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DEFENDAT{T'S MOTION FOR SLIVIMARY JUDGMENT
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Defendant U.S. Bank National Association, as Trustee for Credit Suissc First Boston
("U.S. Bank"), under Rule 56 of the Massachusctts Rules of Civil Procerture, moves this Court
for an Order granting Summary Judgment in its favor on Plaintiff's Complaint. 'fhis is a one
count complaint fited by the Plaintiff seeking declaratory relief to enjoin a foreclosure. On
Seprember
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29, 2009, the Court denietl the Plaintiff's request fbr a preliminary injunction
success on the merits. The Defendant now moves
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its favor.
[Signarures on Next Page]
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COMMONWEALTH OF MASSACHUSETTS
SUF-F'OLK, SS
SUPERIOR COURT
2OO9-03849
SUMMARYJUDGMENT
The plaintiffl Edythc L. Dyer
('plaintiff),
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or--
foreclosure of her home by the defbndant, U.S. Bank National Association, as Trustee for
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Credit Suisse First Boston ("U.S. Bank"). This action is before the court on defendant's motion for summaryjudgment. Claiming it provided uncontroverted evidence that it holds
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valid assignment of plaintifPs mortgage and that it is the note holder, U.S. Bank
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seeks to foreclose on plaintiff-s property. For the reasons stated below. defcndant's
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BACKGROUND
The following relevant undisputed facts are taken from the materials before the
court. Plaintiffobtained a loan for $540,000 from lender Dream House Mortgage Co1p.
on March 31,2004. She signed a promissory note and granted a mortgage on the properry to Mo(gage Electronic Registration Systems, Inc. (MERS) as nominee for the lender and lender's successors and assigrs. Plaintiffgranted a second mortgage to MERS
as nominee
for Dream House Mortgage Corporations on the same date for the amount
of
$I0I
,250. Plaintiff then granted a third mortgage to Carol L. Fatla on April 7 ,2004 for
175,000. Plaintiff conveyed the property to William Purcell as succcssor Trustee to the
l, 2004. Plaintiffdefaulted
on her
of
Association, as Trustee for Credit Suisse First Boston CSFB 2005-2 Relief from the Automatic Stay and Leave to Foreclose Mortgage." This document, dated August 14,
2008, granted U.S. Bank, Trustee for Credit Suisse, leave to foreclose on the property. On July 28, 2008, Attomey Francis Nolan, an Assistant Secretary and Vice President of MERS, exccuted an assignment of mortgage from MERS to U.S. Bank
"eflective
as
This claim, that the original assignment was effective as of January 2,2008,has been withdrawn by U.S. Bank; see p. 4 supra.
real property in a robotic-like fasirion without reading the docurnents or verifring the lacts containcd therein by reviewing primary source evidence. .." These allegations are supported by the affidavit of Ceorge E. Babcock, Esq., who claims to be a Rhode Island Superior Court ccrtified expert in the area of property
routinely appoints thousands of alleged otficers r,r,'ithout any oversight or corporate governance... [and] [t]he sole purposes ofappointing these alleged officers is to execute
documents and close gaps in the pcrtinent chain of property
title."
The defendant
Motion for Summary Judgment and in its Second Supplemental Memorandum in Support
of its Summary Judgment Motion. The defendant states that Attomey Francis Nolan had
cxpress and actual authority to sigir the assignment of mortgage {iom MERS to U.S.
alternative to foreclo.sure. postponing the foreclosure sale on eight separate occasions. On January 30, 2009, U.S- Bank sent a letter to plaintiffstating America's Servicing
Company's ("ASC") loan modification and Offer of Forbearance Plan. Plaintiff accepte,{i
the modification on Febru
wy 24,20A9.
When her account was reviewed following the end of the forbearance period,
plaintiff, not having fully complied with the tsrms of forbearance, did not qualiff for a
psrmannt loan modification. Since plaintiffwas still in default of her loan, U.S. Bank
published in the Boston Herald three times between August 28,20A9 and September 2009.
