WAYNE E. MITCHELL and SHARON MITCHELL v. U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR RASC 2006-EMX4; U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; WELLS FARGO BANK, N.A. D/B/A AMERICA'S SERVICING COMPANY; MORTGAGE LENDERS NETWORK USA, INC.; RESIDENTIAL ASSET SECURITIES CORP.; and RESIDENTIAL FUNDING CORP.

Petitioners Wayne E. Mitchell and Sharon Mitchell (Mitchells) brought this post- foreclosure action under the Try Title statute, G.L. c. 240, §§ 1-5, seeking to undo the foreclosure of their property at 547 Washington Street in Winchester. Respondents U.S. Bank, National Association (U.S. Bank), as Trustee for RASC 2006-EMX4 (Trust), Mortgage Electronic Registration Systems, Inc. (MERS), and Wells Fargo Bank, N.A. d/b/a America's Servicing Company (Wells Fargo) (collectively, the Respondents) appeared to try their claim to superior title arising from the foreclosure. The court issued a memorandum and order on the parties' summary judgment motions, Mitchell v. U.S. Bank Nat'l Ass'n, 24 LCR 621 (2016), finding that none of the Mitchells' challenges to the foreclosure could be maintained except for one: whether U.S. Bank held the note or was acting on behalf of the noteholder at the time of foreclosure, as required by the decision in Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569 (2012). After hearing the testimony at trial and reviewing all the evidence and pleadings, I find that U.S. Bank did hold the Note at the time of foreclosure and was therefore entitled to foreclose on the Mitchells' property.

Procedural History

The Mitchells filed their Petition to Try Title Pursuant to G.L. c. 240, §§ 1-5 on November 5, 2012, and their First Amended Petition to Try Title Pursuant to G.L. c. 240, §§ 1-5 on December 12, 2012. On January 4, 2013, Respondents filed Respondents' Motion to Dismiss and Respondents' Memorandum in Support of their Motion to Dismiss Plaintiffs' Complaint Pursuant to Mass. R. Civ. P. 12(b)(6). A case management conference was held on January 8, 2013. On February 11, 2013, the Mitchells filed Petitioner's Opposition to Motion to Dismiss of U.S. Bank, National Association, as Trustee for RASC 2006-EMX4, Wells Fargo Bank, N.A. d/b/a America's Servicing Company, and Mortgage Electronic Registration Systems, Inc. On February 19, 2013, Respondents filed their Reply Brief in Support of its Motion to Dismiss. The court heard arguments on the Motion to Dismiss on February 26, 2013, and on March 21, 2014, entered an Order Allowing Respondents' Motion to Dismiss and Granting Leave to Amend Complaint.

On April 3, 2014, the Mitchells filed their Second Amended Petition to Try Title Pursuant to G.L. c. 240, §§ 1-5. On May 7, 2014, the Respondents filed their Answer and Counterclaims to Second Amended Petition to Try Title Pursuant to G.L. c. 240, §§ 1-5. On May 13, 2014, the Mitchells filed their Answer and Affirmative Defenses to Respondents' Counterclaims. On May 27, 2014, the Respondents filed their Motion for Judgment on the Pleadings and Respondents' Memorandum in Support of their Motion for Judgment on the Pleadings. On August 1, 2014, Respondents filed their Motion for Reconsideration. On August 19, 2014, the Mitchells filed Petitioners' Motion to Strike Affidavit(s) of Andrew P. Osofsky and Asahia Brooks at Exhibit D to Respondents' Motion for Judgment on the Pleadings. The Mitchells filed their Opposition to Respondents' Motion for Reconsideration on August 20, 2014, and their Opposition to Respondents' Motion for Judgment on the Pleadings on August 26, 2014. The Respondents filed their Reply Brief in Support of their Motion for Judgment on the Pleadings on August 26, 2014, and their Opposition to the Motion to Strike on August 27, 2014.

On August 27, 2014, Respondents' Motion for Judgment on the Pleadings, Respondents' Motion for Reconsideration, and Petitioners' Motion to Strike were heard, and on September 15, 2014, the court entered an Order Denying Respondents' Motion for Judgment on the Pleadings, Respondents' Motion for Reconsideration, and Petitioners' Motion to Strike Affidavits. In the September 15, 2014 order, the court determined that the Mitchells stated a claim under the Try Title statute, G.L. c. 240, §§ 1-5.

On March 6, 2015, Wayne E. Mitchell filed the Petitioner's Suggestion of Bankruptcy. Respondents U.S. Bank and Wells Fargo filed a Notice of Relief from the Automatic Stay and Request for Status Conference on July 10, 2015.

On October 30, 2015, the Respondents filed their Motion for Summary Judgment, Memorandum in Support of their Motion for Summary Judgment, and the Land Court Rule 4 Statement of Undisputed Material Facts. On December 4, 2015, the Mitchells filed Petitioners' Opposition to Respondents' Motion for Summary Judgment, Petitioners' Responses to Respondents' Statement of Undisputed Material Facts and Statement of Additional Facts, and Petitioners' Appendix to Opposition to Respondents' Motion for Summary Judgment. On December 31, 2015, the Respondents filed their Reply Brief in Support of their Motion for Summary Judgment and Respondents' Response to Petitioners' Statement of Additional Facts. The Respondents' Motion for Summary Judgment was heard on January 22, 2016. On October 14, 2016, the court issued a Memorandum and Order Denying Respondents' Motion for Summary Judgment (Summary Judgment Order or SJ Order).

