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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Western Investment LLC v. Deutsche Multi-Market Income Trust, et al. (Lawyers Weekly No. 12-009-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3082 BLS 1 WESTERN INVESTMENT LLC vs. DEUTSCHE MULTI-MARKET INCOME TRUST, DEUTSCHE STRATEGIC INCOME TRUST and the individual trustees thereof1 MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case presents a paradoxical claim by a shareholder against the trustees of two companies for strictly adhering to the plain provisions of the companies’ by-laws with respect to the election of board members. Plaintiff, Western Investment LLC, alleges that the application by the trustees of a duly adopted by-law, in existence for seven years, was a breach of fiduciary duty. For the reasons described below, Western’s complaint fails to state a valid claim. Defendants’ motion to dismiss must be granted. BACKGROUND The following facts are taken from the complaint, supplemented by documents referred to in the complaint such as the declarations of trust and the by-laws of the two defendant companies.2 1 Kenneth C. Froewiss, John W. Ballantine, Henry P. Becton, Jr., Dawn-Marie Driscoll, Keith R. Fox, Paul K. Freemen, Richard J. Herring, William McClayton, Rebecca W. Rimel, William N. Searcy, Jr., Jean Gleason Stromberg 2 Upon a motion to dismiss, the court is entitled to consider materials not appended to the complaint, but referenced or relied upon in the complaint. See Harhen v. Brown, 431 Mass. 838, 1 Western is a long-time shareholder in two closed-end investment funds, defendants Duetsche Multi-Market Income Trust (“KMM”) and Duetsche Strategic Income Trust (“KST”). Western purchased shares in KMM in 1997 and in KST in 2002. Western brings this action to challenge the action of the trustees of the trusts in connection with the September 30, 2016, vote of shareholders for the election of trustees. KMM and KST are organized as Massachusetts business trusts. They are governed by declarations of trust and by-laws that for all purposes relevant to this litigation are substantively identical. The eleven individual defendants are trustees of the two trusts. They constitute the board of trustees of both KMM and KST. The boards are divided into three classes of trustees. Each class is elected for a three year term and the elections are staggered so that only one class of trustees is up for election per year. In 2016, four seats on the board were up for election. In the 2016 election, Western nominated a slate of four individuals to run against four incumbent members of the board. With respect to both KMM and KST, the Western nominees obtained more votes than the incumbent trustees. For the KMM election, in which 11.97 million, or 53.47% of the 22.39 million outstanding shares were present and voting, the Western nominees each obtained the vote of approximately 6.2 million shares, while the incumbents […]
Categories: News Tags: 1200917, Deutsche, Income, Investment, Lawyers, MultiMarket, Trust, Weekly, Western
Western Investment LLC v. Deutsche Multi-Market Income Trust, et al. (Lawyers Weekly No. 12-009-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-3082 BLS 1 WESTERN INVESTMENT LLC vs. DEUTSCHE MULTI-MARKET INCOME TRUST, DEUTSCHE STRATEGIC INCOME TRUST and the individual trustees thereof1 MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS This case presents a paradoxical claim by a shareholder against the trustees of two companies for strictly adhering to the plain provisions of the companies’ by-laws with respect to the election of board members. Plaintiff, Western Investment LLC, alleges that the application by the trustees of a duly adopted by-law, in existence for seven years, was a breach of fiduciary duty. For the reasons described below, Western’s complaint fails to state a valid claim. Defendants’ motion to dismiss must be granted. BACKGROUND The following facts are taken from the complaint, supplemented by documents referred to in the complaint such as the declarations of trust and the by-laws of the two defendant companies.2 1 Kenneth C. Froewiss, John W. Ballantine, Henry P. Becton, Jr., Dawn-Marie Driscoll, Keith R. Fox, Paul K. Freemen, Richard J. Herring, William McClayton, Rebecca W. Rimel, William N. Searcy, Jr., Jean Gleason Stromberg 2 Upon a motion to dismiss, the court is entitled to consider materials not appended to the complaint, but referenced or relied upon in the complaint. See Harhen v. Brown, 431 Mass. 838, 1 Western is a long-time shareholder in two closed-end investment funds, defendants Duetsche Multi-Market Income Trust (“KMM”) and Duetsche Strategic