PAUL D. CONTI vs. WELLS FARGO BANK, N.A.

Plaintiff filed his Verified Complaint to quiet title pursuant to G. L. c. 240, § 6 on December 13, 2011, challenging Defendant’s standing to foreclose on Plaintiff’s property (“Locus”), and alleging that Defendant did not have valid title to a note and mortgage on which it was trying to foreclose, and that Defendant did not follow the pre-foreclosure requirements of G. L. c. 244, § 35A. [Note 1] [Note 2] An emergency ex parte motion for temporary restraining order seeking to stop a foreclosure sale scheduled for December 15, 2011, was filed by Plaintiff on December 14, 2011, and denied the same day. Defendant filed its Answer on January 6, 2012. A case management conference was held on January 17, 2012. Defendant filed its Motion for Judgment on the Pleadings on January 19, 2012. Plaintiff filed his Opposition on February 21, 2012. A hearing was held on the motion on April 4, 2012, and the matter was taken under advisement. The effect of a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) is “to challenge the legal sufficiency of the complaint.” Bd. of Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 509 (2005) (citations omitted). It is appropriate “only when the text of the pleadings produces no dispute over material facts.” Tanner v. Bd. of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989). When a defendant’s pleading places the material allegations in question, a motion for judgment on the pleadings cannot lie. [Note 3] Id.

I find that the following material facts are not in dispute:

1. Plaintiff owns property located at 14 Still Dock, Unit 1, Nantucket, MA (“Locus”). The deed to Locus is recorded with the Nantucket Registry of Deeds (the “Registry”) on June 20, 2001 at Book 703, Page 22. [Note 4] [Note 5]

2. On February 23, 2006, Plaintiff executed a note (the “Note”) in the amount of $417,000, payable to Defendant, secured by a mortgage of Locus to Defendant (the “Mortgage”), which was recorded with the Registry on February 28, 2006, at Book 1008, Page 63. [Note 6] [Note 7]

3. Plaintiff fell behind on payments under the Note. He received a default/right to cure letter pursuant to G. L. c. 244, § 35A from Wells Fargo Home Mortgage dated November 15, 2009 (the “Right to Cure Letter”). The Right to Cure Letter stated:

To avoid the possibility of acceleration, [Plaintiff] must pay [the amount indicated] on or before 02/13/2010 in CERTIFIED funds, to Wells Fargo Home Mortgage, 1 Home Campus, X2302-04A, Des Moines, IA 50328 [...] If funds are not received by the above stated time, we will proceed with acceleration [...] You have the right to reinstate your Mortgage Loan and Mortgage Deed of Trust after acceleration. However, any future negotiations attempting to reinstate your loan or any payment of less than the full amount due shall not constitute Wells Fargo Bank, N.A.’s waiver of acceleration unless agreed to, in writing, by Wells Fargo Bank, N.A. and payments may be returned.

4. When Plaintiff had not cured the default by the date indicated in the Right to Cure Letter, Defendant filed a Complaint under the Servicemembers Civil Relief Act (10-MISC-424980) on March 17, 2010. The Complaint contained a Mortgagee’s Affidavit dated March 10, 2010 (“Mortgagee’s Affidavit 1”), executed by Defendant. Mortgagee’s Affidavit 1 stated that Defendant mailed the Right to Cure Letter to Plaintiff. No opposition was filed by Plaintiff in this action. Judgment was entered against Plaintiff on July 14, 2010. Subsequent to Judgment in this action, Plaintiff became current on the loan.

5. Plaintiff again fell behind on his payments under the Note. On July 19, 2011, Defendant filed another Complaint under the Servicemembers Civil Relief Act (11 MISC 450915) along with another Mortgagee’s Affidavit dated June 22, 2011 (“Mortgagee’s Affidavit 2 ”), executed by Defendant. Mortgagee’s Affidavit 2 stated that “[n]o notice has been sent because no notice is required under Massachusetts General Laws, Chapter 244, Section 35A, as amended.” No opposition was filed by Plaintiff in this action. A Judgment was entered against Plaintiff on October 28, 2011.

6. Defendant held a foreclosure sale on January 19, 2012, and Locus was sold on March 13, 2012. [Note 8]

*******************************

The central issue in this case is whether Defendant has standing to foreclose on Locus. [Note 9] The record discloses that at the time of the foreclosure sale, Defendant was the record holder of the Mortgage as well as holder of the Note. [Note 10] Defendant was the original mortgagee and Plaintiff acknowledges that it executed both the Note and the Mortgage with Defendant. Although Plaintiff argues to the contrary, there is no evidence in the record that either the Note or the Mortgage has been assigned, or that there is any document in writing relative to an assignment. “The assignment of a mortgage is a conveyance of an interest in land that requires a writing signed by the grantor.” U.S. Bank National Association v. Ibanez, 458 Mass. 637 , 649 (2011). Massachusetts recognizes that a mortgage and a note may be held separately. Id. at 652 - 53. [Note 11] While it is true that Plaintiff “specifically” alleged that Defendant does not own the loan and provided a printout of a “Self-Service Lookup” tool, this is far from demonstrating that Defendant does not have the right to act on this loan because it assigned the Note or Mortgage to another party. A printout is simply insufficient to stand as any type of acceptable evidence and amounts to little more than hearsay. In the absence of any acceptable evidence this court need not speculate on what might have occurred to determine the record holder of the Mortgage. As noted, supra, Plaintiff admitted that the Note was executed between Plaintiff and Defendant with the Mortgage to secure the Note. As established, there is nothing in the record to credibly indicate that an assignment of the Mortgage occurred.

