CASES
Supreme Judicial Court (Massachusetts)
Colin F. Beaton et al v. LAND
COURT et al
Supreme Judicial Court of Massachusetts, Suffolk, 367 Mass. 385 (1975)
(SoldiersÕ and SailorsÕ Civil Relief Act)
Footnote 6. No lack of notice or absence of
opportunity to defend against the
foreclosure is involved in this case and our discussion above suggests
that a
case presenting issues of such lack of notice or absence of opportunity
to be
heard in
defense is unlikely to arise. Only
if and when such a case arises
would we have occasion to determine whether the due process clause even
has any applicability to nonjudicial foreclosures (i.e. those conducted
by
entry or by exercise of a power of sale), which follow private
contractual
provisions or the course of the common law.
Moore, et al v. Dick
Supreme Judicial Court of Massachusetts, Essex, 187 Mass. 297 (1905)
(Publication)
Voided a foreclosure sale because
the foreclosure notice had been published
in the Lynn Daily Bee instead of
its sister paper, the Lynn Reporter,
as
required by the
terms of the power of sale. Òit is familiar law that one who
sells under a power (of sale) must follow strictly its terms. If he fails to do so
there is no valid execution of the power and the sale is wholly void.Ó
The right to redeem is not barred until after the mortgagee has held
possession
adversely for at least 20 years.
See also:
Bottomly v. Kabachnick,
434 N.E.2d 667, 13 MassApp.Ct. 480 (1982)
ÒÉwe hold that the first
foreclosure (13 Mass.App.Ct. 484) sale void as a
matter of law.Ó
Roche v. Farnsworth, 106 Mass. 509, 513 (1871)
The court
invalidated a foreclosure sale because the notice failed to identify
the holder of the mortgage.
The court held that such a defect in the notice
was Òinconsistent with the degree of clearness that ought to exist in
such an
advertisementÉ(I)t
is not an unreasonable strictness to require (the party
acting under the power of sale) to state what property he proposes to
sell, and
who proposes to make the sale, and who advertises it for sale.Ó
Beaton v. Land Court, 367 Mass. 385 (1975)
ÒThe answer which the petitioners attempt to file in the Land Court does
not
assert that the petitioners or any other concerned parties are entitled
to the
protection of the 1940 Relief Act.
Neither does the answer raise the issue of
the existence of any such persons
or their rights. Plainly,
therefore, at least
as far as the statutes are concerned, the Judges acted properly in
denying the
motion to compel the recorder to accept the answer. Equally plainly, as far
as the statutes are concerned, the single justice properly sustained
(Page
305) the demurrers to the petition for a writ of mandamus.Ó
ÒThe point to be made here is that actions taken to comply with the 1940
Relief Act, such as the steps prescribed by St. 1943, c. 57, as amended,
are
not
in themselves mortgage foreclosure proceedings in any ordinary sense.
Rather, they occur independently of the actual foreclosure itself and of
any
judicial proceedings determinative of the general validity of the
foreclosure.
Statute 1943, c. 57, as amended, simply establishes procedures whereby
mortgagees, in addition to taking all steps necessary to foreclose, can
make
certain that there will be no cloud on the title following the foreclosure as a
result of an interested party having been in, or just released from,
military
service and thus under the protective umbrella of the 1940 Relief Act.Ó
Commonwealth v. Freemont Investment & Loan & another
SJC-10258 (10/8/08)
Memorandum and Order on PlaintiffÕs Motion
for a Preliminary Injunction
(Allowed)
U.S. Bank National Association v. Ibanez
SJC-10694, decided January 7, 2011
(On Direct Appellate Review of a Judgment of the Land Court)In a unanimous decision, the Court affirmed the decision of Judge Long of the Land
Court holding that where the foreclosing mortgagees did not have in their possession
an assignment of the mortgage dated prior to the date of publication of notice
under M.G.L.c.244, Sec. 14, the mortgagee has no title to foreclose.
The original action was brought by the plaintiffs to "remove a cloud from
the title" of property that had been foreclosed upon and on which they were
unable to obtain insurance for the title. The Court refused to apply its decision only prospectively.
