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- 1030; SJCReporter@sjc.state.ma.us 15

- P
- 1458 Appeals Court
WILLI AM T. BARRASSO, J R . vs . NEW CENTURY MORTG A GE CORPORATION & others. 1

No. 15

- P
- 1458. Suffolk. October 20, 2016.

- February 8 , 2017. Present: Hanlon, Sullivan, & Blake, JJ.
Real Property , Mortgage, Record title. Mortgage , Foreclosure, Real estate, Assignment. Assignment
. Contract , Assignment, Modification. Negotiable Instruments , Assignment, Note. Practice, Civil , Summary judgment. Estoppel .

C ivil action commenced in the Land Court Department on March 30, 2012. The case was heard by Howard P. Speicher , J. , on a motion for summary judgment.
Glenn F. Russell, Jr . , for the plaintiff
. Roger Soun for the defendants.

1 Bank of America, N
. A . , as successor by merger to LaSalle Bank, N.A., as t rustee for the C

- BASS Mortgage Loan Asset
- Backed Certificates Series 2007

- SP2; Deutsche Bank National Trust Company, as t rustee for New Century Home Equity Loan Trust Series 2005

- C, Asset Backed Pass

- Through Certificates; Ocwen Loan Servicing, LLC; and U.S. Bank, National Associates , as successor t rustee for the C

- Bass Mortgage Loan Asset
- Backed Certificates, Series 2007

- SP2.2

SULLIVAN , J. The p laintiff, William T. Barrasso, Jr. , br ought this quiet title action , alleging that two mortgages on his condominium unit constitute a cloud on his title
. See G. L.

c. 240 , § 6
. He claim ed that the encumbrances should be stricken from the land records because the original mortgagee no longer exists and the identity of any present mortgagee cannot be ascertained. A judge of t he Land Court awarded summary judgment to the defendants, det ermining that U.S. Bank, National Associates (U.S. Bank ) , holds the first mortgage as trustee for the C

- BASS Mortgage Loan Asset
- Backed Certi ficates Series 2007

- SP2 and that Deu tsche Bank National Trust Co mpany (Deutsche Bank ) holds the second mortgage as trustee for the New Century Home Equity Loan Trust Series 2005

- C, Asset
- Backed Pass
- Through Certificates
. We affirm those portions of the ju dgment entered in favor of the defendants dismissing the claims asserted by Barrasso and granting affirmative relief to U.S. Bank. W e vacate the portion of the judgment grant ing Deutsche Bank affirmative relief in the form of a declaration as to the validity of its title
. Background . We set out the facts in the summary judgment record viewed in the light most favorable to the plaintiff . See Cuddyer v. Stop & Shop Superm kt. Co . , 434 Mass. 521, 522 (2001).
On or about September 16, 2005, Barrasso purchased u nit 315 of3

the Walnut Place Condominium, located at 8 Walnut Street i n Peabody (property ) , for $264,000
. To finance the purchase , Barrasso obtained two loans from New Centur y Mortgage Corporation (New Century) , memorialized with two promissory notes and secured by two mortgages on the property . The larger of the two notes is in the amount of $211,200 (first note) , and the smaller is in the amount of $52,800 (second note)

- - together, they comprise d the entire purchase price
. The original of the first note is now physically in the possession of U.S. Bank . Although the location of the original second note cannot be ascertained from the record, there appears to be no contro versy between the parties about whether it is in Deutsche Bank's control. In connection with th e note s , Barrasso granted a first mortgage to New Century , and a second mortgage to N ew C entury, both of which are dated September 16, 2005 , and both of which

w ere recorded in the registry of deeds
. Before the execution of the second mortgage, on or about March 2, 2005, New Century granted Ocwen Loan Servicing, LLC (Ocwen) , a limited power of attorney, with Ocwen's enumerated powers including the authority to "e xecute, acknowledge, seal and deliver .
. . assignments of deed of trust/mortgage and other recorded documents ." 1
. New Century bankruptcy and the postbankruptcy transfer of the first mortgage . New Century filed a voluntary petition4

for bankruptcy in the United States Bankruptcy Court for the District of Delaware (Bankruptcy Court) o n or about April 2, 2007
. U.S. Bank contends (and Ba r rasso disputes) that , notwithstanding New Century's bankruptcy, the f irst m ortgage was transferred to the C
- BASS Mort gage Loan Asset
- Backed Certificates Series 2007

