Supreme Judicial Court for the Commonwealth FAR: FAR-27441 Filed: 6/29/2020 8:53 AM

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT DOCKET
NO. FAR-27062

ELIZABETH A. DORIS-GUSTIN, & another

Petitioners/Appellants

vs.

DEUTSCHE BANK NATIONAL TRUST Co. & another

Defendants/Appellees

On Appeal from a Judgment of the Worcester County

Superior Court

APPLICATION FOR FURTHER APPELLATE REVIEW

PURSUANT TO Rule 27.1 M.R.A.P.

Memorandum and Order by the Massachusetts Appeals Court in

Case# 19-P-0264 dated April 10, 2020

For the Petitioner/Plaintiffs

Glenn F. Russell, Jr., Esq.
BBO # 656914

Glenn F. Russell, Jr., &

Associates, P.C.
38 Rock Street, #12
Fall River, MA 02720
508-324-4545
russ45esq@gmail.com

July 01, 2020

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 TABLE OF CONTENTS

1) REQUEST FOR LEAVE TO OBTAIN

FURTHER APPELLATE REVIEW 5

2) SUMMARY STATEMENT 8

3) STATEMENT OF THE UNDISPUTED FACTS

RELEVANT TO THIS PETITION 11

4) STATEMENT OF THE PRIOR PROCEEDINGS 15

5) POINTS UPON WHICH FURTHER APPELLATE REVIEW

IS SOUGHT 16

A. The Panel Erred In Failing To Consider

The Legislatively Enacted Language of
G.L. c. 185, §114 And This Court’s Finding
In Bevilacqua v. Rodriguez, 460 Mass. 762,
771 (2011)” 16

1. The Panel Erred In Failing To Properly

Apply The Proper Standard For Dismissal
Under Ford Motor Co. v. Iannacchino
451 Mas. 623 (2008) 17

2. The Petitioners Advanced Plausible Claim

For Their Entitlement To Relief That
Contained Factual Allegations That
Possessed Enough “Heft” To Go Far Beyond
The “Speculative Level” 18

3. G.L. c. 185, §67 21

4. Confusingly The Panel Found That

Petitioners “Lack Standing” To Challenge
Because Petitioners Did Not Claim That
The Assignment Is Invalid on Its Face Due
To A Failure To Comply With “Statutory
Requirements” 23

5. Sullivan v. Kondaur Involved Registered

Land 25

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 6. The Panel’s Affirmance of The Land Court
Decision Requires That This Court Also
Find That No Exception Lies Under G.L.
c. 185, §114, because of G.L. c. 185,
§67 26

6) CONCLUSION 27

7) Appeal Court Ruling 29

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 TABLE OF AUTHORITIES
STATE CASES

Bank of New York Mellon v. Wain,

85 Mass.App.Ct. 498 (2014)..................25,26

Bevilacqua v. Rodriguez,
460 Mass. App. Ct. 762 (2011).........17,21,22,27

Eaton v. Fed. Nat’l Mortgage Ass’n,

462 Mass. 569 (2012)...........................21

Fed Nat’l Mortgage Ass’n v. Carr,

2012 Mas. App. Div. 223 (Dist. Ct. 2012).......20

Iannacchino v. Ford Motor Co.,

451 Mass. 632 (2008).....................18,24,28

Sullivan v. Kondaur Capital Corp.,

85 Mass.App.Ct. 202 (2014)..................25,27

U.S. Bank Nat’l Ass’n v. Ibanez,

458 Mass. 637 (2011)........................20,21

MASSACHUSETTS STATE STATUTES

Massachusetts General Law

Chapter 185, §29............................25

Massachusetts General Law

Chapter 185, §67.........................22,23

Massachusetts General Law

Chapter 185, §101...........................17

Massachusetts General Law

Chapter 185, §102...........................17

Massachusetts General Law

Chapter 185, §114.....................23,24,27

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1) Request for Leave to Obtain Further Appellate
Review

The Petitioners/Plaintiffs Elizabeth A. Doris Gustin

and Robert Gustin (“Petitioners”) herein though

undersigned, respectfully seek further appellate review

of the unpublished Rule 1:28 Opinion issued by the

Appeals Court on April 10, 2020, in which the Panel below

affirmed the trial court’s ruling.

The Plaintiffs’’ filed a Subsequent Petition to the

Land Court under G.L. c. 185, §114, seeking to expunge

two assignments of mortgage that were improperly

accepted to be recorded upon their Certificate of Title

to Registered Land. On appeal the Petitioners sought

review of the Land Court Order allowing Defendants’

Motion to Dismiss solely with regard to the Plaintiffs’

entitlement to relief under these claims.

In 2005, the Plaintiffs’ granted a mortgage in the

amount of $287,000, to H&R Block. That mortgage was

assigned from H&R Block to Option One on January 23,

2007, and that assignment was recorded at the Norfolk

County Registry District of the Land Court as Document

1122231 on February 9, 2007, at 11:36 A.M. The

acknowledgement on this assignment was signed by a

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California notary on a separate page prior to the

recording. The notary did not note the notarization in

her notary journal.

