HEATHER J. CAMPBELL and BARBARA L. CAMPBELL vs. FEDERAL NATIONAL MORTGAGE ASSOCIATION, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., BANK OF AMERICA, N.A. as successor in interest to BAC HOME LOANS SERVICING, LP, and GATEWAY FUNDING DIVERSIFIED MORTGAGE SERVICES, L.P.

Petitioners Heather J. Campbelland Barbara L. Campbell (“Petitioners”), filed their unverified Petition to Try Title on August 17, 2012, pursuant to G. L. c. 240, §§ 1-5, asserting that a foreclosure sale (the “Foreclosure Sale”) held at propertylocated at 66 New Ludlow Road, Chicopee, MA 01020 (“Locus”) was invalid. On August 29, 2012, Petitioners filed their First Amended Petition to Try Title to include numerous facts supporting the allegations regarding the invalidity of the Foreclosure Sale. On October 15, 2012, Respondent Bank of America, N.A. (“Bank of America”), as successor in interest to BAC Home Loan Servicing, LP (“BAC”), filed its Answer, Affirmative Defenses, and Counterclaim alleging an action to try title. On October 25, 2012, Respondent Federal National Mortgage Association (“FNMA”) filed its Answer, Affirmative Defenses, and Counterclaim alleging an action to try title. On October 26, 2012, Respondent Mortgage Electronic Registration Systems, Inc. (“MERS”) filed its Answer, Affirmative Defenses, and Counterclaim alleging an action to try title. On October 29, 2012, Petitioners filed their Answer and Affirmative Defenses to Bank of America’s Counterclaim. On November 16, 2012, Petitioners filed their Answer and Affirmative Defenses to MERS’ Counterclaim and FNMA’s Counterclaim.

Petitioners filed their Second Amended Petition to Try Title on December 19, 2012, contending that an assignment of the mortgage was invalid for multiple reasons; that the Foreclosure Sale was invalid because Bank of America did not hold the note or the mortgage at the time of the Foreclosure Sale, and because Respondents did not comply with statutory and contractual requirements leading up to the Foreclosure Sale; and that the foreclosure deed to FNMA was consequently rendered void. [Note 1] On January 22, 2013, Bank of America, MERS, and FNMA separately filed their Amended Answers, Affirmative Defenses, and Counterclaims.

On February 28, 2014, FNMA filed a Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, and affidavit of Steven Manchini. [Note 2] On April 23, 2015, FNMA filed its Supplemental Brief–Motion to Dismiss or for Summary Judgment, which replaced its initial Motion for Summary Judgment and highlighted intervening case law issued by the Supreme Judicial Court (“SJC”) in Abate v. Fremont Investment & Loan, 470 Mass. 821 (2015). The next day, on April 24, 2015, Bank of America filed its Motion to Dismiss and/or for Summary Judgment together with supporting memorandum, Statement of Relevant Facts, Appendix of Authorities, and Affidavit of Michael Sexton (“Sexton Affidavit”). On June 9, 2015, a Disclaimer of Interest by MERS and a Joint Stipulation Between the Petitioners and MERS to be Made an Order of the Court was filed, dismissing MERS’s counterclaims against Petitioners, and stating that Petitioners will not seek a decree from the court to compel MERS to bring an action to try title or take further action against MERS in this proceeding.

On July 7, 2015, Petitioners filed their Opposition to Respondents’ Motions to Dismiss and/or for Summary Judgment, together with supporting memorandum, and Statement of Additional Material Facts. A hearing was held on July 8, 2015, at which time Bank of America and FNMA filed a Motion to Strike Petitioners’ Opposition and for Sanctions due to Petitioners’ late filing. After discussion and agreement with the parties, the Court allowed the Motion for Sanctions and ordered Petitioners to pay FNMA the sum of $1,075 for legal fees and to pay Bank of America the sum of $875 for legal fees, all to be paid on or before July 28, 2015. As a result, the Court continued the Summary Judgment hearing to July 28, 2015 and permitted Respondents more time to file their respective Reply Briefs. FNMA filed its Response to Petitioners’ Statement of Additional Material Facts and its Reply Brief on July 23, 2015. Bank of America filed its Reply Brief on July 24, 2015. A second hearing was held on July 28, 2015, and at that time the matter was taken under advisement.