- SP2 (C

- BASS Trust) shortly there after , on or before June 29, 2007, via a pooling and servicing agreement dated June 1, 2007 (2007 PSA)
. The 2007 PSA list ed C
BASS ABS, LLC , as " Depositor " ; Credit

- Based Asset Servi cing and Securitization LLC as " Seller " ; Litton Loan Servicing LP (Litton) as " Servicer " ; and LaSalle Bank Nat ional Association (LaSalle) as " Trustee . " A mortgage loan schedule associated with the 2007 PSA specifically identifie d the first mortgage by loan number as included in the assets transferred to the C
- BASS
Trust. Additionally, a limited power of attorney dated June 22, 2007 , grant ed Litton the power to "execute, acknowledge, seal and deliver" mortgage assignments on behal f of New Century.
H owever, New Century wa s not listed as a party to the 2007 PSA , and no assignment of the first mortgage by New Century to any other entity was immediately recorded in connection with the 2007 PSA
. On January 17, 2008 , Barrasso signed a l oan m odification

a greement (modification agreement) effective December 1, 2007. The modification agreement wa s between Barrasso and LaSalle , as5

trustee for the C

- BASS Trust , and specifically referred to the first mortgage and to the street address of the property. S everal months later, d uring the f all of 2008, LaSalle merged into Bank of America, National Association (Bank of America). Bank of America became t rustee of the C

- BASS Trust and successor to LaSalle in connection with the modification agreeme nt. In an assignment dated April 14, 2009, Litton, in its capacity as attorney
- in

- fact for New Century, assigned the first

m ortgage to Bank of America, as successor by merger to LaSalle and as t rustee for the C

- BASS Trust. That assignment was recorded in the registry of deeds on or about April 8, 2010. Barrasso commenced this action by filing a quiet title complaint in the Land Court on March 30, 2012. At some point, U.S. Bank replaced Bank of America as trustee for the C

- BASS
Trust. I n an assignment dated June 5, 201 3 , Ocwen , as Litton's successor and as attorney
- in

- fact for Bank of America, purported to assign the first mortgage to U.S. Bank as t rustee for the C
BASS Trust. 2 The April 14, 2009 , assignment by Litton to Bank of America, and the June 5, 2013 , assignment by Ocwen to U.S. Bank are the only assignments of the first mortgage appearing in the recorded title chain.

2 A limit ed power of attorney executed by Bank of America on or about January 13, 2009 , granted Litton the power to modify and assign mortgages.6

2
. Prebankruptcy transfer of the second mortgage . Deutsche Bank contends ( and Barrasso disputes) that on or before December 6, 2005, the second mortgage was transferred into the New Century Home Equity Loan Trust Series 2005

- C, Asset
- Backed
Pass
- Through Certificates (Home Equity Trust). A pooling and servicing agreement related to that trust , dated November 1, 2005 (2005 PSA) , listed New Century Mortgag e Securities, Inc. ,
as " Depositor, " JPMorg an Chase Bank, National Association , as

" Servicer, " and Deutsche Bank National Trust Co mpany as

" Trustee. " A mortgage loan schedule associa ted with the 2005 PSA specifically identified the second mortgage as among those transferred to the Home Equity Trust. New Century, however, was not named as a party to the 2005 PSA. Additionally, no assignment of the second mortgage by New Century to an y other entity was immediately recorded in connection with the 2005 PSA. While this case was pending, Ocwen, as attorney

- in

- fact for New Century, purported to assign the second mortgage to Deutsche Bank as trustee for the Home Equity Trust in an assignmen t dated August 10, 2012. 3 The assignment of the second mortgage from Ocwen to Deutsche Bank is the only assignment of the second mortgage appearing in the recorded title chain.

