Wilmington Trust, National Association not in its individual capacity, but solely as Trustee for MFRA Trust 2014-2 v. Michael J. McSharry and Carol J. McSharry

Plaintiff, Wilmington Trust National Association, brought this action to recover possession of property located at 6 Leah Drive, Rockland, Massachusetts ("Property") following a foreclosure sale and recordation of the deed related to same on July 30, 2019. 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 inter alia that certain assignments were incorrect and broke the chain of title, that the Eaton and Pinti affidavits are insufficient and finally that the Affidavit of Sale is otherwise improper. 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.

1. Defendants are the former owners of the residential property located at 6 Leah Drive, Rockland, Massachusetts ("Property"). The Defendants continue to occupy the property after the foreclosure by the Plaintiff.

2. On March 30, 2001, the Defendants obtained a loan secured by a promissory note and first mortgage ("mortgage") on the property to Chase Manhattan Mortgage Corporation ("CMMC"). [Note 1]

3. The mortgage and all rights thereto was assigned by CMMC to Citibank, N.A. as trustee (Citibank) by assignment which was recorded on July 21, 2004 in the Plymouth County Registry of Deeds in Book 28705 at Page 162. Affidavit of Kevin P. Polansky Exhibit 1.

4. On December 1, 2006 the Mortgage was then assigned to Chase Home Finance LLC. The assignment was recorded on August 30, 2007 in Book 35019 Page 67. This assignment was void. Affidavit of Kevin P. Polansky Exhibit 2

5. On February 26, 2009 Citibank then assigned the Mortgage to Chase Home Finance LLC and was recorded on March 4, 2009 in Book 36889 Page 1. Affidavit of Kevin P. Polansky Exhibit 4.

6. On August 28, 2014 JP Morgan Chase Bank successor by merger to Chase Home Finance LLC assigned the mortgage to US Bank National Association as trustee for PROF 2012 -S1 holding trust 1 (US Bank)which was recorded on September 16, 2014 in Book 44742 Page 253. Affidavit of Kevin P. Polansky Exhibit 5

7. On February 9, 2015 US Bank assigned the mortgage to MFRA Trust 2014-2 ("MFRA") on March 5, 2015 in Book 45293 Page 227. This assignment incorrectly named MFRA instead of the Plaintiff. Affidavit of Kevin P. Polansky Exhibit 6

8. On May 5, 2015, US Bank executed a corrective assignment naming the Plaintiff as the assignee of the mortgage and recorded this corrective assignment on May 12, 2015 in Book 45536 Page 25. Affidavit of Kevin P. Polansky Exhibit 7

9. On February 27, 2017, MFRA assigned any interests it may have had in the mortgage to the Plaintiff on March 17, 2017 in Book 48211 Page 43. Affidavit of Kevin P. Polansky Exhibit 8

10. At some point on or about January 1, 2008 the Defendants ceased making payments on the mortgage.

11. The Defendant Michael McSharry filed a series of bankruptcies under Chapter 13 over the next several years. All of these bankruptcies have been dismissed. Affidavit of Kevin P. Polansky Exhibits 9-12

12. On September 30, 2014 Fay Servicing, on behalf of US Bank, sent the Defendants the requisite notices required under M.G.L. c. 244 s. 35A Affidavit of Sharon Emery Exhibit B. I find the content of said notices to be in compliance with the aforementioned statutory guidelines.

13. On October 2, 2014 Fay Servicing, on behalf of US Bank, sent the Defendants the requisite notices under M.G.L. c. 244 s. 35B. Affidavit of Sharon Emery Exhibit C. I find the content of said notices to be in compliance with the aforementioned statutory guidelines.

14. On January 4, 2018 the Fay Servicing executed affidavits indicating compliance with M.G.L. c. 244 s. 35A, 35B and 35C and recorded on January 9, 2018 in Book 49387 Page 291. Affidavit of Kevin P. Polansky Exhibit 14. I find the content of said notices to be in compliance with the aforementioned statutory guidelines.

15. On August 9, 2019 the Plaintiff recorded the foreclosure deed and affidavit of sale in the Plymouth County Registry of Deeds in Book 51486 Page 174. Affidavit of Kevin P. Polansky Exhibit 15.

16. On August 9, 2019 the Plaintiff recorded the Post Foreclosure Affidavit regarding notice and compliance with the Mortgage Notice Provisions and Conditions Precedent to Acceleration and Sale a/k/a the Eaton and Pinti Affidavits affidavit of sale were recorded in Book 51486 Page 177. Affidavit of Kevin P. Polansky Exhibit 16. I find the content of said notices to be in compliance with the aforementioned statutory guidelines.

17. Plaintiff presented a Limited Power of Attorney from MFRA to Fay Servicing that was recorded on March 17, 2017 in Book 48211 Page 39. Affidavit of Kevin P. Polansky Exhibit 17 I find the content of said POA to be in sufficient for the exercise of said authority.

18. On October 1, 2019 the Plaintiff caused a Notice to Vacate to be served upon the Defendants. I find said notice to be legally sufficient for the purposes intended;

19. The Defendants are still in possession of the property.

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, Defendants have raised the following issues concerning Plaintiffs title to the Premises, the subsequent standing of the Plaintiff to conduct the foreclosure, the foreclosure itself and the subsequent eviction action.

