APPELLANT BRIEF

THE COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

Docket No. _____________

 

DEUTSCHE BANK NATIONAL TRUST COMPANY,

Plaintiff-Appellee,

 

v.

 

PERSONA,

Defendant-Appellant.

 

a Review of a Judgment from the 

NorthEast Housing Court

 

APPELLANT  BRIEF

PERSONA,

ADDRESS

TABLE OF CONTENTS

 

TABLE OF AUTHORITIES

 

STATEMENT OF ISSUES PRESENTED

 

  1. ?
  2. ?
  3. ?

 

STATEMENT OF CASE

 

STATEMENT OF FACTS

 

SUMMARY OF ARGUMENT

 

ARGUMENT

 

CONCLUSION

 

ADDENDUM

 

CERTIFICATE OF COMPLIANCE (Rule 16)

 

CERTIFICATE OF SERVICE

 

TABLE OF AUTHORITIES

STATEMENT OF ISSUES

  • Whether Plaintiff-Appellee was the title-holder of the mortgage;
  • Whether the title-holder of a mortgage is required to produce the original note to prove ownership of title; and
  • Whether Ms. PERSONA’S legal representation of both parties constitutes conflict of interest.

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

The subject property was purchased at a foreclosure auction by PERSONAS. 

Unfortunately, PERSONA,died without a will and PERSONA’s name was not on the mortgage. 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. Therefore, the claim by Plaintiff-Appellee that it completed foreclosure of the property 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.

There was a conflict of interest that was not disclosed by the involved attorney during trial. Ms PERSONA,, Esq., State Bar No. _______, of the firm of , 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 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, 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 Ms. 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.

 

CONCLUSION

REASONS WHEREFORE, PREMISES CONSIDERED, Defendant-Appellant respectfully requests this Honorable Court to grant her the following reliefs:

  1. GRANT this Appeal;
  2. ISSUE an Order setting aside the order granting Plaintiff-Appellee’s Motion for Summary Judgment and all reliefs in that order;
  3. ISSUE a declaration that Defendant-Appellant is the rightful owner of the subject property;
  4. GRANT Defendant-Appellant costs of this Appeal;
  5. AWARD Defendant-Appellant such equitable relief as this Court deems fair; and
  6. AWARD Defendant-Appellant such further relief as this Court deems necessary and proper.

 

Respectfully submitted,

 

____________________ 

Grace Rungu, Appellant

46 Keene Street Lowell MA 01852

 

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).

 

____________________ 

PERSONA, Appellant

ADDRESS

 

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 

    PERSONA,   

ADDRESS

 

  

 

    

____________________ 

PERSONA

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