3 By that time, Ocwen had become the loan servicer for Deutsche Bank, which is trustee of the Home Equity Trust.7

3
. Land C ourt litigation
. In the Land Court, Barrasso claimed that New Cent ury could not have effectively transferred either of the mortgages after the date of New Century's bankruptcy filing

-- and certainly could not have done so after the B ankruptcy C ourt approved a liquidation plan on July 15, 2008. Accordingly, Barrasso cla imed that the recorded assignments of both the first and second mortgage were void. As
to the theory that valid, off

- record assignments existed and

were confirmed in one or more of the recorded documents, Barrasso claimed that neither the 2005 PSA nor the 2007 PSA operated as a valid assignment because New Century, the original mortgagee , was not a party to either document. The defendants
argu ed that the recorded assignments were valid because the bankruptcy did not strip New Century of the power to assign one or both mortgages, and they were c onfirmatory of off

- record assignments
. A judge of the L and C ourt concluded that the bankruptcy was not a bar to the transfer, that the undisputed facts showed a transfer of the mortgages to the defendant trus ts , and , alternatively, that the modification agreement estopped Barrasso from disputing the state of the title as to the first mortgage as of the date of the modification agreement. Citing Eaton v. Federal Natl . Mort. Ass n . , 462 Mass. 569, 577

- 5 78 (2012) , t he judge also reasoned that "even if there were any doubt as to who8

holds the [ first ] mortgage, the note

- holder could simply compel a transfer of the mortgage." Judgment entered dismiss ing Barrasso's claims and affirmati vely declaring that U.S. Bank he ld the first mortgage and Deutsche Bank h eld the second mortgage. Discussion
. "We review a decision to grant summary judgment de novo." Boazova v. Safety Ins. Co . , 462 Mass. 346, 350 (2012). We review the record to determine whether, in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Comm issione rs of the Bristol County Mosquito Control Dist
. v. State Reclamation & Mosq uito Control Bd . , 466 Mass. 523, 528 (2013). The moving party assumes the burden of affirmatively demonstrating that no genuine issue of fact exists on any relevant issue, even if the movant would not bear the burden of proof on that issue at trial. S ee Attorney Gen . v. Bailey , 386 Mass. 367, 371 , cert. denied, 459 U.S. 970 (1982)
. However, i f the nonmoving party , here Barrasso, fails to establish an essential element of the claim asserted, any remaining disputed facts are immaterial. See Sarkisian v. C oncept Restaurants, Inc . , 471 Mass. 679, 681 (2015). Barrasso seek s to have the titles held by U.S. Bank and Deutsche Bank declared invalid before either bank can foreclose
. Only a9

wholly void a ssignment in the chain of title will invalidate a foreclosure , however . A deficiency in an assignment "that makes it merely voidable at the election of one party or another" does not invalidate the title of the assignee, or that of the postforeclosure owner. Sullivan v. Kondaur Capi t a l Corp . , 85 Mass. App. Ct. 202, 20 6 n.7 (2014). Bank of N . Y . Mellon Corp .
v. Wain , 85 Mass. App. Ct. 498, 502

- 503 (2014). Accordingly , as a threshold matter, Barrasso may prevail at summary judgment only upon a showing tha t there is a genuine dispute of material fact as to whether the recorded assignments of the first and second mortgages ( to U.S. Bank and Deutsche Bank, respectively)

are entirely void

- - not merely voidable
. See id
. at 502 (" [W] here 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").
We consider the assignment of the first mortgage and the assignment of the second mortgage in turn
. 1
. The first mortgage . As discussed above, Barrasso

c ontends that the first mortgage was never effectively transferred to the C

- BASS Trust because ( i ) New Century's status as a bankruptcy petitioner as of April 2, 2007 , rendered it incapable of transfe rring its interest in the first mortgage after that date without court approval , and (ii) New Century,10

the original mortgagee, is not a party to the 2007 PSA and no other document shows a transfer of the first mortgage from New Century to any of the partie s to the 2007 PSA
. We need not, however, determine whether a genuine dispute of material fact exists as to either of these issues because we agree with the motion judge that the modification agreement operate d to estop Barrasso from claiming any entity other than LaSalle (as trustee of the C

