COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
NORFOLK, ss. SUBSEQUENT CASE
No.17 SBQ 03248-10-001 (HPS)
ROBERT F. GUSTIN, JR. and
ELIZABETH A. DORIS GUSTIN,
Petitioners,
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR THE
CERTIFICATE HOLDERS OF
SOUNDVIEW HOME LOAN TRUST,
2005-OPT4, ASSET-BACKED
CERTIFICATES, SERIES 2005-OPT 4
and
OPTION ONE MORTGAGE
CORPORATION,
Respondents.
DECISION ON RESPONDENTS' DEUTSCHE BANK NATIONAL TRUST CO.
AND OPTION ONE MORTGAGE CORP.'S MOTIONS TO DISMISS
Petitioners Robert F. Gustin, Jr. and Elizabeth A. Doris Gustin ("Gustins") filed a
Petition to Amend Certificate of Title on October 12, 2017 seeking to expunge two mortgage
assignments from the certificate of title for their property at 8 Walker Court, Dedham
("Property"). The Gustins assert that the assignment from Option One Mortgage Corporation
("Option One") to Deutsche Bank National Trust Company, As Trustee For The Certificate
Holders OfSoundview Home Loan Trust 2005-Opt4, Asset-Backed Certificates, Series 2005-
Opt 4 ("Deutsche Bank"), of a mortgage on the Property is void because at the time the mortgage
was assigned to Deutsche Bank, the assignor, Option One, did not yet itself have title to the
1
mortgage; therefore, Option One had nothing to assign. The Gustins further allege that the notary
acknowledgment of the assignment from Option One to Deutsche Bank by a California notary
public, although compliant on its face with all acknowledgment requirements, failed to conform
to California law because the notary public failed to note the acknowledgment in her journal
when she turned in her notary journal to the Orange County Clerk-Recorder upon the expiration
of her commission.
Deutsche Bank and Option One argue that the assignment from Option One to Deutsche
Bank was valid because the date the assignment was registered is determinative of title, not the
date of execution. Therefore, at the time the instrument was registered with the Norfolk Registry
District of the Land Court on February 9, 2007, Option One held a valid assignment of the
mortgage. In addition, Deutsche Bank and Option One assert that the Gustins lack standing to
argue that the notary acknowledgment is insufficient because the Gustins, as mortgagors in
default, do not have a legally cognizable stake in whether latent defects exist in the assignment.
On October 12, 2017, along with a petition to amend their certificate of title, the
petitioners filed a motion for preliminary injunctive relief to enjoin a foreclosure of their
property, scheduled for October 25, 2017. Following a hearing on October 20, 2017, which the
respondents did not attend, most likely because they were not timely served, I denied petitioners'
motion for a preliminary injunction.
On November 27, 2017, Deutsche Bank filed its motion to dismiss and on July 16, 2018,
following a stay occasioned by the bankruptcy filing of one of the petitioners, Option One filed
its motion to dismiss. Successive counsel for the petitioners filed separate memoranda in
opposition to the motions to dismiss. I held a hearing on the motions on October 17, 2018. For
the reasons stated below, the respondents' motions to dismiss are ALLOWED.
2
FACTS
The following allegations of the petitioners' Petition to Amend Certificate of Title are
accepted as true for purposes of these motions. See Iannacchino v. Ford Motor Co., 451 Mass.
623 (2008). The court also considers undisputed documents in the record, including the subject
mortgage and the two mortgage assignments. See Buffalo-Water 1, LLC v. Fidelity Real Estate
Cornpanji, LLC., SJC-12487, slip. op. at 3 (November 26, 2018).