11,
on september
10, 2009,
l,
the plaintiff with loss mitigation options through the Home Affordable Mortgage Program
("HAMP'), and later postponed the foreclosuresale two more tirnes. On plaintifls motion for
a
According to the affidavit of George E. Babcock, Dream House Mortgage Corporation dissolved on July 19, 2011
mortgage was issued from MERS as Nominec for Dream House Mortgage Corporation to U.S. Bank, signed by MERS' Assistant Secretary Jason Brumm' On May 2,2012,
U.S. Bank also alleges that plaintiff, as an unrelated third parly, does not have
standing to contest the assignment of mortgages between MERS and U.S' Bank. Plaintiff disputes whether Attorney Francis Nolan was an authorized assignor and whether the
documents on which he based his signature support thc assignment, and therefore,
DISCUSSION
Standard of Review
The Court grants summary judgmcnt where there are no genuine issues
of
material fact and where thc moving party is entitled to summary judgment as a matter of
(1983). A matcrial thct is any fact that may affect the hnal adjudication of the case under
existing law and one that creates an inference that a reasonablejury could find in favor ol'
the nonmoving party. Anderson v. Liberty Lobby, 1nc.,477 U.S. 242,248 (1986). The
nonmoving party must present specific facts and may not present mere speculation and conjecture. Alholmv.TownoflVareham,3Tl Mass.62l,627 (1976). Thenonmoving party cannot rcst on pleadings and assertions of disputed facts to defeat a summary judgment motion, she must set forward specific details establishing a genuine issue
of
material fact. Mass, R. Civ. P.56(e); LaLondev. Eissner,405 Mass. 207,209 (1939).
there is no way
a
If
II.
The Validity of thc First Assignmen! Noncompliance with G.L. c.244 $35A,
challenge the mortgage assigrment between MERS and U.s. Bank. Defendant also alleges that it has provided uncontroverted evidence that it holds a valid assignment both
of
plaintiffs mortgage and note and therefore is entitled to foreclose. In addition to the
argumcnts the parties raise, this court also raises the statutory right to cure requirement,
A. Plaintiff
s Standing
mortgage secures. Therefore, a person only has standing to chailenge a contract if she is
apartyorathird-partybeneficiary. Cumislttt.Soc'y,lnc.v.B.I'sWholesaleClub,lnc.,
455 Mass. 458, 464 (2009). The majority of cases decided during the last decade hcld that a mortgagor, without being a party to the contract, has no stancling to question the assignment of a rnortgagc between two mortgagees. Despite this, a few more recent decisions allow the piaintiff to challenge the validity of the assignments where,
if the
allegations are true, the foreclosure sale would be void under Massachusetts law. Compare Eaton v. Federal Nqt, Mortg. Ass'il.,462 Mass. 569 (June 22,2012) (allowing
the mortgagor to
file
bank did not hold the mortgage note and mortgage at the time of sale); {J.5. Bank Nat.
Ass'nv.Ibanez,458Mass.637,646-47
(2011)(allowingtheplaintifftoquestionthe
assignment of mortgage because the mortgagee could not produce proof that it was the
holder of the mortgage at the time of foreslosure); Rosa v. Mortgage Electronic Systems,
201
l)
(stating
lacking jurisdiction and authority is void, the plaintiffs would have standing io question the validity of the foreclosure under Massachusetts law); Parkerv. Bank of America, N.A. and BAC Home Laans Servicing, Inc.,29 Mass.L.Rptr. 194 (Mass.Super. 201l, Billings
J.)
plainti$ the intended beneficiary of the HAMP relief granted to Bank of America
BAC Home Loans Servicing, Inc., has standing to question the dcfcndant bank's
use
of
HAMP funds). See also Oumv, Wclls Fargo, N.A.,2012WL390271(D.Mass, Feb 08,
2012): l{/enzelv. Sand Canyon Corp.,2012WL21937L (D.Mass. Jan. 05, 2012); Kiahv. Auroa Loan Senices
319
B.R.
(lst Cir.BAP,
201
mortgage assignment).
