DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee v. GRACE RUNGU. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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
21-P-931
DEUTSCHE BANK NATIONAL TRUST COMPANY, trustee,1
vs.
GRACE RUNGU.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal relates to a postforeclosure eviction. The
defendant, Grace Rungu (Rungu) is the former owner of a
residential property of which the plaintiff, Deutsche Bank
National Trust Company (Deutsche Bank), trustee, is now the
record owner. After a series of cross motions for summary
judgment, a judge of the Housing Court awarded possession and
use and occupancy payments to Deutsche Bank. In Rungu's pro se
appeal, she makes several claims including that the judge of the
Housing Court erred in granting summary judgment in favor of
Deutsche Bank. Finding no error, we affirm.
Background. In March of 2004, Rungu's husband, Norman
Emond, as the surviving joint tenant, became the sole owner of a
1 For Morgan Stanley Home Equity Loan Trust 2006-03, Mortgage
Pass Through Certificates, Series 2006-3.
two-family home located at 44-46 Keene Street in the city of
Lowell (the property). In June of 2004, Emond borrowed
approximately $185,000 from Optima Mortgage Corporation that was
secured by a mortgage granted to Mortgage Electronic
Registration Systems, Inc. (MERS), as nominee for Optima
Mortgage Corp. Prior to his death in 2005, Norman Emond was in
default on the mortgage loan. Rungu purchased the property at
foreclosure, signing a mortgage in 2006 for approximately
$210,800.2 For about three years Rungu, for the most part, was
able to pay the mortgage. Unfortunately, she then experienced
financial difficulties and completely stopped paying the
mortgage in 2009. That same year, Rungu's loan was assigned to
Deutsche Bank. In 2017 Deutsche Bank sent notice to Rungu
pursuant to G. L. c. 244, § 35A, to cure her default and
information about her right to seek modification of the loan.
Rungu did not cure the default and did not modify her monthly
payments and in 2018 Deutsch Bank pursued foreclosure. At the
foreclosure sale, Deutsch Bank was the highest bidder and
purchased the property for approximately $300,000. Deutsche
2 In her answers to interrogatories, Rungu denies that she bid on
the property and claims that her attorney at the time committed
fraud and signed her name. In the statement of facts contained
in her brief, however, she states that she signed the mortgage
and note.
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Bank then commenced this action in the Housing Court for
possession and use and occupancy payments.
Discussion. On appeal, Rungu presents eight arguments with
several sub-arguments and then attempts to preserve another
eighteen arguments for "future argument." We note at the outset
that the defendant, while acting pro se, is still required to
abide by the Massachusetts Rules of Appellate Procedure and is
held to the same standard as litigants represented by counsel.
See Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996). While we
have offered some leniency to Rungu in her filings, her brief
does not come close to presenting an acceptable appellate
argument -- it does not contain one citation to the record
appendix, the record appendix is mostly unnumbered, and her
brief does not comply with page limitations, to mention just a
few. Her failure to substantially comply with the rules of
appellate procedure leaves us in a position that we are unable
to analyze most of her arguments. We are not required to
consider appellate arguments that fall below a minimal quality
of competent legal argument. See Zora v. State Ethics Comm'n,
415 Mass. 640, 642 n.3 (1993); Mass. R. A. P. 16 (a) (9), as
appearing in 481 Mass. 1628 (2019). As a result, we are lacking
both a factual basis and legal argument with citations to the
record and authorities to permit meaningful appellate review of
most of the issues raised on appeal.
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However, given her pro se status, we have reviewed the
entire record and arguments in order to determine whether we can
address any of the arguments raised on appeal. There are only
two claims that Rungu has arguably presented sufficient legal
authority and evidence to be addressed: first, whether the
judge erred by failing to apply the correct standard for summary
judgment and second, whether the judge erred in relying upon the
affidavit of Melaney Atencio, the eviction manager at Deutsche
Bank. We address each in turn.
1. Summary Judgement standard. We review a decision to
grant summary judgment de novo. Ritter v. Massachusetts Cas.
Ins. Co., 439 Mass. 214, 215 (2003). We look to see whether
when "viewing the evidence in the light most favorable to the
nonmoving party, all material facts have been established and
the moving party is entitled to judgment as a matter of law."
Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
Rungu claims that the judge erred by deciding disputed
issues of material facts. This claim fails because at least in
part, it relies upon an affidavit that was properly stricken
from the record as it was filed with the court after the close
of the hearing. Rungu makes no argument that striking the
affidavit constituted an abuse of discretion. Therefore, the
only "disputed" facts are Rungu's own self-contradictory
statements and affidavits, which are insufficient to survive
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summary judgment. The nonmoving party cannot defeat a motion
for summary judgment by submitting self-contradicting affidavits
because they are insufficient as a matter of law to create a
genuine issue of material fact. See Locator Servs. Group Ltd.
v. Treasurer & Receiver Gen., 443 Mass. 837, 864 (2005).
Finally, that some facts are in dispute will not defeat a
motion for summary judgment. "The point is that the disputed
facts must be material." Janzabar, Inc. v. David Crystal, Inc.,
82 Mass. App. Ct. 648, 649 (2012), quoting Hudson v.
Commissioner of Correction, 431 Mass. 1, 5 (2000). Rungu has
not made that showing here.
2. Atencio affidavit. The defendant claims that summary
judgment should not have entered in favor of the plaintiff
because Melaney Atencio's affidavit (the eviction manager for
the loan servicer for Deutsche Bank), failed to attest to
personal knowledge of the facts contained in her affidavit and
instead averred that certain facts were "upon information and
belief." Rungu is correct that Mass. R. Civ. P. 56 (e), 365
Mass. 824 (1974), requires that an affidavit submitted in
support of summary judgment must be based upon personal
knowledge of facts that would be admissible in evidence. "A
useful rough test for evaluating the evidentiary sufficiency of
an affidavit is simply: If the affiant were in court,
testifying word-for-word in accordance with the contents of the
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affidavit, would the judge sustain an objection on any ground
whatsoever? If the answer is 'Yes' or even 'Probably' the
affidavit is at risk." J.W. Smith & H.B. Zobel, Rules Practice
§ 56.6, at 281 (Supp. 2022-2023).
First, we note that the proper procedure would have been
for Rungu to have filed a motion to strike the affidavit. See
Fowles v. Lingos, 30 Mass. App. Ct. 435, 439-440 (1991).
Second, and the reason that Rungu's argument cannot succeed, is
that when read in its entirety, the affidavit states that
Atencio had personal knowledge of the information provided in
the affidavit as she was the eviction manager for Deutsche
Bank's servicer and was familiar with the documents that she
attached to the affidavit. See First Nat'l Bank of Cape Cod v.
North Adams Hoosac Sav. Bank, 7 Mass. App. Ct. 790, 793-794
(1979). There was no error by the judge as her affidavit was
sufficient. For these reasons, we affirm the judgments.
Judgments affirmed.
By the Court (Milkey, Walsh &
Smyth, JJ.3),
Clerk
Entered: June 9, 2023.
3 The panelists are listed in order of seniority.
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