1. The Property is registered land acquired by the Gustins by deed registered with the
Norfolk Registry District of the Land Court on March 18, 1987. 1
2. The Gustins granted a mortgage to H&R Block Mortgage Corporation ("H&R Block")
dated September 23, 2005 and registered on October 5, 2005. 2
3. H&R Block executed an assignment of the mortgage to Option One by an assignment
dated January 23, 2007 and registered with the Norfolk Registry District of the Land
Court as Document 122231 on February 9, 2007 at 11:36 A.M. 3
4. The assignment from H&R Block to Option One was notarized by Cindy Duong, a
California notary public. After a search, the Orange County Clerk-Recorder was unable
to find an entry in Ms. Duong's notary journal, filed with the Clerk-Recorder, for the
assignment of the mortgage on January 23, 2007. 4
5. Option One executed an assignment of the mortgage to Deutsche Bank by an assignment
dated January 11, 2007-twelve days prior to the date of the assignment to Option One-
1
Petition, 'I) 1.
2
Petition, ,r 2.
3
Petition, ,r 3. See also Exhibit B to Petitioners' Opposition to Defendant Deutsche Bank's Motion to Dismiss.
4
Petition, ,r 6, Exhibit B to Petition.
3
and registered with the Norfolk Registry District of the Land Court as Document
1122232 on February 9, 2007 at 11:36 A.M .. 5
6. The assignment of the mortgage from H&R Block to Option One (Land Court Document
No. 1122231) was registered just prior to the assignment of mortgage from Option One to
Deutsche Bank (Land Court Document No. 1122232).
DISCUSSION
Standard ofReview for a Motion to Dismiss.
On a motion to dismiss for failure to state a claim, the plaintiff is required to plead
"factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to
relief[.]" Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell At!. Corp. v.
Twombly, 550 U.S. 544, 557 (2007). Generally, if matters outside the pleadings are presented to
and not excluded by the court, the motion will be treated as a motion for summary judgment.
Mass. R. Civ. P. 12(b), (c). The court may also take into account matters of public record and
documents integral to, referred to, or explicitly relied on in the complaint, whether or not
attached, without converting the motion to a motion for summary judgment. See Marram v.
Kobrick Offihore Fund, Ltd, 442 Mass. 43, 45 n.4 (2004); Schaer v. Brandeis Univ., 432 Mass.
474, 477 (2000); Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008). Accordingly,
the court has taken into account as part of the pleadings, the mortgage, mortgage assignments,
and other documents attached to the petition and to the parties' memoranda as exhibits.
5
Petition, ,r 10. Exhibit B to Petitioners' Opposition to Defendant Deutsche Bank's Motion to Dismiss. This
Assignment of Mortgage was signed by Option One's Assistant Secretary, Tracy M. Solomon, and was notarized by
M. Moradshahi, California notary public.
4
I. The Assignment to Deutsche Bank Was Not Invalid by Reason ofIts Execution Prior to
the Assignmentfrom H&R Block to Option One.
In a pre-foreclosure quiet title action, a mortgagor has standing ''to challenge a
foreclosing entity's status qua mortgagee. This may, in certain instances, require challenging the
validity of an assignment that purports to transfer the mortgage to a successor mortgagee."
Culhane v. Aurora Loan Servs., 708 F.3d 282, 291 (1st Cir. 2013). This right, however, extends
only to "a mortgagor's challenge to an assignment asserting that it is void." Sullivan v. Kondaui-
Capital, 85 Mass. App. Ct. 202,206 n. 7 (2014) (Kondaur Capital). This is because "[a]
deficiency in an assignment that makes it merely voidable at the election of one party or the
other would not automatically invalidate the title of a foreclosing mortgagee, and accordingly
would not render void a foreclosure sale conducted by the assignee or its successors in interest."
Id In contrast, "where the foreclosing entity has established that it validly holds the mortgage, a
mortgagor in default has no legally cognizable stake in whether there otherwise might be latent
defects in the assigmnent process." Bank ofNew York Mellon Corp. v. Wain, 85 Mass. App. Ct.
498,502 {2014) (Wain).
