MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Frank Ciampa, appeals from a summary judgment issued by a Land Court judge in favor of the plaintiff, Deutsche Bank Trust Company Americas, as trustee for Residential Accredit Loans Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QS6. The defendant also appeals from the judges order denying his motion for reconsideration. We affirm.
Background. We recite the relevant facts from the summary judgment record.
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On or around October 24, 2006, the defendant secured a loan from Mortgage Network Inc. (MNI) and executed a promissory note (note) in favor of MNI. The note was secured by a mortgage given to Mortgage Electronic Registration Systems, Inc. (MERS) on the defendants property located at 9 Pillings Road, Saugus (the property), and the mortgage was recorded on or about October 30, 2006. MNI endorsed the note to Residential Funding Company, LLC, which then endorsed the note to Deutsche Bank Trust Company Americas as Trustee, which then endorsed the note to the plaintiff. On or about December 16, 2015, MERS assigned the mortgage to the plaintiff; the assignment was recorded on December 30, 2015. On or about December 24, 2015, Ocwen Loan Servicing, LLC, the predecessor loan servicer, sent the defendant a notice of the right to cure the default on the mortgage pursuant to G. L. c. 244, § 35A.
On February 14, 2018, the defendant recorded an “Affidavit of Lawful Ownership, Current Possession and to Clarify Title” pursuant to G. L. c. 183, § 5B (5B affidavit). The 5B affidavit alleged that the plaintiff failed to comply with 209 Code Mass. Regs. § 18.21A(2)(c) (2013) by providing a copy of the note without an endorsement to the plaintiff, and thus any future foreclosure would be invalid. The 5B affidavit also asserted that the mortgage assignment to the plaintiff was void, and the G. L. c. 244, § 35A, right to cure notice was “procedurally defective.” The defendants attorney certified the 5B affidavit.
On October 11, 2018, the plaintiff filed a complaint seeking declaratory judgment that the defendants 5B affidavit was null and void. The defendant asserted various defenses and counterclaims. The defendant then purported to move to dismiss the plaintiffs complaint. However, the motion was never docketed. The plaintiff moved for summary judgment on its declaratory judgment claim and on the defendants counterclaims. The defendant did not file a written opposition to the motion.
At the March 3, 2020 hearing on the plaintiffs motion for summary judgment, the defendant (through counsel) conceded that he “did not have standing to challenge the validity of the [mortgage] assignment,” and that the right to cure notice complied with the requirements of G. L. c. 244. The defendant also agreed that although the plaintiff had made the original note available for inspection, he had not availed himself of that opportunity. The judge granted summary judgment as to the plaintiffs complaint and the defendants counterclaim regarding the plaintiffs standing to foreclose.
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The judge also noted her concern that the 5B affidavit, “instead of clarifying the chain of title, appeared to be designed to cloud it.”
The defendant moved for reconsideration, arguing that he was unaware that the motion to dismiss had not been docketed, and that he “presumed” he would be allowed to respond to the summary judgment motion “if the Court denied the Motion to Dismiss.” The judge denied the motion for reconsideration, citing, inter alia, the defendants representation at the summary judgment hearing that “if the motion to [dismiss] had been docketed, he would withdraw it.”
Discussion. The defendant argues that the plaintiff does not have standing to contest the 5B affidavit. On the record before us, we are unable to discern whether this argument was made before the trial judge; nonetheless, we address it here. See Locator Servs. Group, Ltd. v. Treasurer & Receiver Gen., 443 Mass. 837, 846 n.12 (2005) (“standing is a jurisdictional issue that cannot be waived”).
The plaintiff brought its claim under G. L. c. 185, § 1 (k), and G. L. c. 231A, § 1. The Land Court has jurisdiction to hear “[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved.” G. L. c. 185, § 1 (k). It was proper for the plaintiff to bring its claim under G. L. c. 185, § 1 (k), where, as mortgagee, the plaintiff has an interest in the property, see U.S. Bank Natl Assn v. Ibanez, 458 Mass. 637, 649 (2011) (mortgagee holds legal title to property secured by mortgage), and sought relief regarding the effect of the 5B affidavit on its interest. To seek declaratory relief, the plaintiff must establish an “actual controversy” and standing. Doe No. 1 v. Secretary of Educ., 479 Mass. 375, 384 (2018). See G. L. c. 231A, § 1. “A party has standing when it can allege an injury within the area of concern of the statute, regulatory scheme, or constitutional guarantee under which the injurious action has occurred.” Doe No. 1, supra at 386. Here, an actual controversy existed as to whether the 5B affidavit clarified title pursuant to G. L. c. 183, § 5B, and the plaintiffs alleged injury was that the 5B affidavit created a “cloud on title” that adversely affected the plaintiffs “rights, status, legal relations and responsibilities.” The plaintiff has standing to bring this claim.
The defendant next asserts that the judge abused her discretion by not granting a continuance of the summary judgment hearing. See Meyer v. Planning Bd. Of Westport, 29 Mass. App. Ct. 167, 175 (1990) (the decision to grant a continuance of the trial “rests in the sound discretion of the judge”). However, no request for a continuance appears on the record before us.
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Accordingly, the judge did not abuse her discretion.