Based upon the evidence in the record, I find that the following material facts are not in dispute:

1. Petitioner Heather J. Campbellresides at Locus as her primaryresidence and maintains actual possession thereof. [Note 3]

2. Petitioners acquired record title to Locus as joint tenants by virtue of a deed from Barbara L. Campbell dated November 30, 2004, and recorded in the Hampden County Registry of Deeds (the “Registry”) on December 6, 2004 in Book 14677, Page 579 (the “2004 Deed”).

3. On November 30, 2004, Petitioners executed a note (the “Note”) in the original principal amount of $168,000.00 to Gateway Funding Diversified Mortgage Services, L.P. (“Gateway”). [Note 4]

4. On November 30, 2004, Petitioners granted a mortgage (the “Mortgage”) on Locus to MERS, acting as nominee for Gateway, the Lender, to secure the Note. The Mortgage recites that MERS “is acting solely as nominee for the Lender and the Lender’s Successors and Assigns. MERS is the Mortgagee under this security instrument.” (Mortgage at 1, ¶ C.) The Mortgage was recorded on December 6, 2004 with the Registry at Book 14677, Page 580.

5. In a section entitled “TRANSFER OF RIGHTS IN THE PROPERTY,” the Mortgage provides:

Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale . . . .

. . . . [Locus] . . . .

. . . . Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

(Mortgage at 3.)

6. Paragraph 20 of the Mortgage states: “The Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.” (Mortgage at 10, ¶ 20.)

7. Paragraph 22 of the Mortgage states:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured bythis Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the STATUTORY POWER OF SALE and any other remedies permitted by Applicable Law.

(Mortgage at 11, ¶ 22 (emphasis added).) [Note 5]

8. FNMA purchased and acquired the Note on or about December 23, 2004. [Note 6] This was not recorded with the Registry and the Mortgage remained on the land records in the name of MERS as nominee for Gateway.

9. Petitioners defaulted under the terms of the Mortgage in 2008.

10. On June 16, 2008, Countrywide Home Loans Servicing LP (“Countrywide”), [Note 7] which at the time serviced the loan on behalf of the holder of the Note, sent a “Notice of Intention to Foreclose” to Petitioners informing Petitioners of their right to cure their default on the Note (the “June 2008 Letter”). The June 2008 Letter is cited by Respondents as satisfying the mortgagee’s pre- foreclosure notice requirements (1) pursuant to Paragraph 22 of the Mortgage and (2) pursuant to G.L. c. 244 § 35A(h). [Note 8] The June 2008 Letter did not name the holder of the Note or Mortgage, nor mention FNMA or MERS. The June 2008 Letter stated, in relevant part: “[Y]ou may have the right to bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure” (emphasis added).

11. On or about December 23, 2010, an assignment of mortgage dated December 20, 2010, was recorded at the Registry in Book 18604, Page 432 (the “Assignment”). The Assignment assigned the Mortgage from MERS to BAC, for an unidentified amount of consideration. [Note 9] The Assignment was executed on behalf of MERS by Caleb J. Shureb (“Shureb”) [Note 10] acting as “Assistant Secretary and Vice President, Pursuant to Corporate Resolution” [Note 11] and notarized by Nicholas A. Kasperek (“Kasperek”). [Note 12]

12. On or about March 8, 2012, Bank of America, as successor by merger with BAC, sent Petitioners a “NOTICE OF INTENTION TO FORECLOSE AND OF DEFICIENCY AFTER FORECLOSURE OF MORTGAGE” stating that a Foreclosure Sale was scheduled for April 4, 2012 at 10:00 A.M. due to their default under the terms of the Mortgage (the “Notice of Foreclosure Sale”). [Note 13]

13. Bank of America caused advertisements of the Foreclosure Sale scheduled for April 4, 2012 at 10:00 A.M. to be published in The Republican, a newspaper published in Springfield, MA and circulated in Chicopee, MA where Locus is located, on March 14, 2012; March 21, 2012; and March 28, 2012 (the “Foreclosure Advertisements”). The Foreclosure Advertisements identified Bank of America as the “Present Holder of said Mortgage.”

