Posts tagged "1114817"

Ressler v. Deutsche Bank Trust Company Americas, et al. (Lawyers Weekly No. 11-148-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   16-P-1711                                       Appeals Court   MONIKA M. RESSLER  vs.  DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & others.[2]     No. 16-P-1711.   Dukes.     October 4, 2017. – December 1, 2017.   Present:  Agnes, Sacks, & Lemire, JJ.     Mortgage, Foreclosure, Assignment.  Real Property, Mortgage.  Assignment.  Trust, Trustee’s authority.  Practice, Civil, Motion to dismiss, Attorney’s fees, Frivolous action.       Civil action commenced in the Superior Court Department on July 7, 2016.   A motion to dismiss was heard by Mitchell H. Kaplan, J.     Glenn F. Russell, Jr., for the plaintiff. Robert M. Mendillo for Deutsche Bank Trust Company Americas & another. Grace C. Ross, pro se, amicus curiae, submitted a brief.     SACKS, J.  The plaintiff Monika M. Ressler (the borrower) appeals a Superior Court judgment dismissing her complaint for declaratory and other relief based on her claim that the defendant Deutsche Bank Trust Company Americas, trustee of Residential Accredit Loans Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QS18 (Deutsche Bank) had acquired her mortgage in violation of a governing pooling and service agreement, making its foreclosure on her mortgage invalid.  Because the borrower’s various arguments are either squarely barred by precedent or border on the frivolous, we affirm.  Although we deny Deutsche Bank’s request that, as a sanction for a frivolous appeal, we award attorney’s fees and costs against the borrower and her counsel jointly and severally, we caution counsel here that such a sanction is within an appellate court’s authority and is more likely to be imposed if counsel fails to heed warnings against repetitive pursuit of unmeritorious appeals.[3] Background.  We review the sufficiency of the borrower’s complaint de novo, taking as true its factual allegations and drawing all reasonable inferences in her favor.  Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).  “[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.”  Ibid., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008).  In doing so, we consider, among other things, exhibits attached to the complaint.  Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). In 2006 the borrower took a $ 500,000 mortgage loan from Lendia, Inc. (the lender), giving the lender a promissory note for that amount and a mortgage on her property in West Tisbury to secure […]

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Posted by Massachusetts Legal Resources - December 1, 2017 at 6:49 pm

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