MISC 353549

July 29, 2008


Long, J.


Plaintiff CRJB LLC (“CRJB”) is a recent (April 4, 2007) assignee of a promissory note from Charles and Lisa Olsson to Dream House Mortgage Corporation dated November 17, 1995, secured by a junior mortgage on the property at 101 Warren Street in Randolph. The mortgage was duly recorded at the Norfolk County Registry of Deeds. The senior mortgage, also duly recorded, was held by the predecessors of defendant U.S. Bank N.A. The Olssons filed a Chapter 7 bankruptcy petition on July 15, 1998 and received a discharge on October 22nd. U.S. Bank’s predecessor, Mercantile Bank, began foreclosure proceedings shortly thereafter and, on July 23, 1999, recorded (1) an affidavit pursuant to G.L. c. 244, § 15, certifying its compliance with the requirements for foreclosure by sale (G.L. c. 244, § 14), and (2) a certificate of entry, signed by two witnesses and notarized, certifying that a representative of the bank had “made an open, peaceable, and unopposed entry on the premises described in [the] mortgage, for the purpose, by him declared, of foreclosing said mortgage for breach of the condition thereof” (G.L. c. 244, §§ 1, 2). U.S. Bank then conveyed the property to the United States of America, Secretary of Housing and Urban Development (“HUD”) by deed dated August 9, 1999. The property has since been conveyed several times and is currently titled in the name of defendant Marie R. Millien, a purchaser for value.

Neither CRJB’s complaint nor its amended complaint gives any indication of how (if at all) defendant Fremont Investment & Loan fits in to these events, nor articulates any facts or legal theory as to why Fremont has been named as a defendant in the case. So far as the record shows, Fremont has never been served.

All of CRJB’s claims, against all of the defendants, depend upon a single, central premise: that U.S. Bank’s predecessor (Mercantile Bank) never validly foreclosed on the property and thus never extinguished CRJB’s junior lien. CRJB concedes that Mercantile foreclosed both by sale and by entry; however, it argues that neither of these foreclosures was valid because Mercantile never gave CRJB’s predecessor Remodelers Funding (the holder of the CRJB note and mortgage at the time of the foreclosures) personal notice of the foreclosures. For purposes of this motion, U.S. Bank assumes that such personal notice was not given. It thus concedes, for purposes of this motion, that the foreclosure by sale was ineffective against CRJB. G.L. c. 244, § 14. The issue the motion thus presents is whether personal notice was required for foreclosure by entry.

For the reasons set forth in the court’s Memorandum and Order Allowing Defendant U.S. Bank N.A.’s Motion to Dismiss, and Dismissing this Case in its Entirety against All Defendants of this date, I find and rule that personal notice was not required and, therefore, the foreclosure by entry was valid. U.S. Bank’s motion to dismiss is therefore ALLOWED and CRJB’s claims against all defendants are dismissed in their entirety, with prejudice.


By the court (Long, J.)