14. On April 4, 2012, Bank of America postponed the Foreclosure Sale until May 4, 2012 at 10:00 A.M. by public proclamation at Locus. On May 4, 2012, Bank of America again postponed the Foreclosure Sale until June 4, 2012 at 10:00 A.M. by public proclamation at Locus. [Note 14]

15. The Foreclosure Sale took place at Locus on June 4, 2012 at 10:00 A.M., and was conducted by a public auctioneer employed by Towne Auction, Michael S. Kane. Bank of America was the highest bidder at the Foreclosure Sale and purchased Locus for $177,553.84. Bank of America did not tender a deposit of $5,000 at the public auction and instead made a “credit bid” against its own debt interest in Locus.

16. On June 8, 2012, Bank of America assigned its successfulbid on Locus to FNMA (the “Assignment of Bid”) and, on the same date, executed a foreclosure deed granting Locus to FNMA (the “Foreclosure Deed”), and an affidavit of sale (the “Affidavit of Sale”). The Foreclosure Deed is recorded with the Registry at Book 19297, Page 138. The Assignment of Bid appears as “Exhibit B” to the Foreclosure Deed and Affidavit of Sale, and is recorded with the Registry at Book 1297, Page 141. [Note 15]

17. Shureb signed the recorded Foreclosure Deed, the Affidavit of Sale, and the Assignment of Bid, pursuant to a Limited Power of Attorney appointing Shureb (along with other Orlans Moran PLLC employees) as attorney-in-fact to act on behalf of BAC (which later became Bank of America by merger), and further pursuant to a Delegation of Authority and Appointment naming Shureb as a Delegatee and “Authorized Signatory- Real Property” for Orlans Moran PLLC. [Note 16]

18. The Foreclosure Deed and Assignment of Bid were executed on behalf of Bank of America (successor by merger with BAC) “By it’s Attorney-in-fact Orlans Moran PLLC,” signed by Shureb as “Employee, Authorized Signatory, Real Property,” and witnessed by Kasperek as notary public.

19. The Affidavit of Sale was signed by Shurebas “Employee, Authorized Signatory, Real Property, Orlans Moran PLLC, as Attorney-in-Fact for [Bank of America], successor bymerger with [BAC],” and witnessed by Kasperek as notary public.

20. A summary process case was filed on July 30, 2012 in the Western Division (Hampden) Housing Court, Federal Nat’l Mortgage Assoc. v. Campbell, 12-SP-2878. On November 4, 2013, the Housing Court granted Campbell’s Motion for Summary Judgment and entered Judgment for possession of Locus in favor of Campbell, based on Campbell’s argument that the June 2008 Letter was insufficient under G.L. c. 244, § 35A. FNMA filed a Motion to Reconsider with the Housing Court in April 2014 in light of intervening case law issued by the SJC in U.S. National Bank Association v. Schumacher, 467 Mass. 421 (2014). On June 27, 2014, The Housing Court granted the Motion to Reconsider and vacated the Judgment granting possession of Locus to Campbell. [Note 17]

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Bank of America and FNMA move to dismiss Petitioners’ try title claims, or alternatively move for summary judgment in their favor, on the ground that Petitioners lack standing to bring this action under the Try Title statute, G.L. c. 240 §§ 1-5. A challenge to Petitioner’s standing is a jurisdictional challenge that may be brought under Mass. R. Civ. P. 12(b)(1). Abate, 470 Mass. at 823 n.4 & n.5. In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the court accepts as true the factual allegations in the petition, as well as any favorable inferences reasonably drawn therefrom. Ginther v. Comm’r of Ins., 427 Mass. 319 , 322 (1998). However, where jurisdictional facts are challenged, the court may properly review and consider materials presented from outside of the petition. Abate, 470 Mass. at 823 n.5 (“The judge was properly allowed to review materials outside of the petition in deciding subject matter jurisdiction. ‘A judge, and logically a reviewing court, may consider documents and other materials outside the pleadings when ruling on a rule 12(b)(1) motion.’” (quoting Audoire v. Clients’ Sec. Bd., 450 Mass. 388 , 390 n.4 (2008))).

Because Respondents challenge by their dispositive Motions whether Petitioners have good record title – a necessary component of Petitioners’ standing, and thus a necessary element to invoke this court’s subject matter jurisdiction under the Try Title statute, see discussion infra – the court may consider the documents and other materials presented by Respondents from outside of the petition, to the extent those documents and other materials are used to challenge jurisdictional facts.