Option One then purportedly assigned the mortgage to

Deutsche Bank on January 11, 2007, approximately two weeks

before it even received the assignment from H&R Block. The

assignment from Option One to Deutsche Bank was registered

at the Norfolk County Registry District of the Land Court

on the same date and time as the assignment from H&R Block

to Option One, that is, on February 9, 2007, at 11:36

A.M., it was recorded just afterward as Document

1122232.

The Plaintiffs’ filed a petition requesting that

both mortgage assignments be expunged from their

certificate of title, claiming that the assignment

from H&R Block to Option One was void because (1) the

notary acknowledgement does not appear on the same

page as the assignment, and (2) the California notary

who notarized the document failed to note it in her

notary journal when she turned the journal in to the

Orange County Clerk-Recorder upon the expiration of

her commission. Plaintiffs’ clearly alleged plausible

allegations for the entitlement to their relief based

upon the claim that the assignment from Option One to

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Deutsche Bank was void because, at the time of the

assignment, Option One did not hold the mortgage and

had nothing to assign. The Panel affirmed the Land

Court finding that G.L. c. 185, §67 solely controlled

the analysis, as that statute states that nothing is

effective upon the title to Registered Land unless and

util recorded. This finding totally ignores the

legislatively enacted wording of G.L. c. 185, §114,

and renders it meaningless.

The instant ruling also elevates protections for

recorded land above Registered Land, when reviewing

the ruling in Federal Nat'l Mtge. Ass'n v. Carr, 2012

Mass. App. Div. 223 (Dist. Ct. 2012).

Although the instant ruling is one issued under

R. 1:28, this case will be used for persuasive value

for any similar presentation of facts in future

litigated matters. The instant ruling completely

abrogates the requirement tat title to Registered Land

be “unassailable” by the Commonwealth under the

“assurance fund” as guaranteed under G.L. c. 185,

§101, §102. The finding by the Panel also contradicts

this Court’s findings in Bevilacqua v. Rodriguez, 460

Mass. 762, 771 (2012), finding that recordation in and

of itself is for notice purposes only, and does not

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establish the legal validity of the document recorded.

Respectfully submitted, the error of the Panel in its

Affirmance is magnified by the fact that the instant

matter was dismissed on the pleadings alone under a

12(b)(6) Motion.

The instant decision calls into question that

title to Registered Land will be no longer considered

to be “unassailable” and no longer be afforded any

better protections than recorded land (in fact less).

This decision also persuasively sets a standard in the

Commonwealth that once a document is recorded upon

title to Registered Land it is permanent and can never

be questioned, essentially extra-legislatively

repealing G.L. c. 184, §114. Due to the seriousness of

the issues raised under this 1:28 decision, the

petitioners request the extraordinary relief of this

Court taking this case upon Further Appellate Review.

2) Summary Statement

This petition for further appellate review arises

out of the dispute brought by Petitioners involving the

title to their Registered Land, in which they filed a

Petition under authority of G.L. c. 185, §114 seeking to

expunge two assignments of mortgage that were improperly

accepted for recording by the Land Court.

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 Petitioners advanced plausible claims for relief

under G.L. c. 185, §114, where the face of the two

assignments identify that the Defendant purportedly

received an assignment from Option One ten days prior to

Option One ever receiving any rights to Petitioners’

mortgage by assignment.

The Defendants argued, and to which the Land Court

Judge accepted, that G.L. c. 185, §67 solely controlled

the analysis, i.e. that no assignment or transfer of

title to Registered Land is “effective” until recorded

upon the Certificate to Registered Land, and that

because both documents were record on the same date this

cured any deficiency. The Panel affirmed the Land Court

finding that the holding in Carr In this case, even

though the impossibility that exists on the face of the

assignment, the Defendant argued that because both

assignment were recorded on the same date, G.L. c. 185,

§67 would in essence cure this fatal deficiency. The

Land Court Judge agreed and ruled against Petitioners on

this basis, and the Appeals Court Panel Affirmed this

finding.

The Panel reads G.L. c. 185, §67 out of context,

where that statute only speaks to the fact that title to

Registered Land is a freely alienable as recorded land

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with the only difference that unlike recorded land there

can be no “of record assignments:. i.e. to be “effective”

the transfer must be recorded. The Panel lost sight of

the fact that recordation in and of itself cannot cure

fatal deficiencies of the underlying document which

render it void, as expressed by this Court I Bevilacqua

v. Rodriguez, 460 Mass. 762, 771 (2012).

The Panel further erred, where it also lost sight of

the fact that the instant appeal s one from a dismissal

under MRCP, R. 12(b)(6). The Petitioners clearly alleged

claims that were plausible on their face, where the

recorded assignments clearly exhibit fatal deficiencies

upon their face. Thus, Petitioners’ claims were not

“speculative”, and also showed enough “heft” to overcome

any challenge under Iannacchino’s mandate.

