Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Loan Trust 2005-AR18, Mortgage Pass-Through Certificates, Series 2005-AR18 under the Pooling and Servicing Agreement dated Sept. 1, 2005 (Deutsche) filed its verified Complaint to Foreclose on the property of Eroilda P. Cicchelli (E. Cicchelli) and Ray Cicchelli (the Cicchellis)(10 MISC 423350) pursuant to the Servicemembers Civil Relief Act (the Servicemembers Act), along with Mortgagees Affidavit, on February 24, 2010, seeking a ruling that the Cicchellis are not in the military service. On September 23, 2010, Deutsche filed a Motion to Substitute Party, asking the court to strike Deutsche from its verified Complaint to Foreclose and substitute OneWest Bank, F.S.B. (OneWest), which this court (Scheier, C.J.) allowed. [Note 1], [Note 2]
On August 17, 2010, the Cicchellis filed their verified complaint against Deutsche and OneWest (10 MISC 436809), seeking a judgment that Deutsche and OneWest lack standing under the Servicemembers Act to obtain a judgment in that matter, and therefore could not conduct a valid foreclosure sale, as well as a preliminary and permanent injunction against the foreclosure sale. Along with their complaint, the Cicchellis filed an Application for Injunctive Relief, Emergency Motion for Temporary Restraining Order, supporting Affidavit of Counsel, Motion for Issuance of Memorandum of Lis Pendens, and Motion for Short Order of Notice. On August 24, 2010, there was a hearing on the Cicchellis Application for Preliminary Injunction, at which Deutsche and OneWest agreed to postpone the foreclosure sale until the Servicemembers Act case went to judgment. Because the issue involved in both OneWests Servicemembers Act case and the Cicchellis foreclosure case is the standing of OneWest to foreclose on the Cicchellis mortgage, this court consolidated 10 MISC. 423350 and 10 MISC 436809, per a Post Hearing Order issued on November 30, 2010.
On December 31, 2010, OneWest filed its Motion for Summary Judgment, along with Affidavit of Plaintiff. [Note 3], [Note 4] On January 20, 2011, the Cicchellis filed their Motion in Opposition to Summary Judgment. On February 22, 2011, OneWest filed its Response to Cicchellis Opposition to Summary Judgment. On March 25, 2011, the Cicchellis filed an Assented Motion to Allow the Cicchellis to File Response to OneWests Reply Brief, and on April 13, 2011, the Cicchellis filed their Response to OneWests Reply Brief. At that time the matter was taken under advisement. A decision of todays date has been issued.
In accordance with that decision, it is:
ORDERED and ADJUDGED that OneWest, as the Mortgage holder, has standing to bring an action against the Cicchellis under the Servicemembers Act.
ORDERED and ADJUDGED that, because there is no evidence that the Cicchellis are currently in the military service or recently released from military service and the Cicchellis have not alleged that they are OneWest is entitled to judgment in OneWests favor under the Servicemembers Act.
ORDERED and ADJUDGED that the Cicchellis are not entitled to an injunction against OneWests foreclosure on the Mortgage.
ORDERED and ADJUDGED that OneWests Motion for Summary Judgment is ALLOWED.
By the court (Sands, J.)
[Note 1] The Amended Complaint, with OneWest substituted as Plaintiff, was also filed on September 23, 2010.
[Note 2] By document dated June 24, 2005, the Cicchellis mortgaged to the Mortgage Electronic Registration System (MERS), as nominee for IndyMac Bank, F.S.B. (IndyMac) the property located at 32 Bancroft Avenue, Milford, Massachusetts (the Mortgage). On May 14, 2009, MERS assigned said Mortgage to Deutsche. Deutsche, in turn, assigned said mortgage to OneWest on September 15, 2009. OneWest remains the mortgagee today.
[Note 3] Affidavit of Plaintiff is an affidavit of Rebecca Marks, a supervisor at OneWest.
[Note 4] Due to the consolidation of the cases, there is inconsistency within the parties memoranda regarding who is the plaintiff and who is the defendant. For the sake of clarity, I will refer to parties by their name rather than plaintiff and defendant.