MISC 10-442626

March 8, 2012

Sands, J.


Plaintiff filed her verified complaint on November 8, 2010, pursuant to the provisions of G. L. c. 231A, seeking a declaratory judgment that the sale of property located at 10 Monohansett Road, Nantucket, Massachusetts (“Locus”) to Defendant Merrill Lynch Credit Corp. (“Merrill Lynch”) via a foreclosure deed from Defendant Sovereign Bank, FSB (“Sovereign”) (together, “Defendants”) is void. On the same day, Plaintiff filed a Motion for Lis Pendens, relative to Locus, which this court allowed on November 12, 2010. On November 12, 2010, Sovereign filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment, both together with supporting memorandum. Merrill Lynch filed its Answer on December 2, 2010. On December 13, 2010, Plaintiff filed her Opposition to Motion to Dismiss, together with supporting memorandum and Appendix. A case management conference was held on January 26, 2011. At a status conference held on July 14, 2011, the parties agreed that there were material facts at issue and a trial was required. A pre-trial conference was held on September 26, 2011. Plaintiff filed a Motion in Limine to Preclude Evidence Regarding Authority of Bahig Bishay, Trustee, to bid at the Foreclosure Auction on November 22, 2011, and a Motion in Limine to Preclude Testimony of Daniel McLaughlin on December 9, 2011. A trial was held on December 19, 2011, at the Land Court in Boston. At the commencement of the trial, Merrill Lynch filed a Notice of Merger to indicate that it had merged with Bank of America, National Association. At the same time this court DENIED both of Plaintiff’s Motions in Limine. At the close of Plaintiff’s evidence, and again at the close of the trial, both Merrill Lynch and Sovereign made an oral Motion for a Directed Finding, which this court DENIED. On February 8, 2012, Plaintiff filed her post-trial brief. On February 9, 2012, Defendants filed their post-trial brief, at which time this matter was taken under advisement.

Testimony was given by Plaintiff’s witness Bahig Bishay (“Bahig”) (Plaintiff’s husband). Testimony was given by Defendants’ witnesses Sandra Munroe (“Sandra”) (auctioneer), James Monroe (“James”) (auctioneer’s husband and agent of Sovereign’s attorney), and Daniel McLaughlin (“McLaughlin”) (auctioneer expert). Deposition testimony of Richard Holdgate (“Richard”) (representative of Sovereign) was submitted when the witness became unavailable. A decision of today's date (the “Decision”) has been issued.

In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that Sandra publicly read the terms of the Foreclosure Auction Agreement at the foreclosure sale, which included the right to sell Locus to the second highest bidder.

ORDERED and ADJUDGED that foreclosure sale of Locus to Merrill Lynch was valid.

By the court. (Sands, J.)