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. Campbell and 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 property located at 66 New Ludlow Road, Chicopee, MA 01020 (“Locus”) was invalid. [Note 1] 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 [Note 2] was invalid for multiple reasons; that the Foreclosure Sale was invalid because Bank of America did not hold the note [Note 3] or the mortgage [Note 4] at the time of the Foreclosure Sale, and because Respondents did not comply with statutory and contractual requirements [Note 5] leading up to the Foreclosure Sale; and that the foreclosure deed to FNMA [Note 6] was consequently rendered void. 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 7] 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 Oppositionto 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.

The court has issued a decision (the “Decision”) as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that Respondents are not barred from bringing their Rule 12(b)(1) motions challenging Petitioners’ standing to maintain this try title action; and

ORDERED and ADJUDGED 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; and

ORDERED and ADJUDGED that 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, they also do not provide a basis to void FNMA’s Foreclosure Deed under G.L. c. 244, § 35A; and

ORDERED and ADJUDGED 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 v. Emigrant Mortgage Co., Inc., 472 Mass. 226 (2015); and

ORDERED and ADJUDGED that the Foreclosure Sale of Locus was valid, and that FNMA properly holds record title to Locus by virtue of the Foreclosure Deed; and

ORDERED and ADJUDGED that Petitioners do not have superior record title to Locus and therefore do not have standing to maintain this try title action; and

ORDERED and ADJUDGED that Respondents’ Motions to Dismiss are hereby ALLOWED; and

ORDERED and ADJUDGED that because a Judgment of Dismissalas 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.

By the court.