The Panel completely failed to consider the fact

that G.L. c. 185, §67 has two exceptions to its

application, one of these being found under G.L. c. 185,

§114. The Panel “assumed” that the defect in dates was

somehow “cured” by the date of the recording of the two

assignments, yet no other document in the record supports

this supposition. Indeed, the documents recorded were

executed at a time in which Option One had nothing to

assign to the Defendant, and the recordation of this

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“memorialization” can not change this unalterable fact.

Although the decision appealed from is one under an

unpublished 1:28 Opinion, it will still be used as

persuasive authority under any similar fact pattern

presented to a tribunal within this Commonwealth.

Respectfully submitted, the Panel’s finding represents

an error in the application of legislatively enacted

statutes, which must be reversed.

3 Statement of the Undisputed Facts Relevant to

this Petition

Robert F. Gustin and Elizabeth Doris Gustin

("Plaintiffs") of 8 Walker Court, Dedham, Norfolk

County, Massachusetts (“Property”) , are the owners and

in possession of the Property which title is one of

registered land as evidenced by Certificate of Title

No.125893 issued by the Land Court Registry District of

Norfolk. The Certificate of Title was issued subject to

petitioners' Deed, document number 516655, recorded

March 18, 1987. On September 23, 2005, Plaintiffs

undertook a mortgage loan in which they executed an

instrument of indebtedness naming H&R Block Mortgage

Corporation as the “Lender”, and also executed a

Security Instrument therefore also naming H&R Blok

Mortgage Corporation the “Lender” and “mortgagee” [RA-

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107]. Thereafter two documents purporting to be

“Assignments of Mortgage” are executed. The First

Document is dated January 11, 2007, and states that

Option One Mortgage Corporation, “assigns said mortgage

and the Note and the claim secured thereby to the

Defendant Deutsche Bank National Trust Company as

Trustee for The Certificateholders of Soundview Home

Loan Trust 2005 OPT4, Asset Backed Certificates Series

2005-OPT4” [RA-118]. However, the January 11, 2007

purported assignment was plausibly called into question

by Plaintiffs, as there was also caused to be executed

a second purported “assignment” that identifies that H&R

Block Mortgage Corporation did not purportedly assign

the Plaintiffs’ mortgage and Note to Option One until

January 23, 2007 [RA-122]. Thus, the purported January

11, 2007 assignment from Option One Mortgage Corporation

assignment to the Deutsche Bank Defendant, took place at

a time that was twelve days prior to Option One Mortgage

Corporation being in possession of any rights to assign,

[nemo dat quod non habet]. Subsequently both purported

documents were recorded on the Plaintiffs’ Certificate

of Title to Registered Land on February 09, 2007.

Plaintiffs advanced plausible allegations under

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G.L. c. 185, §114, which were required to be accepted as

true, where the dates on the faces of the January 11,

2007 and January 23, 2007, “assignments” establish [at

a minimum] a question of fact as to precisely how Option

One could assign a defeasible fee title interest in the

title to Plaintiffs’ registered land at a time when it

possessed no claim, right, or interest in Plaintiffs’

property. Indeed, it is to be remembered that this was

a 12(b)(6) analysis, which Plaintiffs clearly advanced

claims that were capable to provide them entitlement to

relief.

The Panel Affirmed the underpinning of the Land

Court Judge analysis that solely relied upon G.L. c.

185, §67, which states that no instrument related to

Registered Land Shall be effective unless and until it

is so recorded upon the title to said Property. The Panel

found Petitioners’ case law citation with a remarkably

similar fact pattern inapposite, (Fed. Nat. Mortg. Ass'n

v. Carr, 2012 Mass. App. Div. 223 (Dist. Ct. 2012). The

Panel Affirmed the Land Court Judge finding that, unlike

Carr, G.L. c. 185, §67 solely controlled the examination

under the instant fact pattern presented here. The Panel

failed to appreciate the nature of the present action

under G.L. c. 185, §114, which is to correct error in

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the improper recordation of documents upon the title to

registered land. The preceding makes Carr truly relevant

to the analysis, and which citation should have been

considered by the Panel under its obligation to gauge

the plausibility of Petitioners’ allegations for their

entitlement to relief.

The Legislature enacted G.L. c. 185, §114, with

the specific intent that there be left some type of

safety valve to remove improper recordation and or

encumbrances upon registered land. The Panel only made

subjective speculation (with no supportive facts or

indeed any explanation from Defendants) that by the time

the February 09, 2007 recordation occurred on

Plaintiffs’ title, that Option One Mortgage Corporation

was somehow then sufficiently in possession of rights to

have assigned to the Deutsche Bank Defendant Trustee,

merely due to G.L. c. 185, §67. It is undisputed that

the face of the two recorded documents plausibly create

claims for the Plaintiffs’ entitlement to relief under

G.L. c. 185, §114, and should not have been dismissed at

this pleading stage under 12(b)(6). Respectfully

submitted, the Panel confuses G.L. c. 185, §67 to stand

for the proposition that recordation under said statute

could somehow transfer legally invalid documents to

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become suddenly viable. At a minimum, Plaintiffs clearly

alleged entitlement to relief that clearly met the

minimal bar presented by Iannacchino v. Ford Motor

Company, 451 Mass. 623 (2008).