The assignment in Kondaur Capital was void because, on its face, it failed to meet the
"relaxed requirements" ofG.L. c. 183, § 54B. Kondaur Capital, supra, 85 Mass. App. Ct. at 212-
13.6 In contrast, in Wain, the challenged assignment on its face complied with G. L. c. 183, §
54B; the issue raised by the mortgagor in Wain was whether the signatory in fact had the
authority he claimed to have, which if true, would render the assignment voidable, but not void.
Wain, supra, 85 Mass. App. Ct. at 503-504. "Because the record title holder of the mortgage
satisfied the dictates of the statute governing the assignment of mortgages, the homeowners have
no basis for arguing that the assignment is void. Regardless of whether any hidden problems they
6
Specifically, the signatory on the challenged assignment did not allege she was an agent or officer of any relevant
entity. Kondaur Capital, supra, 85 Mass. App. Ct. at 213.
5
seek to raise might provide a basis for a third party to claim that the assignment was potentially
voidable, the homeowners themselves have no right to raise such issues." Id at 504. See also
Wilson v. HSBC Mortgage Servs., Inc., 744 F.3d 1, 10 (1st Cir. 2014) (concluding a challenge to
the authority of an officer to execute an assignment is in the "voidable" rather than "void"
category).
The Gustins allege that the assignment to Deutsche Bank is void, rather than voidable, in
one respect: they argue that the assignment from Option One to Deutsche Bank, dated January
11, 2007, was a nullity because the assignment from H&R Block to Option One was not
executed until January 23, 2007, twelve days later. The Gustins argue that this court must follow
the holding in Federal Nat'! Mortgage Assoc. v. Carr, 2012 Mass. App. Div. 223 (Dist. Ct.
2012), finding that "[a]n assignment of a mortgage is a transfer oflegal title in Massachusetts
only upon the transfer or execution date, not the recording date." Id. at 3. Carr, however, is
distinguishable on its facts, and is inapplicable to the present case because it involved recorded
land not subject to the statutory rules ofG. L. c. 185, § 67, applicable to registered land, as is the
case here. G. L. c. 185, § 67 provides in relevant part that a "mortgage deed, and all instruments
which assign, extend, discharge and otherwise deal with the mortgage, shall be registered, and
shall take effect upon the title only from the time of registration."
The two assignments were registered consecutively with the Land Court on February 9,
2007. By the time the two assignments were registered, Option One held a valid assignment of
the mortgage from H&R Block. This assignment, when regHtered so as to become effective on
February 9, 2007, was sufficient to provide Option One with title that it could then assign by the
previously executed, but simultaneously registered assignment to Deutsche Bank. Thus, the
assignment from H&R Block to Option One was effective to assign the mortgage by the time
6
Option One then assigned the mortgage to Deutsche Bank. Moreover, the assignment was not
wrongfully accepted for registration because at the time the assignment from Option One to
Deutsche Bank was registered, Option One had a valid assignment of the mortgage. G. L. c.
185, § 67; G. L. c. 185, § 114; see also Zullo v. HMC Assets, LLC, 22 LCR 391 (2014) (Foster,
J.) (the execution and registration of a mortgage assignment on registered land to the defendant
did not take effect until it was registered); Collette v. Wells Fargo Bank,.NA., 22 LCR 48 (2014)
(Long, J.).
The Gustins similarly argue that the Supreme Judicial Court's holding in Bevilacqua v.
Rodriguez, 460 Mass. 762 (2011) that "a single deed considered without reference to its chain of
title is insufficient to show 'record title' as required by G. L. c. 240, § l" applies to the instant
action. Id. at 771. In Bevilacqua, the Court noted that an otherwise void document cannot
become legally sufficient merely because it was recorded. However, the petitioners argue that the
assignment to Deutsche Bank was void on the basis of their invalid premise that the Option One
assignment to Deutsche Bank stood outside of the chain of title. As stated above, the assignment
by Option One to Deutsche Bank was not outside the chain of title because by the time it was
registered, Option One already held a valid assignment from H&R Block that was registered just
prior to the registration of the assignment to Deutsche Bank.
