This action involves a dispute with respect to the validity of two assignments (defined, infra, as "Mortgage Assignment 1" and "Mortgage Assignment 2") of a Mortgage (defined, infra, as the Mortgage) upon property located at 1098-1106 Blue Hill Avenue, Dorchester, MA ("Locus") and one assignment of the leases and rents for Locus (defined, infra, as the "Bayview Rent Assignment"). [Note 1] Plaintiff Bayview Loan Servicing, LLC ("Plaintiff ') filed its unverified Complaint on July 18, 2014, by which it sought (a) to quiet title, pursuant to G. L. c. 240, §§ 6-10 (the "Quiet Title Statute"), to Locus (as assignee of the Mortgage), and (b) a declaratory judgment, pursuant to G. L. c. 231A (the "Declaratory Judgment Statute"), declaring Mortgage Assignment 1, Mortgage Assignment 2, and the Bayview Rent Assignment to be valid.
Plaintiff effected proper service upon all Defendants except for Defendants G2 Partners Capital, Inc. ("G2") and Jean-Claude Charles ("Charles"). As such, publication of notice, pursuant to G. L. c. 240, § 7, for G2 and Charles was made on October 10, 2014. On October 16, 2014, Defendant Telestar Finacial Corp. ("Telestar") filed its Answer and Affirmative Defenses; however, Telestar subsequently filed a Consent to the Complaint on March 2, 2015. Additionally, Plaintiff filed a Motion to Voluntarily Dismiss this action as against Defendant Marjem Mortgage Corporation pursuant to Mass. R. Civ. P. 41(a)(l)(i), which was allowed on December 5, 2014. Defendants Joseph Jeudy ("Joseph"), Jeanette Byron ("Byron") and Cecilia Jeudy ("Cecilia") each filed their individual Answers and Affirmative Defenses on January 8, 2015.
Plaintiff filed a Request for Default, pursuant to Mass. R. Civ. P. 55(a), with respect to Defendants G2, J&M Realty Trust, Jeffrey Temkin D/B/A Hemco Wholesale and Charles, which was allowed on December 15,2014. Charles subsequently filed his Answer on December 17, as well as a Motion to Vacate Default on January 30, 2015, which was allowed on February 23, 2015. As such, the only remaining Defendants in the case are Charles, Joseph, Byron and Cecilia.
Plaintiff, together with Joseph, Byron and Cecilia (together, the "Movants") filed a Joint Motion for Summary Judgment on March 23, 2015, together with a supporting memorandum, an appendix of exhibits, and an affidavit of Plaintiff s counsel, Franziskus Lepionka (the "Lepionka Affidavit"). Charles, the other remaining Defendant, did notjoin in or file opposition to this motion.
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 an actual controversy has arisen for the purposes of G.L. c. 231A, § 1; and,
ORDERED and ADJUDGED that Mortgage Assignment 1 is a valid assignment of the Mortgage to Bayview Financial with respect to both the registered portion of Locus and the recorded portion of Locus, despite the fact that it is not registered; [Note 2] and,
ORDERED and ADJUDGED that Bayview Financial held the Mortgage to both the registered and recorded portion of Locus prior to Mortgage Assignment 2; [Note 3] and,
ORDERED and ADJUDGED that Mortgage Assignment 2 is a valid assignment of the Mortgage from Bayview Financial to Plaintiff with respect to both the registered and recorded portions of Locus; and,
ORDERED and ADJUDGED that Plaintiff holds the Mortgage to both the registered and recorded portion of Locus; and,
ORDERED and ADJUDGED that the Bayview Rent Assignment [Note 4], despite not being registered [Note 5] is a legally valid transfer of the leases and rents of the registered and recorded portion of Locus to Bayview Financial; [Note 6] and,
ORDERED and ADJUDGED that Mortgage Assignment I, Mortgage Assignment 2 and the Bayview Rent Assignment are entitled to be registered at the Registry and noted on Certificate of Title #120528; and,
ORDERED and ADJUDGED that the Movants' Joint Motion for Summary Judgment is hereby ALLOWED.
By the court.
[Note 1] The Mortgage is defined in the Decision as the mortgage upon Locus dated March 9, 2004 from Defendant Joseph Jeudy ("Joseph") to Defendant G2 Partners Capital, Inc. ("G2"), which was recorded in the Registry atBook 33998, Page 109 and registered on March 12, 2004 as Document #677203 on Certificate of Title #120528. The Mortgage secured an associated promissory note (the "Note") in the sum of $800,000.00. As further security for the Note, on the same date, Joseph executed an assigmnent of the leases and rents for Locus to G2 (the "G2 Rent Assignment"), which was recorded in the Registry atBook 33998, Page 144 and registered on March 12,2004 as Document #677204 on Certificate of Title #120528. Mortgage Assignment 1 is defined in the Decision as an assigmnent of the Mortgage from G2 to Bayview Financial Trading Group, LP ("Bayview Financial"), which was dated March 9, 2004, and was recorded in the Suffolk County Registry of Deeds (the "Registry'') at Book 35495, Page 186 on September 17, 2004. The Bayview Rent Assignment is defined in the Decision as the assigmnent dated March 9, 2004, by which G2 assigned the leases and rents for Locus to Bayview Financial, which was recorded in the Registry at Book 35495, Page 188 on September 17, 2004, but was never registered. Mortgage Assigmnent 2 is defined in the Decision as the assignment dated January 3, 2007, by which Bayview Financial assigned the Mortgage to Plaintiff Bayview Loan Servicing, LLC ("Plaintiff '), which states that"FOR VALUE RECEIVED, [Bayview Financial] hereby grants, conveys, assigns to [Plaintiff] all beneficial interest under [the Mortgage)", and references both the recording and registration information for the Mortgage. A copy of Mortgage Assigmnent 2 was included in the Movants' appendix, and the Lepionka Affidavit attests that said copy is true and accurate. However, the Movants failed toprovide the recording information for Mortgage Assigmnent 2 in their Joint Statement of Material Facts. Upon the court's independent research of the Registry, it appears that Mortgage Assignment 2 was never recorded in the Registry.
[Note 2] Mortgage Assignment I has the additional technical defect of not referencing the registration information for Locus, which does not affect the validity of the document itself, but it would serve as an impediment to having it registered. Per the court's within holdings infra), this defect is now moot.
[Note 3] It should be noted that, pursuant to G.L. c. 231A, § 8, "[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding." Here, Bayview Financial is not a party to this action, and thus is not bouod by this Decision. However, Bayview Financial need not have been named as a party to this case because it no longer has any interest that would be affected by the declaratory judgment to be issued pursuant to this Decision, having divested itself of its interest in the Mortgage by assigning same to Plaintiff, as discussed, infra.
[Note 4] Bayview Financial has not assigned its interest under the Bayview Rent Assignment to Plaintiff, so Plaintiff has no interest in the leases and rents of Locus.
[Note 5] Like Mortgage Assignment I, the Bayview Rent Assignment has the additional technical defect of not referencing the registration information for Locus, which does not affect the validity of the document itself, but it would serve as an impediment to having it registered. Per the court's within holdings infra), this defect is now moot.
[Note 6] As noted, supra, the necessary party requirement of G.L. c. 23IA, § 8, does not require that Bayview Financial have been made a party to this case because its rights will not be prejudiced by the decision. Moreover, this decision will be of benefit to Bayview Financial, because it will now be able to register the Bayview Rent Assignment.