THE COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
Docket No. _______
PERSONA
Plaintiff-Appellee,
v.
PERSONA,
Defendant-Appellant.
a Review of a Judgment from the
Northeast Housing Court
APPELLANT BRIEF
PERSONA
ADDRESS
February 28, 2022
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT OF ISSUES PRESENTED
?
?
?
STATEMENT OF CASE
SUMMARY OF ARGUMENT
ARGUMENT
CONCLUSION
ADDENDUM
CERTIFICATE OF COMPLIANCE (Rule 16)
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Statutes
Rule 1.8(g) of the Rules of Professional Conduct …… 14
Case Law
Eaton v. Federal National Mortgage Association, 969 NE 2d 1118 (2012) ……………………………………………………………………………………………………………. 14
Culhane v. Aurora Loan Servs. Of Neb., 826 F. Supp. 2d 352, 367 (D. Mass. 2011) ……………………………………………………………………………. 14
STATEMENT OF ISSUES
Whether Plaintiff-Appellee was the titleholder of the mortgage;
Whether the titleholder of a mortgage is required to produce the original note to prove ownership of title; and
Whether PERSONA’s legal representation of both parties constitutes conflict of interest.
Loan never registered on Mortgage Electronic Registration System (MERS)
STATEMENT OF CASE
NOW COMES, PERSONA, Appellant in the above-titled matter, and files this Appellate Brief of the final judgment and order dated [DATE], and for cause shown in this Appellate Brief, requests this Honorable Court to reverse the final judgment and order dated [DATE].
Plaintiff-Appellee filed a Complaint against Defendant-Appellant for declaratory relief and quiet title.
On [DATE], the Northeast Housing Court issued a final judgment and order. Exhibit 1.
This Appeal has been filed to reverse the final judgment and order above.
STATEMENT OF FACTS
Plaintiff-Appellee claims that the original owners of the property in question____________were PERSONA who died 2004, and Persona who died March 2005. Personas grandfather, and they were both co-owners of the property.
Persona was Defendant-Appellant’s husband and when he died, Defendant-Appellant was the only living relative when the property was sold at an auction. The property was foreclosed on December 7th, 2005, by Persona without notifying Defendant-Appellant after she approached him to assist her on the probate case. Defendant-Appellant had a written note from my late husband saying that the house belonged to her.
Persona asked Defendant-Appellant for $5000 which she paid at his office. He promised to help her buy the property on 9th January 2006 at a foreclosure, but that never happened because Persona had already foreclosed on the property on Dec 5th, 2005, without notifying Defendant-Appellant. He had no power of attorney as there was no other living family member of age except her.
Pesona came to Defendant-Appellant’s house, and she was there at the house withPERSONA as my witnesses. The witnesses were never called though they witnessed everything that happened on that day. PERSONA asked Defendant-Appellant for a $48000 check written to his name which he handed to a woman who drove by in a car.PERSONAdeclined to give her the opportunity to read the mortgage documents as he said he needed to return to his office.
Defendant-Appellant has never met Cataudella Esq State Bar No. 553350 of the firm of Smolak & Vaughan. She has never acted on Defendant-Appellant’s behalf. Defendant-Appellant had paid James Harrington.
As the case was going on, the Deutsche Bank offered to pay Defendant-Appellant $60,000 to entice her to conclude litigation.
The property in this case is multi-family ______________ The address _________was included in the sale.
There was no registration of this loan on MERS.
Defendant-Appellant paid 3 trial payments of $1576 to American Servicing Company to modify her loan and after paying as scheduled, her mortgage was transferred to a new servicer, SLC. MERS did not give power of attorney to Countrywide when they sold without notifying Defendant-Appellant while she was the sole survivor living at the property address. 44 Keene Street was recently locked down i.e., the lock was changed by a Deutsche representative called Paul Ratha telling me to call the Police and became belligerent and abusive saying niggers are not allowed to own a home, and reiterated that he was a City Councilor.
