COMMONWEALTH OF MASSACHUSETTS

HAMPDEN, SS. LAND COURT DEPARTMENT

CA. NO.: 18 MISC 000327
_________________________________________
)
MARK A. LARACE )
TAMMY L. LARACE )
)
Plaintiffs )
PLAINTIFFS’
vs. )
SUPPLEMENTAL
)
MEMORANDUM IN
WELLS FARGO BANK, N.A., AS TRUSTEE )
RESPONSE TO DEFENDANTS
FOR ABFC 2005-OPT1 TRUST, ABFC ASSET- )
MOTION FOR LEAVE TO
BACKED CERTIFICATES , SERIES 2005-OPT1 )
EXPAND THE SUMMARY
AND THE CERTIFICATEHOLDERS THEREOF, )
JUDGMENT RECORD
)
Defendant )
__________________________________________ )

INTRODUCTION

Pursuant to this Court’s Order during the April 30, 2019 hearing on Defendants’ Motion

for Summary Judgment, Plaintiffs herein respond to the exceeding late proffer of a purported

“mortgage loan schedule” by the moving party under the instant R. 56 proceeding.

BACKGROUND AND TRAVEL

On January 14, 2019, Defendants made the subjective determination that their record was

complete and that no material facts remained in dispute, specifically based thereon. Therefore, on

February 14, 2019, Plaintiffs submitted their Opposition to the Defendants’ record that existed at

that time. Further, where the record supported a judgment of law in their favor, again based upon

the record at that time, Plaintiffs specifically defended the instant R. 56 Motion, as the non-movant

under the last sentence of R. 56(c). In Plaintiffs’ Opposition, they specifically identified [and

alerted] Defendants of their failure to have complied with Land Court Rule 4, [see Plaintiffs’

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Concise Statement of Material Facts, at p. 1]. 1 Further, in Plaintiffs’ February 14, 2019 Opposition,

they clearly identified that the Defendants failed to produce the Mortgage Loan Schedule that they

“depended upon”, see Concise Statement of Material Facts [identifying failure to comply with

Land Court Rule 4], where Plaintiffs specifically identified the necessity of Defendants to produce

the mortgage loan schedule, see at #14, #15. Thus, Defendants cannot credibly dispute that they

were in actual possession of this knowledge on or about February 15, 2019. Defendants, in their

responses to discovery, stated that they “would produce” certain requested documents. Defendants

never made such proffers, and thereafter intentionally moved forward with their January 14, 2019

Motion, where they had scienter that they had not produced these requested documents.

In Plaintiffs’ Opposition at pp. 10-12, they described the foundational basis for the

necessity of these “certain documents”, as well as citing to the relevant portions of the Defendants

[then] Record in support of their argument. Indeed, on p. 10 at n. 6 of their Opposition, Plaintiffs’

anticipated the apparent “trial by ambush” that is being attempted to be foisted upon them

“6. Should the Defendants suddenly produce these documents to the Court
Plaintiffs would object under R. 56, and G.L. c. 233, ¶78, where Plaintiffs would
be given no time to have reviewed for legal sufficiency of the same, and oppose the
evidentiary sufficiency of such proffer to be admitted at trial, as is their right
regarding claimed ‘business records” proffered to prove the truth of the matter
asserted.”

Only on April 16, 2019, did undersigned receive an email from Opposing counsel

(O’Donnell) stating that Defendants counsel “was preparing a concise statement of material facts”

as it had been “inadvertently omitted” from “its package”. Opposing counsel requested whether

undersigned would assent such late filing, to which undersigned responded that he could not do so

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At the April 30, 2019 hearing, this Court made finding that it denied Plaintiffs’ Motion to Strike
on this basis, and further accepted the Defendants argument that “no new evidence” was
presented. Again, Plaintiffs’ submit no cross Motion for Summary Judgment, the burden remains
with Defendants to produce a record that removes any disputed material fact.

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as his allegiance was to his client. As stated in Plaintiffs’ Motion to Strike, one would be hard

pressed to state that the deficient R. 56 filings made by Defendants were “inadvertent omissions”.