A pre-trial conference was held on January 18, 2017. A trial was held on February 8, 2017. Testimony was heard from Beverly DeCaro. Exhibits 1-12 were marked. At the close of evidence, the Respondents filed their Motion for Mandatory Dismissal and the Mitchells filed a Motion for Involuntary Dismissal Pursuant to Mass. R. Civ. P. Rule 41(b)(2). The court denied both motions without prejudice. U.S. Bank's Post-Trial Brief and Petitioners' Trial Briefing with Proposed Findings of Fact and Rulings of Law were filed on April 18, 2017. Closing arguments were heard on May 17, 2017, and the court took the case under advisement. This decision follows.

Facts

Based on the facts found as undisputed in the Summary Judgment Order, which remain undisturbed, the admitted exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact:

1. On May 18, 2004, the Mitchells took title to the property located at 547 Washington Street, Winchester, Massachusetts (Property) by a deed recorded on May 19, 2004, with the Southern Middlesex District Registry of Deeds (registry) in Book 42835, Page 230. Exh. 1, ¶ 7; SJ Order, ¶ 1.

2. On March 15, 2006, the Mitchells obtained a mortgage loan from Mortgage Lenders Network USA, Inc. (MLN) in the original principal amount of Six Hundred Ninety-Eight Thousand Four Hundred and 00/100 Dollars ($698,400.00) to finance their purchase of the Property (Loan). Exh. 1, ¶ 7; Exh. 7; SJ Order, ¶ 2.

3. To secure the loan, the Mitchells granted a first priority mortgage (Mortgage) on the Property to MERS as nominee for MLN and its successors and assigns in the original principal amount of Six Hundred Ninety-Eight Thousand Four Hundred and 00/100 Dollars ($698,400.00). The Mortgage was recorded with the registry on March 21, 2006, in Book 47137, Page 406. Exh. 1, ¶ 7; Exh. 7; SJ Order, ¶ 3.

4. The Mortgage incorporates the statutory power of sale. Exh. 1, ¶ 7; Exh. 7; SJ Order, ¶ 4.

5. On March 15, 2006, the Mitchells executed a promissory note (Note) in favor of MLN in the principal amount of Six Hundred Ninety-Eight Thousand Four Hundred and 00/100 Dollars ($698,400.00) with an initial fixed interest rate of 7.375% that is subject to change based on rates in the London market (LIBOR). The Note states that monthly payments of $4,531.59 are to be made on the first day of each month starting on May 1, 2006, and that the payments are to be made to the Note holder. The Note provides a final maturity date of April 1, 2036, for any remaining amount owed on the Note to be paid off. Exh. 1, ¶¶ 1, 7; Exh. 7; SJ Order, ¶ 5.

6. Beverly DeCaro (DeCaro) is a loan verification consultant and vice president of loan documentation at Wells Fargo. DeCaro has worked in her present position for ten years. Wells Fargo services loans on behalf of U.S. Bank as trustee, including the Mitchells' Loan. DeCaro is familiar with the Mitchells' Loan. Tr. 1:15-20.

7. In addition to being the servicer, Wells Fargo is and was the document custodian for U.S. Bank as trustee pursuant to a Custodial Agreement dated May 1, 2006. As document custodian, Wells Fargo is responsible for holding the original collateral file for each of the loans in the Trust, including the Mitchells' loan. A collateral file typically contains the original loan documents such as the Note, original mortgage, original title policy, any modifications on the loan, and any other original paperwork for the modification. Tr. 1:17, 19-20; Exh. 6.

8. As produced and observed at trial, the original collateral file for the Mitchells' loan is a file envelope or jacket, which is closed on three sides. I examined the original collateral file and found it to include the Note with original signatures by the Mitchells in blue ink, the original Mortgage signed by the Mitchells, an original title insurance policy, a certified copy of the assignment of the mortgage and other internal cover sheets. I find that the Mitchells' authentic signatures appear on the Note in the collateral file and all other copies. Tr. 1:49; Exh. 1, ¶ 2; Exh. 7.

9. The Custodial Agreement names U.S. Bank as "Trustee," Residential Asset Securities Corporation as the "Company," Residential Funding Corporation (RFC) as "Master Servicer," and Wells Fargo as the "Custodian." The Custodial Agreement gives context and meaning to Wells Fargo's and the Trust's custodial relationship and provides:

[T]he Company, the Master Servicer, and the Trustee have entered into a Pooling and Servicing Agreement, dated May 1, 2006, relating to the issuance of Residential Asset Securities Corporation, Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2006-EMX4 . . .

[T]he Custodian [Wells Fargo] has agreed to act as agent for the Trustee for the purposes of receiving and holding certain documents and other instruments delivered by the Company and the Master Servicer under the Pooling and Servicing Agreement. . . .

The Company and Master Servicer hereby direct the Trustee to appoint Wells Fargo Bank, National Association as the Custodian hereunder. The Custodian . . . acknowledges receipt of the Mortgage Files related to the Mortgage Loans . . . and declares that it holds and will hold the Mortgage Files as agent for the Trustee, in trust, for the use and benefit of all future Certificateholders.

From time to time as appropriate for the servicing or foreclosures of any Mortgage Loan . . . the Master Servicer shall deliver to the Custodian a Request for Release . . . the Custodian shall deliver the Mortgage File or such document to the Master Servicer. All Mortgage Files so released to the Master Servicer shall be held in trust for the Trustee for the use and benefit of all present and future Certificateholders.

With respect to each Mortgage Note, Mortgage and other documents constituting each Mortgage File which are delivered to the Custodian, the Custodian is exclusively the bailee and agent of the Trustee . . .