Appellate Court, Commonwealth of Massachusetts
Superior Court, Commonwealth of Massachusetts
Commonwealth v. Fremont
Investment & Loan, et al
Superior
Court (Suffolk), No. 07-4373-BLS1
(2/6/08)
Findings of Fact and Conclusions Of Law
On PlaintiffÕs Motion for a Preliminary Injunction (Allowed)
Commonwealth v. H & R Block,
Inc., Block Financial Corp., Option One
Mortgage Corp., H & R Block Mortgage Corp., AH Mortgage Acquisition
Co.
d/b/a American Home Mortgage Servicing,
Inc.
Superior Court (Suffolk), Civil Action No. 08-2474-BLST (Nov.
10, 2008)
Consolidated Memorandum of Decision and Order on
DefendantsÕ Motion To Dismiss (Denied), and
Finding of Facts and Conclusions of Law on
PlaintiffÕs Motion for a Preliminary Injunction (Allowed)
Sandra J. Edwards v. Greenpoint Mortgage
Funding, Inc.
Superior Court (Worcester), Civil
Action No. 2008-2469A (12/05/08)
Memorandum of Decision and Order 0n PlaintiffÕs Motion for
Temporary
and Preliminary Injunctive Relief (Denied)
Massachusetts Land Court, Dept. of the Trial Court
New Century Mortgage
Corporation, et als v. Shuann N. Braxton, et als
Massachusetts
Land Court, Dept. of the Trial Court, Plymouth County
Case No. 09 MISC 393485 (GHP)
Cited as 2010 WL 58277 (Mass. Land Ct.), Jan. 11, 2010
DecisionÉ.on Complaint to Reform Mortgages
ÒÉthe Plaintiffs have failed, in their responses to the Orders of this
court made on August 13, 2009 and September 3, 2009, to
demonstrate their standing and authority to proceed with
this
action. Summary judgment must be granted in favor of the
Defendants because Plaintiffs have failed to show that they possess
the requisite standing. I
will direct entry of a judgment of
dismissal
without prejudice.Ó
HSBC Bank USA, N.A. v.
Matt
Massachusetts Land Court, Dept. of the Trial Court, Norfolk County
Docket No. 10-MISC-421195, Long, J. (July 8, 2010)
ÒWhere a plaintiff bank has filed suit seeking a decision as to whether the
Defendant is entitled to the benefits of the Servicemembers Civil Relief
Act, I find that the plaintiff has standing to bring the suit and that the
defendant is not entitled to the benefits of the act.Ó
US Bank, N.A. v.
Hanlon, et al
Massachusetts Land Court, Dept. of the Trial Court, Plymouth County
Docket
No. 10-MISC-429997, Long, J.
(Aug. 20, 2010)
ÒThis is a servicememberÕs action. It does not seek, and by law cannot
Give a determination that the Hanlons are in breach of their loan or
mortgage obligations, that US Bank may validly foreclose on the
HanlonÕs property, or even thst US Bank has standing to notice and
conduct a foreclosure saleÉAll a servicemembers action, is determine
whether the defendants to the action are entitled to the benefits of the
Servicemembers Civil Relief Act as of the date set forth in the judgment.Ó
U.S. Bank National
Association as Trustee v. Antonio Ibanez,
No. 08 MISC 384283
(KCL) and
Wells Fargo Bank, N.A. as Trustee v.
Mark A. Larce and Tanny L. Larace,
No. 08 MISC 386755
(KCL)
Massachusetts Land Court, Dept. of the Trial Court
Consolidated Memorandum of Points and Authorities in Opposition
Memorandum and Order on the PlaintiffsÕ Motion to Vacate Judgment
In an action brought by the plaintiffs to Òremove a cloud from the titleÓ
of properties that had been foreclosed upon and on which they were
unable to obtain insurance for the title, Judge Long of the Land Court
found that, where the foreclosing mortgagee did not have in its possession
an assignment of the mortgage dated prior to the date of publication of
notices under M.G.L.c. 244, Section 14, the mortgagee had no title to
foreclose.
NOTE: See U.S. Bank National Association, trustee v. Antonio Ibanez
SJC No. 10694, Decided January 7, 2011, Judgment Affirmed.
