Gualtieri v. Bank of N.Y. Mellon & Another, 12–P–1221.

Citation999 N.E.2d 503,84 Mass.App.Ct. 1126
Decision Date23 December 2013
Docket NumberNo. 12–P–1221.,12–P–1221.
PartiesJames W. GUALTIERI v. The BANK OF NEW YORK MELLON & another.
CourtAppeals Court of Massachusetts

?84 Mass.App.Ct. 1126
999 N.E.2d 503

James W. GUALTIERI
v.
The BANK OF NEW YORK MELLON1 & another.
2

No. 12–P–1221.

Appeals Court of Massachusetts.

December 23, 2013


By the Court (KANTROWITZ, GRAHAM & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an attempt by a borrower, the plaintiff, to halt a foreclosure because the foreclosing party allegedly did not hold the mortgage at the time of foreclosure, thus lacking standing under U .S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 645–652 (2011). In this case (unlike in Ibanez ), the burden was on the plaintiff, who filed a complaint alleging fraud and breach of contract.

We start, and could end, with the observation that the plaintiff's recitation of the facts in his brief is so fragmented and often unsupported by record materials that it is difficult to follow. Making our job even more difficult, the plaintiff has not reproduced on appeal the defendants' first request for admissions, deemed admitted below, or his answers to interrogatories on which the judge relied. The appendix that has been provided lacks page numbers. For these reasons alone, we could affirm the judgment. See Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998); Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810–812 (1992). That the plaintiff is pro se is of no consequence as pro se parties are held to the same standards as parties represented by counsel. See Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996). Even in addressing the merits, the plaintiff fares no better. Although it is somewhat difficult to ascertain the facts, it appears that on or about March 9, 2005, the plaintiff signed an adjustable rate note payable to defendant, Equity One, Inc. (Equity One) in the amount of $440,325. The note was secured by a mortgage that the plaintiff and his wife gave to Mortgage Electronic Registrations Systems, Inc., as nominee for Equity One, on real estate located in North Attleborough. That note was then assigned to JPMorgan Chase Bank, which subsequently assigned the note to defendant The Bank of New York Mellon (Mellon). At the time of the proceedings in Superior Court, Mellon also held the mortgage. The loan was serviced on behalf of Mellon by defendant Litton Loan Servicing, LP (Litton). On or about June 1, 2006, the plaintiff defaulted and Litton has not received payment on the loan since that date. In December, 2006, the plaintiff received notice of commencement of foreclosure proceedings.

On November...

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