Plaintiff filed his Verified Complaint to quiet title pursuant to G. L. c. 240, § 6 on December 13, 2011, challenging Defendants standing to foreclose on Plaintiffs 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 defendants 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 Mortgagees Affidavit dated March 10, 2010 (Mortgagees Affidavit 1), executed by Defendant. Mortgagees 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 Mortgagees Affidavit dated June 22, 2011 (Mortgagees Affidavit 2 ), executed by Defendant. Mortgagees 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 Plaintiffs 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, Mortgagees 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 Plaintiffs 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 Plaintiffs 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 Defendants Motion for Judgment on the Pleadings. [Note 15]
Judgment to enter accordingly.
[Note 1] The Complaint states that the basis for the quiet title action is Defendants purported legal title to Plaintiffs mortgage represents a cloud on Plaintiffs title.
[Note 2] On March 27, 2012, Plaintiff filed a Motion for Leave of Court to Dismiss Complaint without Prejudice and/or to Amend Complaint to convert this action to a try title action under G. L. c. 240, §§ 1-5. The basis for this motion was a decision of the US District Court, Marley v. Bank of America, No. 10-10885-GAO, slip op. at 1. (D. Mass. March 13, 2012), that called into question the issue of whether a quiet title action was the proper type of action to raise the standing issue. The Marley court found that a quiet title action is not an avenue open to a mortgagor whose debt is in arrears because, until the [M]ortgage is discharged, the title necessarily remains under a cloud. Id. at 5. This is because it is the Mortgagee that owns the title as long as the debt remains unpaid. Id. In his motion, Plaintiff states that, under either cause of action, what Plaintiff essentially argues is that the legal title to his property, evidenced by a mortgage, is in dispute. As a result of the foregoing, this court allows the Motion to Amend Complaint to convert to a try title action. However, both actions challenge Defendants standing to foreclose on Locus. As discussed at oral argument on the Motion for Judgment on the Pleadings, this court concludes that the ultimate issue in this case is whether Defendant had the right to foreclose on Locus.
[Note 3] It should be noted that Plaintiff claims that there is a material fact at issue, that is, whether Defendant has assigned the Note and the Mortgage (as hereinafter defined). However, as discussed, infra, such claim is speculative and there is no evidence to support it. See Iannacchino v. Ford Motor Company, 451 Mass. 623 , 636 (2008), which holds that [f]actual allegations must be enough to raise a right to relief above the speculative level . . . What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief . . . The Complaint acknowledges that Defendant is the Mortgagee of record. The only matters at issue are Plaintiffs legal conclusions based on facts in this case.
[Note 4] Plaintiff no longer owns Locus because it was foreclosed in January 2012. However, he owned Locus at the commencement of the suit. Plaintiff also alleges that Plaintiff is a natural person with an address of 14 Still Dock, Unit 1, Nantucket, MA. It is unclear whether Plaintiff lived at Locus.
[Note 5] The Joint Case Management Conference Memo indicates that it was Defendants position that Locus was not in fact Plaintiffs primary residence but was an investment property thereby exempting this property from G. L. c. 244 § 35A. However, such allegations were never expressed in Defendants Answer or in its motion. Interestingly, Plaintiff never expressly states that Locus is its primary residence. Whatever the case may be, it is not essential to the decision.
[Note 6] The record in this case does not disclose any evidence supporting the contention that there was an assignment of the Mortgage. Although the Complaint does not contain a copy of the Mortgage, it references the fact that the Mortgage was executed by Plaintiff and was recorded with the Registry. The Complaint acknowledges that Defendant is the Mortgagee of record. Exhibit A to the Complaint contains a Self-Service Lookup relative to the role of Freddie Mac, but such exhibit is not evidence on which this court can rely. Defendant also represents that no assignment of the Mortgage occurred.
[Note 7] The record in this case does not disclose any assignment of the Note. Although the Complaint does not contain a copy of the Note, it references the fact that the Note was executed by Plaintiff payable to Defendant.
[Note 8] These documents are not a part of the record, but the facts are not contested.
[Note 9] Case law in Massachusetts indicates that at the present time a mortgagee is not required to hold title to a promissory note in order to foreclose. This issue is currently before the Supreme Judicial Court in Eaton v. Fed. Natnl Mortgage Assoc., Docket No. 111-01382 (Suffolk Sup. Ct. June 17, 2011). In any event, the record in this case does not indicate that Defendant does not hold the Note.
[Note 10] See footnotes 6 and 7, supra.
[Note 11] Plaintiff did not file an opposition to standing in either Servicemembers case. If Plaintiff believed that Defendant was not the proper entity to which it was supposed to remit payments, Plaintiff should have disputed this matter during the Servicemembers cases. In order for a party to bring a Servicemembers case, it must have some connection to the mortgagor, the mortgage, the premises conveyed by the mortgage, or their title [...]. Randle v. GMAC Mortgage, LLC., 18 LCR 546 , 549 (2010). An entity without any relationship to the mortgaged premises or mortgage transaction would not be able to litigate Plaintiffs entitlement to privileges under the Servicemembers Civil Relief Act because courts do not adjudicate hypothetical cases. Id. In the Servicemembers Cases, both Mortgagees Affidavit 1 and Mortgagees Affidavit 2 clearly indicate that Wells Fargo Bank N.A. was the entity pursuing the claims against Plaintiff yet Plaintiff failed to file an Opposition.
[Note 12] See discussion in FN 3, supra.
[Note 13] The [Right to Cure Letter] shall inform mortgagor of [...] the name and address of the mortgagee, or anyone holding thereunder, and the telephone number of a representative of the mortgagee whom the mortgagor may contact if the mortgagor disagrees with the mortgagees assertion that a default has occurred or the correctness of the mortgagees calculation of the amount required to cure the default. G. L. c. 244 § 35A(c)(4).
[Note 14] Mortgagees Affidavit 2 states that no new notice was sent out because no notice was required according to G. L. c. 244 § 35A. Based on this decision, it is irrelevant whether a second notice was actually sent.
[Note 15] If we turn to case law we find further justification for dismissal of this case that is in accord with our rationale. In evaluating a motion for judgment on the pleadings, we may consider the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account. Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). The SJC has quoted this language and qualified it in addressing Iannacchino. Iannacchino, 451 Mass. at 632. The SJC also stated that in evaluating [this type of motion] we have considered, in addition to the Plaintiffs complaint, their memorandum, and argument on the Defendants motion for judgment on the pleadings. Id. at 631, N.14. Turning to the exhibits attached to Defendants Motion for Judgment on the Pleadings, we find that the Mortgage and the Note are attached. The mortgage instrument carries an identification and time stamp bearing the name of WELLS FARGO HOME MRG (Wells Fargo Home Mortgage) which already indicates that Wells Fargo Home Mortgage is the entity responsible for maintaining the documents if not also charged with the responsibility of servicing the mortgage. The Mortgage states that it is for a Fannie Mae/Freddie Mac UNIFORM INSTRUMENT with the Lender as WELLS FARGO BANK, N.A. All information on the Mortgage matches undisputed factual information regarding Plaintiff and Locus. So while Plaintiff presents a legal theory based upon assignment, the record demonstrates that it amounts to little more than speculation and factual allegations must be enough to raise a right to relief above the speculative level. Iannacchino., 451 Mass. at 636.