I. Timeliness of Respondents’ Dispositive Motions

Petitioners first assert in their Opposition that Respondents are barred from bringing a Motion to Dismiss pursuant to Rule 12(b)(1) because FNMA and Bank of America have filed counterclaims to the Second Amended Petition, resulting in the case moving into the second step of the try title action. [Note 18] Petitioners thus allege that the Motions to Dismiss and/or for Summary Judgment are precluded by the filed counterclaims. This argument fails for several reasons.

First, Respondents may challenge the court’s subject matter jurisdiction at any stage of the action pursuant to Rule 12(h)(3). [Note 19] Thus, whether the case is in the first or second step of a try title action does not bar a respondent from bringing a motion to dismiss for lack of subject matter jurisdiction (or the court, sua sponte, from considering the same). Abate, 470 Mass. at 828 (“As a component of subject matter jurisdiction, a party may challenge, or a judge may consider, sua sponte, standing under rule 12(b)(1) at any time.”). Second, there is no pronouncement in the Abate decision that limits a respondent to bringing a Rule 12(b)(1) motion only in the first step of the action. In fact, quite the opposite conclusion is reached in Abate, given the SJC’s statement that “the two-step procedure is not abrogated” where a determination of the merits of a petitioner’s claim to “better title” is undertaken by the court when presented with a challenge to standing. Id. at 828 (“Where, as here, the determination of standing, and ultimately jurisdiction, necessarily reaches and effectively negates the merits of a petitioner’s claim, the two-step procedure is not abrogated.”) Finally, this court has not yet ruled nor indicated that Petitioners have met the jurisdictional requirements of a try title action or that the case has moved to the second step. For these reasons, I find that Respondents are not barred from bringing their Rule 12(b)(1) motions challenging Petitioners’ standing to maintain this try title action.

II. Petitioners’ Standing to Maintain This Try Title Action

Respondents argue that Petitioners do not have good record title and therefore do not have standing to maintain this try title action. Under the Try Title statute, G. L. c. 240, §§1-5, the court has subject matter jurisdiction onlywhen a petitioner establishes three jurisdictional elements: (1) that she holds “record title” to the property; (2) that she is a person “in possession”; and (3) the existence of an actual or possible “adverse claim” clouding the petitioner’s record title. Abate, 470 Mass. at 827-28. Petitioners have standing when they can prove the first two elements: record title and possession. Bevilacqua v. Rodriguez, 460 Mass. 762 , 767 (2011).

Whether Petitioners have established that they have good record title to and maintain possession of Locus – the first two jurisdictional elements necessary to assert a try title action – is “subject to challenge through the introduction of other evidence negating the petitioner’s claim.” Abate, 470 Mass. at 830. Once such facts have been challenged, the petitioner “bears the burden to prove those facts by a preponderance of the evidence.” Id. With respect to the third element – whether an adverse claim exists – the petitioner’s factual allegations “are entitled to a presumption of truth regardless of a factual challenge . . . .” Id.

The Second Amended Petition in the case at bar sets forth a variety of factual allegations and legal grounds, which, Petitioners argue, state a claim under the Try Title statute, G.L. c. 240, §§ 1-5, and require Respondents to appear and try their title. Specifically, Petitioners allege that they have superior record title to Locus by virtue of the 2004 Deed, that they are in possession of Locus, and that Respondents claim a superior title. In support of the claim that they hold superior record title, Petitioners allege that FNMA’s title is defective because 1) the Assignment of the mortgage to BAC was invalid; 2) the events leading up to the Foreclosure Sale, and the Foreclosure Sale itself was improper; and, 3) the resulting Foreclosure Deed to FNMA is consequently invalid. Respondents, in their Motions, do not challenge possession or that adverse claims exist. Respondents instead argue that the various grounds on which Petitioners challenge the Assignment, Foreclosure Sale, and subsequent Foreclosure Deed do not, as a matter of law, state a claim, and that Petitioners therefore do not have superior record title to Locus, and thus have no standing to bring this try title action.