I. Did the Plaintiff possess the original note at the time of the foreclosure?

The Defendants assert that the Plaintiff failed to prove that it had actual possession of the original note executed by the Defendants when it first noticed the foreclosure sale at issue. Plaintiff in its memorandum has provided voluminous detailed affidavit and documentary evidence in support of its claim to tile of the Premises. Despite this information Defendants claim in essence that the assignment making up the chain of title contains fatal deficiencies that nullify Plaintiff's claim. Defendants claim inter alia that

1. the first assignment by CMMC to Citi Bank as Trustee requires disclosure of the actual trust to be effective yet provides no statutory or case law basis to support this assertion.

2. Defendants next assert that the second assignment made by CMMC after the first assignment has caused the chain of title to be defective. The second assignment is void has no effect on the chain of title as CMMC had no interest to assign;

3. On February 26, 2009 Citibank then assigned the Mortgage to Chase Home Finance LLC and was recorded on March 4, 2009 in Book 36889 Page 1. This assignment is correct;

4. On August 28, 2014 JP Morgan Chase Bank successor by merger to Chase Home Finance LLC assigned the mortgage to US Bank National Association as trustee for PROF 2012 -S1 holding trust 1 (US Bank)which was recorded on September 16, 2014 in Book 44742 Page 253. This assignment is correct;

5. On February 9, 2015 US Bank assigned the mortgage to MFRA Trust 2014-2 ("MFRA") on March 5, 2015 in Book 45293 Page 227. This assignment incorrectly named MFRA instead of the Plaintiff.

6. On May 5, 2015, US Bank executed a corrective assignment naming the Plaintiff as the assignee of the mortgage and recorded this corrective assignment on May 12, 2015 in Book 45536 Page 25.

7. On February 27, 2017, MFRA assigned any interests it may have had in the mortgage to the Plaintiff on March 17, 2017 in Book 48211 Page 43

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 shows that while there were discrepancies with the assignment chain, the discrepancies either had no legal effect or were duly corrected by legally sufficient documentation. It is well established in Massachusetts law that unless the Defendants can show an assignment is void and not simply voidable they lack the standing necessary to challenge that assignment. See Sullivan v Kondaur Capital, 85 Mass. App. Ct. 206 (2014). The incorrect assignment in this case, was timely addressed and corrected sufficiently to affirm the standing necessary for the Plaintiff to foreclose. As a result, the Court finds that the Plaintiff clearly had legally sufficient possession of the underlying note at issue in this matter at the appropriate time of and thus possessed the standing necessary to foreclose upon the mortgage in accordance with G.L. c. 244 s. 14 and s. 15 and G.L. c. 183 s. 21 and s. 54B

II. Default and Foreclosure

Defendants next assert that the documentation supporting the foreclosure is either incorrect, insufficient or otherwise not in compliance with the requisite statutory authority. To that end Defendants argue that the underlying 35C and Pinti affidavits executed by the loan servicer are not based upon personal knowledge of the affiant and thus are insufficient. Plaintiff states that the first and second affidavits of compliance with Eaton and Pinti conform to the statutory standard and supporting caselaw and that there is no issue of material fact remaining on this point.

After examining the above, I find that the underlying Eaton and Pinti affidavits clearly establish that the Plaintiff met all requisite legal standards established concerning notice and possession of the promissory note. The Massachusetts Appeals Court established the baseline for the validity of affidavits made by loan servicers and/or document custodians specifically to include possession of the promissory note in Eaton v. Federal National Mortgage Association 93 Mass. App. Ct. 220 (2018). In that decision the court held that document custodians could execute affidavits in compliance with Mass.R.Civ.P. 56(e) where the affidavits are "submitted by individuals employed by the relevant parties, attest to the transfer of the note…to its new servicer…and are based on a review of the business records of each entity." The affidavits in question executed by Kimberly Cruz clearly state confirm that Plaintiff held the Note on the date that pre-foreclosure notices were sent and published all the way through to the date of the actual foreclosure sale. Thus I find based upon a review of the record that the affidavits are informationally sufficient, in compliance with statutory and case law guidelines and support the Plaintiffs contention that it possessed the Note at the time of notice

The Post Foreclosure Affidavit Regarding the Note and Compliance with the Mortgage Notice Provisions and Conditions Precedent to Acceleration and Sale (Eaton and Pinti affidavits) were recorded in the Plymouth County Registry of Deeds at Book 51488 Page 177 on August 9, 2019. Examination of same indicates compliance with all of the statutory and case law requirements and confirms that the Plaintiff held the promissory note at the date the statutory notices were sent and through the date of the foreclosure.

While the Defendant may disagree with the information contained within the affidavit they have not provided information sufficient enough to raise a material fact in question and have failed to provide anything other than speculation in terms of the invalidity of same.

Ultimately the foreclosure and subsequent eviction action are dependent upon the status of Plaintiffs title. Plaintiff must prove that their title is derived in accordance with requisite title and statutory requirements. See Bank of New York v Bailey, 460 Mass. 327 (2011). Based upon the evidence and information provided by the Plaintiff supplemented by affidavits and additional documentation I find that the Plaintiffs' have established a prima facie case and met the burden necessary to support its claim of legal title and a superior right to possession. Defendants in their opposition, while thoughtfully and thoroughly plead, 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 filed no later than March 30, 2020;

4. Execution for possession shall issue ten (10) days from the date on which Judgment enters.

SO ORDERED.