This matter is back before this Court on an order of remand issued by the Massachusetts Appeals Court 19-P-212 (Woholojian, Blake and Englander, JJ) on October 28, 2019. In that order the Appeals Court vacated a judgment entered by this Court and remanded the matter for further proceedings on the issue of Plaintiff's title and the right to bring this action. [Note 1] On December 2, 2019 this Court notified the party of the hearing scheduled for January 13, 2020 in Plymouth. Plaintiff submitted a written memorandum of Title on December 17, 2019. Defendants submitted no written memorandum to the Court. On January 13, 2020 a hearing was conducted and oral arguments of the parties were entertained by the Court on the issue of Plaintiffs standing to bring the current action. Plaintiff represented by Counsel and the Defendants Hultin and Peterson appearing without benefit of Counsel.
Undisputed Facts
The following facts necessary to resolve the legal issues raised concerning the standing of the Plaintiff in this action are based on facts set forth in the record that the Court concludes are not in dispute.
1. Defendants are the former owner and residents of the subject property located at 68 East Main Street, Middleborough, Massachusetts ("Property"). The Defendants continues to occupy the property after the foreclosure by the Plaintiff.
2. On May 2, 2006, the former mortgagor, William O. Hultin, executed a Note in favor of American Brokers Conduit in the original principal amount of $499,000.00. Said Note was secured by a Mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for American Brokers Conduit dated the same date and recorded at the Plymouth County Registry of Deeds at Book 32323, Page 2. See copy of Mortgage annexed hereto as Exhibit "A".
3. On December 6, 2012, MERS, as nominee for American Brokers Conduit assigned the mortgage to Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass through Certificates Series 2006-1 and said assignment is recorded at Book 42388, Page 233 ("First Assignment"). Plaintiffs Memorandum Exhibit "B".
4. A subsequent assignment of mortgage was executed on May 19, 2015 purporting to correct the original assignment relating to the name of the assignee. This assignment purported to assign the mortgage from MERS to Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Asset Trust 2006-1 and was recorded at Book 45620, Page 24. ("Second Assignment"). Plaintiffs Memorandum Exhibit "C".
5. On February 16, 2017, Marjorie Timmerman, Contract Management Coordinator, Ocwen Loan Servicing, LLC, as servicer for Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1, executed an Affidavit Regarding Compliance with M.G.L. c. 244, sec. 35B, attesting that Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 was the foreclosing entity and that the M.G.L. c. 244, sec. 35B was not applicable to the subject mortgage. Plaintiffs Memorandum Exhibit "D".
6. On February 16, 2017, Marjorie Timmerman, Contract Management Coordinator, Ocwen Loan Servicing, LLC, executed an Affidavit Regarding Note Secured by Mortgage to be Foreclosed M.G.L. c. 244, sec. 35C, on behalf of Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1. Said Affidavit attests that Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 was the foreclosing entity and the holder of the promissory note secured by the mortgage. Plaintiffs Memorandum Exhibit "E".
7. On January 23, 2018, Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 held a public foreclosure auction at which Plaintiff was the highest bidder and subsequently took title to the property. All required foreclosure documents were recorded on March 16, 2018, including the Affidavit of Sale Under Power of Sale in the Mortgage which was executed on behalf of Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 and attests that the mortgage was in default and that Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 complied in all respects to the power of sale in the mortgage. Said Affidavit also confirms that Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 complied with all requirements under M.G.L. c. 244, sec. 14. Plaintiffs Memorandum Exhibit "F".
8. On February 27, 2018, Karen P. Peterkin, Contract Management Coordinator, Ocwen Loan Servicing, LLC, as servicer for Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1, executed an Affidavit Regarding Note secured by Mortgage being Foreclosed and the same was recorded at Book 49592, Page 12. Said Affidavit attests that Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 was the foreclosing entity and holder of the Note and that the contractual notice of default was sent to the mortgagor after July 17, 2015 and strictly complied with the notice provision set forth in the terms of the subject mortgage. Plaintiffs Memorandum Exhibit "G".
