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 29, 2007, the plaintiff commenced an action in Superior Court seeking to rescind the mortgage based on fraud and breach of contract. Mellon and Litton, not originally named in the complaint, were allowed to intervene as party defendants. In May, 2009, Mellon and Litton filed a motion for summary judgment. After a hearing, the judge allowed their motion for summary judgment, stating in relevant part:
“Here [the plaintiff] has no reasonable expectation of proving the essential elements of the fraud and breach of contract claims at trial. The defendants have satisfied their burden by submitting [the plaintiff's] answers to interrogatories in which [the plaintiff] fails to state the basis of the fraud and breach of contract claims. [The plaintiff], in the answers to interrogatories posed by the defendants, has failed to allege specific facts establishing the basis for the allegations that the defendants committed fraud, that there was a fraudulent conversion of funds, or that the mortgage was fraudulent.
... Additionally, [the plaintiff] has failed to allege specific facts establishing the basis for a breach of contract claim.... [The plaintiff] has failed to allege specific facts establishing the existence of a genuine issue of material fact.”
A judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), entered in favor of Mellon and Litton.
The plaintiff offers no relevant case law to show that the judge committed error in granting summary judgment. Although he attempts to apply Ibanez, he falls far short. It appears that the mortgage and note were held by the appropriate party. There is no basis upon which to disturb the judge's ruling.
For these reasons, as well as for substantially those in the brief of Mellon and Litton, we affirm.
Judgment affirmed.
-------- Notes:
Formerly known as The Bank of New York as Successor Trustee for JPMorgan Chase Bank, N.A.