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In re Porst

United States Bankruptcy Appellate Panel of the First Circuit

November 20, 2013

ALBERT J. PORST, JR., Debtor.
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2006-M1, ARGENT MORTGAGE CO. LLC, ABLITT SCOFIELD, P.C., and CITI RESIDENTIAL LENDING, INC., Defendants-Appellees. ALBERT J. PORST, JR., Plaintiff-Appellant, Bankruptcy Case No. 11-42759-MSH Adversary Proceeding No. 11-04137-MSH

NOT FOR PUBLICATION

Appeal from the United States Bankruptcy Court for the District of Massachusetts (Hon. Melvin S. Hoffman, U.S. Bankruptcy Judge).

Sara Discepolo, Esq., on brief for Appellant, Albert J. Porst, Jr. Gregory Blase, Esq., Phoebe Winder, Esq., on brief for Appellees, Citi Residential Lending, Inc. and Argent Mortgage Co. LLC.

Stephen Gordon, Esq., and Todd Gordon, Esq., on brief for Appellee Ablitt Scofield, P.C.

Thomas Looney, Esq., Howard Brown, Esq., and Hale Yazicioglu, Esq. on brief for Appellee Deutsche Bank National Trust Company, as Trustee for Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2006-M1.

Before Lamoutte, Haines, and Deasy, United States Bankruptcy Appellate Panel Judges.

Deasy, U.S. Bankruptcy Appellate Panel Judge.

The debtor, Albert J. Porst, Jr., appeals the October 4, 2012 orders: (1) granting the motions to dismiss of Deutsche Bank National Trust Company, as Trustee for Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2006-M1, Ablitt Scofield P.C., Citi Residential Lending Inc., and Argent Mortgage Co. LLC (respectively hereinafter, Deutsche Bank, Ablitt, Citi, and Argent); and (2) denying the debtor's motion for summary judgment. For the reasons set forth below, we AFFIRM.

BACKGROUND

A. Factual Background

In 1992, Frances Porst, the debtor's mother, created a trust that provided her with a life estate in any trust property, upon her death a similar life estate for the debtor, and upon his death the termination of the trust and a distribution to the designated remainderman. In addition to being the grantor and sole lifetime beneficiary of the trust, Mrs. Porst was also the sole trustee. Article VII, Section A provided, in part, that the trustee "shall have and may exercise the following powers: (1) To sell . . . all or any part of the trust property, real and personal, at public or private sale, for such consideration and upon such terms . . . as she deems advisable . . . ."

Article XI provided that the grantor retained the right "to amend or revoke this instrument at any time by delivering to the Trustee a written instrument signed and acknowledged by the Grantor." Mrs. Porst transferred her home to the trust in 1992. As grantor, trustee, and beneficiary, Mrs. Porst executed an invalid trust revocation on August 19, 2003.[1] Both on that date and in 2004, Mrs. Porst, as trustee, executed deeds transferring the property to the debtor for $1.00. These two deeds were notarized and filed with the registry of deeds in July 2010 and June 2004, respectively. The debtor's mother died in May 2005. In April 2006, the debtor granted Argent a mortgage on the property to secure a note for $75, 000.00. The boilerplate language of the mortgage provides that the debtor "covenants that [he] is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property. . . ."

The debtor filed for relief in June 2011.[2] Deutsche Bank filed a proof of claim, attaching the note, mortgage, and a copy of the assignment of the mortgage from Argent to Deutsche Bank. The notarized assignment is dated January 15, 2009, and is signed by a vice president of Citi. The assignment references a power of attorney which was recorded on April 11, 2008.

In October 2011, the debtor filed a multi-count complaint against the appellees. After dismissing several counts, the debtor pursued Counts I, V, and VI. By Count I, the debtor sought a determination under 11 U.S.C. § 506(d) that Deutsche Bank was not a secured creditor. As grounds, the debtor asserted that because the transfer of the property from the trust to the debtor was invalid due to the trustee's lack of authority to transfer title, he was not the owner of the property at the time of the mortgage, and therefore the mortgage was void. By Count V, the debtor sought relief under Mass. Gen. Laws ch. 93A (the Massachusetts Consumer Protection Act) and Mass. Gen. Laws ch. 93, § 49 (the Massachusetts Fair Debt Collection Act) because Deutsche Bank, Citi, and Ablitt knew or should have known that the debtor could not have mortgaged the property as a life tenant and that the assignment was invalid. Lastly, by Count VI, the debtor sought relief against Ablitt and Deutsche Bank for negligent infliction of emotional distress due to the steps they took to foreclose on the property. The defendants filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), applicable to adversary proceedings pursuant to Fed.R.Bankr.P. 7012. The debtor opposed the motions and filed a motion for partial summary judgment as to Count I. The bankruptcy court granted the motions to dismiss, denied ...


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