Fuller v. Deutsche Bank Nat'l Trust Co., 17–P–211

• Decision Date: 22 March 2018
• Docket Number: 17–P–211
• Citation: 93 Mass.App.Ct. 1103,103 N.E.3d 768 (Table)
• Parties: David L. FULLER & another v. DEUTSCHE BANK NATIONAL TRUST CO., trustee,& another.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 1103
103 N.E.3d 768 (Table)

David L. FULLER & another¹
v.
DEUTSCHE BANK NATIONAL TRUST CO., trustee,² & another.³

17–P–211

Appeals Court of Massachusetts.

Entered: March 22, 2018

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This suit was brought by the plaintiff homeowners alleging that defendant Deutsche Bank National Trust Co., as trustee for the CDC Mortgage Capital Trust 2003–HE4 (Deutsche Bank), was not a valid mortgagee at the time it foreclosed on the plaintiffs' real property. Although there is an assignment of the mortgage to Deutsche Bank dated June 4, 2013, and recorded with the registry of deeds on August 18, 2013, the plaintiffs argue that because the assignment was made after the closing date in the pooling and servicing agreement (PSA), and because the assignment was made directly by the lender, rather than the depositor (Morgan Stanley ABS Capital I Inc.), under the PSA, Deutsche Bank cannot be and is not the holder of the mortgage.

The first of these contentions, with respect to the closing date of a PSA, was rejected in our decision in Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App. Ct. 827 (2017). The second, with respect to the identity of the assignor, was rejected in Ressler v. Deutsche Bank Trust Co. Americas, 92 Mass. App. Ct. 502 (2017), which relied on Strawbridge. Both were decided during the pendency of this appeal and after the filing of the plaintiffs' brief in this case. These cases hold that failure of an assignment to a trust to comply with the terms of the trust under which it is permitted to hold property renders the assignments merely voidable and not void, and that a mortgagor of real property lacks standing to challenge the assignment on those grounds. Whatever our view of that question might be as an original matter, we are bound by Strawbridge, as was the court in Ressler, and therefore are constrained to affirm the judgment of the trial court. The complaint also contained a claim for slander of title allegedly wrought by Deutsche Bank's recording in the Middlesex County registry of deeds that it owned a defeasible fee interest in the plaintiffs' residence and had contractual rights to enforce the power of sale. All agree this claim fails given our conclusion...