Opinion
No. 15–P–1095.
10-11-2016
Leslie EPPS v. BANK OF AMERICA, N.A., & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this post-Ibanez, pre-Eaton mortgage case, the plaintiff, Leslie Epps, appeals from a summary judgment in favor of the defendants. Because we agree with the motion judge that the plaintiff failed to raise a genuine dispute of material fact, we affirm.
U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637 (2011).
Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012).
She also appeals from two related postjudgment orders.
Background. We recite the facts in the light most favorable to the plaintiff. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In June, 2003, the plaintiff took out a refinance loan for $295,000, executing a promissory note payable to the lender, Mortgage Network, Inc. (MNI). She also executed a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee and as nominee for MNI. The plaintiff first defaulted on her loan in August, 2005, but was able to get back on track. She missed payments again in 2007 and received a notice of default and acceleration in a letter dated November 2, 2007.
On September 12, 2008, MERS's mortgage was assigned to Countrywide Home Loans, Inc. (Countrywide), by Francis J. Nolan, in his capacity as assistant secretary and vice-president of MERS. The assignment was recorded three days later. In a letter dated June 28, 2010, Countrywide, through counsel, mailed a notice of foreclosure to Epps, and it was published in the Boston Herald on three dates in July, 2010. On July 28, 2010, Countrywide held a foreclosure auction, which it won with a high bid, and it then assigned its bid to Federal National Mortgage Association (FNMA) by foreclosure deed.
As the motion judge noted, the record does not clearly reveal which entity held the note at the time of the foreclosure. However, as discussed infra, this fact is immaterial as Eaton does not apply.
The plaintiff filed this action on April 2, 2012, in the Superior Court, and amended her complaint several times thereafter. She challenged the validity of the 2010 foreclosure, asserting that Countrywide lacked authority to foreclose upon the property, and also asserted that the defendants engaged in unfair debt collection practices in violation of State and Federal law. The defendants moved for summary judgment, and the plaintiff filed a cross motion for partial summary judgment on her claim for declaratory judgment. The judge denied the plaintiff's motion and summary judgment entered for the defendants on July 2, 2014. The plaintiff filed a motion for relief from judgment and a motion to vacate a “void judgment,” both of which were denied. The plaintiff now appeals.
The plaintiff makes no argument challenging the allowance of summary judgment for the defendants on her claims of unfair debt collection practices in violation of State and Federal law. We therefore do not review those claims.
Discussion. A party is entitled to summary judgment as a matter of law when there exists no genuine dispute of material fact. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). The burden lies with the moving party to show that proof of an element of a plaintiff's claim is unlikely to be forthcoming at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). We conduct our de novo review of the record in the light most favorable to the nonmoving party, the plaintiff. See Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 635, 637 (2012).
a. Statutory power of sale. Epps's basic argument on summary judgment was that the foreclosure sale was void because Countrywide did not hold the note at the time of the foreclosure.
“Under the plain language of G.L. c. 183, § 21, and G.L. c. 244, § 14, [an entity or individual has] the authority to exercise the power of sale contained in [a mortgage] only if they were the assignees of the mortgage[ ] at the time of the notice of sale and the subsequent foreclosure sale.” U.S. Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 648 (2011). In a thoughtful and comprehensive decision, the Superior Court judge reasoned that such was the case here. Epps's argument that MERS was not the lawful mortgagee is contradicted plainly by the express language of the mortgage, which states, “MERS is the mortgagee under this Security Instrument.” The mortgage grants the power of sale over the subject property “to MERS (solely as nominee for [MNI] and [MNI]'s successors and assigns) and to the successors and assigns of MERS.” Furthermore, the mortgage provides that “MERS ... has the right: to exercise any or all of [the interests held by MNI], including, but not limited to, the right to foreclose and sell the Property.”
In Shea v. Federal Natl. Mort. Assn., 87 Mass.App.Ct. 901, 902 (2015), interpreting language identical to that of this mortgage, we explicitly rejected Epps's contention. As also argued in Shea, Epps urges us to find that, “despite the fact that the mortgage provides that ‘MERS is the mortgagee under this Security Instrument’ and that MERS holds ‘legal title to the interests granted by Borrower in this Security Instrument,’ MERS did not obtain the status of mortgagee because MERS never held the note.” Id. at 902–903. This argument is again unavailing. “MERS's interest as mortgagee was not ‘inherently invalid because it was separated from ownership of the underlying debt.’ “ Id. at 903, quoting from Sullivan v. Kondaur Capital Corp., 85 Mass.App.Ct. 202, 210 (2014). MERS was the lawful mortgagee, and there was no requirement that the foreclosing entity also hold the note. See Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 588–589 (2012) (requirement that foreclosing entity hold note or authorize foreclosure applies only when statutory notice provided after June 22, 2012).
The mortgage was given by Epps to MERS, and assigned to Countrywide on September 12, 2008. No evidence in the record disputes that by the time of the foreclosure sale notice and the sale itself, during the summer of 2010, Countrywide was the record holder of the mortgage, and was vested with all the authority granted to MERS under the mortgage, including the power of sale.
Epps did not allege in her complaint inadequate notice or any failure to comply with the terms of paragraph 22 of the mortgage, and thus derives no benefit from Pinti v. Emigrant Mort. Co., 472 Mass. 226, 237–238 (2015).
b. Validity of assignment by MERS. Epps also suggests that the person executing the September 12, 2008, assignment by MERS may not have had the requisite official status and personal knowledge required by G.L. c. 183, § 54B. General Laws c. 183, § 54B, as appearing in St.2010, c. 282, § 2, requires only that an assignment be “executed before a notary public ... by a person purporting to hold the position of president, vice president, treasurer, clerk, ... mortgage or other officer, ... or other similar office or position.” Epps did not present any evidence that the person who executed the assignment was not one of the persons authorized by statute to do so. For that reason, there was no genuine dispute of material fact that the notarized assignment, signed by Francis J. Nolan as “Assistant Secretary and Vice President” of MERS, satisfied the requirements of § 54B. See Bank of N.Y. Mellon Corp. v. Wain, 85 Mass.App.Ct. 498, 503–504 (2014). ,
Epps's reliance on cases from the State of Maine is unavailing because they are based on Maine's special, judicial foreclosure law and on mortgage instrument language that is not involved in this case.
We deny Epps's request for appellate attorney's fees. ?
Judgment affirmed.