Accordingly, with a jurisdictional challenge raised by Respondents, Petitioners must prove by a preponderance of the evidence that the Foreclosure Sale was in fact invalid and that they retained title after the Foreclosure Sale occurred. See Abate, 470 Mass. at 833 (“[T]he judge was required to determine whether the assignment, and thus the foreclosure auction, was valid in order to determine whether [petitioner] had the record title necessary to survive the first step of a try title action. . . . As previously mentioned, [petitioner] had the burden to prove record title after that jurisdictional fact was challenged . . . .”). Each of Petitioners’ arguments to satisfy that burden are addressed in turn. [Note 20]

A. The Validity of the 2010 Mortgage Assignment

1. The Authority of MERS to Assign the Mortgage

Petitioners first allege that the Assignment from MERS to BAC is invalid because, at the time of the Assignment in 2010, MERS had no lawful authority from its original principal, Gateway (on behalf of whom MERS purports to act as a nominee), or from any other principal, “Lender,” or Note- holder not identified on the face of the Assignment, to assign the Mortgage. Petitioners’ arguments on this front boil down to two claims: 1) that MERS, which acts solely as a nominee for a lender, cannot act in its own name or apart from the authority of the lender; and 2) that, as a matter of law and custom, the Note and the Mortgage could not be effectively or legally split. [Note 21] These arguments raised by Petitioners, however, have been considered and rejected on numerous occasions by the courts of this Commonwealth.

As to their first contention, several courts have held that when MERS is specifically named as a mortgagee on a mortgage, MERS holds legal title. See, e.g., Shea v. Federal Nat’l Mortg. Ass’n, 87 Mass. App. Ct. 901 , 902-03 (2015); Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202 , 211 (2014). Moreover, as the holder of legal title, MERS may assign its rights unless an express provision in the Mortgage forbids it. Shea, 87 Mass. App. Ct. at 903 (“‘[A]bsent a provision in the mortgage instrument restricting transfer[,] . . . a mortgagee may assign its mortgage to another party.’” (quoting Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 292 (1st Cir. 2013))).

MERS’s status as mortgagee and holder of legal title and its ability to transfer the Mortgage should be also plain to Petitioners from the terms of the Mortgage itself. The Mortgage provides that “MERS is a separate corporation that is acting solely as nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument.” (Mortgage at 1.) A section entitled “TRANSFER OF RIGHTS IN THE PROPERTY” provides that the Mortgage secures both the repayment of the loan and the borrower’s performance of covenants and agreements to the lender. That section continues as follows:

Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale . . . .

. . .

. . . . Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

(Mortgage at 3 (emphases supplied).)

Both from the case law of this Commonwealth and the express language of Petitioners’ Mortgage, it is clear that MERS, which held legal title to the Mortgage, had authority to assign the Mortgage, with or without demonstrating its principal’s assent. See Shea, 87 Mass. App. Ct. at 903 (“[D]espite [the note-holder’s right] to demand and obtain an assignment of the mortgage in order to enforce its security interest and collect the debt, MERS (as mortgagee) retained the right to assign the mortgage unilaterally absent any restriction in the mortgage document.”); see also Abate v. Freemont Inv. & Loan, 20 LCR 630 , 631 (2012) (Misc. Case No. 12-464855) (Foster, J.) (citing Deutsche Bank Nat’l Trust Co. v. Butler, 20 LCR 147 , 147-148 (2011) (Misc. Case No. 11-447828) (Long, J.)). Moreover, also by the terms of the Mortgage, MERS acted on behalf of the lender’s assignee in executing the Assignment and was within its authority to do so as the nominee for the lender’s assignee (here FNMA). [Note 22] See id.; Deutsche Bank Nat’l Trust Co. v. Cicchelli, 19 LCR 461 , 463-64 (2011) (Misc. Case No. 10-423350) (Sands, J.); see also Sullivan, 85 Mass. App. at 210. Finally, no restriction on MERS’s right to assign appears in the Mortgage. See Shea, 87 Mass. App. Ct. at 903. For all these reasons, Petitioners’ first argument is rejected.