Therefore, where tire parties in this case have not addressed whether the plaintiff
is an intended beneficiary of thc assignment, this court declines at this time to decide the question of whether shc has standing to assert her claims.
must include, but is not limited to: a description of the default and amount needed to cure; the actual date by which the borrower or mortgagor must cure; the name, address and local or toll free phone number for a person to whom paymnt must be made; the name of any cunent or former mortgage broker involved in the loan; the name of aay loan originator who was involved in the loan; a statsnent that the mortgagor may be
eligible for assistance from the Mass Housing Authority and the Department of Banks
(DOB); and the toll free or local phone numbers of those agencies. G.L. c. 244 $35A.
As of May
l,
2008, the mortgagor must provide the rnortgagee 90 days to cure the default
and the letter must be provided once every three years. G.L. c. 244 $35A.
Neither the Defendant nor the Plaintiffsubmitted any information on whether the statutory requirements of G.L. c.244 g3l[have been satisfied.
Neither party has provided any evidence that U.S. Bank complied with G.L. c. 244 $35A.r Without proof of thc statutorily required Right to Cure Letter, the defendant
cannot verify that it has complied with all statutory elements of the foreclosure process and therefbre, forcclosure cannot be validated by judicial revierv at the summary
judgment stage.a
C. The Validity of the First Assignment
This argrrnent is addressed fbr advisory purposes only, as this court, in light of
the ruling
in
$ B, has not determined the issue of whcther plaintiff has standing to contest
mortgagee can
shorv proof of ownership of both the note and mortgage, and that it strictly followed
foreclosure proceedings or the foreclosurc will be declared invalid as a mafter of law. In Eaton v. F-ederal Nat. Mortg. Ass'n,462 Mass. 569 (2012), the Supreme Judicial Court
determined that the foreclosing mortgagee did not need to possess the mortgage note to
$$
I 1-17C to "permit
one who, although not the note holder himself, acts as the authorized agent of the note
holder, to stand 'in the shoes' of the mortgagee."' Id. at 586. The SJC vacated the
' The defendant did provide plaintiff an Acceleration trtter dated January 7, 2008, but this is not the samc as a Right to Cure Letter. Also, the Acceleration Letter incorrectly named U.S. Bank as mortgagor, as this letter was sent prior to the July 28, 2008 assignment frorn MERS to U.S. Bank. The information the defendant provided to plaintiffon January 7, 2008 was incorrect as the first assignment, if valid, was not effective until July 28, 2008. 'If the statutorily required documents were sent, reconsideration of this decision may be sought. This court will likely then have to determine whether plaintiffhas standing to
contest the assignment.
if
the foreclosing
mortgagee was acting on behalf of the note holder, then the foreclosure was valid.
If the mortgagee is not the r:riginal holder of thc mortgage, any assignment of the mortgagemustbeavalidassignment. G.L.c. lg3
$
g2l;G.L.c. lg3
$2g, andG.r,.c.244
14. In order to begin foreclosure proceedings, the mortgagee must be able to ..prove
their authority to tbrcdose under the power of sale an<l show their compliance with the
requiremcnts ...." Ibenez,458 Mass. at 648. The Supreme Judicial court stated that
"if
is wholly void." Ibanez.458 at 646. See also McGreevy v. Charlestuwn Five Cents Sav.
2a't,zfi
(1905); Roche v.
are two
July 28, 2008, is valid and binding. plaintiffcounters this argument by alleging, supported by affidavits, that Attorney Francis Nolan is a "robo-signer" and therefore, the
first assignment transferring interest of piaintiffs mortgage from MERS to U.s. Bank
cannot be valid. Therefore, there are still ganuine issues ofmaterial fact in regards to Francis Nolan's sigrrature and the validity of the original assignment between MERS and U.S. Bank.
ORDER
For the reasons stated herein, defendant's Motion for Summary Judgment is
DENIED where it has not becn shown that defendant complied with G. L. c. 244 g35A.
effi-Qt(AJJ.{
Justice ofthe Superior Court
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Date:Augusr
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