Wells Fargo Bank, N.A. v. Anderson (Lawyers Weekly No. 11-050-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1156 Appeals Court WELLS FARGO BANK, N.A., trustee,[1] vs. IAN B. ANDERSON. No. 14-P-1156. Bristol. September 8, 2015. – May 11, 2016. Present: Kafker, C.J., Trainor, & Massing, JJ. Mortgage, Assignment, Foreclosure. Real Property, Mortgage. Assignment. Practice, Civil, Standing, Summary judgment, Summary process. Summary Process. Summary process. Complaint filed in the Attleboro Division of the District Court Department on September 1, 2011. After transfer to the Southeastern Division of the Housing Court Department, the case was heard by Anne Kenney Chaplin, J., on motions for summary judgment. Thomas B. Vawter for the defendant. David A. Marsocci for the plaintiff. TRAINOR, J. The defendant, Ian B. Anderson, former homeowner of property located in Norton and holdover in possession after the bank foreclosed, appeals from a Housing Court judgment granting possession of his former home to plaintiff Wells Fargo Bank, N.A. (bank). Anderson argues that the judge erroneously granted summary judgment to the bank. He argues that the judge incorrectly interpreted G. L. c. 183, § 54B, by allowing the bank to rely on certain documents without the need to further substantiate their validity, and that the judge’s interpretation of G. L. c. 183, § 54B, violated his due process rights. Facts. The following facts are undisputed and are taken from the judge’s memorandum of decision on the parties’ cross motions for summary judgment and the summary judgment record. On June 20, 2005, Anderson executed a promissory note and a mortgage in favor of Option One Mortgage Corporation (Option One) using the property as collateral. The mortgage was recorded in the Bristol County registry of deeds, northern district (Bristol registry). On January 2, 2009, Option One assigned Anderson’s mortgage to the bank. The assignment of mortgage was recorded in the Bristol registry and included an effective date of August 14, 2007. On October 15, 2010, Sand Canyon Corporation (Sand Canyon), formerly known as Option One, assigned Anderson’s mortgage to the bank. The assignment of mortgage was recorded in the Bristol registry. After a default by Anderson, the bank through its loan servicer, American Home Mortgage Servicing, Inc., initiated an action in the Land Court on October 25, 2010 under the Servicemembers Civil Relief Act. Judgment entered in favor of the bank and it proceeded with the sale of the property in accordance with the mortgage. On May 5, 2011, the […]
Gold Star Homes, LLC v. Darbouze, et al. (Lawyers Weekly No. 11-049-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1177 Appeals Court GOLD STAR HOMES, LLC vs. MARCUS DARBOUZE & another.[1] No. 14-P-1177. Essex. March 2, 2016. – May 11, 2016. Present: Hanlon, Sullivan, & Massing, JJ. Summary Process, Appeal. Housing Court. Practice, Civil, Summary process, Pendency of prior action. Mortgage, Foreclosure. Real Property, Mortgage, Deed. Summary Process. Complaint filed in the Northeast Division of the Housing Court Department on September 16, 2013. The case was heard by Timothy F. Sullivan, J. John L. McGowan for the defendants. John P. Miller (Jennifer H. O’Brien with him) for the plaintiff. MASSING, J. The defendants, Marcus Darbouze (Marcus) and Marie R. Darbouze (Marie)[2] (together, the Darbouzes), appeal from a judgment, after a summary process trial in the Housing Court, awarding possession of their residence in Billerica (the property) to the plaintiff, Gold Star Homes, LLC (Gold Star). The Darbouzes assert that the Housing Court judge should not have permitted the trial to go forward during the pendency in the Land Court of a related, prior action in which Marie sought a declaration invalidating the foreclosure sale. On the merits, the Darbouzes contend that the judge erred by rejecting their defenses to summary process: that Mortgage Electronic Registration Systems, Inc. (MERS), the entity that conducted the foreclosure sale, was not the mortgage holder, and that MERS’s postforeclosure conveyance of the property to Gold Star by foreclosure deed was ineffective. We affirm.[3] Background. 1. The mortgage and foreclosure. The evidence presented at the summary process trial established the following facts.