2. The Alleged Defect, By Reason ofFailure to Note the Acknowledgement in the Notary
Journal, at Most Rendered the Assignment Voidable, Not Void
The Gustins also advance arguments in their petition, which, they concede, even if
proved, would at most render the assignment voidable, but not void. They concede that the
acknowledgement of the assignment meets all statutory requirements on its face, but argue only
that it is voidable because the notary failed to list the transaction in her journal when she turned
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in her notary journal to the Orange County Clerk-Recorder upon the expiration of her
commission. Regardless of whether the Gustins proved this allegation, it is of no moment
because an allegation that a mortgage assignment is voidable, but not void, does not support a
finding that the Gustins possess standing as an interested party to maintain the action. Wain,
supra, 85 Mass. App. Ct. at 502 (holding that in foreclosure actions, "where the foreclosing
entity has established that it validly holds the mortgage, a mortgagor in default has no legally
cognizable stake in whether there otherwise might be latent defects in the assignment process.")
The court does not reach the petitioners' assertion that there are other unspecified
"plausible grounds" for their claimed entitlement to relief. The petitioners' failed to timely assert
any additional grounds for relief and the court will not address claims that remain unspecified
and unasserted.
CONCLUSION
For the foregoing reasons, the respondents' motions to dismiss are ALLOWED.
Judgment dismissing the petitioners' Petition to Amend Certificate of Title, seeking to
expunge the mortgage assignments from the certificate of title, will be entered accor!_ingly.
Ho ard P. S cher
Justice
Dated: December 7, 2018
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COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
NORFOLK, ss. SUBSEQUENT CASE
No. 17 SBQ 03248-10-001 (HPS)
ROBERT F. GUSTIN, JR. and
ELIZABETH A. DORIS GUSTIN,
Petitioners,
V.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR THE
CERTIFICATE HOLDERS OF
SOUNDVIEW HOME LOAN TRUST
2005-OPT4, ASSET-BACKED
CERTIFICATES, SERIES 2005-OPT 4
and
OPTION ONE MORTGAGE
CORPORATION,
Respondents.
JUDGMENT
This action commenced on October 12, 2017, as an action seeking to expunge two
mortgage assignments from the petitioners' certificate of title. Following the denial of the
petitioners' motion for preliminary injunctive relief, the respondents filed motions to dismiss for
failure to state a claim upon which relief may be granted pursuant to Mass. R. Civ. P. 12(b)(6).
The respondents' motions came on for hearing before the court (Speicher, J.) on October 17,
2018. In a decision of even date, the court has made rulings oflaw and ALLOWED the motions
to dismiss. In accordance with the court's decision, it is
I
ORDERED and ADJUDGED and DECLARED that the respondent Deutsche Bank
National Trust Company, as Trustee for the Certificate Holders of Soundview Home Loan Trust
2005-0pt4, Asset-Backed Certificates, Series 2005-0pt 4 ("Deutsche Bank") was the holder of
the mortgage encumbering the petitioners' property prior to and at the time of the filing of the
petitioners' Petition to Amend Certificate of Title and demonstrated a clean and unbroken chain
of assigrunents to that effect; and it is further
ORDERED and ADJUDGED that petitioners' Petition to Amend Certificate of Title is
DISMISSED; and it is further
ORDERED that today's decision, and this Judgment issued pursuant thereto, dispose of
this entire case; the court has adjudicated or dismissed all claims by all parties in this action and
has not reserved decision on any claim or defense; and it is further
ORDERED that upon payment of all required fees, a certified or attested copy of this
Judgment may be registered with the Nofolk County Registry District of the Land Court and
noted on the applicable certificate of title; and it is further
ORDERED that, upon filing of a motion for costs properly supported by affidavit and
documentation, the respondents shall be entitled to an award of costs.
f fJ. ~y the Court (Speicher, J.)
Attest:
Deborah J. Patterson
Recorder
Dated: December 7, 2018. A TRUE COPY
ATTEST:
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