9. After service of the requisite notices to quit, as to both the known tenants and the former mortgagor, a bench trial was ultimately conducted on December 10, 2018. As stated earlier, none of the named defendants filed any type of answer, counterclaim or other responsive pleading and no defendant ever challenged Plaintiff's title or standing to bring the instant summary process action. The trial consisted of Plaintiff's submitted evidence by way of the mortgage, assignments of mortgage, foreclosure documents, affidavits, G.L. c. 186A notice and notices to quit. Only the former mortgagor, Mr. Hultin, and one of his tenants, Jessica Peterson, appeared and testified. Both Mr. Hultin and Ms. Peterson testified as to tenancies and leases and did not challenge title or Plaintiff's standing.
10. The Court issued a decision sua sponte that "Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates, Series 2006-1" ("Plaintiff"), is not the same entity as "Deutsche Bank National Trust Company as Trustee for American Home Mortgage Asset Trust 2006-1" as it was listed on the Second Assignment.
11. The Court made no findings on the Plaintiff's claim of a superior right to possession and as a result this matter must be re-tried on that issue.
Discussion
It is well settled in the Commonwealth that a Plaintiff in a post foreclosure summary process action need only introduce into evidence attested to or certified copies of the foreclosure deed and affidavit of sale to meet its burden for a prima facie case for superior right to possession.
In Bank of N.Y. v. Bailey, 460 Mass. 327 , 334 (2011), the Supreme Judicial Court held that "in a summary process action for possession after foreclosure by sale, the plaintiff is required to make a prima facie showing that it obtained a deed to the property at issue and that the deed and affidavit of sale, showing compliance with statutory foreclosure requirements, were recorded." See Lewis v. Jackson, 165 Mass. 481 , 486-487, 43 N.E. 206 (1896); G.L. c. 244, section 15. Moreover, in Fannie Mae v. Hendricks, 463 Mass. 635 , 637, 642 (2012), the Supreme Judicial Court stated that a "plaintiff in a post foreclosure summary process case may make a prima facie showing of its right to possession by producing an attested copy of the recorded foreclosure deed and affidavit of sale
we hold that in a summary process action a foreclosure deed and statutory form constitute prima facie evidence of the right to possession."
In a more recent decision in Mendell Way, LLC v. Gordon, 91 Mass. App. Ct. 1124 (2017), the Massachusetts Appellate Court followed and expanded on the Supreme Judicial Court's holding in Hendricks explaining that "a plaintiff in a post-foreclosure summary process action may make a prima facie showing of the right to possession by producing an attested copy of the recorded foreclosure deed and affidavit, but that the defendant 'may challenge a plaintiff's title, i.e. its right to possession.'" See also Klevisha v. Provident Funding Assocs., L.P., 167F. Supp. 3d 250, 257-258 (D.Mass. 2016), "in a summary process action for possession after foreclosure by sale, the plaintiff is required to make a prima facie showing that it obtained a deed to the property at issue and that the deed and affidavit of sale, showing compliance with statutory foreclosure requirements, were recorded." The Klevisha Court found that Provident Funding undisputedly demonstrated its strict adherence to Massachusetts foreclosure statutes. The burden in establishing a prima facie case has been satisfied by the production of certified copies of the foreclosure deed conveying title to the property to Freddie Mac recorded at the Middlesex County (Northern District) Registry of Deeds in Book 29628, Page 238
and a post-sale affidavit regarding note ("Eaton Affidavit") dated November 17, 2015 recorded in the Middlesex County (Northern District) Registry of Deeds in Book 29628, Page 243. Freddie Mac is entitled to possession of the property." Id.
In the instant matter, Deutsche Bank clearly produced at trial certified copies of the foreclosure deed and supporting documentation, whereby title was properly transferred to reflect Deutsche Bank as the owner after the foreclosure sale. Also submitted into evidence at the bench trial was a certified copy of the Affidavit of Sale Under Power of Sale in Mortgage, which details the foreclosing entities' strict compliance with all pre-foreclosure and foreclosure statutes. Said Affidavit attests that the borrower was in default and that the foreclosing entity complied with Chapter 244, section 14 by causing to be mailed the required notices, certified mail, return receipt requested. In addition, the Affidavit confirms that all requirements of the power of sale included in the mortgage and of the law have been complied with in all respects.
Furthermore, the Defendants did not raise any questions concerning the title or standing of the Plaintiff to pursue this action at any time either before or during the trial on this matter.
