Plaintiff, US Bank, brought this action to recover possession of property located at 55 Mill Road, Seekonk, Massachusetts ("Property") following a foreclosure sale on January 12, 2018. Defendants are the former owners of the property who have held over and remain in possession of the property.
Plaintiff has moved for summary judgment claiming that they complied with all aspects of the foreclosure sale and resulting summary process action and that there remain no genuine issues as to any material fact and that they are entitled to judgment as a matter of law.
The Defendants have filed written opposition to the Plaintiff's motion claiming that discrepancies in several documents rise to the level indicating non-compliance with requisite foreclosure statutory obligations, that there are problems with the assignments of the note and mortgage and that some of the evidence submitted by the Plaintiff would raise admissibility issues at trial. Both parties presented oral argument to the Court along with memoranda of law together with affidavits and documents in support of their respective position.
Undisputed Facts
The following facts necessary to resolve the legal issues raised in the motion for summary judgment are based on facts set forth in the record that the Court concludes are not in dispute.
Defendants are the former owners of the residential property located at 55 Mill Road, Seekonk Massachusetts, ("Property"). The Defendants continue to occupy the property after the foreclosure by the Plaintiff.
On September 7, 2005, the Defendants Rita F. Marcotte and Christopher Marcotte obtained a mortgage loan secured by a promissory note and first mortgage on the property granted to Mortgage Electronic Registrations Systems, Inc. ("MERS") as nominee for Encore Credit Corp. ("Mortgage") [Note 1]
The mortgage and all rights thereto was assigned by MERS to Plaintiff by assignment which was recorded in the Bristol County Registry of Deeds in Book 19984 at Page 209.
At some point thereafter, the defendants ceased making the requisite payments on the underlying note and mortgage and as a result, the Plaintiff commenced a foreclosure proceeding.
The defendants failed to dispute or cure the default or act otherwise to reinstate the mortgage.
A foreclosure sale was conducted on January 12, 2018 at which Plaintiff purchased the property. The certificate of entry, foreclosure deed and supporting documentation was recorded in the
Bristol County Registry of Deeds starting at book 24299 page 226.
On or about March 15, 2018 the Plaintiff commenced the eviction of the Defendants by serving 72 Hour notices to vacate upon each of the named Defendants.
On or about March 29, 2018 the Plaintiff served a Summary Process Summons and Complaint upon each of the named Defendants.
The Defendants filed an answer, affirmative defenses and counterclaims and a request for a jury trial.
The parties engaged in various discovery requests that ultimately resulted in the plaintiff filing the attendant motion for summary judgment. On December 10, 2019, the Court heard oral argument and took the matter under advisement.
Discussion
The standard of review on summary judgment "is whether, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). See Mass. R. Civ. P. 56 (c). The moving party must demonstrate with admissible documents, based upon the pleading depositions, answers to interrogatories, admissions documents, and affidavits, that there are no genuine issues as to any material facts, and that the moving party is entitled to a judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553-56 (1976). All evidentiary inferences must be resolved in favor of the non-moving party. See Simplex Techs, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196 , 197 (1999). Once the moving party meets its initial burden of proof, the burden shifts to the non-moving party "to show with admissible evidence the existence of a dispute as to material facts." Godbout v. Cousens, 396 Mass. 254 , 261 (1985). The non-moving party cannot meet this burden solely with "vague and general allegations of expected proof." Community National Bank, 369 Mass. at 554; Ng Brothers Construction, Inc. v Cranney, 436 Mass. 638 , 648 (2002) ("[a]n adverse party may not manufacture disputes by conclusory factual assertions; such attempts to establish issues of fact are not sufficient to defeat summary judgment").
To prevail in a summary process action involving foreclosed property (where the validity of the foreclosure is challenged) the plaintiff claiming to be the post-foreclosure owner of the property must prove that it has a superior right of possession to that property over the claimed ownership right asserted by the defendants who were the pre-foreclosure owner/occupants. To prove this element of its claim for possession, the post-foreclosure plaintiff must show "that the title was acquired strictly according to the power of sale provided in the mortgage." Wayne Inv. Corp. v. Abbott, 350 Mass. 775 , 775 (1966). See Pinti v. Emigrant Mortg. Co., Inc., 472 Mass. 226 (2012); Bank of New York v. Bailey, 460 Mass. 327 (2011).
In the present case, the Court, after examining the record finds that the Plaintiff has clearly shown and the record indicates that it was the valid assignee of the underlying note and mortgage at issue. An examination of the chain of title clearly shows that the Plaintiff had standing to foreclose upon the mortgage and in fact complied with G.L. c. 183 s. 54B and other respective statutory requirements in doing so.
The Court after reviewing the various issues raised by the Defendants in its opposition finds that the issues raised, while interesting and artfully plead, have failed to meet the requisite standard indicating that there are sufficient material facts in dispute concerning the validity of the underlying foreclosure or subsequent eviction actions of the Plaintiff.
