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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)

(Soldiers’ and Sailors’ 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. “it 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.”

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)

“…we hold that the first foreclosure (13 Mass.App.Ct. 484) sale void as a

matter of law.”

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 “inconsistent with the degree of clearness that ought to exist in such an

advertisement…(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.”

Beaton v. Land Court, 367 Mass. 385 (1975)

“The 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.”

“The 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.”

Commonwealth v. Freemont Investment & Loan & another

SJC-10258 (10/8/08)

Memorandum and Order on Plaintiff’s Motion

for a Preliminary Injunction (Allowed)

U.S. Bank National Association v. Ibanez and Wells Fargo Bank v. Larace

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 Plaintiff’s 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

Defendants’ Motion To Dismiss (Denied), and

Finding of Facts and Conclusions of Law on

Plaintiff’s 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 Plaintiff’s 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

Decision….on Complaint to Reform Mortgages

“…the 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.”

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)

“Where 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.”

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)

“This is a servicemember’s 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

Hanlon’s property, or even thst US Bank has standing to notice and

conduct a foreclosure sale…All 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.”

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 To Plaintiffs’ Motion to Vacate

Memorandum and Order on the Plaintiffs’ Motion to Vacate Judgment

In an action brought by the plaintiffs to “remove a cloud from the title”

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 Defendant’s 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 (“TILA”) 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 (“MCCCDA”), 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)

(Defendant’s Motion to Dismiss. Plaitiff’s Motion for Preliminary Injunction)

Chase’s 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. Chase’s motion to dismiss the 93A

claims (Count IV) will be deferred. Licata’s 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 Defendants’ motion to dismiss in an action alleging violations of

the Home Affordable Modification Program (“HAMP”), 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

Plaintiffs’ 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

“Plaintiffs 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.)

“… 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.”

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)

“…this Court concludes that it is unlikely that the Massachusetts

Supreme Judicial Court would find the omission of the Debtor’s

name was an omission that could be cured with reference to the

notary’s role in witnessing the Debtor’s signature on the

mortgage.” and “…the Trustee may avoid the mortgage pursuant

to his strong arm powers under Sec. 544.”

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 (Defendant’s) Motion for Summary Judgment

(Rosenthal, B.J.) (Proper Party to Foreclose)

“…that Deutsche Bank presented no evidence that it held the mortgage at

the foreclosure proceedings ere commenced and the sale conducted” and

by footnote, “(W)ithout having some interest in the property, whether as

a mortgagee or servicer, a creditor lacks standing to prosecute a motion

for relief.”

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

“…the Court will not dismiss the Gizas’ 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 creditors”

and

“(d)efendants’ attempt to preserve the status quo and the disputed

lien pendent lite, and in this case until consummation of the

Debtors’ Chapter 13 plan, without more, is not a violation of the

automatic stay under Sec. 362(a)(3).”

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 plaintiff’s 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

“Having determined that the omission of the Debtor’s name from the

Acknowledgement section is a material defect…I conclude that the

Trustee was without notice of the Mortgage’s existence and may

Properly avoid it pursuant to 11 U.S.C. Sec. 544(a)(3).”

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.

“Because the claim filed by ‘Countrywide Home Loan, Inc., servicer

For Bank of New York’ cannot be enforced under applicable state law,

The claim must be disqualified under 11U.S.C. Sec. 502(b)(1).”

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 Order…and Granting Plaintiffs’ Counsel’s

Application for Compensation. ($26,412.63)

(Charles M. Caldwell, USBJ) (9/28/09)

See Complaint, Forms Manual)