[4] On January 20, 2006, Marie purchased the property for $ 345,000, financed entirely by two loans. She borrowed $ 276,000 of the purchase price from Fremont Investment & Loan (Fremont), granting a first mortgage to MERS, “acting solely as a nominee for Lender and Lender’s successors and assigns.” (The details of the loan for the remainder of the purchase price, secured by a second mortgage, are immaterial to the subsequent events and proceedings.) Deutsche Bank National Trust Company (Deutsche Bank), as trustee for Fremont Home Loan Trust 2006-1, purchased the loan later in 2006 as part of a pooling agreement. On January 7, 2008, Deutsche Bank initiated proceedings under the Servicemembers Civil Relief Act, 50 U.S.C. app. §§ 501 et seq. (2006) (servicemembers act) in the Land Court prior to commencing foreclosure on […]
Ainooson v. Department of Correction (Lawyers Weekly No. 10-063-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11780 JUSTICE E. AINOOSON vs. DEPARTMENT OF CORRECTION. May 5, 2016. Supreme Judicial Court, Superintendence of inferior courts. Justice E. Ainooson appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm. In 2013, Ainooson commenced an action in the Superior Court against a number of individual defendants. After receiving additional time to effect service, Ainooson filed a motion to waive service or to deem the defendants served. That motion was allowed. However, the judge vacated her allowance of the motion after the defendants filed a motion for reconsideration. A different Superior Court judge subsequently ordered Ainooson to make service by regular mail at his own expense, with no further extensions to be allowed. Ainooson’s G. L. c. 211, § 3, petition challenged these rulings. After Ainooson filed his petition, but before the single justice ruled on it, a judgment entered in the Superior Court dismissing the complaint. Ainooson timely filed a notice of appeal in the Superior Court. Ainooson’s petition sought relief from one or more interlocutory rulings of the trial court. When he filed his petition, his case in the Superior Court was still pending. As noted above, however, the case thereafter went to final judgment. Passing the question whether Ainooson was obligated in these circumstances to file a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), it is clear on the record before us that he had adequate alternative remedies, namely, a petition to a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., at the time of the Superior Court rulings, see Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019-1020 (1996), and a direct appeal to the Appeals Court from the final judgment of the Superior Court. Indeed, the record indicates that he is pursuing one of those remedies.[1] Accordingly, the single justice neither erred nor abused his discretion by denying extraordinary relief. ”Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.” E.g., Fennick v. Kittredge, 460 Mass. 1012 (2011), […]
Categories: News Tags: 1006316, Ainooson, Correction, department, Lawyers, Weekly
Gravlin v. Gravlin (Lawyers Weekly No. 11-048-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-448 Appeals Court LORA ANN GRAVLIN vs. DAVID E. GRAVLIN, JR. No. 15-P-448. Middlesex. March 1, 2016. – May 5, 2016. Present: Trainor, Meade, & Blake, JJ. Divorce and Separation, Child support, Modification of judgment. Arbitration, Divorce and separation, Confirmation of award. Parent and Child, Child support. Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 16, 2011. A motion to confirm an arbitration award on complaints for modification and contempt was heard by Patricia A. Gorman, J. Floyd H. Anderson for the husband. Lora Ann Fickett, pro se. BLAKE, J. The husband, David E. Gravlin, Jr., appeals from four Probate and Family Court judgments dated April 16, 2014, that issued following the confirmation of an original and an amended arbitration award in favor of the wife, Lora Ann Gravlin.