Tr. 1:21-29; Exh. 6.

10. From March 15, 2006, to May 5, 2006, the precise location of the Note is not known. DeCaro testified that, according to the document custodian records, on May 5, 2006, Wells Fargo received the Mitchells' original collateral file, which included the Mitchells' Note. She stated that she has seen hundreds of collateral files and upon examination of the original collateral file, confirmed that this particular collateral file holds the file for the Mitchells' Loan. Tr. 1:30, 33, 37-38, 58-59, 63-64, 103-104, 136; Exh. 9.

11. DeCaro testified that upon receiving the original collateral file, Wells Fargo deposited it in its vault located in Minneapolis, Minnesota on May 9, 2006. DeCaro was able to determine the deposit date utilizing a program called the EMB Trust Record. The EMB Trust Record tracks the whereabouts of every Note for which Wells Fargo is the custodian, including the Mitchells' Note. It is used in the regular course of business to track loan documents. DeCaro stated that she entered the loan number associated with the Mitchells' Loan (10405872) and the logged indicated a "deposit" of the collateral file was made to the vault on May 9, 2006. I credit DeCaro's testimony and find that the original collateral file with the Note was received by Wells Fargo on May 5, 2006, and deposited into the vault on May 9, 2006. Tr. 1:20, 59-64, 70; Exh. 9.

12. In addition to the EMB Trust Record, Wells Fargo uses an Imaging and Content Management Platform (ICMP) to store electronic images of loan documents. Wells Fargo has a regular practice of using the ICMP system to maintain electronic images of notes, mortgages, title, correspondence to and from a respective borrower, and other documents. DeCaro testified that the ICMP system is used in the ordinary course of Wells Fargo's business and that she has used the system in the ordinary course of her employment. Tr. 1:79-80; Exh. 10.

13. DeCaro testified that she logged into the ICMP system and inserted the loan number associated with the Mitchells' Loan (05325556842). This was a different loan number, verified with Wells Fargo's business records, than the one she used when searching in the EMB Trust Record because by that time all loans had switched to a Wells Fargo home mortgage platform causing all the loan numbers to change. The ICMP system brought up all documents that had been imaged in association with the Mitchells' Loan. DeCaro attested that based on the results, the ICMP system showed that Wells Fargo imaged the Mitchells' Note on July 20, 2007. This corresponds to the date on the cover sheet in the original collateral file, which indicated July 20, 2007, as the receipt day. Tr. 1:74-77, 79-81, 90, 94; Exhs. 7, 7A, 10.

14. DeCaro testified that once in the ICMP system one is able to click on the different entries to view the actual image that was scanned in on that date. In the ICMP system, DeCaro viewed the document associated with the July 20, 2007 "deposit" entry. DeCaro testified that the July 20, 2007 image of the note that was scanned into the system matched the Note that was in the original collateral file and reviewed by me in court at trial. Tr. 1:88-90; Exh. 11.

15. DeCaro testified that the only difference between the scanned note on July 20, 2007, and the Note in the original collateral file, was the location of an endorsement. The back of the fourth page of the Note contains a specific endorsement by MLN, the original payee of the Loan, to EMAX Financial Group (EMAX). In the ICMP image, the specific endorsement appears on a separate page rather than on the back of the fourth page. DeCaro stated that this is because scanned images cannot be double sided. I credit DeCaro's testimony that the Note was scanned into the ICMP system on July 20, 2007, and that image corresponds to the Note located in the original collateral file. Tr. 1:53, 90-92; Exhs. 8A, 11.

16. In the original collateral file, immediately following the Note there is an allonge (Allonge). DeCaro stated that she has seen many allonges and based on her knowledge the Allonge is executed in blank by EMAX. The Allonge states that it is to be "affixed and becomes a permanent part of" the Mitchell's Loan. It also provides the date the Loan was originated, amount due, and promisors listed on the Note. The Allonge is not physically affixed to the Note. DeCaro testified that at no point did she ever see the Allonge physically attached to the Note. During her testimony, DeCaro identified staple holes in the Allonge that match up with staple holes in the Note. On all pages of the Note there are two full staple marks, each with two small holes, located in the upper left corner of the page. On the Allonge there is one full staple mark with two holes in the upper left corner of the page. DeCaro testified that the staple mark on the Allonge matched up with the staple marks on the prior pages of the Note, indicating that all the pages were at one time attached. At trial I examined the staple marks on the Note and Allonge and was able to match up the holes on the Note to the full staple mark on the Allonge. I credit DeCaro's testimony, and based on my observations of the Note and Allonge in the original collateral file at trial, I find that the Allonge was executed in blank by EMAX and that it was once attached to the Note by a staple, but became detached at some point after the collateral file was delivered to Wells Fargo. Tr. 1:163-173; Exh. 7.

17. In or around 2007 or 2008, the Mitchells defaulted on the Note and the Mortgage. Exh. 1, ¶ 7; SJ Order, ¶ 6.

18. Wells Fargo, as servicer, sent a notice to cure letter dated September 2, 2008 to the Mitchells at the Property (Notice to Cure). The Notice to Cure lists $46,843.40 as the total delinquency and lists GMAC-RFC, Burbank, CA 91504-3120 (GMAC-RFC) as the mortgagee. Mr. Mitchell does not recall receiving the Notice to Cure. Exh. 1, ¶ 7; SJ Order, ¶¶ 7-8.

19. Mr. Mitchell does not claim that he disputed the arrearage amount in the September 2, 2008 Notice to Cure letter. Exh. 1, ¶ 7; SJ Order, ¶ 9.