4) Statement of the Prior Proceedings

On October 12, 2017, the Petitioners filed their

Petition to Amend Certificate of Title to Registered

Land, with attached Exhibits [RA-009], and also filed an

Emergency Motion for a preliminary injunction seeking to

enjoin any foreclosure auction, under G.L. c. 244, § 14

[RA-024] and Memorandum In Support Short Order of Notice

to Issue [RA-026]. Hearing on Motion for Preliminary

Injunction to be Held Friday, October 20, 2017. On

October 17, 2017, the Court scheduled a Case Management

Conference to take place on November 16, 2017. On October

20, 2017, an ex-parte’ hearing took place on Plaintiffs’

Motion for Injunctive Relief, which was taken under

advisement. On October 23, 2017, the Court issued a

Written Order Denying Plaintiffs’ Motion [RA-074].

Plaintiffs’ thereafter filed an Emergency Motion for

Reconsideration [RA-049] and filed the Petitioners’

verifications [RA-067]. The Court Denied the Plaintiffs’

Motion for Reconsideration [RA-074]. Thereafter the

Plaintiffs’ filed for protection under Chapter 13 of the

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Bankruptcy Code, and subsequently on November 27, 2017

filed a Suggestion of Bankruptcy [RA=136]. On November

27, 2017. Defendant Deutsche Bank filed its Motion to

Dismiss [RA-087] and Memorandum In Support [RA-089]. On

December 11, 2017, Plaintiffs filed Opposition to

Defendant Deutsche Bank Motion to Dismiss [A-139]. On

December 14, 2017, Both Parties filed a Joint Statement

of Facts For Case Management Conference [A-157]. On

December 20, 2017, Case Management Conference was held.

On July 16, 2018, Defendant Ocwen Loan Servicing, LLC

filed its Motion to Dismiss [RA-226]. On August 10, 2018,

Plaintiffs filed their Opposition to the Defendant Ocwen

Motion to Dismiss [RA-188]. On October 02, 2018,

Defendant Deutsche Bank filed a Reply Brief [RA-205]. On

December 07, 2018, the Court Issued It’s Decision and

Order Allowing Both Defendants Motions’ to Dismiss [RA-

224] and also Entered Judgment thereon [RA-232].

Thereafter Petitioners filed their Appeal of the Land

Court ruling with the Massachusetts Appeals Court under

Ca. No. 2019-P-0264

5. Points Upon Which Further Appellate Review Is Sought

A. The Panel Erred In Failing To Consider The

Legislatively Enacted Language of G.L. c. 185,
§114 And This Court’s Finding In Bevilacqua v.
Rodriguez, 460 Mass. 762, 771 (2011)”

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 Respectfully submitted, the Panel erred in the

application of the law as it failed to consider the

Legislatively Enacted Language of G.L. c. 185, §114 and

G.L. c. 185, §101, and G.L. c. 185, §102. The Panel also

failed to review this Court’s Finding in Bevilacqua v.

Rodriguez, 460 Mass. 762, 771 (2011) that recordation of

a document upon a registry cannot transform an otherwise

legal invalid document to make it become suddenly viable.

The Panel further failed to appreciate that the

Commonwealth guarantees the unassailability of

Petitioners’ title to their registered land under the

Commonwealth’s Assurance fund. The Panel Further erred

in the application of the law, where it stated that

Petitioners’ “lack standing” to challenge the assignment

1. The Panel Erred In Failing To Properly Apply The

Proper Standard For Dismissal Under Ford Motor Co.
v. Iannacchino 451 Mass. 623 (2008)

Indeed, the Panel Affirmed the Land Court Judge’s

finding that Plaintiffs’ failed to meet the extremely

low hurdle for pleading standards under MRCP, R.

12(b)(6). In Iannacchino, the SJC followed the analysis

regarding dismissal set forth by the United States

Supreme Court

“...Factual allegations must be enough to raise a right

to relief above the speculative level . . . [based] on
the assumption that all the allegations in the

17
complaint are true (even if doubtful in fact) . . . ."
Id. at 1964-1965. What is required at the pleading stage
are factual "allegations plausibly suggesting (not
merely consistent with)" an entitlement to relief, in
order to "reflect[] the threshold requirement of [Fed.
R. Civ. P.] 8(a)(2) that the 'plain statement' possess
enough heft to 'sho[w] that the pleader is entitled to
relief.' " Id. at 1966.” Iannacchino v. Ford Motor, 451
Mass. 623, 636 (2008)

Thus, the above language of this Court presented the

Panel with the proper framework in which to make its De

Novo review of the Land Court Judge’s ruling below.

2. The Petitioners Advanced Plausible Claim For Their

Entitlement To Relief That Contained Factual
Allegations That Possessed Enough “Heft” To Go Far
Beyond The “Speculative Level”

The facts are not in dispute as all parties agree

that the two assignments allowed to be recorded upon the

Certificate of Petitioners’ title to Registered Land by

the Land Court are void on their face. This is so

because, 1) the First Assignment purports that

Petitioners’ mortgage was assigned from H&R Block to

Option One on January 23, 2007, and that this assignment

was recorded at the Norfolk County Registry District of

the Land Court as Document 1122231 on February 9, 2007,

at 11:36 A.M. 2) The acknowledgement on this assignment

was signed by a California notary on a separate page

prior to the recording. The notary did not record the

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notarization in her notary journal. And 3) Option One

then purportedly assigned the mortgage to Deutsche Bank on

January 11, 2007, approximately two weeks before it even

received the assignment from H&R Block. The preceding

represents the undisputed facts related to the

underlying assignment documents that are at issue in

this matter.