The preceding is especially true, where Defendants were in possession of scienter of such

deficiency(s) in excess of two months. All the while, Defendants let the record remain as it was

filed on January 14, 2019, and February 15, 2019. Defendants then waited until almost the last

possible date under Land Court Rule 4 to file a Reply Brief, to Notify undersigned of its

“inadvertent error”. 2 Defendants filed these document by in hand delivery to the Court on April

19, 2019, but did not provide any electronic copy of the same to undersigned on this date. Instead,

Defendants’ placed these documents in the USPS ahead of the upcoming Holiday, with the result

that undersigned was not in possession of the same until April 22, 2019.

Plaintiffs were then required to respond to twenty-nine purported issues of fact.

Additionally, relying upon Land Court Rule 4, Plaintiffs thereafter were also pressed to file a

Motion to Strike these deficient pleadings now relied upon by Defendants,

“Affidavits and other materials in support of the reply which, in the opinion of the court,
are not responsive to the opposition or cross motion, may be stricken.”
Land Court, Rule 4

A. Defendants Filed “Supplemental Responses to Discovery” One Month After

Plaintiffs’ Filed Their Opposition

Again, based upon the Defendants filing of its Motion on January 14, 2019, Plaintiffs

defended the instant Motion under review by authority of MRCP, R. 56(c). Only on or about March

14, 2019, did the Defendants produce the documents it also attempts to introduce into the record;

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“Reply briefs, affidavits and other materials in support of the reply (if any) must be served on
the parties and filed with the court no later than ten (10) days prior to the date the court first set
for hearing; any rescheduling of the hearing date shall not change this deadline. Affidavits and
other materials in support of the reply which, in the opinion of the court, are not responsive to the
opposition or cross motion, may be stricken.” Land Court Rule 4

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1) Supplemental Response to Interrogatories, 2) Supplemental Responses to Admissions, and 3)

Supplemental document production.

Again, Defendant made the conscious decision to move forward under R. 56 with its

previous record. However, apparently in the face of Plaintiffs’ Opposition, Defendants

subjectively then decided to “move the goal posts” by unilaterally expanding the record upon

summary judgment to address deficiencies identified by Plaintiffs within the record. At the same

time, by strategically waiting until the last second to make these purported “additions” to the

record, leaves the Plaintiffs having to scramble to present Opposition by their counsel having to

drop all other matters just to timely respond. Indeed, had such purported “expansion” have been

requested timely [i.e. on or before February 14, 2019], undersigned would have had the time to

present a cross motion under R. 56, with an accompanying R. 56(f) Motion identifying the failure

to bring such Motion where Defendant had not turned over all discovery. However, where such

“requests/filings” by Defendants come at the last possible second, it conveniently precludes the

Plaintiffs from presenting any cross Motion under R. 56, as they rely [and continue to rely] upon

MRCP., R. 56(c) as non-movants.

1. Defendants Not Only Seek Addition of The Redacted [Purported] Loan Schedule,
They Also Rely Upon Reference To The Same Within Their Purported
“Supplemental Responses” To Plaintiffs’ Discovery That Defendants Also Seek
To Add To The Record

Indeed, the Defendants now seek to belatedly add the purported “loan schedule” to the

instant record.

At. page 11 of their Opposition, Plaintiffs provided authority from the SJC in U.S. Bank

v. Ibanez, 458 Mass. 637, 649, 651, that the reliance upon the PSA would require a two-step

proffer 1) that the mortgage loan schedule clearly identify the LaRace family, and property

address of 6 Brookburn Street; and 2) even if it satisfied prong 1, there must be proof that the

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assignment was made by a party that itself held the mortgage, [citing In re Samuels, 415 B.R. 8,

20 (Bankr. D. Mass. 2009)]. In addition, the SJC never reviewed the Defendants’ claims

regarding their note, see Eaton v. Fed Nat’l Mortgage Ass’n., 462 Mass. 569, n. 24

“…. In Ibanez, we addressed only the issue whether the plaintiff banks, or any party in a
similar position, could validly foreclose on a mortgage through exercise of a power of
sale if they did not hold the mortgage at the time they provided the statutorily
prescribed notice of sale to the mortgagors and other interested parties. Id. at 649-651.
We did not address the authority of a party possessing the mortgage alone, without the
mortgage note, to foreclose. Nor did we do so in Bevilacqua v. Rodriguez, 460 Mass.
762, 776 n.10 (2011).”

a) Plaintiffs’ Object To The Proffer of The Addition of The Purported “Loan

Schedule” On An Evidentiary Basis, As This Document Would Not Be
Admissible At Trial Where No Foundation Has Been Established For Its
Purported Authenticity

Defendants merely belatedly submit a severely redacted document purporting to be a “loan

schedule”, with no reference as to any Affidavit asserting to such authenticity. Further, Plaintiffs

are without current knowledge as to precisely where this document was developed, its current

location, chain of custody, or indeed what context it appears in any larger document. Again,

Plaintiffs seek to strike this proffer as inadmissible hearsay. Again, Defendants intentionally

ignored Plaintiffs requests for a proffer of a “loan schedule”, repeatedly stating that it is

“irrelevant”, but at the same time also stating that it “would produce it”.

