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HSBC Bank v. Jodi Matt

HSBC Bank v. Jodi Matt

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Published by Richard Vetstein
Massachusetts Land Court decision on foreclosures
Massachusetts Land Court decision on foreclosures

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Published by: Richard Vetstein on Dec 02, 2011
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(SEAL)
COMMONWEALTH OF MASSACHUSETTSTHE TRIAL COURT
LAND
COURT DEPARTMENT
NORFOLK,
ss.
)
HSBC BANK
USA, N.A., as trustee
of
Ace )Securities Corp., Home Equity Loan Trust, Series )2005-HE4, )Plaintiff, )v. )
)
JODI MATT, )Defendant. )
)
10
MISe.
421195
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS
Introduction
This action was filed
by
plaintiff HSBC Bank USA, N.A.,
as
trustee
of
Ace SecuritiesCorp., Home Equity Loan Trust, Series 2005-HE4 ("HSBC"), against defendant Jodi Mattpursuant to theServicemembers Civil Relief Act,
50U.S.C.
App. 501,
et seq.
("the Act"). Such
an
action, as a matter
of
law, is confined to determination
of
a single question; is the defendant(alleged to
be in
breach
of
her mortgage obligations) entitled to the benefits
of
the Act?l
Beaton
v.
Land
Court,
367 Mass. 385, 390-91 (1975).
The
answer to that question is "yes" only
if(1)
the
defendant is currently in active military service, and (2) the obligation at issue was incurred
before
that service began.
2
There is also, however, a threshold issue, present
in
all judicialproceedings, which must be satisfied before the inquiry into the defendant's military status can
The Act "contains special rules regarding debts secured
by
a mortgage, trust deed, or similar securityinterest
in
real or personal property owned
by
a servicemember. Generally, the act prohibits the sale, foreclosure,
or
seizure
of
property, based on a breach
of
such a secured obligation, dUring the period
of
military service
or
within 90days thereafter. The prohibition applies only to obligations that originated
prior
to
the servicemember's militaryservice, and for which the servicemember
is
still obligated." Office
ofthe
Comptroller
of
the Currency,Administrator
of
National Banks, Advisory Letter No.
AL
2004-8 Re: Servicemembers Civil
Relief
Act
at 2 (2004).
2
See
n.
1.
1
 
even be reached. Does the plaintiff have standing
to
bring the lawsuit?3 Ms. Matt contends thatHSBC does
not
have standing, and moves to dismiss this action on that basis.For the reasons set forth below, I find that HSBC has sufficient standing to obtain adetermination
of
Ms.
Matt's
status under the Act. The motion to dismiss is thus
DENIED.
Since Ms. Matt does not claim to be a servicemember, judgment that she is not entitled to
the
benefits
of
the
Act
shall also enter.
Discussion
This is a Servicemember's action. It does not seek, and
by
law cannot give, adetermination that Ms. Matt is in breach
of
her loan
or
mortgage obligations,
or
that HSBC
may
validly foreclose
on
Ms.
Matt's
property. Indeed, it is not clear from the record that HSBC isthe current holder
of
either the note or the mortgage -questions I need
not
and do not decide inthis proceeding
but
which certainly will arise
in
the context offoreclosure.
4
See
G.L.
c.
244,
§
14;
Us.
Bank N A.
v.
Ibanez,
17
LCR
202 (2009), 17 LCR 679 (2009).
But
a plaintiff need
not
be the current holder
of
the note or the mortgage to have standing in a Servicemember's case.
It
is sufficient
if
the plaintiff satisfies the general requirements
of
standing."Whether a
party
has a sufficient stake
in
an otherwise justiciable controversy to obtainjudicial resolution
of
that controversy is what has traditionally been referred to as the question
of
standing to sue."
Sierra Club
v.
Morton,
405 U.S. 727, 731-32 (1972).
"To
have standing
in any
3
Standing is a matter
of
subject matter jurisdiction.
If
the plaintiff does not have standing, the court has nojurisdiction to hear the dispute.
Sullivan
v.
Chief
Justicefor
Admin. and Mgmt.
of
he Trial Court,
448 Mass.
15,21
(2006).
4
The record contains a document entitled "assignment
of
mortgage," recorded at the Norfolk CountyRegistry
of
Deeds
at Book
25302, Page
102
(Nov. 16,2007), which purports to be an assignment
of
Ms. Matt's"mortgage and the note and claim secured thereby" from
New
Century Mortgage Corportation to HSBC. This"assignment," however, is dated November
6,2007,
at a time when
New
Century was in bankruptcy (it filed onApril 2, 2007), and there is nothing in the record to indicate what authority,
if
any, the bankruptcy court grantedeither New Century or its purported agent, Kimberly Dawson, to make such an assignment. There is also nothing inthe record to indicate that Ms. Dawson either (a) held the office at New Century she purported to hold, or (b) even
if
she held such an office, that she had New Century's authority to assign its assets
to
third parties.
2
 
capacity, a litigant must show that the challenged action has caused the litigant injury."
Sullivan,
448 Mass. at
21
(internal citations and quotations omitted). "Injuries that are speculative,
remote
and indirect are insufficient to confer standing.
Not
every person whose interests mightconceivably
be
adversely affected is entitled to judicial review.
The
complained-of injury
mustbe
a direct and ascertainable consequence
of
the
challenged action."
Id.
"In
addition, for
the
plaintiff to have standing, the injury alleged must fall within the area
of
concern
of
the statute
or
regulatory scheme under which the injurious action has occurred."s
Id.
at 21-22 (internalcitations and quotations omitted). Where, as here, a declaration is sought, the controversy
must
be
"real, not hypothetical" since "the declaration issued is intended to
have
an inunediate
impacton
the rights
of
the parties."
Mass. Assoc.
of
nd. Ins. Agents
and
Brokers, Inc.
v.
Commr.
Of
Ins.,
373 Mass.
290,292
(1977).While
HSBC
mayor
may
not
be
the
current
holder
of
Ms.
Matt's
note and mortgage (arequirement -at least
with
respect to the mortgage
-to
commence G.L.
c.
244, § 14foreclosure proceedings,
see Ibanez, supra),
the record clearly shows that
HSBC
has acontractual right to
become
that holder, conferred
by
the
ACE
Securities Corp.
Home
EquityLoan Trust, Series 2005-HE4 Asset Backed Pass-Through Certificates Pooling
andServiclng
Agreement (Jun.
1,2005).
See
Section 2.01 (Conveyance
ofthe
Mortgage Loans to AceSecurities Corp.
Home
Equity Loan Trust, Series 2005-HE4) and the associated loan schedules(which include
the
Matt
loan and mortgage). In the absence
of
a showing that
HSBC
no longerhas that right
(e.g.
that
the
right has been abandoned
or
lost
in
the bankruptcy proceedings, orassigned to another entity), this is sufficient to give it standing to bring a Servicemember's casesince whether
or
not Ms. Matt is entitled to the benefits
of
the
Act
affects the present
This is sometimes phrased as the requirement for
"a
legally cognizable injury."
Mass. Assoc. ofInd.
Ins.
Agents and Brokers, Inc.
v.
Commr.
of
ns.,
373 Mass. 290,293 (1977).
3

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