Rapp et al v Deutsche Bank National
| Frank Rapp and Susan Nichter |
| Deutsche Bank National Trust Company as Trustee on Behalf of the Holder of WaMu Mortgage Pass-Through Certificates, Series 2005-AR11 and Deutsche Bank National Trust Company |
| 1:2018cv11486 |
| July 18, 2018 |
| US District Court for the District of Massachusetts |
| Boston Office |
| Norfolk |
| Allison D Burroughs |
| Real Property: Foreclosure |
| 28 U.S.C. § 1441 |
| None |
Docket Report
RSS Track this Docket
This docket was last retrieved on September 15, 2018. A more recent docket listing may be available from PACER.
| Document Text |
|---|
| Filing 21 NOTICE of Voluntary Dismissal by Susan Nichter, Frank Rapp (Russell, Glenn) |
| Filing 20 STATE COURT Record. (Attachments: #1 Supplement Part 2 of State Court Record)(Tracey, Patrick) |
| Filing 19 Correspondence to Federal Court regarding State Court Record Letter/request (non-motion) from Patrick Tracey . (Tracey, Patrick) |
| Filing 18 Judge Richard G. Stearns: ELECTRONIC ORDER entered denying #14 Motion for Reconsideration.Massachusetts is a non-judicial foreclosure state. As is the case here, "the [Massachusetts] statutes governing foreclosure by sale... requir[e] a foreclosing mortgagee both to control the note (either as the noteholder or as its agent) and to hold the mortgage." Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282, 288 (1st Cir. 2013) (citing Eaton v. Fed. Nat'l Mortg. Ass'n, 462 Mass. 569, 576 & n.20(2012)). Prior to sale, "the note and the mortgage need not be held by the same entity" and, absent a contractual provision stating otherwise, "a mortgagee may assign its mortgage to another party." Culhane, 708 F.3d at 292. Citing Eaton, plaintiffs argue that for defendant to foreclose on their registered land, it also requires a documented chain of assignment of the Note, rather than the existing attested affidavit from Deuthsche Bank's Document Control Officer Kim McElreath that it holds the Note. Mere verbiage is not a substitute for legal reasoning. Nowhere buried in the onslaught of words masquerading as a motion to reconsider is a single principled argument advanced as to why the one in five mortgagors in Massachusetts whose land is registered should have more protection from a legitimate demand to repay a mortgage debt than the other four whose property is more conventionally titled. A casual dictum in Eaton 462 Mass. 569, 589 n.28 (2012), (which did not address issues related to registered land) and a stray citation to the Code of Massachusetts regulations (which does not authorize a private right of action) hardly bears the load of demonstrating a likelihood of success on the merits for purposes of a preliminary injunction. As plaintiff concedes, Judge Speicher of the Massachusetts Land Court has already ruled against him on this issue and, as a federal district judge, I am not inclined to venture into state court territory already chartered by a state judge with far more experience that I possess. Cf. Mass. Gen Laws ch. 185, 84 ("Any lien on registered land shall be enforced in the same manner as a like lien on unregistered land."). The motion for reconsideration is DENIED. (Zierk, Marsha) |
| Filing 17 Opposition re #14 MOTION for Reconsideration re 12 Order on Motion for Preliminary Injunction,,,,,,,,,, filed by Deutsche Bank National Trust Company. (Tracey, Patrick) |
| Filing 16 Judge Richard G. Stearns: ELECTRONIC ORDER entered notifying defendant that an opposition, if any, to the motion for reconsideration must be filed by noon on Monday, August 27, 2018.(Zierk, Marsha) |
| Filing 15 MEMORANDUM in Support re #14 MOTION for Reconsideration re 12 Order on Motion for Preliminary Injunction,,,,,,,,,, filed by Susan Nichter, Frank Rapp. (Russell, Glenn) |
| Filing 14 MOTION for Reconsideration re 12 Order on Motion for Preliminary Injunction,,,,,,,,,, by Susan Nichter, Frank Rapp.(Russell, Glenn) |
| Filing 13 ELECTRONIC NOTICE Canceling Hearing. Motion Hearing set for 8/17/2018 12:00 PM is CANCELED. (Maynard, Timothy) |
