COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, SS WESTERN HOUSING COURT CASE NO.

10 SP 1330

RESIDENTIAL FUNDING REAL ESTATE HOLDINGS, LLC, Plaintiff v. KATHERINE RACINE, Defendant

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KATHERINE RACINE¶S TRIAL BRIEF

I.

NATURE OF THE CASE Defendant Katherine Racine (³Racine´) resides at 8 Cornell Street, South Hadley,

Hampshire County, Massachusetts. Plaintiff Residential Funding Real Estate Holdings, LLC (³Holdings´) is a limited liability company having an address of 35 Linden Street, Yonkers, New York. Holdings claims to be the owner of 8 Cornell Street, South Hadley, Hampshire County, Massachusetts, and brought the above-captioned action to evict Racine from her home. Racine claims that the foreclosure sale conducted by Residential Funding Company, LLC (³Residential´), Holdings¶ purported predecessor in title, was invalid; the Foreclosure Deed Recorded with the Hampshire County Registry of Deeds (³Deeds´) was of no effect; and accordingly Holdings has no standing to maintain the present eviction action. All documents annexed hereto as exhibits are true and complete copies of the originals filed with Deeds, with the Secretary of the Commonwealth, and/or with this Honorable Court.

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a person specifically authorized by the power of sale. these are the mortgagee or his valid assignee. c. In the instant case. recognizing that person seeking to exercise the power must ³first comply with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale´). Northeast Housing Court Decision. Bottomly v. §14 to be published after the mortgagor petitioned for bankruptcy without the mortgagee obtaining relief from the automatic stay. In order for a foreclosure sale to be valid there must be a ³strict compliance´ with the requirements of G. In that post-foreclosure summary process action. See. 480. 483-484 (1982) (notice which failed to 2 . The ability of the Housing Court to hear such evidence was set forth in Demeter v. the power of sale) has the contractual right to do so at the time of its exercise.App. § 14 recognizes.244 §14.244. Kabachnick 13 Mass.II. 183. § 21 (³statutory power of sale in mortgage.L. legal guardian or conservator of those persons acting in the name of those persons.L. L. or an attorney. c. Kerman. JURISDICTION In its Pre-Trial Memorandum. Holdings challenges this court¶s jurisdiction to hear evidence regarding the foreclosure sale as a defense to this action to evict. G. A mortgage is a contract. c. c. 09-SP-01238. the defendant former mortgagor defended on the ground that the foreclosing mortgagee caused one or more of the foreclosure sale notices that are required by G. L. As the statute. See G. Racine says that Holdings did not have the right to foreclose at the time of the Foreclosure sale. J. The case law relied upon in Demeter applies here.. Dyer. It is fundamental and basic that a party seeking to exercise a contractual right (here.244. If he fails to do so there is no valid execution of the power and the sale is wholly void. It is familiar law that one who sells under a power must follow strictly its terms. Dyer.

and thus no right to judgment in this summary process case. Holdings has no right of possession under the invalid foreclosure deed. Dudley 299 Mass. Id. Racine contends that. Sheehan Const Co. Moore v. 51 (1937) (writ of entry case giving res adjudicata effect to decision in summary process case. LLC Certificate of Assistant Secretary´.. ARGUMENT The outcome of this case turns on a single document: ³Residential Funding Company. See also. 195 (1906) . Abbott 350 Mass. the right to possession must be shown and legal title may be put in issue. Wing 191 Mass. v.. at 293-294. 207. 775 (1966) (rescript). for reasons set forth below. Racine may show. at 196. 258 (1933) (where title was put in issue and validity of foreclosure decided) . New England Mutual Life Insurance Co. Dick 187 Mass. sale was ³treated as a nullity´ and was ³not valid´ equally ³as though there had been no attempt to foreclose´). as a matter of state statute and case law. the summary process action cannot be maintained. Page v. Barry v. supra. And see. Dudley 282 Mass. 29 (1897) (summary process case where jury found title and right of possession by a foreclosure sale in the defendant who had ousted the plaintiff and his family by unlawful use of force without resorting to judicial process). Wayne Investment Corp v. v. III. under a general denial. recorded with Deeds in Book 10070 3 . that the foreclosure deed under which possession of the premises is demanded is invalid. 192.identify mortgage holder rendered foreclosure sale void as a matter of law). Dwight 170 Mass. If the title is invalid because the mortgage was not regularly foreclosed. It is clear that in a summary process action to obtain possession of premises purchased at a foreclosure sale. 211-212 (1905) (publication of notice in wrong newspaper rendered foreclosure sale ³wholly void´. New England Mutual Life Insurance Co.