20. Mr. Mitchell did not attempt to contact Wells Fargo regarding the Notice to Cure and did not attempt to cure any default by paying $46,843.40 to Wells Fargo. Mr. Mitchell did not rely upon the Notice to Cure letter in any way. Exh. 1, ¶ 7; SJ Order, ¶ 10.

21. On December 23, 2008, MERS executed a mortgage assignment that assigned the Mortgage from MERS to U.S. Bank National Association, as Trustee (MERS Assignment). The MERS Assignment was recorded with the registry on January 4, 2010, in Book 54094, Page 303. Exh. 1, ¶ 7; SJ Order, ¶ 11.

22. The MERS Assignment bears Andrew Harmon's genuine signature as Assistant Secretary and Vice President for MERS. The MERS Assignment was notarized by Adam Faria, a notary public. Exh. 1, ¶ 7; SJ Order, ¶ 12.

23. On May 11, 2012, Leah Brown, Vice President of Loan Documentation for Wells Fargo, acting as attorney-in-fact for U.S. Bank, National Association, as Trustee executed a corporate assignment of mortgage that assigned the Mortgage from U.S. Bank, National Association, as Trustee to U.S. Bank National Association, as Trustee for RASC 2006-EMX4. The assignment was recorded with the registry on May 15, 2012 in Book 59090, Page 542 (U.S. Bank Assignment). The U.S. Bank Assignment was notarized by Sarah Bryan, a notary public. Exh. 1, ¶ 7; SJ Order, ¶¶ 13, 14.

24. U.S. Bank granted Wells Fargo limited power of attorney to act on its behalf with respect to the mortgage loans in the Trust, which included the Mitchells' Loan. Exhs. 3, 4.

25. As shown on the EMB Trust Record by the designation "release internal to external," on July 19, 2012, the original collateral file was released from the vault. DeCaro testified that the original collateral file left the vault and was released to RFC, as Master Servicer for the Trust, so that RFC could examine the file consistent with the Custodial Agreement. Tr. 1:72-73, 112-114; Exh. 9.

26. On July 26, 2012, U.S. Bank sent a notice of the foreclosure sale regarding the Property to the Mitchells. Exh. 1, ¶¶ 3, 7; SJ Order, ¶ 15.

27. As shown on the EMB Trust Record by the designation "return external to internal," the original collateral file was returned to Wells Fargo on August 9, 2012. Tr. 1:72-73; Exh. 9.

28. Respondents sent a letter dated September 5, 2012, to counsel for the Mitchells in response to a request sent by their counsel on August 28, 2012. The letter enclosed a previous letter sent to the Mitchells dated August 13, 2012, which included the Mitchells' various mortgage loan closing documents including a purported copy of the Note (2012 Note). The 2012 Note has two holes punched in the top that do not appear on the Note contained in the original collateral file. The endorsement page on the 2012 Note is endorsed in blank by MLN and there is no allonge attached to or associated with the 2012 Note. Exhs. 5, 12.

29. U.S. Bank published notice of the foreclosure sale in the Winchester Star, a newspaper with a general circulation in Winchester, on August 2, 2012, August 9, 2012, and August 16, 2012. Exh. 1, ¶ 7; SJ Order, ¶ 16.

30. On October 2, 2012, a public foreclosure sale was conducted at the Property where U.S. Bank was the highest bidder. Exh. 1, ¶¶ 5, 7; SJ Order, ¶ 17.

31. On November 20, 2012, U.S. Bank executed a Massachusetts Foreclosure Deed by Corporation and mortgagee affidavit, which were recorded with the registry on May 6, 2014, in Book 63581, Page 8 (Foreclosure Deed). The Foreclosure Deed transfers title from the Mitchells to U.S. Bank as trustee. Exh. 1, ¶¶ 6-7; SJ Order, ¶ 18.

32. On May 20, 2013, Asahia Brooks, Vice President of Loan Documentation at Wells Fargo, executed an Affidavit Regarding Note Secured by Foreclosed Mortgage, which was recorded on May 6, 2014 in the registry in Book 63581, Page 13 (Note Affidavit). The Note Affidavit states that U.S. Bank, as Trustee for RASC 2006-EMX4 was the holder of the Note at the time of foreclosure. Exh. 1, ¶ 7; SJ Order, ¶ 19.

33. The Note Affidavit was notarized by Shelli Stout, a South Carolina notary public. Exh. 1, ¶ 7; SJ Order, ¶ 20.

34. According to the EMB Trust Record, the original collateral file, which had been in Wells Fargo's possession since being returned on August 9, 2012, was released again to counsel for the Respondents on April 22, 2014. There is no further indication in the EMB Trust Record that the original collateral file was ever returned to Wells Fargo. Tr. 1:73, 116, 119; Exh. 9.

35. On January 13, 2015, and again during discovery for this case, the Respondents sent a copy of the Note to counsel for the Mitchells (2015 Note). Unlike the 2012 Note, which included a blank endorsement, the 2015 Note corresponds with the Note found in the collateral file. The 2015 Note includes an endorsement paid to the order of EMAX. The 2015 Note contains an Allonge executed and endorsed in blank by EMAX, but the Allonge is not dated and is not physically attached to the Note in the original collateral file. Deposition of Beverly DeCaro (DeCaro Dep.), at p. 126-127, 130-131, 135-136; Tr. 1:109-111; Exhs. 8A, 8B.

