MISC 12-459002

November 9, 2012

Sands, J.


Plaintiff filed its unverified Complaint on February 6, 2012, pursuant to G. L. c. 240 § 6, G. L. c. 231A and G.L. c. 237, seeking, as owner of property located at 42 Monohansett Road, Nantucket, MA ("Locus") pursuant to a foreclosure sale, to quiet title to Locus. [Note 1] A case management conference was held on April 4, 2012. At that time Defendants David Wain and Donovan Kerr ("Kerr") filed their Answer, Affirmative Defenses and Counterclaim (the "Counterclaim"), seeking, (1) pursuant to G. L. c. 240, § 1, to try title to Locus, and (2) pursuant to G. L. c. 244, § 14, claiming an invalid foreclosure. On April 17, 2012, Plaintiff filed its Answer to Counterclaim.

Plaintiff filed its Motion for Summary Judgment on May 2, 2012, together with supporting memorandum. Defendants filed their Motion for Judgment on the Pleadings, or in the alternative, Motion for Summary Judgment on May 4, 2012, together with supporting memorandum and Affidavits of Donovan Kerr and Jamie Ranney, Esq. On May 14, 2012, Plaintiff filed its Opposition to Defendants' Motion. Defendants filed their Opposition to Plaintiff's Motion on June 4, 2012. Plaintiff filed its Reply memorandum on June 13, 2012, together with a Motion to Dismiss count one of the Counterclaim (try title). Defendants filed their Opposition to Plaintiff's Motion to Dismiss on July 13, 2012. A hearing on all motions was held on July 16, 2012, and the matter was taken under advisement. A decision of today's date has been issued (the "Decision"). In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that Plaintiff is transacting business in the Commonwealth.

ORDERED and ADJUDGED that this court can rule on the substantive legal issues in this dispute because Plaintiff is defending its rights pursuant to the Counterclaim and its Answer thereto.

ORDERED and ADJUDGED that Defendants do not have standing to challenge the validity of an assignment dated July 14, 2010, from Mortgage Electronic Registration Systems, Inc. ("MERS") to Plaintiff (the "Assignment") of a mortgage granted by Defendants to MERS on November 15, 2006 (the "Mortgage"). [Note 2]

ORDERED and ADJUDGED that Plaintiff is a "mortgagee" under the Mortgage entitled to exercise the power of sale pursuant to G.L. c. 244 § 14.

ORDERED and ADJUDGED that Plaintiff complied with Chapter 206 of the Acts of 2007 (subsequently codified at G.L. c. 244 § 35A) and is entitled to enforce its rights under the Mortgage, i.e. foreclose on Locus. [Note 3]

ORDERED and ADJUDGED that the foreclosure sale strictly complied with the statutory power of sale pursuant to G.L. c. 244 § 14, and therefore a deed of Locus from Plaintiff, as holder of the Mortgage, to Plaintiff dated July 26, 2011 (the "Foreclosure Deed"), as recorded, passed legal and record title to Locus to Plaintiff.

ORDERED and ADJUDGED that Plaintiff's Motion for Summary Judgment is ALLOWED and Defendants' Motion for Summary Judgment is DENIED.

By the Court. (Sands, J.)


[Note 1] Plaintiff filed its First Amended Complaint on March 13, 2012. The only basis for amending the Complaint was to reflect the proper name of Plaintiff.

[Note 2] Even if Defendants had standing to challenge the Assignment, their claims still fail because the Assignment was valid. Pursuant to G.L. c. 183 § 54B, an assignment of mortgage is binding if it is executed by a person purporting to hold the position of, inter alia, vice president of the holder of the mortgage, and it is executed before a notary public in any state. At the time of the Assignment, MERS was the mortgagee of record and holder of the Mortgage as nominee for UCMBT and its assigns. On July 14, 2010, Theresa Esposito, purportedly a vice president of MERS, executed the Assignment. The Assignment was notarized by Sonya F. Williams, a notary in the state of Florida. As such, the Assignment complies with G.L. c. 183 § 54B.

[Note 3] In the alternative, Plaintiff contends that Defendants' Motion for Judgment on the Pleadings on the basis of failure to mail the Notice to Cure should be barred by the doctrine of laches. I have found that there is no material dispute as to whether Plaintiff mailed the Notice to Cure to Defendants. As a result, this court does not need to address the issue of laches. A foreclosing entity, however, must strictly adhere to the entire statutory scheme for foreclosures. The ninety day notice requirement is a procedural safeguard set in place by the legislature to protect mortgagors. If Plaintiff did not comply with 244 § 35A, their foreclosure would be invalid. The doctrine of laches will not overcome statutory procedural safeguards.