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Galiastro v MERS 09-01-2011 Appellee Brief-3

Galiastro v MERS 09-01-2011 Appellee Brief-3

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Published by Steve Dibert

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Published by: Steve Dibert on Feb 14, 2014
Copyright:Attribution Non-commercial

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10/17/2014

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T BLE
OF
CONTENTS
TABLE OF
AUTHORITIES
STATEMENT OF
THE
ISSUES PRESENTED
FOR
REVIEW
STATEMENT OF THE CASE
I
The
Nature
of
the
Case
II
The
Course
of
Proceedings
III
Disposition
in
the
Court
Below
IV
Statement
of
Facts
SUMMARY
OF THE
ARGUMENT ARGUMENT
I
MOTION
TO
DISMISS
STANDARD
II
MERS
IS
CONTRACTUALLY
AND
STATUTORILY AUTHORIZED
TO
FORECLOSE
WHERE
IT IS
THE
MORTGAGEE
AND
EXPRESSLY
GRANTED THE
iv
1
3 4
5
7
10 10
POWER
OF
SALE
IN
THE
MORTGAGE
13
A
The
Galiastros
Expressly
Granted
MERS
Authority
to
Foreclose
in
the
Mortgage
13
B
Massachusetts
Courts
Have
Consistently
Ruled That
MERS
Can
Foreclose
14
C
The
Majority of
Courts
Around
the
Country
Agree
that
MERS
Can
Foreclose
18
D
The
Minority Decisions
Cited
by
the
Galiastros
are
Distinguishable
and/or
Inconsistent
with Massachusetts
law
20
i
 
III.
MASSACHUSETTS NON-JUDICIAL
FORECLOSURE
STATUTE
DOES
NOT
REQUIRE
THE
FORECLOSING
PARTY
TO
HOLD OR
PRODUCE THE
NOTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
A.
The
Galiastros
Reliance
on
Eaton
v.
Fed
Nat l
Mortgage
Assoc.
is
Misplaced.
. . . . . . . . . . . . . . . . . . . . . . . . . 2 7
B.
Eaton
Does
Not
Analyze
the
Statutory
Power
of Sale
And
the
Alternative Statutory Authorities to
Foreclose
Provided
in
G.L.
c.
244
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
C.
G.L.
c.
244
is
Unambiguous
and
Eaton
Should
Not
Have
Gone
Beyond
the
Literal
Meaning
32
D.
The
So Called
Common Law
Cases
Cited
in
Eaton
Pre Date
the
Modern
Foreclosure
Statute
and
Do
Not
Support
the
Supposed
Requirement
that
There
Be
Unity
of
the
Note and Mortgage
34
IV.
THE
GALIASTROS
TORT
CLAIMS
FAIL
BECAUSE THERE
HAS NOT
BEEN
A
FORECLOSURE SALE
AND
THEREFORE,
THEY
HAVE
NO
DAMAGES
35
V.
THE
GALIASTROS
WAIVED
ANY
APPEAL
OF THE
DISMISSAL
OF
THEIR 93A
CLAIMS
AGAINST MERS.
VI.
THE
GALIASTROS 93A
CLAIM
FAILS
BECAUSE
MERS
WAS
NEVER
ENJOINED
BY
THE
FREMONT
INJUNCTION
AND
THE
LOAN
DOES
NOT MEET
THE
INJUNCTION CRITERIA.
A.
The
Fremont
Injunction.
B.
MERS
Did
Not
Violate
the
Fremont
Injunction
Because
it
Was
Not
36
37 37
Enjoined.
. . . . . . . . . . . . . . . . . . . . . . . . . .
40
ii

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