Nonetheless, the Court was correct to note the subsequent assignment of mortgage that was executed on May 19, 2015 purporting to "correct" the original assignment relating to the name of the assignee. This assignment purported to assign the mortgage from MERS to Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Asset Trust 2006-1. The Court found that Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates, Series 2006-1, as the foreclosing entity, was not the same entity listed on this second assignment, Deutsche Bank National Trust Company as Trustee for American Home Mortgage Asset Trust 2006-1. While this finding concerning the differing names of the entities in question is indeed correct the legal effect of the second assignment is void. It is well established in the Commonwealth that once an assignment is recorded that it may not be "corrected" but for the possible exception of minor scrivenors errors. In the present case the attempted correction sought to completely change the name of the assignee which is not considered a minor scrivenors error.
I find that this "corrective" assignment in question is void and has no effect whatsoever on the status of title. The First Circuit in Wilson v. HSBC Mortg. Servs., 744 F. 3d 1 (1st Cir. 2014) described the effect of a void assignment as follows: "void contracts or agreements are 'those that are no effect whatsoever; such that as are a mere nullity, and incapable of confirmation or ratification." That is clearly the case in this matter. The issue of whether Deutsche Bank National Trust Company as trustee for American Home Mortgage Asset Trust 2006-1" is or is not a valid entity is a matter for the parties to that particular transaction to resolve but I deem the "corrective" assignment to be void and thus has no legal effect on the initial assignment.
Deutsche Bank National Trust Company is the trustee of American Home Mortgage Assets Bank Trust 2006-1 pursuant to the terms of a Pooling and Servicing Agreement by and between American Home Mortgage Assets, LLC, as depositor, and Wells Fargo Bank, N.A., as servicer. See copy of header page of Pooling and Servicing Agreement ("PSA"). Moreover, under Massachusetts law, a mortgagee who seeks to foreclose under M.G.L. c. 244, section 14 "must hold both the mortgage and the underlying note at the time that the putative foreclosing entity provides statutory notice of foreclosure." Matt v. HSBC Bank, 968 F.Supp. 2d 351, 357 (D. Mass. 2013), citing Eaton v. Fed. Nat'l Mortg. Ass'n, 969 N.E. 2d 1118, 1124-31 (Mass. 2012)). To establish itself as the mortgage holder, "a foreclosing entity may provide a complete chain of assignments linking it to the record holder of the mortgage or a single assignment from the record holder of the mortgage." U.S. Bank Nat'l Ass'n v. Ibanez, 941 N.E. 2d 40, 53 (Mass. 2011). Here Plaintiff submitted all certified foreclosure related documents and affidavits, including the pre-foreclosure Affidavit Regarding Note Secured by Mortgage to be Foreclosed M.G.L. c. 244, sec. 35C, which clearly identified Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 as the foreclosing entity and as holder of both the mortgage and the note. The requisite "Eaton Affidavit" was also properly submitted into evidence, once again attesting that Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates, Series 2006-1 was the foreclosing entity and held both the mortgage and the note.
Finally, the requisite foreclosure deed references and is supported by a recorded Limited Power of Attorney executed on April 1, 2015 whereby Deutsche Bank National Trust Company grants signing authority to its loan servicer, Ocwen Loan Servicing, LLC specifically identifying the Pooling and Serving Agreement dated as of May 1, 2006 among American Home Mortgage Assets, LLC (as company), Wells Fargo Bank, N.A. (as master servicer and securities administrator) and "Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Asset, Mortgage Pass Through Certificates, Series 2006-1."
Again it is noted that not one of the Defendants made any type of challenge to Plaintiff's title by way of an Answer, Counterclaim or testimony and no objections were made to Plaintiff's introduction of any documentary evidence at said trial. Nor were the Plaintiffs made aware of any potential sua sponte challenge being made by the Court or provided an opportunity to brief same.
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 establishing its legal right and standing to pursue this foreclosure and eviction action. Defendants have failed to raise any issues concerning the standing of the Plaintiff.
ORDER
Based upon all the credible evidence submitted as part of the record in light of the governing law, it is ORDERED that:
1. The Judgment of December 20, 2018 is hereby vacated;
2. That the Plaintiff has established the requisite standing to bring this matter.
Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage Backed Pass Through Certificates Series 2006-1 v. William O. Hultin, Mark E. Nichols a/k/a Mark Nicholas, Jason Aaron and Jessica Peterson