Under an analogous set of facts presented to the

Appellate Division under Federal Nat'l Mtge. Ass'n v.

Carr, 2012 Mass. App. Div. 223 (Dist. Ct. 2012), that

Panel determined that the documents were void 1:

“An assignment of a mortgage is a transfer of legal

title in Massachusetts only upon the transfer or
execution date, not the recording date. At all times
relevant in this action, recording was not a legal
requirement, [Note 7] but merely the "better
practice." Ibanez, supra at 651. A transfer of legal
title in Massachusetts becomes effective only upon the
transfer or execution date. Recording does not change
the requirement that the party must hold title in order
to execute a proper transfer.”

The Panel errs in the application of law by

Affirming the Land Court Judge finding that the instant

matter is “distinguishable” from Carr. 2 Nothing in Ibanez

1 The Panel made passing refence to whether or not they

should consider Carr “precedent”, [see Panel Opinion
at p. 5, ¶2]. In fact, the portion of the Opinion
relevant to this matter was actually enunciated by
this Court in U.S. Bank Nat’l Ass’n v. Ibanez, 458
Mas. 637, 649 (2011), which is precedent.
2 At the same time the Panel Affirms the Land Court

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states that its analysis at p. 649 was limited solely to

recorded land. In other matters involving potential

conflicts involving recorded and Registered Land, this

Court specifically has identified that issue, see Eaton

v. Fed. Nat’l Mortgage Ass’n, 462 Mass. 569, n. 28 (2012)

“It would appear that at least with respect to

unregistered land, a foreclosing mortgage holder such as
Green Tree may establish that it either held the note or
acted on behalf of the note holder at the time of a
foreclosure sale...”

The Court in Ibanez was indisputably silent at p.

649 regarding any different treatment involving the

transfer of (indefeasible fee) title [by mortgage

assignment] regarding Registered Land. 3

As stated by this Court in Bevilacqua v. Rodriguez

460 Mass. 762, 771, recordation cannot establish the

legal validity of the underlying document:

“...there is nothing magical in the act of recording an

instrument with the registry that invests an otherwise
meaningless document with legal effect. See S & H
Petroleum Corp. v. Register of Deeds for the County of
Bristol, 46 Mass. App. Ct. 535, 537 (1999) ("The
function of a registry of deeds is to record documents.
It is essentially a ministerial function . . .").
Recording may be necessary to place the world on notice

finding that protections for owners of recorded land

have superior rights to the unassailability of their
title that owners of Registered Land, which is clearly
in contravention of the legislative intent of G.L. c.
185, et. seq.
3 The reason for such silence is obvious. One cannot

transfer what one does not own, nemo dat quod non
habet, and mere recordation cannot alter this fact

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of certain transactions. See, e.g., G. L. c. 183, § 4
(leases and deed); G. L. c. 203, §§ 2-3 (trust
documents). Recording is not sufficient in and of
itself, however, to render an invalid document legally
significant. See Arnold v. Reed, 162 Mass. 438, 440
(1894); Nickerson v. Loud, 115 Mass. 94, 97-98 (1874)
("mere assertions . . . whether recorded or unrecorded,
do not constitute a cloud upon title, against which
equity will grant relief"). As a result, it is the
effectiveness of a document that is controlling rather
than its mere existence. See Bongaards v. Millen, 440
Mass. 10, 15 (2003) (where grantor lacks title "a mutual
intent to convey and receive title to the property is
beside the point"). The effectiveness of the quitclaim
deed to Bevilacqua thus turns, in part, on the validity
of his grantor's title. Accordingly, a single deed
considered without reference to its chain of title is
insufficient to show "record title" as required by G. L.
c. 240, § 1.”

Again, it is indisputable that this Court in

Bevilacqua made no observation or finding that

Registered Land would be treated any different than

recorded land with regard to recordation changing the

legal validity of any underlying void document.

3. G.L. c. 185, §67

Respectfully submitted, the Panel’s Opinion, like

the Land Court Judge’s Opinion that preceded it, reads

the legislative wording of this statute out of context.

G.L. c. 185, §67 states as follows:

“Section 67. The owner of registered land may mortgage

it by executing a mortgage deed. Such deed may be
assigned, extended, discharged, released in whole or
in part, or otherwise dealt with by the mortgagee by
any form of deed or instrument sufficient in law for
the purpose. But such mortgage deed, and all
instruments which assign, extend, discharge, and

21
 otherwise deal with the mortgage, shall be registered,
and shall take effect upon the title only from the
time of registration.”