Selective Out of State Decisions
Deutsche Bank National Trust Co, as Trustee
for HASCO 2007-NCI
v. Susan Hass and Robert Hass
Macomb County Circuit Court, State of Michigan,
Case No. 2009-2627-AV (9/30/09)
Opinion and Order (Appeal)
Complaint for Possession and Termination of Tenancy
United States Supreme Court
United States Court of Appeals (First Circuit)
United States District Court, District of
Massachusetts
George M. Tenney III
v. Deutsche Bank Trust Corporation
USDC (MA), CA 08-40041-FDS
Memorandum
and Order
on DefendantÕs Motion to Dismiss, TIL
(1/26/09)
This is a civil action arising out of alleged
violations of the Truth in Lending
Act, 15 U.S.C. Secs. 1601-1667f
(ÒTILAÓ) and its implementing regulation,
Federal Reserve Board
Regulation Z, 12 C.F.R. Sec. 226, as well as their
Massachusetts
counterparts, the Massachusetts Consumer Credit Cost
Disclosure Act (ÒMCCCDAÓ),
Mass. Gen. Laws ch. 140D, Secs. 1-34 and
209 C.M.R. Part 32.; and
The motion of defendant
Deutsche Bank Trust Corporation to dismiss for
failure to state a claim upon which relief can be
granted is DENIED.
Ramiza Durmic, Donsald Treannie, Heather
Treannie, Jean Licata and Arsenia
Rodrigues on behalf of themselves and all others similarly
situated
v. J. P. Morgan Chase Bank, N.A.
USDC (MA), CA 10-CV-10380-RGS
Memorandum and Order (11/24/10)
(DefendantÕs Motion to Dismiss. PlaitiffÕs Motion for Preliminary
Injunction)
ChaseÕs motion to dismiss the breach of contract (Count I),
breach of the
covenant of good faith and fair dealing (Count II), and promissory
estoppels
(Count III) claims is denied.
ChaseÕs motion to dismiss the 93A
claims (Count IV) will be deferred. LicataÕs motion for a preliminary
injunction is denied.
In re Jacalyn S. Nosek, Debtor
Ameriquest Mortgage Co, et al, Appellants
v. U. S. Bankruptct Court for the District of Mass. and
Jacalyn S. Nosek,
Potentially Interested Parties
USDC (MA), CA 08-40095-WGY
Memorandum and Order
(5/26/09)
This case presents the unedifying
spectacle of a litigant and its lawyers
engaging in egregious misrepresentations and, now that they have been
sanctioned for such misconduct, scrambling to pass the blame on to
others.
Delynn
J. Speleos and Jesse S .Speleos v. BAC Home Loan Servicing, L.P., d/b/a
Bank of America Home Loans, Federal National Mortgage Association, d/b/a
Fannie Mae and Oelans Moran, PLLC
USDC (MA), CA 10-11503-NMG
Memorandum & Order
(12/14/10)
On the DefendantsÕ motion to dismiss in an action alleging violations of
the Home Affordable Modification Program (ÒHAMPÓ), Judge
Gorton
ruled:
Count I, Negligence
Denied
Count II, Third-Party Breach of Contract
Allowed
Count III, Violation of Good Faith and Fair Dealing Allowed
Count IV, Violation of Fair Debt Collection Practices Act Denied
PlaintiffsÕ Motion for a Memorandum of lis
pendens
Allowed
Significant
Pending Cases
In re: Bank of America Home
Affordable Modification Program (HAMP)
Contract Litigation
(Multidistrict Litigation) MDL
No. 2193
(Putative
Class Actions)
* Patricia Johnson v. BAC Home Loan Servicing, LP
Francilot Mangura v. v. BAC Home Loans Servicing, LP
Transfer Order
United States Judicial Panel on Multidistrict Litigation
ÒPlaintiffs in all of these actions allege that Bank
of
America regularly fails to comply with the terms of the
Home Affordable Modification Program (HAMP) and
has breached contracts with the plaintiffs and/or has
breached a contract to which plaintiffs are intended
third-party
beneficiaries.
United States Bankruptcy Court, District of
Massachusetts
In re Noyes
USBC (MA),
Case No. 07-11278-JNF (382 B.R. 561 (2/19/08)
Memorandum of Decision on Motion for Relief from Stay (Feeney, B.J.)
