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MASSACHUSETTs
SUPERIOR

COURT

CivilAction No. 2009-038Onr_D


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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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fintlins that she did not have a likelihood of


summary judgment

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in its thvor to conclude this matter. There are no material facts in

dispute ancl U.S. Bank is enritled to judgment as a matter of

law. In support of this motion,

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its favor.
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COMMONWEALTH OF MASSACHUSETTS
SUF-F'OLK, SS

SUPERIOR COURT

CIVIL ACTION NO.

2OO9-03849

EDYTHE L. DYER, PLAINTIFF,


VS'

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CREDITSUISSE FIRST BOSTON,

DEFENDANT. MEMORANDUM OF DECISION.A.ND ORDERON DEFENDANT'S MOTION FOR

SUMMARYJUDGMENT
The plaintiffl Edythc L. Dyer

('plaintiff),

brought this action to prevent the

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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

Motion for Summary Judgment is DENIED.

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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

Edythe Lois Dycr '84 Trust via deed on November I

l, 2004. Plaintiffdefaulted

on her

loan payments on October I ,20A7 and has remained in default since.

An Accclenation Letter was sent to plaintiffon or about January 7, 2008, and


incorrectly named U.S. Bank as the holder of the mortgage. No evidcncc was offered conceming whethcr defendant sent a Right to Cure letter, which was requircd pursuant to G.L. c. 266 $35A as of May I , 2008. On June 5, 2008, plaintifT filed a voluntary Chapter

l3 petition in the Bankruptcy Court. The United

States Bankruptcy Court District

of

Massachusetts Eastern Division issued an "Order Granting U.S. Bank National

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

of January 2,2008.-t This assignment was recorded in the Registry of

Deeds on August 6, 2009. The plaintiffalleges that the

siguture of Francis Nolan is

invalid because he is a "known robo-signer." This allegation is supported by the


affidavits of John H. O'Brien and Ceorge E. Babcock- John L. O'Brien, Register of the
Southem Essex District Registry of Deeds, states that Francis J. Nolan is a "robo-signeC' according to Marie McDonnell, a forensic analyst of McDonnell Property Analyics.

O'Brien's affidavit defincs a "robo-signet''as "the person on a legal document processing

This claim, that the original assignment was effective as of January 2,2008,has been withdrawn by U.S. Bank; see p. 4 supra.

assembly line whose only task is to

sigl previously preparal documents aftbcting titie to

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

title. Babcock states "MERS

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

counters these allegations in its Supplemental lvlernorandum of Law in Support of its

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.

Bank and that he is not a "robo-signer," but an attomey in good standing in


Massachusetts. Rhode Island and New Hampshire.

On September 2, 2008, U.S. Bank sent plaintiff a Notice of Mortgage Foreclosure


Sale, schcduling thc foreclosure for October 2,2008. During this time and until February 2009, U.S. Bank revicwed

plaintiffs account for various loss mitigation options as an

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

reinitiatcd the fbreclosure process on July 8, 2009. On August 20,2009, plaintiff


received a Notice <lf Mortgagee's Sale of Real Estate lettcr, and the tbreclosure sale was

published in the Boston Herald three times between August 28,20A9 and September 2009.

11,

on september

10, 2009,

plaintiff filed suit seeking

a preliminary injunction and

approval of a memorandum of lis pendens. On September I

l,

2009, U.S. Bank provided

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

September 25, 20Og, the Superior Court (Kaplal, J.) denied

preliminary injunction and also denied the approval of

memorandum of lis pendens.

According to the affidavit of George E. Babcock, Dream House Mortgage Corporation dissolved on July 19, 2011

On July 29, 2011 , a second assignment of the

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,

MERS issued a Confirmatory Assignment of Mortgage, signed by MERS' Assistant


Secretary Michael Zanotti. This document stated that it validated the July 28, 2008 assignment and invalidated the July 29,201I assignment. tn defendant's Second

Supplanental Mernorandum in Support of its Summary Judgment Motion, U.S. Bank


admits that the attempted backdating in the original July 28' 2008 assignment to January 2. 2008 is ineffective.

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,

whcther U.S. Bank has the legal ability to foreclose.

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

iaw. lvlass. R. Civ. P. 56(c);

Cassesso v. Commissioner of Corr-,390 Mass. 419,422

(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

jury could find in fbvor of

the non-moving party, summary judgment is

appropriate. Anderson, 477 U.S. at 249.

II.

The Validity of thc First Assignmen! Noncompliance with G.L. c.244 $35A,

and PlsintifPs Standing


U.S. Bank argues that there are no genuiire issues of material fact before the court
at the current

time. Defendant alleges that the plaintiffdoes not have standing to

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,

G.L. c. 244 $35A.

A. Plaintiff

s Standing

The Rcstatcment 'lhird of Property g 5.4(c) states that a mortgagc may be


enforcecl only by, or on behalf of, a person who is entitled to enlbrce the obligation the

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

counterclaim stating that the foreclosure was invalid because the

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,

Inc.,82l F.Supp.2d 423 (D.Mass.,

201

l)

(stating

if an e{fort to foreclose by a party

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.)

(Plaintiffs claim for breach of contract withstood

a motion to dismiss because the and

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

LLC,20ll WL 841282 (D.Mass., 20lll; In re Corrcia,452 l) (all holding that a third-party

B.R.

(lst Cir.BAP,

201

has no standing to question a

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.

B. Noncompliance with c. 244 g35A


In order to execute a foreclosure, the mortgagee must comply with all statutory requirements under G.L. c.244.2 Upon the mortgagor's default, the mortgagee must send
a Right to Cure Letter in accordance with C.L. c. 244 $35A. The Right to Cure Letter

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

the alleged assignrnent by MERS.

Courts generally will not interfere with a foreclosure protrss if

mortgagee can

shorv proof of ownership of both the note and mortgage, and that it strictly followed

statutoryprocesses. U.S. BankNqt Ass'nv.Ibanez,458 Mass. 637,646-47,651 (20i l).


Ibanez holds that a mortgage must have proof of ownership of the mortgage prior to

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

effect a valid foreclosure. Instead, the SJC interpreted G.L. c. 244

$$

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.

Superior Court preiiminary injunction decision and determined that

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

"[a]ny effort to foreclose by a party lacking Jurisdiction.and authority' to carry out a


foreclosure under [Massachusetts law] is void...." Ibanez,45g Mass. at 647. In or4er to foreclose under the power of sale in Massachusetts, the mortgagee must follow all statutory terms, and

"if

he fails to do so there is no valid execution of power and the sale

is wholly void." Ibanez.458 at 646. See also McGreevy v. Charlestuwn Five Cents Sav.

Bank,294 Mass. 480, a8a o%6); Moore v. Diclq 1g7 Mass.

2a't,zfi

(1905); Roche v.

Farnsworth,l06 Mass. 509, 513 (1g71).


Defendant argues that it holds documented assignments,

plaintiffs mortgage. Although there

are two

u.s. Bank now

asserts that the origiual assignment, made on

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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