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 the title of 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). Plaintiff then sought entry of judgment in its favor.

In a Decision entered this day, the Court, citing U. S. Bank National Association v. Antonio Ibanez (Land Court Case No. 08 MISC 38423) and its progeny, declined to enter judgment because of several issues which cause the purported foreclosure to be fatally flawed. Among those issues was the fact that U.S. Bank was not even the holder of the mortgage, either of record or in fact, at the time it purported to foreclose it. Accordingly, it is

ORDERED and ADJUDGED that this action be, and is hereby, dismissed with prejudice.

By the Court. (Trombly, J.)