[1] He argues that the judge improperly delegated her authority by allowing the parties’ joint motion to submit their pending complaints to binding arbitration, and abused her discretion in entering judgments based on the arbitrator’s award. We affirm. Background. The parties executed a separation agreement (agreement) on October 17, 2011, which was incorporated and merged in a judgment of divorce nisi on November 17, 2011. The agreement provides, in pertinent part, that David is to pay Lora Ann $ 750 per week as child support for the support of their three minor children. The agreement explains that “[t]his amount exceeds the amount of support required pursuant to the child support guidelines currently in effect, and is reflective of the parties’ shared desire to maintain the marital home for the benefit of the children.” On October 9, 2012, David filed a complaint for modification seeking to reduce his child support obligation. In support of his complaint, David alleged the following change of circumstances: “1. [David] has experienced a major loss of income and the said child support order is therefore now inconsistent with the child support guidelines even if [Lora Ann] is considered to be the primary custodial parent. 2. The co-parenting schedule actually being carried out by the parties since said divorce judgment is consistent with equally shared physical custody and therefore [David] asserts that child support should be modified based on that schedule as well.” Lora Ann filed both an answer denying the […]
Commonwealth v. Navarro (Lawyers Weekly No. 10-062-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11878 COMMONWEALTH vs. SANTIAGO NAVARRO. Essex. October 5, 2015. – May 5, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Practice, Criminal, Instructions to jury, Assistance of counsel. Constitutional Law, Assistance of counsel. Indictments found and returned in the Superior Court Department on July 2, 2010. The cases were tried before Douglas H. Wilkins, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Elizabeth A. Billowitz for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. Karen A. Newirth, Kevin Puvalowski, Shin Hahn, & Jean Ripley, of New York, & Matthew Nickell, for The Innocence Network & another, amici curiae, submitted a brief. HINES, J. In January, 2012, a Superior Court jury convicted the defendant, Santiago Navarro, on thirty indictments, ten each charging armed robbery while masked, in violation of G. L. c. 265, § 17; home invasion, in violation of G. L. c. 265, § 18C; and kidnapping, in violation of G. L. c. 265, § 26. The indictments stemmed from an incident during which the defendant and an accomplice invaded a home in North Andover and robbed the players in a high stakes poker game. The defendant appealed, asserting various claims of error. The Appeals Court affirmed the convictions. Commonwealth v. Navarro, 86 Mass. App. Ct. 780 (2014). We granted the defendant’s application for further appellate review to consider the sole issue of the propriety of the judge’s eyewitness identification instructions. More specifically, we decide whether the judge’s failure to instruct the jury in accordance with Commonwealth v. Rodriguez, 378 Mass. 296 (1979) (Rodriguez), S.C., 419 Mass. 1006 (1995), may be reviewed under the prejudicial error standard where the defendant neither requested the instruction nor objected to its omission.[1] For the reasons set forth below, we conclude that in the absence of a request, the defendant may not attribute the omission of a Rodriguez eyewitness identification instruction to judicial error and, as a consequence, he is not entitled to review on that ground. Instead, we review the issue under the rubric of the defendant’s alternative claim that counsel’s failure to request a Rodriguez instruction was constitutionally ineffective. We agree that counsel’s performance in this respect fell “measurably below that which might be expected from an ordinary fallible lawyer,” Commonwealth […]
Guardianship of J.T. (Lawyers Weekly No. 10-061-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11882 GUARDIANSHIP OF J.T. May 4, 2016. Moot Question. Practice, Civil, Moot case, Assistance of counsel. Probate Court, Guardian. This case is before us on a report from a judge in the Probate and Family Court. It concerns a guardianship of a minor child pursuant to G. L. c. 190B. Specifically, the question is whether an indigent parent who petitions to remove a guardian and regain custody of her child, or to establish visitation with the child, has a right to counsel on those petitions. We discharge the report as moot. The guardian was appointed in accordance with G. L. c. 190B, § 5-206, in May, 2014. The mother, who was not represented by counsel, consented to the appointment of the guardian. In March, 2015, the mother filed a petition to remove the guardian, see G. L. c. 190B, § 5-212, alleging that she was “presently fit and able to resume care of the child.” She also filed an application for the appointment of counsel to represent her in the removal proceeding. Several days later she filed a separate petition requesting “the opportunity to have visitation with” the child. (The guardianship decree had no provision for visitation.) A judge in the Probate and Family Court denied the mother’s request for counsel and reported this interlocutory ruling to the Appeals Court. We transferred the case to this court on our own motion.