Thus, the statute merely speaks to the ability of

the title to Registered Land to be freely alienable and

transferrable the same as recorded land, with the only

difference being that such underlying transfers for the

purposes of G.L. c. 185 shall be ‘effective’ upon

recording. 4 Therefore, Registered Land would also be

subject to the same defenses available to Carr as holder

of recorded land, but with even greater (not less)

scrutiny that the document must be recorded.

The Panel confuses the idea of the assignments

being “effective for purposes of G.L. c. 185” as opposed

to examining whether the underlying assignments were

“legally effective” in their own right prior to being

accepted for recordation upon the Petitioners’

Certificate of title.

The Panel also erred in “assuming” that at the

4 However, to be freely transferrable, as a condition

precedent, the underlying document would have to be
legally viable. Again, the examination as to whether a
document is legally valid is distinct from whether it is
“effective” under G.L. c. 185, §67, which requires
recordation. This is the precise purpose of G.L c. 185,
§114. Here, the face of the assignments clearly calls
into question the underlying legal validity of the
assignments

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time of recordation Option One was finally in possession

of Petitioners’ mortgage assignment. Nothing in the

record supports this finding as the sole document relied

upon was executed ten days prior to the date that Option

One Purportedly ever received such an assignment. There

was no further proffer made by Defendants to alter the

statements made upon the face of both assignments

Further, as this was a mere 12(b)(6) Motion, the

Petitioners respectfully query what part of their

allegations regarding the voidness of the assignments

are “speculative” or did not possess enough “heft” to

overcome the minimal Iannacchino pleading hurdle.

Moreover, where these issues are clearly apparent upon

the face of both assignments, the Panel erred in

dismissing Petitioners’ complaint.

4. Confusingly The Panel Found That Petitioners

“Lack Standing” To Challenge Because Petitioners
Did Not Claim That The Assignment Is Invalid on
Its Face Due To A Failure To Comply With
“Statutory Requirements”

The Plaintiffs’ clearly challenged the Land Court

Judge’s failure to consider the “statutory requirements”

of G.L. c. 185, §114. Regarding the notarial issue, at

P. 5 of the Panel’s Opinion, it “agreed” with the Land

Court Judge and found that Petitioners challenges to the

two assignments represented ‘latent defects’. These were

23
1) the notary attaching the acknowledgment on a separate

page and her failure to record any purported

acknowledgement in her notarial journal. The Panel

states that the above represents the “sole contention

that the assignments are void”. The Panel failed to

review the Land Court Guideline #1 regarding Registered

land as well as G.L. c. 183, §29. 5

Thus, the Panel erred in finding that the

Petitioners’ challenge to the notarial deficiency

represented a “voidable” challenge to the assignment,

because this is a deficiency that independently renders

the assignment “void”, see G.L. c. 183, §29.

The Panel also quotes Bank of New York Mellon v.

Wain, 85 Mass. App. Ct. 498, 503-504 (2014) for the

5 See Land Court Guidelines, Guideline #1

Acknowledgments: Requirements, “The following documents
must be acknowledged in order to be recorded: 1.) Deeds
(excepting conveyances from the United States) - see G.L.
Chapter 183 § 29. Included in this category, based on the
broad definition of deed are...assignments of mortgages”,
see also G.L. c. 183, §29; Necessity of acknowledgment
of deed; recordation Section 29. “No deed shall be
recorded unless a certificate of its acknowledgment or
of the proof of its due execution, made as hereinafter
provided, is endorsed upon or annexed to it, and such
certificate shall be recorded at length with the deed to
which it relates...”
5 Wain is inapposite, where there was no challenge related

to the acknowledgment of the assignment in Wain, but

merely a challenge based upon the signatory’s
“authority” to execute it.

24
proposition that a challenge regarding “latent defects”

would render the assignment “voidable” not void. Again,

this represented the Panel’s failure to review G.L. c.

183, §29. The Panel also failed to recognize that Wain

quoted Sullivan v. Kondaur Capital Corp., 85 Mass. App.

Ct. 202 (2014) [see Wain at p. 502] 6 7. Sullivan clearly

allows the challenge made by Petitioners regarding the

notarial defects associated with the failure to properly

acknowledge the documents, especially at the 12(b)(6)

stage [See Sullivan at pp. 211-213].

5. Sullivan v. Kondaur Involved Registered Land

Indeed, Sullivan, like the instant matter,

involved a Registered Title holder seeking to remove

legally invalid encumbrances that were improperly

accepted for recording by the Land Court under authority

of G.L. c. 185, §114, [see Sullivan 85 Mass. App. Ct. at

205-208] 8:

