In this action, Plaintiffs Daniel J. Lyons and Tammy A. Lyons challenge the validity of a foreclosure deed issued for property at 21 Chapin Street in Northborough, Massachusetts (the Property). Defendant Mortgage Registration Systems, Inc. (MERS) as nominee for Defendant Countrywide Home Loans, Inc. issued said foreclosure deed to a third party [Note 1] after conducting a foreclosure sale on October 26, 2009. In their Verified Complaint, the Plaintiffs assert that MERS did not have proper authority to conduct the foreclosure sale and that, therefore, the sale was void as a matter of law. The Plaintiffs claim that, because the foreclosure sale was conducted by a party lacking the statutory power of sale under the mortgage, there is a cloud on the Plaintiffs title to the Property. Finally, the Plaintiffs assert that only the lender, as the holder of the note, has the right to execute the power of sale under the mortgage until, and unless, it has assigned that mortgage. The Plaintiffs contend that there is no such assignment of record here, and seek cancellation of any unrecorded assignments which may have been made.
On February 9, 2010, the Defendants filed a Motion to Dismiss Plaintiffs Complaint, under Mass. R. Civ. P. 12(b)(6). Following a hearing, the Court issued a Decision on January 4, 2011, allowing the Defendants Motion to Dismiss. For the reasons set forth in said Decision, the Plaintiffs Complaint is hereby DISMISSED, WITH PREJUDICE.
By the court (Cutler, J.)
[Note 1] Said foreclosure deed was issued to the Bank of New York Mellon f/k/a The Bank of New York as Trustee for the Certificate Holders CWABS, Inc. Asset-Backed Certificates Series 2005-17.