36. DeCaro testified that the 2012 Note differs from both the 2015 Note and the Note contained in the original collateral file because it is a photocopy of a copy of an earlier version of the Note that came from MLN, the loan originator. She stated that the 2012 Note was uploaded into the ICMP system in April 2007, when Wells Fargo received information for servicing the Loan from MLN. DeCaro attested that the 2012 Note was a photocopy of a copy of the Note before it was endorsed by MLN to EMAX and before EMAX executed the Allonge in blank. She stated that the endorsement stamps on the 2012 Note and the 2015 Note were the same, the only difference being that the 2012 Note was endorsed in blank since it had not yet been endorsed to EMAX. Although there is no date on the Allonge as to when it was executed, DeCaro noted that it must have been prior to July 20, 2007, when the Note was scanned into the ICMP system along with the Allonge. DeCaro averred that the 2012 Note sent to the Mitchells' counsel was a photocopy of a copy of the Note because the Note contained in the collateral file does not contain hole punches at the top of the page. I credit DeCaro's testimony and find that the 2012 Note produced with the letter to the Mitchells' counsel was a photocopy of a copy of an earlier version of the Note. I find that the 2012 Note and 2015 Note are not two different versions of the Note, but the same Note, now contained in the original collateral file, imaged at different times during the life of the Loan. Tr. 1:95-98, 106-109; Exhs. 7, 12.

Discussion

This is a post-foreclosure try title action in which the Mitchells allege that they have record title to and possession of the Property and that U.S. Bank, the foreclosing mortgagee, is claiming superior title to the Property by virtue of its foreclosure. The foreclosure establishes that U.S. Bank is making such an adverse claim. Abate v. Fremont Inv. & Loan, 470 Mass. 821 , 834-835 (2015). By their counterclaim, the Respondents have brought their action to try the title to the Property under G.L. c. 240, § 3. Because the notice of foreclosure sale was given in July 2012, the burden is on the Respondents to establish U.S. Bank's superior title by showing that at the time of the notice of sale U.S. Bank held the Mortgage by a recorded assignment and held the Note or was acting on behalf of the noteholder, and that the foreclosure was performed in accordance with G.L. c. 244, § 14. See Eaton, 462 Mass. at 583-585, 588-589.

In the October 14, 2016 Summary Judgment Order, the court found that the Respondents presented prima facie evidence that U.S. Bank held the Mortgage and Note at the time of the notice of sale and properly foreclosed, and turned to the merits of the Mitchells' specific claims in the amended petition that the foreclosure was not valid. Mitchell v. U.S. Bank Nat'l Ass'n, 24 LCR 621 (2016). In the Summary Judgment Order, the court dismissed the Mitchells' claims that the MERS Assignment was fraudulently executed or notarized, that Wells Fargo's noncompliance with G.L. c. 244, § 35A, rendered the foreclosure fundamentally unfair, and that there was an off-record assignment of the Mortgage from MERS that caused a break in U.S. Bank's chain of title to the Property. The findings and discussion of the Summary Judgment Order are incorporated and repeated in this Decision by reference. The only remaining issue at trial was whether U.S. Bank held the Note or was acting on behalf of the noteholder at the time of the notice of foreclosure sale. Based on the trial testimony and evidence, U.S. Bank has shown by a preponderance of the evidence that it held the Note or was acting on behalf of the noteholder at all relevant times.

1. Negotiable Instrument

The Mitchells first argue that the Note is not a negotiable instrument governed by Massachusetts' adopted version of Article 3 of the Uniform Commercial Code (UCC). General Laws c. 106, § 3-104(a), defines a "negotiable instrument" as "an unconditional promise or order to pay a fixed amount of money" if it:

(1) is payable to bearer or to order at time it is issued or first comes into possession of a holder;

(2) is payable on demand or at a definite time; and

(3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection or an obligor.

The Mitchells assert that the Note is not a negotiable instrument because it is not for the payment of "a fixed amount of money," but the amount of the principal which is subject to change, there is no definite time for payment to be made, and there are additional undertakings and instructions regarding additional acts that the Mitchells must take "in addition to the payment of money." This argument fails.

The Note contains the Mitchells' unconditional promise to repay MLN, the original lender. It explicitly states that the principal amount to be paid is $698,400.00 with an interest rate of 7.375%. This amount is fixed. Although the interest rate is subject to change based on LIBOR rates, G.L. c. 106, § 3-112, specifically permits variable interest rates in such instruments without defeating its negotiability. G.L. c. 106, §§ 3-104(b), 3-112. The Note states that monthly payments are to be made in the amount of $4,531.59 on the first day of each month starting on May 1, 2006, and that the payments are to be made to the Note holder. The Note provides a final maturity date of April 1, 2036, for any remaining amount owed on the Note to be paid off. These are definite dates and deadlines for payment on the Note. The Mitchells submit that the Note contains additional undertakings that the Mitchells must take "in addition to the payment of money," but after review of the Note, I find there are no such additional acts required. The provisions of the Note all deal with the repayment of the Loan and describes what happens when the borrower fails to pay as required. None of these provisions defeats the negotiability of the Note. This is consistent with decisions by the Massachusetts Appeals Court that found promissory notes to be negotiable instruments. See Carroll v. The Bank of N.Y. Mellon, No. 15- P-1662, 2017 WL 1422826 at * 5 (Mass. App. Ct. April 12, 2017) ("A promissory note is a negotiable instrument."), citing G.L. c. 106, §§ 3-104; Deutsche Bank Nat'l Trust Co. v. Lefebvre, No. 15-P-1096, 2016 WL 4536285 at * 2 (Mass. App. Ct. August 31, 2016) ("A promissory note is a negotiable instrument."), citing G.L. c. 106, §§ 3-104. While the negotiability of some promissory notes may be defeated for failure to comply with the requirements of G.L. c. 106, § 3-104(a), this is not such a case. The Note is a negotiable instrument.