ÒÉ although she has raised serious questions about the conduct of Tribeca,
Mary Noyes failed in her burden of establishing entitlement to injunctive
Relief from this Court, although she may well prove liability and damages
In the State Court Action after a full opportunity for discovery.Ó
In re Matthew H. Giroux,
Debtor, Chapter 7 Case No. 08-14708-JNF
Warren E. Agin, Chapter 7 Trustee,
Plaintiff v. Mortgage Electronic
Registration
Systems, Inc. and Countrywide Home Loans, Inc., Defendants
USBC (MA), Adv.P, No. 08-1261 (5/21/09)
Memorandum (Feeney, B.J.) (Acknowledgement)
ÒÉthis Court concludes that it is unlikely that the Massachusetts
Supreme Judicial Court would find the omission of the DebtorÕs
name was an omission that could be cured with reference to the
notaryÕs role in witnessing the DebtorÕs signature on the
mortgage.Ó and ÒÉthe Trustee may avoid the mortgage pursuant
to his strong arm powers under Sec. 544.Ó
Sima Schwartz, a/k/a v.
Deutsche Bank Trust Corporation
USBC (MA), Ch. 7, Case No. 06-42476-JBR, Adv. No. 07-4098 (2/23/09)
Memorandum
of Decision on (DefendantÕs) Motion for Summary Judgment
(Rosenthal, B.J.) (Proper Party to Foreclose)
ÒÉthat Deutsche Bank presented no evidence that it held the mortgage at
the foreclosure proceedings ere commenced and the sale conductedÓ and
by footnote, Ò(W)ithout having some interest in the property, whether as
a mortgagee or servicer, a creditor lacks standing to prosecute a motion
for relief.Ó
In re David
Giza/Linda Y. Giza, Chapter 13, Cases No. 07-41782-HJB, et als
David Giza and Linda Y. Giza v. Amcap Mortgage, Inc., et als
USBC (MA), Adv.P. No. 09-04099
Memorandum of Decision (Boroff, B.J.) dated April 15, 2010
ÒÉthe Court will not dismiss the GizasÕ claim for rescission but
will, if the conditions for rescission are otherwise met, determine
the amount of tender and order the Gizas to classify that claim
and treat it consistently with those of other unsecured creditorsÓ
and
Ò(d)efendantsÕ attempt to preserve the status quo and the disputed
lien pendent lite, and in this case until consummation of the
DebtorsÕ Chapter 13 plan, without more, is not a violation of the
automatic stay under Sec. 362(a)(3).Ó
In re: Carmen M. Bailey, Chapter 13, Case No.
09-44760-HJB
Carmen M. Bailey v. Wells Fargo Bank, N.A.
USBC (MA, Central Div) Adv. Pro. No.
09-4190
Memorandum of Decision (Boroff, BJ.) dated 9/28/10
The Court denied the Motion to Dismiss the plaintiffÕs Count I claims
that off-record documents did not establish that Wells Fargo was
actually the holder of the Mortgage at the time of Foreclosure
In re:
Bower, James D., Chapter 7, Case No. 10-10993-WCH
Adversary Proceeding No. 10-1092
Memorandum of Decision
(Hillman, J.) dated 10/13/10
ÒHaving determined that the omission of the DebtorÕs name from the
Acknowledgement section is a material defectÉI conclude that the
Trustee was without notice of the MortgageÕs existence and may
Properly avoid it pursuant to 11 U.S.C. Sec. 544(a)(3).Ó
United States Bankruptcy Court (other than the
District of Massachusetts)
In the Matter of John T. Kemp,
Case No. 08-18700-JHW
John
T. Kemp v. Countrywide Home Loan, Inc., Adversary No. 08-2448
USBC, District of New Jersey
Opinion (11/16/10) on
Complaint (Adversary Proceeding) to Expunge Proof of Claim
Filed
on Behalf of the Bank of New York by Countrywide Home
Loan as Servicer.
ÒBecause the claim filed by ÔCountrywide Home Loan, Inc., servicer
For Bank of New YorkÕ cannot be enforced under applicable state law,
The claim must be disqualified under 11U.S.C. Sec. 502(b)(1).Ó
John B. Fleming &
Nancy K. Fleming v. National City Bank
USBC, Southern District of
Ohio, Eastern Div., Adv. Pro. No.
07-2361
Memorandum Opinion and OrderÉand Granting PlaintiffsÕ CounselÕs
Application for Compensation. ($26,412.63)
(Charles M. Caldwell, USBJ) (9/28/09)
See Complaint, Forms Manual)