deliver and record any recordable instruments purporting to affect an interest in real property´. which specifically with the authority to execute. The registration names nine other individuals authorized to ³execute. LLC Summary Screen (Exhibit 6). The Delaware Limited Liability Company Act. of a limited liability company by a manager. Abreu. It purports to authorize Stephan to sign an Assignment of Bid recorded with Deeds in Book 10070 at page 236 (Exhibit 5). Residential names two individuals who serve as Manager of the LLC. at § 18-402 provides in pertinent part ³that if a limited liability company provides for the management.at Page 219 (Exhibit 1). Residential has registered with the Massachusetts Secretary of the Commonwealth. That registration is memorialized in Residential Funding Company. shall be vested in the manager«. Young and the other is Steven M. in whole or in part. According to that document.´ Exhibit 1. acknowledge. Exhibit 1 purports to authorize Jeffrey Stephan (³Stephan´) to appoint another through Power of Attorney recorded with Deeds in Book 10070 at Page 228 (Exhibit 2) to enter upon the mortgaged premises for purpose of foreclosure. LLC Certificate of Assistant Secretary´ recorded with Deeds in Book 10070 at Page 219 (Exhibit 1) bases its 4 . See Certificate of Entry recorded with Deeds in Book 10070 at page 230 (Exhibit 3). acknowledge. One is James N. : ³Residential Funding Company. to the extent so provided. the management of the limited liability company. deliver and record any recordable instruments purporting to affect an interest in real property is not signed by either of the named managers nor by the nine individuals authorized to affect an interest in real property. It purports to authorize Stephan to sign a Foreclosure Deed recorded with Deeds in Book 10070 at page 231 (Exhibit 4).

The Entry was without authority. This issue is not fixable through curative or confirmatory filings. In this flawed document Stephan is named as a ³Junior Officer´. and the potential of thousands of dollars in avoidable deficiency debt are at stake. The Foreclosure Deed was executed without authority. Exhibit 1 affords no such authority to Stephan. 5 . This designation would give him limited authority to execute certain documents on behalf of Residential. ³Without the ability to µgo to record¶ immediately. Ibanez. 2009. because as a matter of law. In U. Judge Long commented on ³the likely chilling of other bids due to the plaintiff¶s inability at the time of sale to show (by proof of a valid mortgage assignment) their legal capacity to convey title´. Mass. § 14. Accordingly Holdings is not in possession of the premises and has no right to seek to evict Racine. supra at 483-84.L.S. We never reach that issue. Bank National Association v. Bottomly. with its mandate for clarity. permits no such assumptions. To say that bidders are absolutely certain that the foreclosing party will be able to produce the requisite assignment at some point and they are not deterred in the slightest by the prospect of delays of up to fourteen months is to ignore reality. Land Court Case No. The legislature has not forgotten that a person¶s home.authority on a ³resolution(s) adopted by the Board of Directors of the Company by the Unanimous Written Consent dated July 7. the title is in doubt and potential bidders cannot help but be chilled. c. his or her equity in that home. The Assignment of Bid to Holdings was without authority. 244. The foreclosure sale was and is invalid and the purported assignment to Holdings was and is invalid. G. 2008´. 08 Misc 384283(KCL) Decision on Motion for Reconsideration dated October 14. Whether the documents he executed are within such authority is open to debate.

judgment for Racine must enter on Holdings¶ complaint to evict Racine. Respectfully submitted. MA 02375 (508) 230-0363 CERTIFICATE OF SERVICE The within Trial Brief was served on 8/27/10 by e-mail to: David Rhein. ___________________ Donald C.III. CONCLUSION For the aforesaid reasons and in the interest of justice and fairness. 543683 704 Foundry Street South Easton. Esquire Orlans Moran PLLC 45 School Street Boston. Kupperstein BBO No. MA 02108 ______________ 6 .

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