Rule 56 is clear, in that; “there shall be no trial by Affidavit”. However, here, Defendants

somehow feel entitled to eschew the rules of evidence and procedure under R. 56, through

submission of an untethered purported document with no “vehicle” that supplies any evidentiary

foundation for its validity. Defendants also continue to have failed to comply with the second

prong of the SJC analysis where purporting to rely upon a “PSA” to have transferred the

mortgage/mortgage loan to the Defendant Trustee.

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 B. Defendants Seek To Include Supplemental Responses to Plaintiffs Admissions,
Interrogatories, and Document Production That Now Incorporate And Reference
The Loan Schedule

Defendants submitted supplemental responses to Plaintiffs request for discovery

approximately one month after Plaintiffs had submitted their Opposition. Such responses now

specifically rely upon reference to Wells Fargo Bates enumerated document production of WF-

000088-WF000513. Such page range refers to “the PSA”. In its supplemental proffers, Defendants

now seek to infer the PSA as being inclusive of WF-000088-WF000525, where the eight additional

bates enumerated pages encompass the purported and severely redacted “loan schedule”. Nothing

in the record, or any provided legal foundation, would support that these unattached redacted

documents have any bearing to the PSA Defendants rely upon. Again, Defendant seeks to

circumvent the rules of evidence. Plaintiffs again state that these redacted documents should be

stricken.

C. In The Alternative The Purported “Loan Schedule” Also Does Not Comply With The
SJC Pronouncement Where Defendants Admit That They Solely Rely Upon An
Earlier March 26, 2005 “Effective Assignment” Under The PSA

Unlike Defendants desperate attempt to ignore the findings made by the SJC in Ibanez, like

their previous action, they continue to rely upon the PSA to have purportedly transferred/assigned

the Plaintiffs’ mortgage/mortgage loan to the Defendant Trustee. Indeed, Plaintiffs’ propounded

direct and specific questions as to the recorded “assignments” on the Hampden County Registry

of Deeds, and whether those documents were contemporaneous with the actual dates of the

purported assignment of Plaintiffs Mortgage. In their original responses to Plaintiffs requests for

Admissions, Defendant answered in the negative, specifically referencing a date certain of March

26, 2005 that Plaintiffs’ mortgage “was effectively transferred under the PSA”. In other words,

given Defendants Admissions, they continue to attempt to backdate the recorded assignment

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through unsupported reliance upon a purported “earlier transfer” of Plaintiffs’ mortgage. Here,

unlike in Ibanez, Defendants do not specifically seek to “backdate” the assignment to circumvent

the deficiency of receipt after the auction sale but have clearly stated that the recorded assignments

were not contemporaneous with any transfer, and therefore would be “confirmatory”.

Plaintiffs have identified that the March 26, 2005 “earlier assignment” was “made in blank,

[i.e. to no named assignee, see Affidavit of Glenn F. Russell, Jr., at Exhibit E]. Defendants have

failed to rebut this proffer and it stands as support for their argument that no lawful assignment

took place on March 26, 2005. Additionally, as stated in Plaintiffs’ Opposition, they rely upon

clear authority of the SJC [where Defendants continue to claim superior title through a validly

completed foreclosure sale]

“Where there is no prior valid assignment, a subsequent assignment by the mortgage

holder to the note holder is not a confirmatory assignment because there is no earlier
written assignment to confirm. In this case, based on the record before the judge, the
plaintiffs failed to prove that they obtained valid written assignments of the Ibanez
and LaRace mortgages before their foreclosures, so the post-foreclosure assignments
were not confirmatory of earlier valid assignments.” Ibanez, at p. 654

Again, as the movant, it was Defendants’ burden to remove all disputed factual issues

relative to the precise legal foundational basis that would support Defendants’ claim that it relied

upon a legally viable assignment to execute the power of sale within Plaintiffs; mortgage contract,

that was in place prior to the first publication of notice under G.L. c. 244, §14.