Even if the Note is not a negotiable instrument, the Mitchells' claims based on principles of contract law are unavailing. The Mitchells make a cursory argument that based on the Custodial Agreement, which established a trustee-beneficiary relationship between U.S. Bank and the investors of the Trust (the Certificateholders), the Certificateholders were the transferees of the Note with the right to receive payments and enforce its terms. They assert that as set forth in a Pooling Servicing Agreement (PSA), U.S. Bank only functioned in its capacity as trustee of the Trust of a pool of loans including the Mitchells' Loan, and never became the lender, or assignee of the lender, or the holder of the Note. The Mitchells claim that as the Certificateholders were the holders of the Note at the time the foreclosure process began, they alone had the legal and contractual right to enforce the Note. The Mitchells misconstrue the trustee-beneficiary relationship.

It is a basic tenet of trust law that a trustee can act on behalf of the beneficiaries of the trust, in this case, the Certificateholders. Restatement (Third) of Trusts § 2 (2003). A trust creates a fiduciary relationship of trustee-beneficiary with respect to property. While not subject to the control of the beneficiary, a trustee is under a duty to deal with the trust property for the benefit of the beneficiaries in accordance with the terms of the trust and can be compelled by the beneficiary to perform his or her duty. See Roberts v. Roberts, 419 Mass. 685 , 688 (1995); Spinner v. Nutt, 417 Mass. 549 , 557 (1994) (beneficiaries can pursue an action directly against the trustees if they can show a breach of their fiduciary duties); Williams v. Milton, 215 Mass. 1 , 6 (1913); Apahouser Lock & Sec. Corp. v. Carvelli, 26 Mass. App. Ct. 385 , 388 (1988); Penta v. Concord Auto Auction, Inc., 24 Mass. App. Ct. 635 , 640 (1987). The trustee actually holds title to a property interest for the benefit of others. As a fiduciary, the trustee has a duty of undivided loyalty to act solely for the benefit of the beneficiary as to matters within the scope of the trust instrument and to avoid any obligations or interests that might conflict with that duty. A.W. Scott & W.F. Fratcher, Scott & Ascher on Trusts § 2.5 (5th ed. 2006); see Passero v. Fitzsimmons, No. 16-P-1314, 2017 WL 3567496 at *3-4 (Mass. App. Ct. Aug. 17, 2017), quoting G.L. c. 203E, §802(a) (trustee must "administer the trust solely in the interests of the beneficiaries.").

The property interest held by U.S. Bank as trustee is the Note and Mortgage and it holds it for the benefit of the beneficiaries of the Trust, the Certificateholders. As the agent or fiduciary of the Certificateholders, U.S. Bank as trustee had authority to act on their behalf for their benefit. Moreover, PSAs are typically structured so that a trustee acts for the benefit of certificateholders. The governing trust agreements generally contain provisions limiting certificateholders' ability to act individually, rather than through the trustee. See Carroll, 2017 WL 1422826 at * 6; Deutsche Bank Nat'l. Trust Co. v. Ciccheli, 19 LCR 461 , 462 (2011); U.S. Bank Nat'l. Ass'n v. Ibanez, 17 LCR 679 , 685 (2009), aff'd, 458 Mass. 637 (2011). The PSA, however, is not in evidence so it is unclear what limitations were placed on the Certificateholders' ability to act independent of the trustee.

Regardless, the Mitchells lack standing to raise these arguments. If the Certificateholders are unsatisfied with actions taken by the trustee, it is for the Certificateholders to challenge the actions of the trustee, not a mortgagor. The Certificateholders are a party to both the PSA and Custodial Agreement. These documents are not for the benefit of any borrower, but are agreements between U.S. Bank and other such entities involved with the oversight and functioning of the Trust. Even if U.S. Bank breached its obligation as trustee under the documents, that failure would be for the Certificateholders, not the Mitchells, to prosecute. See Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202 , 206 (2014); Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 , 502 (2014); Woods v. Wells Fargo Bank, Nat'l Ass'n, 733 F.3d 349, 354 (1st Cir. 2013); Carroll, 2017 WL 1422826 at * 6. The Mitchells, as nonparties to the governing Trust documents, have no standing to challenge U.S. Bank's ability to act as trustee on behalf of the Certificateholders. This alternative argument based in contract is unsuccessful.

2. Versions of the Note

Having established that the Note is a negotiable instrument, I turn to the Mitchells' arguments relating to the enforceability of the Note itself. This court previously denied summary judgment based on a dispute of fact regarding two allegedly different versions of the Note relied upon by the Respondents in this case and which version, if any, granted interests in the Note to U.S. Bank. The purported first version of the Note was sent in a letter dated September 5, 2012, from Wells Fargo to counsel for the Mitchells, in response to a purported qualified written request sent by counsel for the Mitchells dated August 28, 2012. In the September 5, 2012 letter, Respondents enclosed a previous letter it sent to the Mitchells dated August 13, 2012. The August 13, 2012 letter enclosed various mortgage loan closing documents, including the 2012 Note. The 2012 Note is a photocopy of a copy, with the copied image of two holes punched in the top of the page. The endorsement page on the 2012 Note is endorsed in blank by MLN, and there is no allonge attached to or associated with the 2012 Note. The alleged second version of the Note, the 2015 Note, was sent to counsel for the Mitchells on January 13, 2015, and thereafter to the Mitchells during the discovery phase of this case. The 2015 Note is a copy of the Note in the original collateral file. Unlike the 2012 Note, which had a blank endorsement, the 2015 Note contains an endorsement by MLN paid to the order of EMAX. The 2015 Note also contains an Allonge endorsed in blank by EMAX, but the Allonge is not dated and is not physically attached to the Note in the collateral file. The Mitchells challenge the validity of both versions of the Note.