[1],[2] While the case has been pending here, the mother and the guardian mediated and resolved the underlying matter in the trial court. A decree has been entered terminating the guardianship, the child has been returned to the custody of the mother, and a separate petition that the guardian had filed to adopt the child has been dismissed by agreement.[3] The judge’s interlocutory report has been rendered moot by the resolution of the underlying case. There is no need to address the issues further in this case. Essentially the same issues are raised and addressed in L.B. v. Chief Justice of the Probate & Family Court Dep’t, 474 Mass. (2016), which we also decide today. Although the matter is moot, we have carefully considered the mother’s brief as an amicus brief in the L.B. case. Report discharged as moot. Susan M. Finegan (Geoffrey A. Friedman & Sandra J. Badin with her) for the mother. Jamie Ann Sabino, Susan R. Elsen, […]
L.B., et al. v. Chief Justice of the Probate and Family Court Department, et al. (Lawyers Weekly No. 10-060-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11892 L.B. & another[1] vs. CHIEF JUSTICE OF THE PROBATE AND FAMILY COURT DEPARTMENT & others.[2] Suffolk. October 5, 2015. – May 4, 2016. Present: Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Probate Court, Guardian. Due Process of Law, Assistance of counsel. Constitutional Law, Assistance of counsel. Practice, Civil, Assistance of counsel. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 6, 2015. The case was reported by Botsford, J. Laura Williams Gal (Christina L. Paradiso with her) for L.B. & another. Norah E. Kane for the minor children of L.B. Jo Ann Shotwell Kaplan, Assistant Attorney General, for Chief Justice of the Probate and Family Court Department. Deborah W. Kirchwey for the minor child of C.L. Jamie Ann Sabino, Susan R. Elsen, Mary K. Ryan, & Melanie V. Woodward, for Massachusetts Law Reform Institute, Inc., & others, amici curiae, submitted a brief. Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. Susan M. Finnegan, Sandra J. Badin, & Geoffrey A. Friedman, for S.D., amicus curiae, submitted a brief. Richard M. Page, Jr., for Boston Bar Association, amicus curiae, joined in a brief. SPINA, J. In Guardianship of V.V., 470 Mass. 590 (2015), we held that a parent whose minor child is the subject of a guardianship petition pursuant to G. L. c. 190B, § 5-206, and who cannot afford counsel has a right to have counsel appointed and to be so informed. The issue in this case is whether a parent also has a right to counsel if and when the parent petitions to have the guardian removed or to have the terms of the guardianship modified. We conclude that a parent does have a right to counsel for certain of those types of petitions. We also offer some guidance to the Probate and Family Court, where these private guardianships occur, for the development of rules and policies to implement this right to counsel. Procedural history. The plaintiffs, L.B. and C.L., are the mothers of minor children for whom guardians were appointed, in 2012 and 2013 respectively, pursuant to G. L. c. 190B, § 5-206. They commenced this action in the county court in 2015, challenging a written policy of the Chief Justice of the Probate and […]
