merely voidable. Bank of N.Y.
Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 503 (2014) (Wain).

8
2006-HE2 (HASCO), 9 on January 5, 2009, and by HASCO to Deutsche

Bank National Trust Company, as Trustee for HSI Asset

Securitization Corporation Trust 2006-HE2, Mortgage Pass-Through

Certificates, Series 2006-HE2 (HSI), on April 14, 2017. 10 See

Rosa v. Mortgage Elec. Sys., Inc., 821 F. Supp. 2d 423, 430 (D.

Mass. 2011) ("A mortgage assignment is valid as long as it

complies with the requirements of [G. L. c.] 183, § 54B"). The

plaintiff also provided admissible evidence to show that on

October 24, 2018, HSI foreclosed on the property by auction and

subsequently recorded a foreclosure deed to the plaintiff,

Phoenix Development, Inc. 11 This evidence, which the defendants

have not successfully rebutted with allegations of specific

facts, see Drakopoulos, 465 Mass. at 778, was sufficient to

establish the existence of an unbroken chain of title to the

9 The defendants assert, without record support, that HASCO
was a "non-existent entity." This bald assertion is inadequate
to defeat summary judgment. See Cannata v. Berkshire Natural
Resources Council, Inc., 73 Mass. App. Ct. 789, 792 (2009).

10In a July 10, 2017, affidavit notarized and recorded at
the registry, a vice president of Wells Fargo Bank averred that
HSI then held the promissory note securing the defendants'
mortgage. Based on the summary judgment record, the defendants
did not preserve a challenge to the validity of this affidavit
or to any evidence of the note itself.

11The defendants do not appear to contest the plaintiff's
evidence showing that the high bidder at the auction assigned
the bid to the plaintiff and that the plaintiff recorded a
foreclosure deed to the property.

9
foreclosing entity, HSI, and thus the validity of the

assignments in that chain. 12 See Bank of N.Y. Mellon Corp. v.

Wain, 85 Mass. App. Ct. 498, 503 (2014). The defendants'

challenge to the plaintiff's standing on the basis of void

assignments thus fails. Cf. U.S. Bank Nat'l Ass'n v. Ibanez,

458 Mass. 637, 648-652 (2011) (Ibanez) (plaintiff had no

authority to foreclose where it presented no evidence of link in

purported chain of assignments).

The defendants' argument that a "confirmatory assignment"

executed by an authorized representative of MERS to HSI on

December 27, 2011, and recorded at the registry broke the chain

of assignments is likewise unavailing. MERS assigned its

interest in the defendants' mortgage to HASCO in 2009. Despite

the notation on the confirmatory assignment that it was being

recorded "to correct the assignee" of the assignment from MERS

12Given our conclusion on this point, we conclude that the
defendants, who do not challenge their status as "mortgagor[s]
in default," have "no legally cognizable stake in whether there
otherwise might be latent defects in the assignment process."
Wain, 85 Mass. App. Ct. at 502. See id. at 503 (in challenge to
validity of foreclosure, homeowner unable to show that
assignment is void and not merely voidable "cannot otherwise
seek to challenge the validity of the assignment process").
Accordingly, even if the defendants had not waived their
arguments about such alleged defects as the validity of an
"endorsement in blank" on the note and the need for "wet ink"
signatures on the operative documents, they would not have
standing to raise them. See Wells Fargo Bank, N.A. v. Anderson,
89 Mass. App. Ct. 369, 372 (2016).

10
to HASCO, we are aware of no precedent enabling MERS to

"confirm" an assignment by designating a third party in place of

the original assignee. See LaRace v. Wells Fargo Bank, N.A., 99

Mass. App. Ct. 316, 327 (2021) (for assignment to be

"confirmatory," it must confirm existing valid assignment).

Perhaps more to the point, because MERS had no interest in the

defendants' mortgage once it executed the assignment to HASCO in

2009, the "confirmatory assignment" transferred nothing and was

invalid. See Ibanez, 458 Mass. at 650, 654.

Judgment affirmed.

By the Court (Hand, Hodgens &
Tan, JJ. 13),

Clerk

Entered: January 14, 2026.

13 The panelists are listed in order of seniority.

11