The Respondents adequately explained the discrepancy between the two versions of the Note through the testimony of DeCaro, a loan verification analyst for Wells Fargo, the document custodian for U.S. Bank as trustee. DeCaro based her testimony on her knowledge of Wells Fargo's usual procedures and on records kept by Wells Fargo These records are contained in the collateral file, the EMB Trust Record, and the ICMP system. Such records include documents and computer entries showing the location of the Note in the original collateral file, the times the collateral file was deposited and removed from Wells Fargo's vault, and images of documents within the collateral file that were scanned. To the extent that the Mitchells argue the admissibility and DeCaro's utilization of any of these documents as not being directly produced by Wells Fargo, these documents qualify as business records admitted under the business records exception to the hearsay rule. G.L. c. 133, § 78; Beal Bank, SSB v. Eurich, 444 Mass. 813 , 816 (2005). Wells Fargo, as loan servicer and custodian, routinely accesses and relies on information provided by its clients so that it can effectively service their loans. DeCaro testified that Wells Fargo created and maintained such records in the ordinary course of its business for U.S. Bank as trustee as its servicer and document custodian. I find that the original collateral file, the EMB Trust Record, and the ICMP system records are business records, especially in light of the Supreme Judicial Court's admonition that G.L. c. 233, § 78, the codification of the business records exception to the hearsay rule, should be interpreted liberally to permit the receipt of relevant evidence. Beal Bank, SSB, 444 Mass. at 817, quoting Wingate v. Emery Air Freight Corp., 11 Mass. App. Ct. 982 , 983 (1981), rev'd on other grounds, 385 Mass. 402 (1982).

After reviewing Wells Fargo's custodial records, DeCaro was able to determine that the 2012 Note was scanned into Wells Fargo's ICMP system in April 2007, when Wells Fargo received information for servicing the Loan from MLN, and the 2015 Note—a copy of the Note contained in the original collateral file—was scanned into the ICMP system on July 20, 2007. Using the ICMP system, DeCaro compared the 2012 Note imaged in April 2007 with the 2015 Note imaged on July 20, 2007. DeCaro testified, and I saw upon examination at trial, that the endorsement stamps on the 2012 Note and the 2015 Note were the same, except the endorsement on the 2012 Note was in blank and not to EMAX. Because the Note in the collateral file and in the scanned image of the Note in the ICMP system from July 20, 2007 contain an endorsement to EMAX and not a blank endorsement, DeCaro opined that the 2012 Note was a photocopy of a copy of the Note that was made before it was endorsed by MLN to EMAX and before EMAX executed the Allonge with the blank endorsement. Because the July 20, 2007 image of the Note in the ICMP system and the Note contained in the collateral file today do not contain hole punches at the top of the page, it is apparent that the original Note was subsequently endorsed by MLN to EMAX and EMAX executed the Allonge with the endorsement in blank after April 2007 and before the Note was imaged on July 20, 2007. I find that the 2012 Note sent to the Mitchells' counsel was a photocopy of a prior copy of the Note from the mortgage loan closing file that had been hole-punched. There are not two different versions of the Note.

3. Effectiveness of the Allonge

The Mitchells also argue that because the Allonge, which contained the blank endorsement by EMAX, was not physically attached to the Note within the original collateral file, there is insufficient evidence that the Allonge is part of the Note. Further, because the Allonge is not dated, the Mitchells argue that it could have been added to the collateral file and scanned into the ICMP system at a later date. The Mitchells contend that due to the lack of evidence supporting the authenticity of the Allonge to establish that it was in existence when the foreclosure process began, U.S. Bank as trustee could not rely on it to claim they held the Note or acted on behalf of the Note holder. U.S. Bank claims that the Allonge is part of the Note because of its position in the original collateral file directly behind the Note and the presence of staple holes in both the Note and the Allonge. U.S. Bank maintains that the Allonge endorsed in blank is the means by which it became the holder of the Note in 2007.

In 1998, the Massachusetts legislature amended Article 3 of its adopted version of the UCC. St. 1998, c. 24, § 3. Under the prior version of Article 3, an endorsement of an instrument had to be made on the instrument itself if space was available or on a paper "so firmly affixed thereto as to become a part thereof." G.L. c. 106, § 3-202(2) (1998) (repealed by St. 1998, c. 24, § 3). The 1998 amendment allowed for the use of an endorsement on an allonge even when there is sufficient space on the instrument of the endorsement. G.L. c. 106, § 3-204(a). Though the amendment maintained the requirement that an allonge be affixed to the original instrument, it changed the language slightly from "so firmly affixed thereto as to become a part thereof" to simply "a paper affixed to the instrument is a part of the instrument." G.L. c. 106, § 3-204 (a); In re Thomas, 447 B.R. 402, 411 (Bankr. D. Mass. 2011) ("an allonge must be affixed to a promissory note"); In re Shapoval, 441 B.R. 392, 394 (Bankr. D. Mass. 2010); see, e.g., In re Harborhouse of Gloucester, LLC, 505 B.R. 365, 367 n. 3 (Bankr. D. Mass. 2014). Evidence showing that the allonge was at one time affixed to the note can satisfy the requirement that the endorsement of a note set forth in an allonge must be affixed to the note. In re Shapoval, 441 B.R. at 394.

