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Summarizing by Bradley Pearce

Wendy Adelson v. Ocwen Loan Servicing, LLC

Summarizing by Amir Shachmurove

Porst v. Deutsche Bank National Trust Company

B.A.P. No. MW 12-080 (B.A.P. 1st Cir. November 20, 2013) (NOT FOR PUBLICATION)
The B.A.P. AFFIRMED the bankruptcy court's dismissal of the Debtor's complaint, determining the bankruptcy court did not err in finding a trust's assignment of real property to the Debtor was effective, and rejecting the Debtor’s arguments to the contrary while granting the Appellees' motions to dismiss and denying the Debtor’s request summary judgment. In considering whether the Mother breached her fiduciary duty in selling the real property from the trust to the Debtor for $1.00, the B.A.P. held that at the time of the transfer, the Mother was trustee and beneficiary and owed no fiduciary duty to contingent beneficiaries whose interests had not yet vested, therefore, there was no breach of fiduciary duty upon the transfer of real property to the Debtor. The B.A.P. similarly held that the assignment of the mortgage was valid and the Debtor’s reliance on Eaton v. Fed. Nat’l Mortg. Ass’n, 969 N.E.2d 118, 1130–31 (Mass. 2012) (for the proposition that a mortgagee could exercise sale power only if holding a mortgage and note) was misplaced. Finally, the B.A.P. repeated the bankruptcy court’s grounds that there was no negligent infliction of emotional distress because it already ruled the basis of this claim invalid.
Procedural context:
Deutsche Bank filed a proof of claim asserting it was secured by the real property, prompting the Debtor to file a complaint against Deutsche Bank and others (the “Appellees”) seeking, inter alia, (1) a determination under 506(d) that Deutsche Bank was not secured on account of the alleged invalidity of the transfer of real property from the trust to the Debtor based on the Mother’s lack of authority to transfer title, thereby voiding the mortgage as the Debtor was not the owner of the property; (2) relief under the Massachusetts Consumer Protection and Fair Debt Collection Acts because certain Appellees should have know the Debtor could not grant the mortgage and the assignment was invalid; and (3) relief for negligent infliction of emotional distress due to certain Appellees collection and foreclosure efforts. The Appellees moves to dismiss and the debtor filed opposition and moved for partial summary judgment.
The Debtor’s mother (the “Mother”) created a trust in which she was the grantor, trustee, and sole lifetime beneficiary. Upon her death, the trust granted the Debtor a life estate in trust property (including a parcel of real property). The Mother executed an invalid trust revocation and executed a deed transferring the real property the Debtor for $1.00, after which, the Mother died. In 2006, the Debtor later granted a mortgage on real property to Argent, which was later assigned to Deutsche Bank. In 2011, the Debtor filed for bankruptcy relief, scheduling the real property as not subject to a secured claim and asserting a contingent interest in the real property.
Lamoutte, Haines, and Deasy, U.S. Bankruptcy Appellate Panel Judges

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