Plaintiff also references Bevilacqua v. Rodriguez, 460 Mass. 762 , 771 (2011) in which the Supreme Judicial Court of Massachusetts (“SJC”) spoke on the matter of recording. Plaintiff seems to suggest that recordation is neither an absolute demonstration that a party owns the underlying property nor is it a tool that validates an invalid recorded instrument. However, Bevilacqua was a case involving a quitclaim deed whereby the plaintiff sought a judgment in a try title claim against a defendant by recording a deed of uncertain validity while subsequently hoping for a default judgment. The SJC based its decision on evidence establishing that an invalid title had been created, thereby confirming the notion that recording cannot provide any veracity to an invalid title. In the case at bar, there is no question as to the validity of the recordation and the origination of the Note and the Mortgage. Therefore, Defendant, as mortgagee on the record at the time of the foreclosure sale, had the “authority to foreclose under the power of sale.” Ibanez, 458 Mass. at 651. Plaintiff admits that such instruments were executed properly and merely concludes that an assignment occurred without providing evidence that such an assignment occurred, piling its inferences upon this assumption to claim that Defendant had no power of sale. This court adheres to the steadfast notion that “one who sells under a power of sale must follow strictly its terms.” Ibanez, 458 Mass. at 646. In the instant case, the record and Plaintiff’s admissions only allow for the inference that the foreclosure sale occurred under valid authority possessed by Defendant as owner of record of the Mortgage. This inference can be drawn solely upon what was submitted by Plaintiff in its complaint. Plaintiff has not presented sufficient evidence to support its allegations of assignment and some of its allegations are pure speculation. [Note 12] As a result of the foregoing, I find that Defendant has standing to foreclose on the Mortgage.

Plaintiff also alleges that there were deficiencies in the Right to Cure Letter. Plaintiff asserts that G. L. c. 244, § 35A requires that the Right to Cure Letter “identify the name and address of the ‘mortgagee’ or ‘anyone holding thereunder...’” and suggesting that “Wells Fargo Home Mortgage,” (“WFHM”) referenced as the mortgagee in such letter and “Wells Fargo Bank, N.A.,” the mortgagee as provided on the “public land records” are different from one another. [Note 13] However, the Right to Cure Letter provides that, in the event of acceleration of the Mortgage, “any future negotiations for reinstatement of the loan or any payment of less than the full amount due shall not constitute Wells Fargo Bank, N.A.’s waiver of acceleration unless agreed to, in writing, by Wells Fargo Bank, N.A. and payments may be returned [,]” demonstrating that ultimate authority on the Mortgage and the Note is held by Wells Fargo Bank, N.A. As a result, I find that the Right to Cure Letter complied with G. L. c. 244, § 35A. Moreover, the record discloses that Plaintiff brought the Note current as a result of the Right to Cure Letter and the filing of 10-MISC-424980. Consequently, I find that the Right to Cure Letter became moot.

Plaintiff further contends that Defendant filed the same Right to Cure Letter in 11-MISC-450915, raising the same issue. [Note 14] However, G. L. c. 244, § 35A, in relevant part, states, “[t]he right to cure a default of a required payment shall be granted once during any 3 year period, regardless of mortgage holder.” The current iteration of the statute prevents borrowers from repetitively requesting notice to make the process more difficult for the mortgagee and essentially provides the mortgagor with one opportunity every three years to address delinquent payments. Furthermore, Mortgagee’s Affidavit 2 states that no new notice was sent out because no notice was required according to the statute. Based on the discussion, supra, it is irrelevant whether a second notice was actually sent, because even if it was sent, it met the requirements of the statute.

“A motion for judgment on the pleadings is ‘actually a motion to dismiss...that argues that the complaint fails to state a claim upon which relief can be granted.’” Iannacchino, 451 Mass. at 625, N.7. I find that Plaintiff’s allegations fail to state a claim upon which relief may be granted. Forcing Defendant to revoke a completed sale to a third-party because of Plaintiff’s failure to establish any lack of standing when it was given the opportunity to do so would go against the pursuit of justice and would only serve to obfuscate a valid foreclosure and subsequent conveyance of property. As a result of the foregoing, I ALLOW Defendant’s Motion for Judgment on the Pleadings. [Note 15]

Judgment to enter accordingly.