Petitioners’ second argument – that the Note must be held and/or transferred together with the Mortgage at all times [Note 23] – is without merit and appears to be based on a misreading of the Supreme Judicial Court’s decision in Eaton v. Federal Nat’l Mortg. Assn., 462 Mass. 569 (2012). Eaton recognized the long-standing principle that “in Massachusetts a mortgage and the underlying note can be split,” id. at 576, but also prospectively held that in order to foreclose, the foreclosing mortgagee must either hold the note or act as an authorized agent for the note-holder, id. at 586. The rule announced in Eaton applies “only to mortgage foreclosure sales for which the mandatory notice of sale has been given after” June 22, 2012, id. at 589, or to cases “in which the issue was preserved and an appeal was pending in the Appeals Court on June 22, 2012, the date of the rescript in Eaton,” Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160 , 161 (2014). Petitioners’ claims fall into neither of these categories, and thus the prospective rule announced in Eaton does not apply. [Note 24] There was nothing improper under the law of this Commonwealth in the Note being held by FNMA while the Mortgage was separately held by MERS and then later by BAC and Bank of America. There was also, therefore, nothing legally improper about MERS’s assignment of the Mortgage to BAC in 2010 while the Note remained with FNMA. Accordingly, Petitioners’ second argument as to the invalidity of the Assignment is rejected.

2. Whether a “Split” Between the Note and the Mortgage Breaches Paragraph 20 of the Mortgage

Petitioners also argue that the Mortgage itself requires, in Paragraph 20, that the Note be assigned along with the Mortgage and that bifurcation of the two is prohibited. Paragraph 20 of the Mortgage, entitled “Sale of Note; Change of Loan Servicer; Notice of Grievance,” provides:

The Note or partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. A sale might result in a change in the entity (known as the “Loan Servicer”) that collects Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the Note, this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change which will state the name and address of the new Loan Servicer, the address to which payments should be made and any other information RESPA requires in connection with a notice of transfer of servicing. If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of the Note, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note purchaser.

The meaning of this identical provision has been addressed bythe Land Court on at least three occasions, and on each, the language has not been found to require that the Note and Mortgage be assigned together. See, e.g., Nutting v. Nationstar Mortgage LLC, Land Court Misc. Case No. 12- 473786 at *9 (August 24, 2015) (Speicher, J.); Mitchell v. U.S. Bank Nat’l Ass’n, 22 LCR 120 , 123- 24 (2014) (Misc. Case No. 12-473427) (Foster, J.); Abate, 20 LCR at 637 (“Construed according to its ‘plain terms’ and its ‘usual and ordinary sense,’ paragraph 20 does not require that the Note and Mortgage be conveyed together. It simply addresses the question of what notice is to be provided to the borrower upon sale of the Note and/or the Mortgage.” (citation omitted)). I concur in these well-reasoned opinions and, based on a plain language reading, I do not agree with Petitioners that Paragraph 20 of the Mortgage requires that the Mortgage only be assigned along with the Note.

3. The Authority of Shureb to Execute the Assignment

Petitioners also allege that the Assignment is invalid because Shureb was not authorized to execute the Assignment on behalf of MERS. This allegation fails because G.L. c. 183, § 54B, merely requires that an assignment of mortgage be “executed before a notary public” by a person “purporting to hold the position of . . . vice president, . . . secretary, . . . or assistant to any such position” in order to bind MERS and BAC (and by extension, third parties) to that assignment. Here, the Assignment contains a signature on behalf of MERS by Sherub, followed by the title “Assistant Secretary and Vice President, Pursuant to Corporate Resolution.” The Assignment executed by Shureb is notarized by Kasperek. [Note 25] Thus, the Assignment facially meets the requirements of § 54B.

Pursuant to § 54B, Sherub’s purported authority to act on behalf of MERS, and Kasperek’s notarization and acknowledgment of the same, is sufficient to make Shureb’s execution of the Assignment binding against Petitioners. See Bank of New York Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 , 503 (2014); Nutting, Land Court Misc. Case No. 12-473786 at *11; Abate, 20 LCR at 636 (“. . . § 54B makes an assignment that satisfies its requirements valid and binding upon the assignor, the assignee, and third parties to the extent provided by law.”). Thus, whether or not anyone at BAC knew of Shureb or his authority to execute the Assignment is irrelevant because the phrase appearing in § 54B, “‘person purporting to hold the position of’ president, vice president, etc., [§ 54B], means that so long as the execution block or notarization describes the signatory as holding the position, the assignor, and by extension the assignee and third parties, cannot later claim that the signatory did not really hold that position.” Abate, 20 LCR at 636. Accordingly, Petitioners’ argument on this basis is rejected. [Note 26]

4. Other Allegations of Assignment Invalidity

Petitioners’ Second Amended Complaint interposes several additional arguments concerning the validity of the Assignment that Petitioners did not advance in their Opposition brief or argue at the hearing. These allegations, even if established (which they are not), would merely render the foreclosure voidable, but not void, and thus would not confer standing on Petitioners at this stage of the proceedings where the Foreclosure Sale has already occurred. See Wain, 85 Mass. App. Ct. at 502 (“[A] mortgagor’s standing [is] limited to claims that a defect in the assignment rendered it void, not merely voidable.”); Nutting, Land Court Misc. Case No. 12-473786 at *9. Each of Petitioners’ arguments is nonetheless without merit and because they have not been pressed, nor would they render the Foreclosure Sale void, they are addressed only briefly in this section.