First, the first issue raised by the Defendants in their opposition is that they did not "grant" a mortgage to the Plaintiff but admit they did "sign" the mortgage in question. This argument is nonsensical at best and ignores the reality that by "signing" the mortgage the Defendants were "granting" the Plaintiffs predecessor a mortgage on their property. As such, the Court finds that the Defendants by "signing" the mortgage in fact did "grant" a mortgage to the Plaintiff as the assignee of the original Mortgagee.
Secondly, the Defendants then assert that the mortgage was not secured by the real property located at 55 Mill Road, Seekonk. After reviewing the property description and address listed on the mortgage in question the Court finds that it was indeed secured by the aforementioned real property.
Third, the Defendants contest the assignment of the mortgage to the Plaintiff claiming this is a legally conclusory statement. A quick examination of the assignment finds it to be in compliance with the statutory requirements of Massachusetts. The Court finds the assignment to be legally sufficient for the purposes intended.
Fourth, the Defendants claim that the Plaintiff's statement that they conducted a foreclosure sale on January 12, 2018 is legally conclusory. This is actually a statement of fact which the Court finds to be true and accurate. A brief examination of the documentation included with the file indicates that a foreclosure sale of 55 Mill Road Seekonk, Massachusetts was conducted by the Plaintiff on January 12, 2018. As such the Court finds that the foreclosure sale was conducted on the aforementioned date.
Fifth, the Defendants asserts that the Plaintiff failed to meet the publication requirements under G.L. c. 244 s. 14. An examination of the documentation included in the file as well as to include the G.L. c. 244 affidavit and copy of the notice of publication indicates compliance with that statute in terms of publication. As such the Court finds the Plaintiff complied with the aforementioned statutory requirements.
Sixth, the Defendants challenge whether the Plaintiff was the purchaser at the aforementioned foreclosure sale claiming that the Plaintiff was not in compliance with G.L. c. 183, s. 21 and G.L. c. 244 s. 14 and also that the affidavit of sale is self-serving and represents hearsay and legal conclusions. No actual evidence is provided by the Defendants concerning the above except for assertions of same. A review of the information provided by the Plaintiff in its motion and within the file clearly indicate compliance with the aforementioned statutes and affidavit. As such the Courts finds the Plaintiff has complied with the aforementioned statutory requirements required in the Commonwealth.
Seventh, Defendants challenge the Plaintiffs' assertion that they served Notices to Quit on all Defendants that are in compliance with Massachusetts statutes. In this argument, Defendant advances the same arguments that were asserted in the earlier counts. As such, the Court finds they have no bearing upon whether the Plaintiff served Notices to Quit upon all Defendants. An examination of the record indicates that the Plaintiff served a legally sufficient notice to quit on March 15, 2018 upon the named Defendants and the Court finds that the Plaintiff complied with the requirements of statute.
Eighth, Defendants challenge the Plaintiffs' assertion that they served a Summary Process Summons and Complaint on all Defendants. In this argument Defendants advance the same arguments that were advanced in the earlier counts. As such, the Court finds they have no bearing upon whether the Plaintiff served Notices to Quit upon all Defendants. An examination of the record indicates that the Plaintiff served legally sufficient Summary Process Summons and Complaints on March 29, 2018 upon the named Defendants and the Court finds that the Plaintiff complied with the requirements of statute.
Ninth, the Defendants challenge the Plaintiffs' assertion that the current summary process action was filed to obtain possession from the Defendants who remain in possession.
Based upon the information provided by the Plaintiff by written motion which was supplemented by affidavits and documentation and finally oral argument, the Court finds that the Plaintiff has established a prima facie case and met the burden necessary to support its claim of a superior right to possession. Defendants have failed to raise any issues of material fact remaining in dispute and as such have failed to meet the standard necessary to defeat Plaintiff's motion for Summary Judgment.
ORDER FOR JUDGMENT
Based upon all the credible evidence submitted as part of the summary judgment record in light of the governing law, it is ORDERED that:
1. Judgment enters for the Plaintiff and against the Defendants on the Plaintiff's claim for possession, plus costs;
2. Having been presented with no evidence concerning Plaintiff's claim for use and occupancy damages, that claim is deemed waived without prejudice;
3. The remaining counterclaims (if any) of the Defendants not addressed by this order shall be transferred to the civil docket by motion of the Defendants
4. Execution for possession shall issue ten (10) days from the date on which Judgment enters upon written request.
US Bank N.A. as Successor Trustee in Trust For the Registered Holders of the Bear Stearns Asset Backed Securities Trust 2006-1, Asset Backed Certificates, Series 2006-1, Plaintiff vs. Rita F. Marcotte, Christopher Marcotte, Soleil Marcotte and Zachary Marcotte, Defendants