6 Wain is inapposite, where there was no challenge related

to the acknowledgment of the assignment in Wain, but
merely a challenge based upon the signatory’s
“authority” to execute it.
7
Here too, the Panel quotes out of context the findings
made in Wain, namely that this borrower challenged the
“authority of the signatory” to authorize those
assignments and therefore this would be only a “voidable
challenge”, but see Sullivan at p. 213.
8 The Sullivan Court also discusses that a borrower

challenge to the assignment that is void, does not seek

to “enforce the assignment” under any contract remedy,

25
 “...the Supreme Judicial Court has recognized "two
exceptions to the rule that holders of a certificate
of title take 'free from all encumbrances except those
noted on the certificate, "applicable in circumstances
where facts described on the certificate of title
would prompt a reasonable purchaser to investigate
further other certificates of title, documents, or
plans in the registration system, or if the purchaser
has actual knowledge of a prior unregistered interest.
Doyle v. Commonwealth, 444 Mass. 686 , 693 (2005). See
Jackson v. Knott, 418 Mass. 704 , 711 (1994). More
broadly, G. L. c. 185, § 114, authorizes any
"registered owner or other person in interest" to
bring a motion to correct a certificate of title upon
various grounds, including "that any error or omission
was made in entering a certificate or any memorandum
thereon," ..., the Supreme Judicial Court held that
the authority established under § 114 extended to
cancellation of an erroneously issued certificate of
title, where the error was apparent on the face of the
certificate...”

Thus, even where the assignments were recorded

upon the title to the Petitioners’ Certificate to

Registered Land, the Petitioners sought to use the

exception to the rule that holders of a certificate of

title take 'free from all encumbrances except those

noted on the certificate’, namely the exception found

under G.L. c. 185, §114.

6. The Panel’s Affirmance of The Land Court Decision

Requires That This Court Also Find That No
Exception Lies Under G.L. c. 185, §114, because of
G.L. c. 185, §67

Respectfully submitted, the finding by the Panel

but rather defends their title under purported

assignment of title to the property they formerly owned,
see Sullivan at pp. 205-206.

26
represents an error in the application of G.L. c. 185,

§67, which completely ignores the exception provided to

Petitioners’ under G.L. c. 185, §114. To find otherwise

completely ignores the legislative language and intent

of G.L. c. 185., §114. Further, such finding by the Panel

also abrogates this Court’s findings in Bevilacqua v.

Rodriguez, at p. 771, where the Court specifically

stated that recordation is for notice purposes only and

cannot establish the “legal validity” of the underlying

document(not effectiveness under G.L. c. 185). Prior to

being accepted for recordation, the Land Court was

required to examine the face of the instruments

recorded. These instruments clearly present plausible

issues on their face regarding the underlying legal

validity of the documents themselves such that mere

recordation cannot transform or cure their underlying

voidness merely because they were recorded. This was the

precise purpose, position, and plausible claim advanced

by Petitioners that clearly met this Court’s Iannacchino

requirement to survive the instant affirmance of the

Land Court 12(b)(6) dismissal.

7. Conclusion

For all the foregoing reasons, it is respectfully

requested that this Petition for Further Appellate Review

27
be Allowed.

Respectfully Submitted,
Petitioner,
by their Attorney

__________________
Glenn F. Russell, Jr.
BBO# 656914

Glenn F. Russell, Jr., &

Associates, P.C.
38 Rock Street, #12
Fall River, MA 02720
Phone: (508) 324-4545
Fax: (508) 938-0244
russ45esq@gmail.com

CERTIFICATE OF SERVICE

I, Glenn F. Russell, Jr., hereby certify that on

this 29th day of June 2020, I emailed a copy of the
preceding Application for Further Appellate Review by
way of courtesy copies from the Odyssey filing system
to the Defendants counsel of record listed below:
Christopher John Williamson
Houser & Allison, APC
77 Franklin St Suite 508
Boston, MA 02110

Dudley C. Goar
300 Baker Avenue
Ste 300
Concord, MA 0174

__________________

28
Glenn F. Russell, Jr.

29
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as
amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and,
therefore, may not fully address the facts of the case or the panel's decisional
rationale. Moreover, such decisions are not circulated to the entire court and,
therefore, represent only the views of the panel that decided the case. A summary
decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its
persuasive value but, because of the limitations noted above, not as binding precedent.
See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

19-P-264

ROBERT F. GUSTIN, JR., & another1

vs.

DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,2 & another.3

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this appeal, the plaintiffs, Robert F. Gustin, Jr. and

Elizabeth A. Doris Gustin (collectively, Gustins), challenge the

title of defendant Deutsche Bank National Trust Company, as

trustee for the Certificateholders of Soundview Home Loan Trust

2005-0PT4, Asset-Backed Certificates, Series 2005-OPT4,

(Deutsche Bank) to a mortgage secured by their property located

at 8 Walker Court in Dedham (property). They contend that

Deutsche Bank was not the holder of the mortgage at the time it

sought to foreclose on the property because two prior mortgage

assignments, one from H&R Block Mortgage Corporation (H&R Block)

to Option One Mortgage Corporation (Option One) and a second one

from Option One to Deutsche Bank, were void. A judge of the

1 Elizabeth A. Doris Gustin.

2 For the Certificateholders of Soundview Home Loan Trust 2005-
0PT4, Asset-Backed Certificates, Series 2005-OPT4.
3 Option One Mortgage Corporation.
Land Court found otherwise and dismissed the Gustins' petition

requesting expungement of both mortgage assignments from the

certificate of title. We affirm.