Income Trust (“KST”). Western purchased shares in KMM in 1997 and in KST in 2002. Western brings this action to challenge the action of the trustees of the trusts in connection with the September 30, 2016, vote of shareholders for the election of trustees. KMM and KST are organized as Massachusetts business trusts. They are governed by declarations of trust and by-laws that for all purposes relevant to this litigation are substantively identical. The eleven individual defendants are trustees of the two trusts. They constitute the board of trustees of both KMM and KST. The boards are divided into three classes of trustees. Each class is elected for a three year term and the elections are staggered so that only one class of trustees is up for election per year. In 2016, four seats on the board were up for election. In the 2016 election, Western nominated a slate of four individuals to run against four incumbent members of the board. With respect to both KMM and KST, the Western nominees obtained more votes than the incumbent trustees. For the KMM election, in which 11.97 million, or 53.47% of the 22.39 million outstanding shares were present and voting, the Western nominees each obtained the vote of approximately 6.2 million shares, while the incumbents […]
Categories: News Tags: 1200917, Deutsche, Income, Investment, Lawyers, MultiMarket, Trust, Weekly, Western
Turra v. Deutsche Bank Trust Company Americas, trustee, et al. (Lawyers Weekly No. 10-020-17)
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 SJC-12075 SANDRO TURRA vs. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & another.[2] January 30, 2017. Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Real Property, Mortgage. The plaintiff, Sandro Turra, commenced this action against Deutsche Bank Trust Company Americas, as trustee for RALI 2007QS7, care of GMAC Mortgage, LLC (Deutsche Bank), seeking a declaration that Deutsche Bank’s foreclosure of the mortgage on his home was invalid and seeking to quiet title to the property. A judge in the Superior Court allowed Deutsche Bank’s motion to dismiss the complaint, and Turra appealed.[3] The appeal raises a single issue: whether a foreclosing mortgagee’s failure to comply with G. L. c. 244, § 15A, by failing to send the postforeclosure notices required by the statute, renders the foreclosure void. We conclude, as did the trial court judge, that it does not, and we therefore affirm. Background. On April 3, 2007, Turra executed a mortgage on the property in question to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee.[4] The lender was Homecomings Financial, LLC. On August 12, 2010, MERS assigned the mortgage to Deutsche Bank. Then, on November 8, 2010, Deutsche Bank, through its servicing agent GMAC Mortgage, LLC, notified Turra that he was in default under the terms of the mortgage. Deutsche Bank subsequently foreclosed on the home on January 15, 2013. In April, 2013, Deutsche Bank commenced a summary process action against Turra in the District Court. Turra then commenced this action in the Superior Court, where his motion to transfer the summary process action and consolidate it with this case was allowed. In response to Deutsche Bank’s motion to dismiss his complaint, Turra argued, among other things, that the foreclosure was void because Deutsche Bank failed to strictly comply with the power of sale as set forth in G. L. c. 183, § 21, and further regulated by G. L. c. 244, §§ 11-17C. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011) (Ibanez). In particular, Turra argued that Deutsche Bank failed to comply with G. L. c. 244, § 15A, which provides that “a mortgagee conveying title to mortgaged premises pursuant to the provisions of this chapter shall, within thirty days of taking possession or conveying title, notify . . . the office of the assessor or collector of taxes of the municipality in which the premises are located and […]
Deutsche Bank National Trust Company v. Fitchburg Capital, LLC, et al. (Lawyers Weekly No. 10-062-15)