- BASS Trust ) held the first mortgage on or after December 1, 2007. In voluntarily entering the modification agreement, Barrasso was estopped from later claiming that LaSall e was not the holder of the first mortgage. The modification agreement signed by Barrasso plainly referred to the first mortgage by its recording references, and defined that document as the "Security Instrument." It stated that "[t]he Security Instrumen t . . . encumbers the property," and correctly refer red to Barrasso's home b y street address and by incorporating a full legal description attached as its exhibit A. The modification agreement define d the "Lender/Grant ee " as LaSalle in its capacity as tru stee for the
C
- BASS trust , and bore the signature of a vice

- president of LaSalle. T he modification agreement provided a fixed rate of interest on Barrasso's loan for twenty

- two months . The text of the modification agreement include d a number of representations as to which "Borrower," defined as Barrasso, "understands and11

agrees , " namely that the mortgage remain ed valid and he waive d all forms of challenge to it. 4 Barrasso now seeks to avoid the representations in the modification agreement, after having voluntarily entered that agreement and accepted its benefits, resulting in corresponding detriment to LaSalle as trustee of the C

- BASS Trust. "The law recognizes no such right." 5 Coz Chem. Corp . v. Riley , 9 Mass. App. Ct. 564, 568 (19 80 ). Estoppel is established where a party has shown "(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission." Reading Co

- op. Bank v. Suffolk Constr. Co . , 464 Mass. 543, 556 (2013) , quoting from Bongaards v. Millen , 440

4 T h ose representations include d (i) "[a]ll the rights and remedies, stipulations, and conditions contained in the Security Instrument relating to default in the making of payments under the Security Instrument shall also apply to default in the making of the modified payments hereunder"; (ii) "[a]ll covenants, agreements, stipulations, and conditions in the Note and Security Instrument shall be and remain in full force and effect, except as herein modified
. . . " ; and (iii) "Borrower has no right of set

- off o r counterclaim, or any defense to the obligations of the Note or Security Instrument." Barrasso's signature on the modification agreement is notarized and dated January 17, 2008.

5 Notably, a showing of intentional fraud by the allegedly estopped party is not required to sustain an estoppel defense. "[T]he test appears to be whether in all the circumstances of the case conscience and duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct. . . ." McLearn v. Hill , 276 Mass. 519, 525 (1931).12

Mass. 10, 15 (2003)
. Having accepted and benefited from a modification of the first mortg age offered by LaSalle in 2007,
Barrasso cannot now escape enforcement of the first mortgage by questioning LaSalle's ownership of it as of the effective date of the modification.
Because the modif ication agreement is dispositive of the true identity of the first mortgage holder as of December 1, 2007 , i n relation to the parties named in this case , it follows that the written and recorded assig nment dated April 14, 2009 ,
was confirmatory of a transfer that had previously occurred . Likewise, once title is determined to have been squarely within the hands of Bank of America as of the April 14, 2009 , assignment , there i s no basis for any challenge to Bank of America's further transfer to U.S. Bank via another assignment
. Accordingly, on the undisputed facts in the summary judgment record, Barrasso was not entitled to a rem oval of the first mortgage as a cloud or encumbrance on his title as a matter of law . 2. The second mortgage . Barrasso asserts that Deutsche Bank did not provide sufficient evidence to c onclude that it holds title to the second mortgage consistent with the instruction set forth by the Supreme Judicial Court in U.S. Bank, Natl. A ssn . v. Ibanez , 458 Mass. 637 , 650 (2011)
. We agree that a genuine issue of material fact exists on this13

record regarding Deutsche Bank's title to the second mortgage, because the record does not show that the "Depositor" named in the 2005 PSA (or any other party to that agreement) ever received an assignment of the second mortgage from New Century.
See ibid
. This court may , however, consider any grounds supporting the motion judge's decision
. See American Int l . Ins. Co . v. Robert S e uffer G mb H & Co. KG , 468 Mass. 109, 113 , cert. denied, 135 S. Ct. 871 (2014) ; John Duffy, D.C . v. Amica Mut. Ins. Co
. , 89 Mass. App. Ct. 297, 298