To the extent that the defendant argues that the judge abused her discretion in denying his motion for reconsideration, we disagree. See Audubon Hill S. Condominium Assn v. Community Assn Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012) (“a motion for reconsideration calls upon the discretion of the motion judge”). The motion for reconsideration sought to (1) void the summary judgment order and allow the defendant an opportunity to oppose the summary judgment motion, or (2) amend the order and allow the defendant to preserve his defenses and claims unrelated to the sufficiency of the 5B affidavit. The defendant argued that his failure to oppose summary judgment constituted excusable neglect because the court had not ruled on his motion to dismiss, and, as he learned the day before the hearing on the summary judgment motion, the motion to dismiss had not even been docketed. The judge rejected this claim because the defendant waited until the day before the summary judgment hearing to inquire into the status of the motion to dismiss, the defendant did not request additional time to respond to the plaintiffs summary judgment motion, and defense counsel represented at the summary judgment hearing that he would have withdrawn the motion to dismiss, had it been docketed. Furthermore, the judge noted that at the summary judgment hearing defense counsel conceded two of the claims raised in the 5B affidavit: (1) that the right to cure notice was not defective, and (2) that “pre-existing case law made clear that the defendants did not have standing to contest the validity of the mortgage assignment.”
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Accordingly, there was no abuse of discretion.
Finally, the defendant argues that the judge erred in allowing the plaintiffs summary judgment motion because a dispute remains as to whether the plaintiff has possession of the note. “We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law” (quotations omitted). Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 231 (2015).
The defendant contends that he did not receive a copy of the note with the endorsement to the plaintiff, together with the 209 Code Mass. Regs. § 18.21A(2)(c) certification and statutory notice of foreclosure, and thus any future foreclosure would be void. The defendant further argues that a second copy of the note containing an endorsement to the plaintiff does not cure the initial failure to comply with the regulation and creates a dispute over whether the plaintiff in fact holds the original note. Where the defendant did not oppose the plaintiffs summary judgment motion and did not provide a transcript of the hearing, there is nothing before us on which to evaluate this claim. For example, the summary judgment record does not contain a copy of the note with the alleged deficiency.
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See Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789, 792 (2009) (an opposing party “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment” [quotation omitted]).
The plaintiff presented undisputed evidence that it is the noteholder, including: a copy of the note with an allonge containing the endorsement to the plaintiff; an affidavit of the note secured by mortgage recorded pursuant to G. L. c. 244, § 35C, on March 20, 2017; an affidavit by a senior loan analyst with the current loan servicer with personal knowledge that the note was endorsed to the plaintiff; and that the plaintiff made the original note available for inspection, which the defendant conceded he did not undertake. We conclude there was no error in allowing the plaintiffs motion for summary judgment.
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,
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Judgment affirmed.
Order denying motion for reconsideration affirmed.
FOOTNOTES
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. The defendant did not file an opposition either to the plaintiffs motion for summary judgment or statement of undisputed material facts. Accordingly, we accept the plaintiffs statement of material facts as true. See Rule 4 of the Rules of the Land Court (2005) (“facts described by the moving party as undisputed shall be deemed to have been admitted” if opposition does not comply with the rule). Cf. Earielo v. Carlo, 98 Mass. App. Ct. 110, 111 n.4 (2020) (under Superior Court Rule 9A, where defendants failed to respond to additional statement of material facts, the “judge was entitled to deem those facts admitted for purposes of summary judgment”).
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. The judge dismissed as moot the defendants counterclaim to quiet title.
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. The defendant did not provide a transcript of the summary judgment hearing. As appellant, it was his obligation to do so. See Mass. R. A. P. 18 (b) (4), as appearing in 481 Mass. 1638 (2019).
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. At oral argument, the defendant asserted that the judge misconstrued the concession regarding the defendants standing to contest the assignment of the mortgage. However, without a transcript, the record fails to support the defendants claim. We accept the concession, as the judge described it, as binding. See Wasson v. Wasson, 81 Mass. App. Ct. 574, 580 (2012) (issue conceded during trial was waived on appeal).
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. The defendant asserts that the plaintiff misrepresented the 5B affidavit by not including its exhibits in the summary judgment record. This claim is waived because, on the record before us, it was not raised before the Land Court judge. See Farnum v. Mesiti Dev., 68 Mass. App. Ct. 419, 422 (2007). Furthermore, the claim is unavailing where the defendant had myriad opportunities to present this argument and evidence to the judge and failed to do so. We do not consider the copy of the 5B affidavit with exhibits included in the appellate record because our review of the summary judgment motion is “confined to an examination of the materials before the [trial] court at the time the rulings were made” (quotation omitted). Fidelity Mgt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200 (1996).
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. For the first time on appeal, the defendant argued in his brief that there remains a Pinti, 472 Mass. 226, “strict compliance issue” related to the G. L. c. 244, § 35A, right to cure notice, which “mirrors the notice related to the Certified Question [then] currently pending with the SJC” regarding Thompson v. JPMorgan Chase Bank, N.A., 931 F.3d 109 (1st Cir. 2019). This argument is waived. See Farnum, 68 Mass. App. Ct. at 422. Regardless, as the defendant conceded at oral argument, the decision in Thompson v. JPMorgan Chase Bank, N.A., 486 Mass. 286 (2020), now precludes this claim.
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. We decline the plaintiffs request to award attorneys fees.