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-11756 DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1] vs. FITCHBURG CAPITAL, LLC, & others.[2] Suffolk. January 5, 2015. – April 15, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mortgage, Real estate, Discharge, Foreclosure, Dragnet clause. Real Property, Mortgage. Limitations, Statute of. Practice, Civil, Summary judgment, Statute of limitations. Statute, Retroactive application, Construction. Due Process of Law, Retroactive application of statute, Statute of limitations. Constitutional Law, Contract clause. Civil action commenced in the Land Court Department on July 2, 2012. A motion for partial summary judgment was heard by Robert B. Foster, J., and entry of separate and final judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jeffrey T. Angley (Robert K. Hopkins with him) for Fitchburg Capital, LLC. Jeffrey B. Loeb for the plaintiff. Thomas O. Moriarty, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief. Philip F. Coppinger, for Ry-Co International, Ltd., amicus curiae, submitted a brief. HINES, J. Under a 2006 amendment to the so-called “obsolete mortgage” statute, a mortgage becomes unenforceable after a certain number of years: a mortgage in which the term or maturity date is stated becomes unenforceable five years after the expiration of the term and a mortgage in which the term or maturity date is not stated becomes unenforceable thirty-five years after recording.[3] G. L. c. 260, § 33, as amended by St. 2006, c. 63, § 6. The defendant Fitchburg Capital, LLC (Fitchburg), foreclosed on two mortgages at a time when both mortgages would be unenforceable under the amended statute if the five-year statute of limitations was applicable. In this appeal, we interpret the amended statute to determine whether a mortgage stating only the term or maturity date of the underlying debt is a “mortgage in which the term or maturity date of the mortgage is stated” under G. L. c. 260, § 33, and whether the retroactive application of § 33 to mortgages recorded before the effective date of the amendment is constitutional. The plaintiff, Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset-backed Pass-through Certificates, Series 2004-R11 under the Pooling and Servicing Agreement dated as of December 1, 2004 (Deutsche Bank), filed a motion for partial summary judgment seeking a declaration that the mortgages are […]
Haskins v. Deutsche Bank National Trust Company, et al. (Lawyers Weekly No. 11-146-14)
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 13-P-506 Appeals Court JOHN E. HASKINS vs. DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,[1] & others.[2] No. 13-P-506. Worcester. September 3, 2014. – November 10, 2014. Present: Green, Graham, & Katzmann, JJ. Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Assignment. Consumer Protection Act, Investigative demand. Fraud. Practice, Civil, Complaint. Contract, Implied covenant of good faith and fair dealing. Civil action commenced in the Superior Court Department on June 13, 2012. A motion to dismiss was heard by Janet Kenton-Walker, J. Adam T. Sherwin for the plaintiff. Christopher A. Cornetta for the defendants. GREEN, J. We are called upon to address a question raised but not resolved in U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421 (2014) (Schumacher): whether a notice of a mortgagor’s right to cure a mortgage loan default, sent pursuant to G. L. c. 244, § 35A, is deficient if it is sent by the mortgage servicing agent (rather than the record holder of the mortgage), or if it identifies the servicing agent as the mortgage holder. We conclude that the notice in the present case complied with the statute, and affirm the judgment of the Superior Court dismissing the plaintiff’s complaint.[3] Background. The plaintiff, John E. Haskins, purchased his residence at 98 Southville Road, Southborough, in 2002. In 2004, incident to a refinancing transaction, he granted a mortgage to defendant Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First Magnus Financial Corporation (First Magnus).[4] Haskins thereafter defaulted on his loan payment obligations and, by letter dated May 4, 2010, IndyMac Mortgage Services, the mortgage servicing division of defendant OneWest Bank, FSB (IndyMac), informed Haskins that he was in default, but that he had the right to cure the default within ninety days. The letter identified “IndyMac Mortgage Services, a Division of OneWest Bank” as the mortgage holder.[5] In fact, record title to the mortgage was held at the time by MERS, and the equitable or beneficial ownership of the loan secured by the mortgage was held by defendant Deutsche Bank National Trust Company (Deutsche Bank), as trustee of the Residential Asset Securitization Trust 2004-A2, Mortgage Pass-Through Certificates, Series 2004-B (securitization trust). By letter dated December 8, 2010, IndyMac again advised Haskins of the default, and of his right to cure the default (this time within 150 days); like the May […]
Pehoviak, et al. v. Deutsche Bank National Trust Company (Lawyers Weekly No. 11-024-14)