- 2 99 (2016)
. The judge did not err in allowing summary judgment for Deutsche Bank as to the second mortgage because Barrasso has failed to demonstrate as a matter of law that the second mortgage itself

- - rather than merely a record ed assignment of that mortgage

- - is wholly void and should be stricken from the record.
In his third amended complaint , Barrasso sought a determination that both mortgages "be quieted and removed from Plaintiff's title." In order to have the second mort gage removed entirely from his title, Barrasso would have to demonstrate not just that Deutsche Bank i s not entitled to enforce it, but that no one else is, either. See Oum v. Wells Fargo, N.A . , 842 F. Supp. 2d 407, 415 ( D. Mass. 2012) , abrogated on other grounds by Culhane v. Aurora Loan Servs. of Neb ., 708 F.3d 282 (1st Cir. 2013) (" C onstruing the assignments as invalid14

. . . would have an impact only on the relationship between the parties to the assignment contract"). Whether the m ortgage granted to New Century by Barrasso should now be deemed void

- - by virtue of New Century's bankruptcy or otherwise

-- is a question entirely separate from whether Deutsche Bank, in particular, is the current mortgagee
. 6
In fact , some party will be able to enforce the second mortgage on behalf of the holder of the second note. See Eaton v. Federal Natl. Mort. Assn . , 462 Mass. at 576

- 577 . As the judge correctly stated, whoever holds the second mortgage holds i t in trust for the benefit of whoever is entitled to enforce the corresponding note . The noteholder is entitled to demand an assignment of that instru ment for purposes of foreclosure .

6 Longstanding Massachusetts jurisprudence holds that " [ a ] bill will lie to remove a cloud on title only if legal title and actual possess ion are united in plaintiff." McCartin Leisure Ind us ., Inc . v. Baker , 376 Mass. 62, 66 (1978), quoting from MacNeil Bros. Co
. v. State Realty Co. of Boston , 333 Mass. 770 (1956). Additionally, Massachusetts adheres to the "title theory" of mortgage law, which means that when real property is encumbered by a mortgage, legal title remains with the mortgagee until the mortgage is foreclosed or the debt is paid, while the mortgagor holds only equitable title. See Faneuil Investors Group , Ltd. Partnership v. Selectmen of Dennis , 458 Mass. 1, 6 (2010); Bevilacqua v. Rodriguez , 460 Mass. 762, 774 (2011); Abate v. Fremont Inv. & Loan , 470 Mass. 821, 832 (2015). Applying these two concepts, the F ederal D istrict C ourt in Oum concluded that a mortgagor cannot bring a quiet title action against a mortgagee in Massachusetts where the mortgagor does not allege that his or her underlying debt has been paid. 842 F. Supp. 2d at 412 & n.10
. In light of the dicta in Abate v. Fremont Inv. & Loan , supra at 835, that a quiet title action is available to a mortgagor bringing a preforeclosure challenge to purported mortgagee's title, we decline to reach the issue.15

Ibid
. The fact that the second note exists and that it is held by or w ithin the control of Deutsche Bank are undisputed facts
. Accordingly, any genuine factual dispute about that validity of the assignment of the second mortgage to Deutsche Bank is immaterial to the question of whether the original second mortgage constitut es a cloud on Barrasso's title. Conclusion
. Th os e portions of the judgment dismiss ing with prejudice all claims asserted by Barrasso , and grant ing relief to U.S. Bank in the f orm of declarations regarding its mortgage interests in the property , are affirmed
. The portion of the judgment award ing affirmative relief to Deutsche Bank declaring its mortgage interest in the property is vacated, because there are material facts in dispute concerning its title
. 7
So ordered .

7 At the time of entry of judgment U.S. Bank's counterclaims for money damages were voluntarily withdrawn. The jud ge treated the parties' arguments under the quiet title statute as requests for reciprocal declaratory relief. On appeal, Barrasso makes no claim of error regarding this aspect of the relief granted.