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Gustin FAR Final 06-29-2020 As Accepted
Gustin FAR Final 06-29-2020 As Accepted
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT DOCKET
NO. FAR-27062
vs.
1
TABLE OF CONTENTS
2) SUMMARY STATEMENT 8
2
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
3
TABLE OF AUTHORITIES
STATE CASES
Bevilacqua v. Rodriguez,
460 Mass. App. Ct. 762 (2011).........17,21,22,27
4
1) Request for Leave to Obtain Further Appellate
Review
5
California notary on a separate page prior to the
on the same date and time as the assignment from H&R Block
1122232.
from H&R Block to Option One was void because (1) the
6
Deutsche Bank was void because, at the time of the
7
establish the legal validity of the document recorded.
12(b)(6) Motion.
2) Summary Statement
8
Petitioners advanced plausible claims for relief
mortgage by assignment.
finding.
9
with the only difference that unlike recorded land there
10
“memorialization” can not change this unalterable fact.
11
107]. Thereafter two documents purporting to be
12
G.L. c. 185, §114, which were required to be accepted as
relief.
v. Carr, 2012 Mass. App. Div. 223 (Dist. Ct. 2012). The
13
the improper recordation of documents upon the title to
entitlement to relief.
14
become suddenly viable. At a minimum, Plaintiffs clearly
15
Bankruptcy Code, and subsequently on November 27, 2017
16
Respectfully submitted, the Panel erred in the
G.L. c. 185, §101, and G.L. c. 185, §102. The Panel also
Supreme Court
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)
18
notarization in her notary journal. And 3) Option One
this matter.
Carr, 2012 Mass. App. Div. 223 (Dist. Ct. 2012), that
19
states that its analysis at p. 649 was limited solely to
transfer what one does not own, nemo dat quod non
habet, and mere recordation cannot alter this fact
20
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.”
21
otherwise deal with the mortgage, shall be registered,
and shall take effect upon the title only from the
time of registration.”
Certificate of title.
22
time of recordation Option One was finally in possession
upon was executed ten days prior to the date that Option
23
1) the notary attaching the acknowledgment on a separate
24
proposition that a challenge regarding “latent defects”
205-208] 8:
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...”
26
represents an error in the application of G.L. c. 185,
7. Conclusion
27
be Allowed.
Respectfully Submitted,
Petitioner,
by their Attorney
__________________
Glenn F. Russell, Jr.
BBO# 656914
CERTIFICATE OF SERVICE
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
vs.
Deutsche Bank was not the holder of the mortgage at the time it
true.4 See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7
from H&R Block to Option One on January 23, 2007, and the
The notary did not note the notarization in her notary journal.
Registry District of the Land Court on the same date and time as
2
February 9, 2007, at 11:36 A.M., it was recorded just afterward
as Document 1122232.
claiming that the assignment from H&R Block to Option One was
the same page as the assignment, and (2) the California notary
contend that the assignment from Option One to Deutsche Bank was
void because, at the time of the assignment, Option One did not
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
render the assignment from H&R Block to Option One voidable, but
defects to be of no consequence.
Mass. 160, 164 (2014). In this case, however, we agree with the
from H&R Block to Option One was registered just prior to the
4
not at the time the document is executed, the assignment from
2012 Mass. App. Div. 223 (Dist. Ct. 2012), compels a different
Option One. The Gustins did not claim that the assignment is
assignment at most voidable, but not void. See Bank of New York
5
limited to claims that a defect in the assignment rendered it
Judgment affirmed.
Clerk
6
Commonwealth of Massachusetts
Appeals Court for the Commonwealth
At Boston
vs.
Court
Judgment affirmed.
By the Court,
, Clerk
Date April 10, 2020.