Commonwealth v. Silvester (Lawyers Weekly No. 11-047-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1766 Appeals Court COMMONWEALTH vs. DILLON SILVESTER. No. 14-P-1766. Bristol. January 15, 2016. – May 2, 2016. Present: Kafker, C.J., Cohen, Green, Wolohojian, & Henry, JJ. Evidence, Testimony before grand jury, Cross-examination, Videotape, Identification, Constructive possession, Opinion, Hearsay. Practice, Criminal, Transcript of testimony before grand jury, Cross-examination by prosecutor, Voir dire, Mistrial, Identification of defendant in courtroom, Hearsay. Witness, Cross-examination. Identification. Firearms. Indictments found and returned in the Superior Court Department on June 7, 2012, and November 1, 2012. The cases were tried before Thomas F. McGuire, Jr., J. Jennifer Appleyard for the defendant. David A. Wittenberg, Assistant District Attorney, for the Commonwealth. HENRY, J. The defendant appeals from his convictions by a Superior Court jury of unlicensed carrying of a firearm, unlicensed carrying of a loaded firearm, possession of ammunition without a firearm identification card, and assault by means of a dangerous weapon (firearm). He was acquitted of armed assault with intent to murder.[1] On appeal the defendant argues that (1) his confrontation rights were violated by the admission in evidence, for substantive purposes, of a witness’s grand jury testimony and out-of-court identification of the defendant; (2) he was entitled to a required finding of not guilty on the charge he illegally possessed ammunition; (3) a lay witness was improperly permitted to give opinion testimony; (4) the judge improperly denied the defendant’s motion for a mistrial; (5) an in-court identification should not have been admitted; and (6) a hearsay statement should have been excluded. We affirm. Background. We summarize the evidence at trial, leaving additional details for discussion with the issues presented. On April 11, 2012, Kayleigh Gagnon and Kaitlyn Bayrouty arranged to meet to fight each other. By about 10:30 A.M., Gagnon had gathered her then boy friend, Leonard Starcher, and his best friend, the victim, Brandon Dunham, on Starcher’s front porch in Fall River. The victim and Bayrouty had previously been in a relationship, and had a child together. Within a few minutes, Gagnon recognized a vehicle owned by Elizabeth Mello arrive and park down the street. Bayrouty, the defendant, and his cousin, Ashley Cioe, exited from the vehicle and walked toward Gagnon, the victim, and Starcher. Two people remained in the vehicle: Mello and Bianca Rebello. The victim ran toward the defendant’s group; accounts conflicted […]
Commonwealth v. Mattier (Lawyers Weekly No. 10-059-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11946 COMMONWEALTH vs. BRANDEN E. MATTIER. Suffolk. January 7, 2016. – May 2, 2016. Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Practice, Criminal, Execution of sentence, Sentence. Indictments found and returned in the Superior Court Department on August 29, 2013. A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J.; the cases were tried before Jeffrey A. Locke, J.; and a motion for stay of execution of sentence was considered by Locke, J. A motion for stay of execution of sentence filed in the Supreme Judicial Court was referred to Spina, J., and was considered by him. Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant. Randall E. Ravitz, Assistant Attorney General (Gina Masotta, Assistant Attorney General, with him) for the Commonwealth. HINES, J. The defendant, Branden E. Mattier, was convicted by a jury on three indictments charging conspiracy, G. L. c. 274, § 7; attempted larceny, G. L. c. 274, § 6; and identity fraud, G. L. c. 266, § 37E, respectively. The charges stemmed from an attempt by the defendant and his half-brother to defraud One Fund Boston, Inc. (One Fund),[1] of approximately $ 2 million by claiming that a long-deceased aunt had been injured in the 2013 bombing at the finish line of the Boston Marathon. The judge imposed a State prison sentence of from three years to three years and one day on the conspiracy charge and concurrent sentences of three years’ probation for the attempted larceny and identity fraud charges, to run from and after the committed sentence. The defendant appealed from his convictions and filed in the trial court a motion for stay of the execution of his sentence pending appeal. The judge denied the motion. After his appeal was docketed in the Appeals Court, the defendant filed a motion for stay of the execution of the sentence in that court. We granted the defendant’s application for direct appellate review of his appeal, and thereafter, the defendant filed a motion for stay in this court. The matter was referred to the single justice, who denied the motion. The defendant filed this appeal from the single justice’s order, together with a motion for an expedited ruling.[2] In response to the defendant’s motion for an expedited ruling on his appeal from the single justice’s order […]