SBQ 06-14792-12-001

March 2, 2010

Sands, J.


Related Cases:

Plaintiff filed its unverified Petition on December 15, 2006, alleging clerical errors in, and seeking to amend, a mortgage (“Mortgage 3”) granted to Ameriquest Mortgage Company (“Ameriquest”) on May 14, 2004, by Defendants Victoria A. Kelley (“Victoria”) and Leo A. Kelley (“Leo”) (together, “Defendants”) with respect to property located at 35 Bay Farms Road, Kingston, Plymouth County, Massachusetts (“Locus”). [Note 1], [Note 2] Defendants filed their Answer on August 16, 2007. [Note 3], [Note 4] Plaintiff filed its Motion for Summary Judgment on January 30, 2008. On April 22, 2008, Defendants filed their Motion to Deny Summary Judgment. [Note 5] Defendants filed their Motion to Dismiss on April 21, 2009, alleging predatory lending, fraud and malfeasance, and forgery. [Note 6] Plaintiff filed its Opposition to Defendants’ Motion to Dismiss on July 22, 2009. A hearing was held on all motions on September 14, 2009, at which time all motions were taken under advisement. [Note 7]

On December 23, 2009, this court issued a Fifteen Day Nisi Order (the “Nisi Order”) in which Plaintiff was required to provide proof of its interest in Mortgage 3 and the Note. Plaintiff complied with the Nisi Order by providing this court with an assignment (the “Assignment”) of Mortgage 3 and the Note from Ameriquest to Plaintiff dated December 24, 2009, and by recording the Assignment with the Registry on December 31, 2009, at Book 38092, Page 3. [Note 8] This court issued its Decision (the “Decision”) and Judgment (the “Judgment”) dated January 4, 2010, finding that Mortgage 3 was intended to encumber Locus and allowing Plaintiff’s Motion for Summary Judgment.

On January 14, 2010, Defendants filed Defendants’ Request for Reconsideration of Summary Judgment, arguing that Plaintiff had not complied with the Nisi Order because there was no document of record which gave the person executing the Assignment on behalf of Ameriquest the authority to do so. The motion was heard on February 9, 2010, and taken under advisement at such time. At that hearing, this court allowed Plaintiff until February 12, 2010, to provide this court with proper documentation demonstrating its interest in Mortgage 3. On February 12, 2010, Plaintiff filed its Opposition to the Motion for Reconsideration, together with documentation which it alleged showed evidence of ownership of Mortgage 3. By letter dated February 18, 2010, and filed with this court on February 19, 2010, Plaintiff filed additional documentation (including recently recorded corporate documents) purporting to show evidence of ownership of Mortgage 3. On February 23, 2010, Defendants filed a letter reiterating their position that Plaintiff failed to provide proper documentation of its interest in Mortgage 3. [Note 9]

This court agrees with Defendants’ position that Plaintiff has failed to provide proof of its ownership of Mortgage 3, despite being granted several opportunities to do so. The issue of Plaintiff’s standing was first identified in a letter from this court (Sheila R. Grandfield, Title Examiner) dated April 9, 2007, in which she asked, in part, that Plaintiff “[p]lease provide some evidence that Deutsche Bank National Trust is the holder of the subject mortgage.” In response, Plaintiff filed its Amended Petition on April 17, 2007, along with a Limited Power of Attorney dated December 27, 2005, and recorded with the Registry on February 10, 2006, at Book 32198, Page 219. The issue reappeared in December 2009, when, as part of the Decision, this court throughly reviewed Plaintiff’s Limited Power of Attorney. On December 23, 2009, this court again required Plaintiff to show proof of its interest in Mortgage 3. Over the last two months Plaintiff has repeatedly attempted to do this, with no success.

As a result of the foregoing, this court ALLOWS Defendants’ Motion to Vacate the Decision and Judgment and Dismiss this Action without Prejudice. [Note 10]

So Ordered.

By the Court. (Sands, J.)


[Note 1] The clerical errors alleged in the Petition were : (1) recording Mortgage 3 on the recorded (versus the registered) side of the Plymouth County Registry of Deeds (the “Registry”); and (2) omitting the address from the margin of Mortgage 3 and including the wrong legal description of the property on Exhibit A of Mortgage 3.

An Amended Petition was filed on April 17, 2007, correcting a misspelling of Victoria’s name. A Second Amended Petition was filed on October 2, 2007, adding a count for declaratory judgment as to the status of Mortgage 3.

[Note 2] Mortgage 3 secured an Adjustable Rate Note dated May 13, 2004, in the principal amount of $395,000 (the “Note”). Mortgage 3 listed “Victoria A. Kelley, married to Leo A. Kelley” as the Borrower, but was executed by both Victoria and Leo. Locus has been the principal residence of Defendants since 1995 and contains approximately 1.52 acres.

[Note 3] Defendants filed their Answer to Second Amended Petition on December 21, 2007.

[Note 4] Defendants were initially represented by Brenda Golden Hallisey, Esq. Attorney Hallisey filed a Motion to Withdraw as Counsel, which was allowed on March 7, 2008. Since that time Defendants have represented themselves pro se.

[Note 5] Defendants filed their Opposition to Revised Motion for Summary Judgment on September 9, 2009, together with supporting memorandum.

[Note 6] Defendants filed a second Motion to Dismiss on June 24, 2009.

[Note 7] Defendants’ Motions to Dismiss do not refer this court to a particular authorizing rule of civil procedure or statutory provision. Further confusing matters is that Defendants’ second Motion to Dismiss refers to Plaintiff’s Motion for Summary Judgment. However, aware of Defendants’ pro se status and this court’s duty pursuant to Mass. R. Civ. P. 8(f) to interpret “[a]ll pleadings . . . as to do substantial justice,” this court addressed the merits of Defendants’ Motions to Dismiss in its decision.

[Note 8] Plaintiff reported that the Registry would not accept the Assignment on the registered side because Mortgage 3 is recorded and not registered.

[Note 9] On February 26, 2010, Defendants filed a Motion to Vacate the Decision and Dismiss this matter without prejudice.

[Note 10] This court wishes to confirm that the merits of the Decision are not affected by this Order and Amended Judgment. This Order dismissing the matter is without prejudice to Plaintiff to file a new action, provided that it has properly documented its interest in Mortgage 3.