| Filing 12 Judge Richard G. Stearns: ELECTRONIC ORDER entered denying #6 Motion for Preliminary Injunction. Plaintiffs seek a preliminary injunction (PI) to enjoin the foreclosure sale scheduled for August 21, 2018 on their property. Of the familiar four-part test to determine the propriety of granting a PI, "likelihood of success is the main bearing wall." Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996). "[A] court's conclusions as to the merits of the issues presented on preliminary injunction are to be understood as statements of probable outcomes," not a final determination. Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991).The dispute concerns the property located at 8 Edgewater Drive, Dover, Massachusetts. On June 23, 2005, Plaintiffs executed a $772,250.00 note and granted a mortgage on the property. Having failed to make a single monthly loan payment on the mortgage since June 0f 2009, Plaintiffs received a notice of default from Deutsche Bank on September 6, 2016. On June 13, 2018, Deutsche Bank sent Plaintiffs a Notice of Intention to Foreclose on the property.Plaintiffs contend that Deutsche Bank is not entitled to conduct a foreclosure sale because it has not established that it controls both the property's mortgage and its underlying note. Under Massachusetts law, "the statutes governing foreclosure by sale... requir[e] a foreclosing mortgagee both to control the note (either as the noteholder or as its agent) and to hold the mortgage." Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d 282, 288 (1st Cir. 2013). With its opposition, Deutsche Bank submitted documentation demonstrating that it currently holds both the note and the mortgage in question. See Dkt # 11, Ex. B (Jan. 27, 2015 Assignment of Mortgage from JP Morgan to Deutsche Bank); Ex. D (Mar. 28, 2018 Affidavit) (attesting, "under the pains and penalties of perjury," that Deutsche Bank is "the holder of the promissory note secured by the... mortgage"). "Where the note and mortgage are unified at the time of foreclosure, our inquiry may come to an end." Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 356 (1st Cir. 2013). So it is here. Absent any other likely basis to forestall the foreclosure sale at this time, Plaintiffs motion for a preliminary injunction is DENIED. The Clerk will cancel the hearing currently schedule for Friday, August 17, 2018. (DT) |
| Filing 11 Opposition re #6 MOTION for Preliminary Injunction filed by Deutsche Bank National Trust Company. (Attachments: #1 Exhibit)(Tracey, Patrick) |
| Filing 10 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #9 Motion for Extension of Time to August 15, 2018 to Respond to Plaintiffs Motion for Preliminary Injunction (Maynard, Timothy) |
| Filing 9 Assented to MOTION for Extension of Time to August 15, 2018 to Respond to Plaintiffs Motion for Preliminary Injunction by Deutsche Bank National Trust Company as Trustee on Behalf of the Holder of WaMu Mortgage Pass-Through Certificates, Series 2005-AR11.(Tracey, Patrick) |
| Filing 8 ELECTRONIC NOTICE Setting Hearing on Motion #6 MOTION for Preliminary Injunction : Motion Hearing set for 8/17/2018 12:00 PM in Courtroom 21 before Judge Richard G. Stearns. (Maynard, Timothy) |
| Filing 7 MEMORANDUM in Support re #6 MOTION for Preliminary Injunction filed by Susan Nichter, Frank Rapp. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8)(Russell, Glenn) |
| Filing 6 MOTION for Preliminary Injunction by Susan Nichter, Frank Rapp.(Russell, Glenn) |
| Filing 5 NOTICE of Appearance by Jeffrey D. Adams on behalf of Deutsche Bank National Trust Company as Trustee on Behalf of the Holder of WaMu Mortgage Pass-Through Certificates, Series 2005-AR11 (Adams, Jeffrey) |
| Filing 4 Certified Copy of Notice of Removal Provided to Defense Counsel by mail.(Burgos, Sandra) |
| Filing 3 ELECTRONIC NOTICE of Case Assignment. Judge Allison D. Burroughs assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Marianne B. Bowler. (Pacho, Arnold) |
| Filing 2 CORPORATE DISCLOSURE STATEMENT by Deutsche Bank National Trust Company as Trustee on Behalf of the Holder of WaMu Mortgage Pass-Through Certificates, Series 2005-AR11. (Tracey, Patrick) |
| Filing 1 NOTICE OF REMOVAL by Deutsche Bank National Trust Company as Trustee on Behalf of the Holder of WaMu Mortgage Pass-Through Certificates, Series 2005-AR11 ( Filing fee: $ 400, receipt number 0101-7234808 Fee Status: Filing Fee paid) (Attachments: #1 Exhibit A, #2 Category Form, #3 Civil Cover Sheet)(Tracey, Patrick) (Attachment 2 replaced on 7/18/2018) (Burgos, Sandra). (Attachment 3 replaced on 7/18/2018) (Burgos, Sandra). |
Access additional case information on PACER
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the Massachusetts District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