No records of the mortgage
The bank claims Defendant-Appellant bought the property with Reynold D’Arezzo and Norman Emond. It is illogical for the bank to state that two dead men purchased the property. The home was built by Defendant-Appellant’s husband’s great grandfather in 1860 so there was no none of the foreclosures were done properly
Defendant-Appellant hired and paid James Harrington to advise me after her husband died leaving a handwritten note to her to take over his house. James Harrington told Defendant-Appellant the only way to get the house is to let it go to foreclosure. He gave her an appointment to help her. On that day he was at his office with Chris who was supposed to be a realtor. They looked at the required bank statement. Defendant-Appellant had $69000 in my account, enough to clear what her husband owed as mortgage arrears, but Harrington said no, the only way was to let the property get foreclosed, and he would help her buy it at the auction. He asked Defendant-Appellant to write a $5000 check to be able to buy it at the auction on 9th January 2006. He promised to help me to make sure she bought the property and he would come to her house on January 9th. He came but there was no auction. He kept walking in and out of the house then finally he asked Defendant-Appellant to write a $48000 check and follow him outside. There was a car with 3 occupants, and he handed them Defendant-Appellant’s check and they gave Harrington a bunch of papers. Harrington asked Defendant-Appellant to go back inside the house and asked her to sign the papers. Defendant-Appellant asked permission to read he said “No, I have a lot of work at the office. You can read later when I send them to you.” Defendant-Appellant signed. She trusted him and paid him for his services. Defendant-Appellant didn’t know he was working for Aegis/Countrywide until later. She asked as he was leaving how much the mortgage payment would be and he said $1450. He did not tell Defendant-Appellant it was subprime. Defendant-Appellant had not given him power of attorney after she learned he had auctioned the property on 7th December 2005. Defendant-Appellant have tried almost 100 times to modify her mortgage, but she could not. The property was an underwater mortgage. It was overpriced compared with other similar homes which were valued at $180000 while hers was sold to her for $248000. Even after Defendant-Appellant’s $53000 down payment, the new mortgage was $210000. That figure is what Defendant-Appellant owes today. She never saw the payments over the years, they still gave her a subprime mortgage that reset at $2377 per month. Unaffordable
Specialized loan servicing company – who said they had no record of my 3 trial payments.
Defendant-Appellant’s congress woman invited all troubled homeowners to the Doubletree Hotel. She also invited all banks to help troubled homeowners. Wells Fargo who owned the servicer American Servicing Company denied they had my mortgage account at all. Who would Defendant-Appellant continue paying when she did not even know which bank had my mortgage? Even after paying my 3 trial payments, the servicer also declined to help Defendant-Appellant, and she was denied a loan modification.
Deutsche Bank has also continuously declined to show Defendant-Appellant the note even after asking for it many times. How was the memorandum of sale signed by people who had died? James Harrington prepared the papers and brought them after the property was auctioned about a month earlier. It was all fraud. There is no statute of limitations for mortgages. Even after Defendant-Appellant’s congresswoman Niki Tsongas arranged a meeting with different banks, Wells Fargo did not have my account although I was paying them top dollar every month. They owned American Servicing Company.
The property was auctioned off and was purchased by Defendant-Appellant.
She paid money for the house, but Plaintiff-Appellee still gave her a subprime mortgage.
Plaintiff-Appellee later claimed that it had foreclosed the property when it had not. When the auctioneer came on the day of the purported foreclosure, he was blocked from entering the property by more than 22 demonstrators August22 2018. Therefore, the claim by Plaintiff-Appellee that it completed foreclosure of the property by entry is false.
There have been a lot of irregularities regarding the alleged mortgage by Plaintiff-Appellee. For instance, it is required to produce the original note of the mortgage upon request. However, as at the filing of this Appellate Brief, Plaintiff-Appellee had not produced the original note of the alleged mortgage despite multiple requests. They refused an appointed expert to examine the note after she fell sick on appointment day.
There was a conflict of interest that was not disclosed by the involved attorney during trial. Persona Esq., State Bar No. 553350, of the firm of Smolak & Vaughan, LLP, acted as legal counsel for Plaintiff-Appellee. She failed to disclose that she had also acted as legal counsel on behalf of Defendant-Appellant in the past.
SUMMARY OF ARGUMENT
Defendant-Appellant contends that Plaintiff-Appellee does not own the mortgage loan on the subject property as it cannot produce the original note. Therefore, Plaintiff-Appellee cannot recover damages and costs.
Defendant-Appellant contends that there was fraudulent transfer of the subject property.
Defendant-Appellant also contends that there was conflict of interest when Ms.Persona represented Plaintiff-Appellee during the course of the trial, knowing very well that she had represented Defendant-Appellant earlier.
ARGUMENT
“In order to foreclose under Massachusetts law, the mortgagee must possess the legal title to the mortgage and either hold the note or establish that it is servicing the loan on behalf of the note holder.” Eaton v. Federal National Mortgage Association, 969 NE 2d 1118 (2012), citing Culhane v. Aurora Loan Servs. Of Neb., 826 F. Supp. 2d 352, 367 (D. Mass. 2011).
Plaintiff-Appellee failed to produce a valid original note that transferred title of the mortgage to it. It failed to establish that it held the note or that it was servicing the loan on behalf of the note holder.
Defendant-Appellant reiterates that the mortgage does not exist because she bought the property at an auction.
The trial court erred by stating that Plaintiff-Appellee held the mortgage when it had not produced the original note or provided proof that it was servicing the loan.
Rule 1.8(g) of the Rules of Professional Conduct states as follows: “A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and the participation of each person in the settlement.”
There was conflict of interest in Persona’s representation of Plaintiff-Appellee after representing Defendant-Appellant prior.
