Opinion
No. 12–P–384.
2013-04-10
Sara–Lynn REYNOLDS v. GMAC MORTGAGE, LLC, & others.
By the Court (CYPHER, KANTROWITZ & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a grant of summary judgment in favor of GMAC Mortgage LLC (GMAC), Mortgage Electronic Registration Systems, Inc. (MERS), and Harmon Law Offices, P.C. (Harmon), dismissing the action brought by Sara–Lynn Reynolds (Sara–Lynn) and Roland D. Sabourin, Jr. (plaintiffs). On appeal, Sara–Lynn essentially asserts that GMAC was not authorized to foreclose on the plaintiffs' home. We affirm.
We note that only Sara–Lynn is properly before us on appeal.
Background. On June 9, 2005, the plaintiffs entered into a mortgage loan transaction with Mortgage Master, Inc. (Mortgage Master) for their property in Attleboro, and executed a promissory note in favor of Mortgage Master. To secure that note, the plaintiffs granted a mortgage to MERS as nominee for Mortgage Master. Mortgage Master indorsed the note and assigned it to GMAC on June 9, 2005. In turn, MERS, as mortgagee of record, assigned the mortgage to GMAC on April 14, 2009.
In 2008, the plaintiffs defaulted on their mortgage payments. On May 7, 2009, GMAC filed an action in the Land Court pursuant to the Servicemembers Civil Relief Act (Servicemembers Act). On December 11, 2009, GMAC sent a notice of mortgage foreclosure sale to the plaintiffs that stated it was the present holder of the mortgage. Before a decision was rendered in the Land Court, the plaintiffs filed the present action in Superior Court in April, 2010. The defendants moved for summary judgment, generally contending, among other things, that it was undisputed that GMAC held the plaintiffs' note and mortgage. The motion was allowed on December 5, 2011. Sara–Lynn now appeals. Discussion. In reviewing whether summary judgment was appropriate, the questions before us are “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Bartle v. Berry, 80 Mass.App.Ct. 372, 377, 953 N.E.2d 243 (2011) (citation omitted). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). As such, we examine independently the summary judgment materials.
In Massachusetts, a mortgage and the underlying note can be split, allowing the holder of the mortgage and the holder of the note to be different entities. Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 576, 969 N.E.2d 1118 (2012). Provided that the mortgagor is not a beneficiary of the Servicemembers Act, a mortgage holder may foreclose on a property “by exercise of the statutory power of sale, if such a power is granted by the mortgage itself.” U.S. Bank Natl. Assoc. v. Ibanez, 458 Mass. 637, 646, 941 N.E.2d 40 (2011). Prior to Eaton v. Federal Natl. Mort. Assn., supra, decided on June 22, 2012, a mortgage holder had the authority to exercise the power of sale contained in the mortgage if it was the “assignee[ ] of the mortgage[ ] at the time of the notice of sale and the subsequent foreclosure sale.” Ibanez, supra at 648, 941 N.E.2d 40. As a result of Eaton, which applies prospectively to foreclosure proceedings where the notice of mortgage foreclosure sale is given after Eaton was decided, the foreclosing mortgage holder must either hold the note or act on behalf of the note holder at the time of the notice of sale and the foreclosure sale. Eaton, supra at 586–589, 969 N.E.2d 1118. The case before us, therefore, is not controlled by Eaton.
Here, the record reveals that GMAC was the assignee of the mortgagee at the time of the notice of sale, December 11, 2009. MERS assigned the mortgage to GMAC on April 14, 2009. At the time of the assignment, MERS was the mortgagee with the contractual authority to assign the mortgage to GMAC. See Rosa v. Mortgage Electronic Registration Sys., Inc., 821 F.Supp.2d 423, 430 (D.Mass.2011) (“Since MERS was named as mortgagee and nominee for [the lender] and [the lender's] successors and assigns in the Mortgage, MERS was authorized to assign the Mortgage”). Accordingly, based on the applicable law at the time and the record before us, GMAC had the authority to foreclose, as the uncontroverted holder of the mortgage with power of sale. Even if Eaton were applicable, the plaintiffs would fare no better because at the relevant time, GMAC held both the mortgage and the note.
For these reasons, and substantially those in the defendant's brief at pages ten through thirteen and in the decision of the motion judge, the judgment is affirmed.
We have considered all the points and arguments made by the parties. To the extent that we did not address them, we found “nothing in them that requires discussion.” See Commonwealth v. Domanski, 332 Mass. 66, 78, 123 N.E.2d 368 (1954).
So ordered.