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March 11, 2026 Get Citation Alerts Download PDF Add Note

U.S. BANK, N.A., Trustee v. KEVIN LASHUA & Another.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0443

• Precedential Status: Non-Precedential

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

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

25-P-443

U.S. BANK, N.A., trustee,1

vs.

KEVIN LASHUA & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Kevin Lashua,3 appeals from a grant of

summary judgment in favor of the plaintiff, U.S. Bank, N.A., as

trustee for Truman 2016 SC6 Title Trust (U.S. Bank/Truman

Trust), in this summary process action. Because there are no

material facts in dispute, we affirm.

Background. On September 24, 2004, the defendant and his

wife, Virginia Lashua, executed a promissory note payable to

Household Finance Corporation II (Household), secured by a

1 Of the Truman 2016 SC6 Title Trust.

2 Virginia Lashua.
3Despite being a party to the case below, Virginia Lashua
did not file a notice of appeal.
mortgage on their property and residence located in Ashburnham,

Massachusetts (property). Household duly recorded the mortgage

in the Worcester County registry of deeds.

On August 20, 2014, Household assigned the mortgage to U.S.

Bank, N.A., as trustee for LSF8 Master Participation Trust (LSF8

Trust). On October 15, 2021, LSF8 Trust assigned the mortgage

to the plaintiff, U.S. Bank/Truman Trust, and the assignment was

subsequently recorded in the Worcester County registry of deeds.

By February 2022, the defendant had been in default on the

mortgage loan payment obligations for approximately nine years.

On February 24, 2022, the plaintiff's loan servicer, Rushmore

Loan Management Services LLC (Rushmore), sent the defendant and

his wife notices regarding their right to cure the default

within ninety days and their right to request a modified

mortgage, in accordance with the mortgage's terms and G. L.

c. 244, §§ 35A and 35B.

On October 13, 20, and 27, 2022, the plaintiff published

notice of a foreclosure sale originally scheduled to be held on

January 10, 2023. Thereafter, on May 22, 2023, the plaintiff

conducted a foreclosure sale of the property, where the

plaintiff was the highest bidder. The plaintiff executed and

delivered a foreclosure deed to itself on June 16, 2023.

2
The defendant and his wife were served with a notice to

quit and vacate the property on July 14, 2023. On August 21,

2023, the plaintiff commenced the present summary process

action. In turn, the defendant filed an answer wherein he

asserted, inter alia, that the plaintiff did not foreclose upon

the property in strict compliance with G. L. c. 244, thereby

giving the defendant a superior right to possession of the

property.4

Both parties moved for summary judgment.5 The judge allowed

the plaintiff's motion for summary judgment and denied the

defendant's cross motion for summary judgment. Accordingly, the

judge entered judgment for possession in favor of the plaintiff.

The defendant appeals.

4 The defendant also asserted a counterclaim alleging that
the plaintiff engaged in unfair and deceptive practices, in
violation of G. L. c. 93A, by violating the automatic stay
provision of the Bankruptcy Code. See 11 U.S.C. § 362.

5 The defendant did not submit any affidavits in support of
his cross motion for summary judgment or in opposition to the
plaintiff's motion for summary judgment. Appended to his cross
motion and opposition, the defendant submitted several exhibits,
including a twenty-page "report" by William Paatalo regarding an
"investigation" connected to an unrelated proceeding involving
different parties and a property in Connecticut. The plaintiff
moved to strike these exhibits as unauthenticated, inadmissible
hearsay, not submitted in affidavit form. The judge allowed the
motion to strike, and the defendant does not argue on appeal
that the judge erred in this respect.

3
Discussion. We review the judge's grant of summary

judgment de novo. See Galenski v. Erving, 471 Mass. 305, 307

(2015). While we view the evidence in the light most favorable

to the opposing party, "the opposing party cannot rest on his or

her pleadings and mere assertions of disputed facts to defeat

the motion for summary judgment." LaLonde v. Eissner, 405 Mass.

207, 209 (1989), citing Community Nat'l Bank v. Dawes, 369 Mass.

550, 554 (1976).

In a postforeclosure summary process case, a plaintiff "may

make a prima facie showing of its right to possession by

producing an attested copy of the recorded foreclosure deed and

affidavit of sale under G. L. c. 244, § 15." Federal Nat'l

Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012) (Hendricks).

Moreover, where, as here, the mortgage contains a power of sale,

"[l]egal title is established in summary process by proof that

the title was acquired strictly according to the power of sale

provided in the mortgage; and that alone is subject to

challenge." Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011),

quoting Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966).

"If a plaintiff makes a prima facie case, it is then

incumbent on a defendant to counter with his own affidavit or

acceptable alternative demonstrating at least the existence of a

genuine issue of material fact to avoid summary judgment. . . ."

4
Hendricks, 463 Mass. at 642. "If a defendant fails to show the

existence of a genuine issue of material fact in response to a

motion for summary judgment by contesting factually a prima

facie case of compliance with G. L. c. 244, § 14, such failure

generally should result in judgment for the plaintiff." Id.

Here, the plaintiff properly presented a prima facie case

of its right to possession by providing the court with an

attested copy of its recorded foreclosure deed and the statutory

affidavit of sale. See Hendricks, 463 Mass. at 637.

