FEDERAL NATIONAL MORTGAGE ASSOCIATION v. SHERRY E. PERKINS

Plaintiff Federal National Mortgage Association (“FNMA”) filed its complaint on May 24, 2012. The complaint seeks a judgment that defendant Sherry E. Perkins was not in the military or otherwise entitled to the benefits of the Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq. (the “Act”) at the time that a foreclosure auction was conducted on Perkins’s property on August 22, 2011, that the auction and foreclosure deed are not invalid due to a lack of a judgment under the Act, and that there is not a cloud on FNMA’s title to the property as a result of a judgment under the Act not issuing prior to the foreclosure auction. With the return of service on Perkins, FNMA filed the Affidavit of Sherry Perkins, in which she stated under oath that she was not in the military on August 22, 2011, and has never been and is not currently in the military. The court directed FNMA to file a motion for summary judgment or motion for judgment on the pleadings, including further evidence that Perkins’s husband was deceased. On May 24, 2012, FNMA filed the Plaintiff’s Motion for Summary Judgment, Statement of Issues Presented for the Plaintiff’s Motion for Summary Judgment, the Plaintiff’s Concise Statement of Material Facts, in Accordance with Land Court Rule 4 and Mass. R. Civ. P. 56, the Statement of Legal Elements, the Argument in Summary Form, the Conclusion and Request for Relief, and the Appendix of Exhibits. Perkins has filed no opposition to the Motion for Summary Judgment.

Based on the Motion for Summary Judgment and the supporting submissions, the court finds the following undisputed facts. By a deed dated July 23, 1998 and recorded in the Essex South Registry of Deeds (“registry”) at Book 14971, Page 468 on July 24, 1998, Sherry Perkins and Don G. Perkins acquired the property at Unit No. 535 at 535-537 Washington Street, Haverhill, Massachusetts (the “Property”) as tenants by the entirety. The Perkinses gave a mortgage on the Property to Mortgage Trust Group, Inc., dated November 12, 2003 and recorded in the registry at Book 22076, Page 270 on November 17, 2003 (the “Mortgage”). Mortgage Trust Group, Inc. assigned the Mortgage to First Horizon Home Loan Corporation by an Assignment dated November 12, 2003 and recorded in the registry at Book 22076, Page 289. First Horizon Home Loan Corporation assigned the Mortgage to MetLife Home Loans, a Division of MetLife Bank, N.A. (“MetLife”) by an Assignment dated February 28, 2009 and recorded in the registry at Book 28528, Page 186 on April 28, 2009.

Don G. Perkins died on December 2, 2010. MetLife caused to be published the notice of foreclosure sale on the Property on April 14, 21, and 28, 2011 and mailed the required notices. The foreclosure sale of the Property took place on August 22, 2011. MetLife purchased the Property as high bidder, and assigned its bid to FNMA. MetLife gave FNMA a foreclosure deed conveying the Property to FNMA, dated January 20, 2012. On February 28, 2012, MetLife obtained a judgment from this court, in case no. 10 MISC 442512, that Perkins is not entitled to the benefits of the Act. Perkins has never been in the military service, and at the time of the foreclosure sale, August 22, 2011, was not in the military service.

Based on these undisputed facts, FNMA is entitled to the judgment it seeks. Perkins became sole owner of the Property after the death of Don Perkins. The Affidavit of Sale establishes that MetLife complied with the requirements of G.L. c. 244, § 14, and had the right to foreclose. Federal Nat’l Mtge. Ass’n v. Hendricks, No. SJC-11234 (October 26, 2012). Perkins was never in the military service or otherwise entitled to the benefits of the Act, before, on or after August 22, 2011. That the properly-conducted foreclosure on the Property took place before MetLife obtained a judgment that Perkins was not entitled to the benefits of the Act does “not render the foreclosure invalid as to anyone not entitled to the protection of that act.” Beaton v. Land Court, 367 Mass. 385 , 390 (1975); see Hull v. Attleboro Sav. Bank, 25 Mass. App. Ct. 960 , 961 (1988).

The Plaintiff’s Motion for Summary Judgment is ALLOWED. Judgment shall enter for the plaintiff FNMA declaring that (a) at the time of the August 22, 2011 foreclosure sale of the Property, Perkins was not in the military service or otherwise entitled to the benefits of the Act; (b) the August 22, 2011 foreclosure sale of the Property is not invalid as a result of the lack of a judgment under the Act as to Perkins dated prior to the August 22, 2011 foreclosure sale of the Property; and (c) there is no cloud on FNMA’s title to the Property as a result of the lack of a judgment under the Act as to Perkins dated prior to the August 22, 2011 foreclosure sale.