Thus, Defendant would have either had to establish that there was an earlier March 26,

2005 assignment that was legally effective, or provide a mortgage loan schedule that clearly

identifies the Plaintiffs and their property, as well as provide proof that the entity assigning the

Plaintiffs’ mortgage under the PSA [ABFC (“Depositor”)] actually owned the Plaintiffs’ Mortgage

/ Mortgage loan, or both.

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 Plaintiffs fail to see the mystery in such clear pronouncement by the SJC, where Defendants

admit that 1) they admit that they rely upon the PSA, and 2) admit that the recorded purported

2008 and 2012 assignments were not contemporaneous with the purported actual transfer of

Plaintiffs’ mortgage / mortgage loan. Further, Plaintiffs have attached that March 26, 2005

document at Exhibit E to their Affidavit in Support of their Opposition that is unquestionably part

of the instant R. 56 record. In fact, Defendants also admitted that the purported assignment to the

Defendant Trustee was made “in blank”; thus, Defendants previously attempted to rely upon this

very same “blank March 26, 2005 assignment” in Ibanez, see Ibanez, 458 Mass 643

“The LaRace mortgage. On May 19, 2005, Mark and Tammy LaRace gave a mortgage
for the property at 6 Brookburn Street in Springfield to Option One as security for a
$103,200 loan; the mortgage was recorded that same day. On May 26, 2005, Option One
executed an assignment of this mortgage in blank.”

See also Ibanez at p. 652

“First, the plaintiffs initially contended that the assignments in blank executed by Option
One, identifying the assignor but not the assignee, not only "evidence[] and confirm[] the
assignments that occurred by virtue of the securitization agreements," but "are effective
assignments in their own right." But in their reply briefs they conceded that the
assignments in blank did not constitute a lawful assignment of the mortgages. Their
concession is appropriate. We have long held that a conveyance of real property, such as
a mortgage, that does not name the assignee conveys nothing and is void; we do not
regard an assignment of land in blank as giving legal title in land to the bearer of the
assignment. See Flavin v. Morrissey, 327 Mass. 217, 219 (1951); Macurda v. Fuller, 225
Mass. 341, 344 (1916). See also G. L. c. 183, § 3.”

Thus, these same Defendants previously conceded that an assignment in blank does not

constitute a lawful assignment, and therefore is void. Yet, the same Defendant Trustee

continues to rely upon the same earlier March 26, 2005 purported ‘effective transfer’ of

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Plaintiffs’ Mortgage / mortgage loan. A non-lawful assignment cannot be confirmed through

the 2008 or 2012 recoded assignments. 3

Compare, Defendants responses to Plaintiffs’ requests for Admissions:

REQUEST NO. 3: The original assignment of Plaintiffs' Mortgage was dated March
26, 2005, made in Blank, i.e. that it did not name any recipient assignor.

OBJECTION: Wells Fargo as Trustee objects to this Request on the grounds that it is
not relevant to the subject matter involved in the pending action. Subject to and without waiving
the general and specific objections, to the extent a response is required, Wells Fargo as Trustee
responds as follows:

RESPONSE: Denied in the form stated.

Plaintiffs Affidavit of Glenn F. Russell, Jr. In Support at Exhibit I, Bates LRCE-0152

REQUEST NO. 24: The original assignment of Plaintiffs' Mortgage

was dated April 18, 2007.

RESPONSE: Denied.

REQUEST NO. 25: The original assignment of Plaintiffs' Mortgage

was dated May 07, 2008.

RESPONSE: Denied.

REQUEST NO. 26: The original assignment of Plaintiffs' Mortgage

was dated March 07,2012.

RESPONSE: Denied.

REQUEST NO. 27: The original assignment of Plaintiffs' Mortgage

was dated October 31,2005.

RESPONSE: Denied

Plaintiffs Affidavit of Glenn F. Russell, Jr. In Support at Exhibit I, Bates LRCE-0161

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In addition, responses made by Defendant(s) in answers to Plaintiffs discovery questions were
made under pains and penalties of perjury, where the record would seem to bear out the fact that
Defendants responses were evasive as well as that they would also appear to not accurately state
the facts of this matter.