Background. We summarize the facts set forth in the

petition to amend the certificate of title, which we accept as

true.4 See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7

(2008). The property is registered land and was acquired by the

Gustins in 1987. In 2005, the Gustins granted a mortgage in the

amount of $287,000, to H&R Block. That mortgage was assigned

from H&R Block to Option One on January 23, 2007, and the

assignment was recorded at the Norfolk County Registry District

of the Land Court as Document 1122231 on February 9, 2007, at

11:36 A.M. The acknowledgement on the assignment was signed by

a California notary on a separate page prior to the recording.

The notary did not note the notarization in her notary journal.

Option One assigned the mortgage to Deutsche Bank on

January 11, 2007, approximately two weeks before it received the

assignment from H&R Block. Although the assignment from Option

One to Deutsche Bank was registered at the Norfolk County

Registry District of the Land Court on the same date and time as

the assignment from H&R Block to Option One, that is, on

4 We also accept as true the facts established by the exhibits

attached to the petition.

2
February 9, 2007, at 11:36 A.M., it was recorded just afterward

as Document 1122232.

The Gustins filed a petition requesting that both mortgage

assignments be expunged from their certificate of title,5

claiming that the assignment from H&R Block to Option One was

void because (1) the notary acknowledgement does not appear on

the same page as the assignment, and (2) the California notary

who notarized the document failed to note it in her notary

journal when she turned the journal in to the Orange County

Clerk-Recorder upon the expiration of her commission. They

contend that the assignment from Option One to Deutsche Bank was

void because, at the time of the assignment, Option One did not

hold the mortgage and had nothing to assign.

The defendants filed motions to dismiss pursuant to Mass.

R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), contending that

both assignments of the mortgage were legally effective and, as

a result, that Deutsche Bank was the holder of the mortgage. In

a well-reasoned memorandum of decision, the judge held that

because the land at issue is registered, the assignments were

not effective until the date of registration. See G. L. c. 185,

5 With their petition, the Gustins filed a motion for a

preliminary injunction to enjoin the foreclosure of their
interest in the property. The motion for a preliminary
injunction was denied.

3
§ 67.6 Thus, by the effective date of the assignment to Deutsche

Bank, Option One already held title via the assignment from H&R

Block. Accordingly, the judge held the assignment to Deutsche

Bank was valid.

As to the alleged problems with the notary acknowledgment,

the judge concluded that, at most, these purported defects could

render the assignment from H&R Block to Option One voidable, but

not void. Because a mortgagor has no standing to attack a

merely voidable assignment, the judge found those alleged

defects to be of no consequence.

Discussion. We review the allowance of a motion to dismiss

de novo. See Galiastro v. Mortgage Elec. Registration Sys., 467

Mass. 160, 164 (2014). In this case, however, we agree with the

judge's analysis in all respects. Even though Option One's

assignment to Deutsche Bank was executed prior to the date

Option One received an assignment from H&R Block, the assignment

from H&R Block to Option One was registered just prior to the

assignment from Option One to Deutsche Bank. Thus, as the judge

correctly observed, because the transfer of a mortgage on

registered land occurs at the time the document is recorded and

6 The statute states in relevant part that registered land may be

subject to a mortgage and a mortgage deed may be assigned, but
that "such mortgage deed, and all instruments which assign,
extend, discharge and otherwise deal with the mortgage, . . .
shall take effect upon the title only from the time of
registration." G. L. c. 185, § 67.

4
not at the time the document is executed, the assignment from

Option One to Deutsche Bank is valid.

Furthermore, like the judge below, we are not persuaded by

the Gustins' argument that Federal Nat'l Mtge. Ass'n v. Carr,

2012 Mass. App. Div. 223 (Dist. Ct. 2012), compels a different

outcome. Passing on the question whether we are bound by that

decision, the case is distinguishable, as the judge noted,

because it did not involve registered land.

We also agree with the judge's conclusion that the Gustins

lack standing to challenge the assignment from H&R Block to

Option One. The Gustins did not claim that the assignment is

invalid on its face due to a failure to comply with statutory

requirements. Their sole contention regarding its validity was

based on two latent defects, namely, the notary's attaching the

acknowledgement as a separate page and her failure to record the

acknowledgement in her notary journal. These errors render the

assignment at most voidable, but not void. See Bank of New York

Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 503-504 (2014)

(because assignment complied with applicable statute, homeowners

had no basis to argue that assignment was void; latent defects

rendered assignment potentially voidable). Thus, the Gustins

lack standing to challenge the assignment from H&R Block to

Option One. See id. at 502 ("a mortgagor's standing [is]

5
limited to claims that a defect in the assignment rendered it

void, not merely voidable").

Judgment affirmed.

By the Court (Vuono, Blake &

Singh, JJ.7),

Clerk

Entered: April 10, 2020.

7 The panelists are listed in order of seniority.

6
 Commonwealth of Massachusetts
Appeals Court for the Commonwealth

At Boston

In the case no. 19-P-264

ROBERT F. GUSTIN, JR., & another

vs.

DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee, & another.

Pending in the Land

Court

Ordered, that the following entry be made on the docket:

Judgment affirmed.

By the Court,

, Clerk
Date April 10, 2020.