Additionally, the plaintiff submitted a detailed affidavit of

continuing noteholder status and strict compliance with the

mortgage terms. See Pinti v. Emigrant Mtge. Co., 472 Mass. 226,

240 (2015) (foreclosing party must strictly comply with

mortgage's power of sale provisions). Thus, the burden shifted

to the defendant to show a genuine issue of material fact

regarding the plaintiff's right to possession. See Hendricks,

supra at 642. Based on the summary judgment record, we agree

with the judge that the defendant failed to meet this burden.

The defendant asserts several arguments on appeal, which we

address in turn. First, the defendant contends that the

plaintiff lacked standing to foreclose upon the property because

the plaintiff had no "financial stake" in the mortgage. For

support, the defendant points to a 2018 correspondence from a

5
U.S. Bank entity to an unidentified recipient wherein the author

states, "the Trust is the owner of the mortgage and note, not

the trustee or us in our individual capacity."6 The defendant

argues that this statement, taken from an unauthenticated

source, and unrelated to the parties, establishes that the

plaintiff is not an "active trustee" and lacked standing to

foreclose. To the extent we can discern a legal argument, we

disagree. Pursuant to Eaton v. Federal Nat'l Mtge. Ass'n, 462

Mass. 569, 584-586 (2012), a foreclosing party must be both the

mortgagee of record, and the holder of the underlying promissory

note or the note holder's authorized agent. Here, the plaintiff

properly submitted a recorded affidavit, executed by an

authorized agent of the plaintiff, which states that "the

[f]oreclosing mortgagee was the holder of the promissory note

secured by the . . . mortgage." The defendant's argument, based

primarily on a letter of no relevance to the subject mortgage,

fails to establish a genuine issue of material fact whether the

plaintiff was the mortgagee of record and the holder of the

note. See LaLonde, 405 Mass. at 209.

Next, the defendant alleges that he entered into a loan

modification agreement with Caliber Home Loans, Inc. (Caliber),

6 The defendant also supports his argument by referring to
the "report" authored by Paatalo, which was struck by the judge.

6
which the plaintiff -- and Rushmore as the plaintiff's loan

servicer -- failed to honor as a matter of policy. To the

extent that this claim is material to the question of whether

the plaintiff has a superior right to possession, the defendant

failed to produce or identify any evidence in the record that

establishes the existence of a loan modification agreement with

Caliber or payments made to Rushmore. Accordingly, we agree

with the judge that the defendant failed to raise a genuine

issue of material fact related to any loan modification

agreement.

The defendant also alleges that LSF8 Trust never "held" the

subject mortgage, thereby rendering LSF8 Trust's assignment of

the mortgage to the plaintiff void. Again, the defendant failed

to produce any evidence to dispute LSF8's assignment of the

subject mortgage to the plaintiff, relied only on hypothetical

argument, and thus, failed to raise an issue of material fact.

In any event, we conclude, as a matter of law, that the

defendant lacks standing to challenge the validity of LSF8's

assignment to the plaintiff because any purported defect would

render the assignment voidable between LSF8 and the plaintiff,

not void. See Strawbridge v. Bank of N.Y. Mellon, 91 Mass. App.

Ct. 827, 832 (2017) (former owner was without standing to

challenge assignment where purported defect "would, at most,

7
only make the assignment voidable between the parties to the

transaction, not void as a matter of law"); Bank of N.Y. Mellon

Corp. v. Wain, 85 Mass. App. Ct. 498, 502 (2014) ("[W]here the

foreclosing entity has established that it validly holds the

mortgage, a mortgagor in default has no legally cognizable stake

in whether there otherwise might be latent defects in the

assignment process").

The defendant also contends that, because there was no

"marking on the photocopy [of the allonge] to indicate that it

was ever permanently affixed to the mortgage note," a genuine

issue of material fact was raised regarding its legitimacy,

requiring the judge to hold an evidentiary hearing on the issue.

General Laws c. 106, § 3-204 (a) provides that "for the purpose

of determining whether a signature is made on an instrument, a

paper affixed to the instrument is a part of the instrument."

Thus, based on the statute's plain language, there is no

requirement that the allonge be permanently affixed to the note,

as the defendant insinuates. G. L. c. 106, § 3-204 (a).

Moreover, the defendant again points to nothing in the record to

support his claim that the plaintiff was not the rightful holder

of the note. The plaintiff provided unchallenged evidence that

it acquired the note and was the mortgage note's holder at all

times pertinent to the foreclosure. The defendant submitted no

8
evidence to support his vague allegations, and we conclude that

there is no genuine issue of material fact regarding the note's

allonge.

Lastly, because the defendant advances no appellate

argument as to his counterclaim alleging unfair and deceptive

practices under G. L. c. 93A, we treat the issue as waived. See

Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628

(2019).7,8

Judgment affirmed.

By the Court (Shin, Walsh &
Allen, JJ.9),

Clerk

Entered: March 11, 2026.

7 To the extent that we do not address the defendant's other
contentions, we see nothing in them that warrants overturning
the judgment. Those include the defendant's arguments that
certain signatories of the allonge were "robo-signers," and that
the plaintiff was required under the Uniform Commercial Code to
detail the value given when the subject loan was assigned.

8 The plaintiff has asked the court, in its discretion, to
award attorney's fees, arguing that the defendant's claims are
frivolous. The request is denied.
9 The panelists are listed in order of seniority.

9