Petitioners claim the Assignment is invalid for lack of consideration under G.L. c. 183, § 6; however, as explained in Abate, “[s]ection 6 applies only to deeds, not assignments, and makes clear that non-compliance does not affect the validity of any deed.” 20 LCR at 635. Petitioners also claim that the Assignment is invalid for failing to list the address of the mortgagee purporting to be the assignor of the Mortgage under G.L. c. 183, § 6C and for failing to list the mortgage broker or originator as required by G.L.c. 183, § 6D. However, like § 6, §§ 6C and 6D provide that “[f]ailure to comply with this section shall not affect the validity of any mortgage or assignment of a mortgage or the recording thereof.” Accordingly, there is no merit to Petitioners’ arguments that these purported deficiencies would render the Assignment void or invalid.

For all of the reasons stated above, I find that the Assignment validly transferred the Mortgage from MERS to BAC (later succeeded by Bank of America by merger), and that Bank of America properly held the Mortgage at the time of the Foreclosure Sale.

B. The Validity of the Foreclosure Sale and Foreclosure Deed

1. Compliance with G.L. c. 244 § 35A

Petitioners contend that the Foreclosure Sale of Locus was invalid, and that the Foreclosure Deed to FNMA is consequently void, because the June 2008 Letter did not provide proper notices pursuant to G.L. c. 244, § 35A. Specifically, Petitioners allege that the June 2008 Letter received from Countrywide failed to strictly comply with the requirements of G.L. c. 244, § 35A(h)(4)-(5) because it did not include:

(4) 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 mortgagee’s assertion that a default has occurred or the correctness of the mortgagee’s calculation of the amount required to cure the default;

(5) the name of any current and former mortgage broker or mortgage loan originator for such mortgage or note securing the residential property;

Petitioners’ argument that the Foreclosure Deed is void by virtue of these purported defects in the June 2008 Letter is foreclosed by the recent SJC decision in Schumacher, 467 Mass. at 431. The statutory power of sale, codified at G.L. c. 183, § 21, states that “upon default in the performance of the [statutory condition], the mortgagee . . . may sell the mortgaged premises . . . by public auction . . . first complying with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by exercise of a power of sale.” In Schumacher, the SJC held that § 35A is not one of “the statutes relating to foreclosure of mortgages” referred to in § 21, and accordingly, that a mortgagee’s failure to strictly comply with § 35A is not a ground to void a foreclosure conducted in accordance with the statutory power of sale. 467 Mass. at 431. [Note 27]

Although Schumacher was a case arising from and related to a post-foreclosure summary process action before the Housing Court, there is no logical basis to restrict Schumacher’s holding– that § 35A is not one of the statutes relating to the foreclosure of mortgages – only to summary process proceedings. To the contrary, the SJC noted that “Schumacher’s challenge to the notice should have been raised in an independent equity action in the Superior Court, not in a postforeclosure summaryprocess action in the Housing Court where the only legal issue for the court is whether the mortgagee obtained title to the property in strict accordance with the power of sale.” 467 Mass. at 429 (emphases added). So too in this post-foreclosure Land Court try title action, where the only legal issue before this court is whether Petitioners have standing by virtue of holding record title that is superior to the title acquired by FNMA in the Foreclosure Deed after exercise of the power of sale. Because the alleged defects in the notices provided in the June 2008 Letter cannot render the Foreclosure Sale invalid under G.L. c. 244, § 35A, I find that they also do not provide a basis to void FNMA’s Foreclosure Deed under G.L. c. 244, § 35A. [Note 28], [Note 29]

