Home U. S. BANK NATIONAL ASSOCIATION, as trustee, on behalf of the holders of the Home Equity Asset Trust 2005-9 Home Equity Pass-Through Certificates, Series 2005-9 v. FLORENCE N. GITHIRA

MISC 08-386385

October 30, 2009

ESSEX, ss.

Trombly, J.


This action was filed by U. S. Bank National Association, as Trustee, on October 23, 2008, seeking to remove a cloud on its title to a parcel of land, with the building thereon, located at 136-138 Exchange Street in the City of Lawrence (“Property”). Specifically, plaintiff contends that it now owns the property, having purchased it at a foreclosure sale, but that its title is clouded because the bank noticed and exercised the power of sale contained in the mortgage before it received authority to do so under the provisions of the Servicemembers’ Civil Relief Act. The complaint did not mention any other title defects.

A summons and copy of the complaint were served in hand upon the defendant at her new residence in Lynn and, when she did not file a responsive pleading, she was defaulted pursuant to Mass. R. Civ. P. 55(a). However, because of factual matters similar to those existing in the cases of U.S.Bank National Association v. Antonio Ibanez (Land Court Case No. 08 MISC 384283) and its progeny, I decline to enter a judgment removing only one of several defects which appear to infect this foreclosure when there are several more serious flaws.

The mortgage at issue in this case was given by Florence N. Githra to Mortgage Electronic Registration Systems, Inc. (MERS) on July 29, 2005, and duly recorded at the Essex (North District) Registry of Deeds in Book 9671, Page 187. MERS assigned the mortgage to U. S. Bank, the plaintiff, by instrument dated May 28, 2008, and duly recorded on June 11, 2008, in Book 11211, Page 203. In the meantime, prior to both the execution and recording of the assignment, plaintiff began to exercise the power of sale by publishing a legal notice in the Lawrence Eagle-Tribune, giving notice that the foreclosure auction would take place on the subject property on March 13, 2008. In fact, entry to foreclose was made and the auction was held on that date, all as evidenced by documents recorded at the Registry of Deeds on June 11, 2008. To compound the problems, Judgment in the previously filed Servicemembers’ Act case, in which U. S. Bank National was plaintiff, was not entered until July 14, 2008, long after the foreclosure had been held.

In this action, plaintiff asks this court to rule that the failure to obtain and record the Servicemembers’ Judgment prior to the sale does not constitute a cloud on plaintiff’s title. However, plaintiff seems to close its eyes to the fact that U. S. Bank was not even the holder of the mortgage on the day the foreclosure took place, either of record or in fact. For the same reasons set forth in full by Justice Keith Long of this Court in his two orders on the Ibanez cases, I decline to enter a judgment which could be interpreted as approving the missteps made by U. S. Bank. It is obvious that the entire foreclosure was fatally defective, having been conducted by a party which was not the holder of the mortgage.

Judgment to enter dismissing this action.

Charles W. Trombly, Jr.


Dated: October 30, 2009