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Giannasca v. Deutsche Bank as Trustee et. al. FAR Supplemental Briefing at Appeals Court Serving Families Throughout Massachusetts and Connecticut

On September 10, 2019 We filed a Further Appellate Review in this matter.

see Our previous blog entry on this case here

On February 21, 2020, the SJC made the following finding:


The application for further appellate review is denied without prejudice. It is further ordered, that the case is remanded to the Appeals Court for consideration of the issue of the plaintiff's standing, in light of the Superior Court's findings and conclusions regarding the effect of the plaintiff's bankruptcy. The Appeals Court may, in its discretion, invite further briefing with respect to this issue, or with respect to any other issue presented, including the prudential issues raised by the dissenting justice. Nothing in this order precludes either side from seeking further appellate review after the further decision of the Appeals Court.

This is an extremely rare development to have the SJC make a Denial without prejudice, and remand the appeal back to the Appeals Court for further briefing. Additionally, the SJC clearly signaled that either party would not be precluded from seeking a second FAR.

Upon remand the Appeals Court issued the following order on February 25, 2020:

ORDER: In light of the Supreme Judicial Court's order of February 21, 2020, remanding the case to this court, the parties are ordered to submit supplemental briefs, not to exceed twenty pages, addressing 'the issue of the plaintiff's standing, in light of the Superior Court's findings and conclusions regarding the effect of the plaintiff's bankruptcy.' The parties should make reference to, as relevant, the discharge of debt, the notice of intent to surrender, reaffirmation, if any, the post-discharge loan modification agreement, the April 14, 2016 letter from the loan servicer to the appellant, and any post-discharge payments on the loan by the plaintiff and their acceptance by the loan servicer. Appellant's supplemental brief is due on or before on or before March 17, 2020, and subsequently, Appellee's supplemental brief is due on or before March 31, 2020. (Rubin, Kinder, Singh, JJ.). *Notice

Both sides have submitted briefing on the bankruptcy issue. Notably, the Appeals Court Panel avoided the issues presented by the Dissenting Judge Rubin re MERS and the "securitization" of the Giannasca mortgage. The Panel solely restricted briefing to whether the surrender of a mortgage in a chapter 7 bankruptcy is preclusive to deny a borrower's defense under state statutory protections regarding the non judicial foreclosre under G.L. c. 244, Sec. 14.

We relied upon the unpublished decision of Chacon v Everbank Ca. No. 2016-P-1467

See our Supplemental Brief here

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