Defendant-Appellant contends that the above-named attorney used information she had about her to help the case of Plaintiff-Appellee. Her actions were contrary to Rule 1.8(g) of the Rules of Professional Conduct.
All Judge said was that this case is too old. Blocked all my 13 observers and the case that had been in court for 10 years was concluded in 10 minutes and he did not even read the case. He said so earlier…He should have looked into how MERS could mortgage the property to Deutsche bank .No legislation of this loan on MERS system… because the condition precedent to this loan not being registered the mortgage assignment is no good. That is the reason I Wells Fargo did not have my account and no bank could modify my mortgage after paying 5 appraisals $500 each at different banks.
CONCLUSION
REASONS WHEREFORE, PREMISES CONSIDERED, Defendant-Appellant respectfully requests this Honorable Court to grant her the following reliefs:
GRANT this Appeal;
ISSUE an Order setting aside the order granting Plaintiff-Appellee’s Motion for Summary Judgment and all reliefs in that order;
ISSUE a declaration that Defendant-Appellant is the rightful owner of the subject property;
GRANT Defendant-Appellant costs of this Appeal;
AWARD Defendant-Appellant such equitable relief as this Court deems fair; and
AWARD Defendant-Appellant such further relief as this Court deems necessary and proper.
Respectfully submitted,
____________________
Grace Rungu, Appellant
ADDRESS
DATE: February 20th, 2022
———————————————— ADDENDUM
——————————————-
ADDENDUM TABLE OF CONTENTS
Laws
Massachusetts Constitution Article XI
Chapter 89 of the Acts of 1825
Chapter 104 of the Acts of 1836
Chapter 237 of the Acts of 1879
Chapter 239 of the Acts of 1882
Chapter 181 of the acts of 1902
MGL Chapter
MGL Chapter
MGL Chapter
MGL Chapter
MGL Chapter
MGL Chapter 261, §§ 27A-27G
Rules
Mass Rules of Appellate Procedure Rule 6
Mass Rules of Appellate Procedure Rule 16
Administrative Regulation No. 1-17; Best Practices in the Housing Court Department
RULE 16(k) STATEMENT
I hereby certify that the foregoing Appellate Brief complies, to the best of my knowledge and belief, with the rules of Court pertaining to the filing of appellate briefs, including those specified in Mass. R. App. P 16(k).
____________________
Grace Rungu, Appellant
46 Keene Street
Lowell, MA 01852
DATE: FEBRUARY 20th, 2022
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished on February 20, 2022
US Mail upon the following:
PLAINTIFF/APPELLEE
Jeffrey B. Loeb, Esquire
℅ Rich May, P.C.
176 Federal Street 6th Floor
Boston, MA 02110
Kevin Polansky, Esquire
Christine Kingston, Esquire
Lyndsey Stults, Esquire
℅ Nelson Mullins Riley & Scarborough LLP
One Financial Center 35th Floor
Boston, MA 02111
____________________
Grace Rungu
46 Keene Street
Lowell, MA 01852
NOW COMES, Grace Rungu, Appellant in the above-titled matter
STATEMENT OF FACTS
SUMMARY OF ARGUMENT
ARGUMENT
CONCLUSION
Respectfully submitted,
____________________
Grace Rungu, Appellant
6 Rose Lane
Oxford, MA 01540
DATE: July 9, 2019
———————————————— ADDENDUM
——————————————-
ADDENDUM TABLE OF CONTENTS
Laws
Massachusetts Constitution Article XI
Chapter 89 of the Acts of 1825
Chapter 104 of the Acts of 1836
Chapter 237 of the Acts of 1879
Chapter 239 of the Acts of 1882
Chapter 181 of the acts of 1902
MGL Chapter
MGL Chapter
MGL Chapter
MGL Chapter
MGL Chapter
MGL Chapter 261, §§ 27A-27G
Rules
Mass Rules of Appellate Procedure Rule 6
Mass Rules of Appellate Procedure Rule 16
Administrative Regulation No. 1-17; Best Practices in the Housing Court Department
RULE 16(k) STATEMENT
I hereby certify that the foregoing Appellate Brief complies, to the best of my knowledge and belief, with the rules of Court pertaining to the filing of appellate briefs, including those specified in Mass. R. App. P 16(k).
____________________
Grace Rungu, Appellant
6 Rose Lane
Oxford, MA 01540
DATE: July 9, 2019
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished on July 9, 2019 by US Mail upon the following:
PLAINTIFF/APPELLEE
Jeffrey B. Loeb, Esquire
℅ Rich May, P.C.
176 Federal Street 6th Floor
Boston, MA 02110
Kevin Polansky, Esquire
Christine Kingston, Esquire
Lyndsey Stults, Esquire
℅ Nelson Mullins Riley & Scarborough LLP
One Financial Center 35th Floor
Boston, MA 02111
____________________
Grace Rungu