MISC 10-443423

December 17, 2010


Trombly, J.


This action, entitled “Petition to Compel Adverse Claimant Under G. L. 240, § 1", was filed in this Court on November 30, 2010 at approximately 11:30 A.M. Plaintiffs, acting “Pro Se”, also filed an emergency motion asking the Court to enjoin the Defendant, U. S. Bank, from conducting a mortgage foreclosure auction which was scheduled to take place that very afternoon at 1:00 P.M. on Plaintiffs’ property located at 500 Sippewissett Road in Falmouth. Following a hearing at which Plaintiff alone argued the case, the Court issued a Summons and Restraining Order, ordering that the foreclosure not take place and giving notice that a hearing would be held on December 16, 2010 at which time all parties could argue as to whether or not the Temporary Restraining Order would be allowed to lapse or whether it should be continued in effect in the form of a Preliminary Injunction.

On December 14, 2010, Defendant filed a Motion to Dissolve the Temporary Restraining Order, a Motion to Dismiss the action based on the doctrine of “collateral estoppel”, and memoranda in support thereof. Plaintiffs replied with oppositions to both motions on December 16th, at which time the motions were argued by Mr. Hagan, representing himself and his wife, and by counsel for U. S. Bank.

Plaintiffs, while admitting they are in default on their mortgage payments, contend that U. S. Bank is not the current holder of the mortgage and, therefore, does not have any right allowing it to proceed with the foreclosure. According to them, the mortgage was originally given by them to Wells Fargo Bank, N.A. on January 31, 2007, registered at the Barnstable Registry District of the Land Court as Document No. 1055680, and noted on Certificate of Title No. 149418. Plaintiffs further contend that the mortgage was later “assigned” or “transferred” by Wells Fargo to Lehman Brothers Holdings, Inc., and, eventually, to an entity they identify as Structured Asset Securities Corporation (“SASC”). They further contend that because the two aforementioned “assignments” have never been registered, they have been unable to locate them or much information concerning them, and that a subsequent and duly registered assignment of the mortgage from Wells Fargo to U. S. Bank in 2009 is invalid and ineffective because Wells Fargo, by that date, no longer held the mortgage and, therefore, had no authority to assign it.

Defendant disagrees, relying on the record at the Registry of Deeds and arguing that U. S. Bank is the current holder of the mortgage by virtue of the 2009 assignment. It further contends that any “information” the Hagans have been able to locate, while it may possibly relate to a step in the “securitization” process, is incomplete and, in any event, was not an assignment of the mortgage. As noted, Defendant relies on the 2009 assignment to U. S. Bank for the conclusion that U. S. Bank is the current holder of the mortgage with authority to foreclose and that this action should be dismissed.

More importantly, Defendant points out that substantially the same issues sought to be raised by the Hagans in this action have already been before, and ruled upon, by at least two Justices of the Superior Court, and that Plaintiffs have also sought relief by filing a petition in the Bankruptcy Court. The Bankruptcy action was dismissed when Plaintiffs did not file necessary documents therein. The action in Barnstable Superior Court resulted in a Judgment in favor of the bank. Plaintiffs have filed a notice of appeal from that Judgment and entered their appeal in the Appeals Court on November 22, 2010 as Case No 2010-P-2049, where it is still pending. Defendants therefore ask this Court to dismiss the current action on grounds of “collateral estoppel” and on their claim of the existence of a “prior pending action”.

At the conclusion of the hearing on December 16, 2010, I denied Plaintiffs’ application for a Preliminary Injunction and allowed Defendant’s motion to dissolve the temporary restraining order. I now allow Defendant’s Motion to Dismiss based on the existence of the prior pending action currently pending in the Appeals Court. Plaintiff stated at the hearing that he was willing to dismiss the appeal of the Superior Court action and proceed with the present action instead. As noted by Defendant’s counsel, it’s too late for that. The issues have been joined in that litigation, and the Hagans cannot dismiss it without the assent of the bank, something they are unlikely to obtain. The foreclosure sale has already been postponed several times due to Plaintiffs’ various appearances in Court. This court is unwilling to allow it to happen again. Of course, they may proceed with the pending appeal if they so desire.

For all the above reasons, Defendant’s Motion to Dismiss is hereby allowed. The case is dismissed with prejudice but without prejudice to Plaintiffs continuing to press their appeal of the Superior Court Judgments in the Appeals Court.

Judgment to enter accordingly.

By the Court. (Trombly, J.)


Deborah J. Patterson


Dated: December 17, 2010