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 12‑P‑1485 Appeals Court PAUL PEHOVIAK & another[1] vs. DEUTSCHE BANK NATIONAL TRUST COMPANY. No. 12‑P‑1485. Worcester. November 5, 2013. ‑ March 11, 2014. Present: Cypher, Brown, & Fecteau, JJ. Mortgage, Foreclosure, Junior lien. Notice, Foreclosure of mortgage. Real Property, Mortgage. Taxation, Federal tax lien. Lien. Practice, Civil, Discovery, Findings by judge, Waiver. Damages, Mitigation. Waiver. Civil action commenced in the Superior Court Department on April 10, 2006. The case was heard by John S. Ferrara, J. Marissa I. Delinks for the defendant. Howard B. D’Amico for the intervener. FECTEAU, J. The defendant, Deutsche Bank National Trust Company (Deutsche Bank), appeals from a judgment in the amount of $ 141,784.20,[2] plus interest, entered in favor of the intervening plaintiff, Commerce Bank and Trust Company (Commerce), after a jury-waived trial. Deutsche Bank claims that the judge erred in (1) applying G. L. c. 244, § 14, under the facts presented, (2) finding that Deutsche Bank’s failure to act in good faith and to use reasonable diligence to complete and close the foreclosure sale with Pehoviak caused Commerce harm, and (3) failing to account for Commerce’s lack of mitigation efforts. We conclude that (1) Deutsche Bank breached its duty to exercise reasonable diligence by refusing the prospective buyer’s request to provide him with evidence that it had sent statutorily required notices of foreclosure to junior lienholders, (2) the judge’s finding on causation was not clearly erroneous, and (3) Deutsche Bank waived the affirmative defense of mitigation of damages by failing to raise it in its first responsive pleading. 1. Background. Deutsche Bank was the holder of a first mortgage on real property in Westborough, Massachusetts. The mortgagors defaulted on the mortgage loan, and Deutsche Bank foreclosed on the property. The mortgagors owed Deutsche approximately $ 500,000. Commerce was the holder of a mortgage on the same property securing a home equity loan, which was subordinate to Deutsche Bank’s mortgage. The mortgagors were also in default on Commerce’s loan and owed Commerce approximately $ 170,000. In addition, there were two other liens on the property that were subordinate to Commerce; one was a Federal tax lien, and the other was a writ of attachment by one Dennis Armstrong. At the foreclosure sale on March 6, 2006, Pehoviak was the highest bidder […]
Deutsche Bank National Association v. First American Title Insurance Company (Lawyers Weekly No. 10-124-13)
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‑11265 DEUTSCHE BANK NATIONAL ASSOCIATION,[1] trustee,[2] vs. FIRST AMERICAN TITLE INSURANCE COMPANY. Suffolk. March 7, 2013. ‑ July 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Insurance, Title insurance, Insurer’s obligation to defend. Real Property, Title insurance. Civil action commenced in the Superior Court Department on December 11, 2009. The case was heard by S. Jane Haggerty, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard E. Briansky (Jeffrey J. Pyle with him) for the plaintiff. Jason A. Manekas for the defendant. CORDY, J. In the present appeal, we consider whether the terms of a title insurance policy require First American Title Insurance Company (First American) to defend Deutsche Bank National Association (Deutsche Bank) in a lawsuit brought by a third party, Karla Brown,[3] seeking rescission of a note and first mortgage securing that note, originated by Deutsche Bank’s predecessor in interest in connection with the purchase of Brown’s home. Following First American’s denial of coverage, Deutsche Bank instituted this action seeking a judgment declaring that First American has a duty to defend it in Brown’s lawsuit and seeking statutory damages. We transferred the case here on our own motion following Deutsche Bank’s appeal from a Superior Court judge’s order granting summary judgment in favor of First American. On appeal, Deutsche Bank argues that the policy is susceptible to an interpretation that it covers the claims alleged in Brown’s complaint and that two exclusions contained within the policy do not preclude coverage.[4] Based on these arguments, Deutsche Bank contends that First American is under a contractual duty to defend it in the Brown lawsuit. In addition, Deutsche Bank renews its claim for damages under G. L. c. 93A due to First American’s alleged violation of G. L. c. 176D, § 3.[5] In response, First American argues that the allegations in Brown’s complaint do not trigger its duty to defend because they relate to a predatory lending scheme concerning the validity of the underlying note and not the enforceability of Deutsche Bank’s mortgage interest. Alternatively, First American argues that it need not defend Deutsche Bank because Brown’s claims are excluded by the policy. For the reasons discussed below, we conclude that the allegations in […]