2. Compliance with Paragraph 22 of the Mortgage

Petitioners contend that the June 2008 Letter also failed to properly provide the notices required by Paragraph 22 of the Mortgage, which provides in pertinent part that the mortgagee “may invoke the STATUTORY POWER OF SALE” only after sending a notice that “shall . . . inform Borrower of . . . the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.” (Mortgage at 11, ¶ 22.) Petitioners argue that the June 2008 Letter sent by Countrywide stated only that Petitioners “may have the right to bring a court action to assert the non-existence of a default or any other defense you may have to acceleration or foreclosure,” and not that Petitioners “do” have such right, and that the difference in phrasing is not de minimis. Petitioners urge that the failure of the June 2008 Letter to strictly comply with the language of the pre-foreclosure notice requirements stated in Paragraph 22 of the Mortgage renders the subsequent Foreclosure Sale invalid and the Foreclosure Deed void.

The SJC recently held in Pinti v. Emigrant Mortgage Co., Inc., 472 Mass. 226 (2015), “that the ‘terms of the mortgage’ with which strict compliance is required – both as a matter of common law under this court’s decisions and under § 21 – include not only the provisions in paragraph 22 relating to the foreclosure sale itself, but also the provisions requiring and prescribing the preforeclosure notice of default.” Id. at 236 (emphasis added). [Note 30] Pinti further held that failure to comply strictly with the pre-foreclosure notice requirements of Paragraph 22 renders the subsequent foreclosure deed void. Id. at 242. However, due to the impact on the validity of titles, like in Eaton, the SJC determined to give its Pinti holding prospective effect only, and the holding thus applies only “to mortgage foreclosure sales of properties that are the subject of a mortgage containing paragraph 22 or its equivalent and for which the notice of default required by paragraph 22 is sent after the date of this opinion,” July 17, 2015. Id. at 243.

Petitioners’ case does not fall into this category and is thus not eligible for the prospective relief announced in Pinti. [Note 31] Accordingly, I find that Petitioners’ argument that the Foreclosure Deed is void ab initio because the language in the June 2008 Letter did not strictly comply with the pre- foreclosure notice language of Paragraph 22 cannot stand in light of the prospective application of the holding in Pinti. [Note 32]

3. Other Allegations of Foreclosure Sale Invalidity

Petitioners make several perfunctory arguments and allegation in their Second Amended Complaint that seek to undermine the validity of the Foreclosure Sale. Because these arguments are meritless, they are addressed only briefly below.

As noted in the findings of fact, supra, Petitioners have alleged no genuine factual dispute that Bank of America postponed the first and second scheduled foreclosure auction dates by public proclamation. Petitioners do not raise any ground to challenge the Sexton Affidavit or the recorded Affidavit of Sale to undermine that such public proclamations of postponement took place. See G.L. c. 244 § 15 (“If the affidavit shows that the requirements of the power of sale and of the statute have in all respects been complied with, the affidavit or a certified copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed.”). Accordingly, Petitioners’ argument that the Foreclosure Sale and Foreclosure Deed are void due to improper notice of postponement is rejected.

Petitioners also challenge Bank of America’s ability to “credit bid” at the Foreclosure Sale and not tender a $5,000.00 deposit check at the time of its winning bid. Credit bidding is a widespread practice that elevates function over form by not requiring a winning bidder that is also the foreclosing entity to tender a deposit check from one hand to the other. Petitioners cite to no authority for invalidating a Foreclosure Sale or subsequent Foreclosure Deed on this basis. [Note 33] Accordingly, the argument is rejected.

Petitioners additionally argue that there was no consideration paid by FNMA for the Assignment of Bank of America’s winning bid. Even if this were true, the contention would only make the Foreclosure Deed voidable, and not void. See Shea, 87 Mass. App. Ct. at 903. Accordingly, the argument is rejected.

For all of the reasons stated above, I find that the Foreclosure Sale of Locus was valid, and that FNMA properly holds record title to Locus by virtue of the Foreclosure Deed. III. Conclusion

As a result of the foregoing, I find that Petitioners do not have superior record title to Locus and therefore do not have standing to maintain this try title action. For the foregoing reasons, Respondents’ Motions to Dismiss are hereby ALLOWED. Because a Judgment of Dismissal as to Petitioners’ claims in the Complaint obviates the necessity of any judgment on the Counterclaims asserted by Bank of America and FNMA (those Counterclaims being derivative of the try title action filed by Petitioners), those Counterclaims are also hereby DISMISSED.

Judgment to enter accordingly.