Courts in other jurisdictions have interpreted the UCC change as setting a less strict standard for an allonge to be considered part of an instrument. See In re McFadden, 471 B.R. 136, 173 (Bankr. D.S.C. 2012) ("It is reasonable to expect staples to be removed from documents with multiple pages when they are photocopied or electronically imaged."); In re Nash, 49 B.R. 254, 261 (Bankr. D. Ariz. 1985), aff'd, 60 B.R. 27 (B.A.P. 9th Cir. 1986) (finding evidence insufficient under Arizona law to establish invalid endorsement of the promissory note through an allonge despite the fact that the allonge containing the assignment was no longer physically attached to the note); Kohler v. U.S. Bank, Nat'l Ass'n, 2013 WL 3179557, at *5-6 (E.D. Wis. June 21, 2013) (finding that allonge immediately followed note in documents and evidence of staple holes appearing in both the allonge and note made it more likely than not that they were once stapled together); Ukpoma v. U.S. Bank, Nat'l Ass'n, 2013 WL 1934172, at *3 n. 2 (E.D. Wash. May 9, 2013) (rejecting argument that allonge was not valid because it was not "physically attached to the note" where the "allonge . . . specifically identifies the note to which it became permanently 'affixed' and was 'two-hole punched and bound together with other documents in the same folder is sufficient.").

The Allonge in this case, which I find to have been executed by EMAX in blank, immediately follows the Note in the original collateral file. The Allonge states that it is intended to be "affixed and become[] a permanent part of" the Mitchell's Loan. It also provides the date the Loan was originated, amount due, and promisors listed on the Note. While DeCaro testified that at no point did she ever see the Allonge physically attached to the Note, she was able to identify staple holes in the Allonge that match up with staple holes in the Note when examining the original collateral file during trial. On all pages of the Note there are two full staple marks, each with two small holes, located in the upper left corner of the page. On the Allonge there is one full staple mark with two holes in the upper left corner of the page. DeCaro attested that she was able to match up the staple mark on the Allonge with the staple marks on the prior pages of the Note. Based on this, she opined that all the pages in the Note and the Allonge were at one time attached. I also examined the staple marks on the Note and Allonge contained in the original collateral file during the trial and was likewise able to determine that the staple holes on the Note corresponded with the staple holes on the Allonge.

From DeCaro's testimony and the observations I made of the Note and Allonge in the original collateral file at trial, I find that the Allonge was executed in blank by EMAX and that it was once attached to the Note by a staple, but became detached at some point after the collateral file was delivered to Wells Fargo. The express statement of intent along with the evidence of being affixed establishes that the Allonge was "affixed" to the Note under G.L. c. 106, § 3- 204(a). Although the Allonge is not dated, I find that it must have been executed prior to July 20, 2007, when the Note was scanned into the ICMP system that included the Allonge. Possession of the note by the custodian, endorsed in blank and thus bearer paper, makes the custodian's principal the holder of the note for purposes of G.L. c. 244, §14. The evidence shows that the Allonge was in existence well before the foreclosure process began. Because Wells Fargo, as servicer and document custodian for U.S. Bank as trustee, held the Note with the Allonge last endorsed in blank, U.S. Bank was entitled to foreclose.

Even if the Allonge is not effective since it was not physically affixed to the Note, U.S. Bank had the ability to foreclose as a nonholder in possession entitled to enforce the note. Under Massachusetts law, a person entitled to enforce an instrument includes the holder of the instrument or "a nonholder in possession of the instrument who has the rights of a holder." G.L. c. 106, § 3-301. "A party becomes a non-holder in possession with the rights of a holder if the Note is 'transferred' to that party." Zea v. JPMorgan Chase Bank, Nat'l Ass'n, 2012 WL 996767, at *5 (D. Mass. Mar. 22, 2012), citing G.L. c. 106, § 3–203(a). An instrument is transferred when it is delivered by the holder for the purpose of giving the recipient the right to enforce the instrument. G.L. c. 106, § 3–203(a). Under the statute, a party claiming to be a nonholder in possession with rights of a holder must show two things: (1) physical delivery of the note, and (2) the intent of the transferor to give the party "the right to enforce the instrument." Zea, 2012 WL 996767, at *5. Proper transfer of the instrument vests in the recipient any right of the transferor to enforce the instrument. G.L. c. 106, § 3–203(b). Even though a recipient is not yet a "holder" under Article 3 because there is no endorsement or an allonge is not affixed, the recipient has possession of the note and is therefore a "nonholder in possession of the instrument who has the rights of a holder," that is, one who can enforce the instrument as such under G.L. c. 106, § 3-301, and compel endorsement under G.L. c. 106, § 3-203.

Wells Fargo, as document custodian for U.S. Bank as trustee, received the original collateral file for the Mitchells' Loan on May 5, 2006. Within the original collateral file was the Note. The Note was purposefully sent and delivered to Wells Fargo as custodian. Wells Fargo's acquisition of the Note, even if incorrectly endorsed, evinces the previous holder's intent to give U.S. Bank as trustee its right to enforce the instrument. By virtue of the transfer, U.S. Bank as trustee could step into the shoes of the holder to enforce the Note regardless of whether it was properly endorsed or whether the Allonge properly affixed. Because U.S. Bank as trustee was, at a minimum, a nonholder in possession of the Note when it foreclosed, U.S. Bank as trustee was entitled to foreclose.

4. Possession of the Note

The Mitchells also contend that U.S. Bank as trustee did not hold the Note at all relevant times. They point to two periods of time when the Note and original collateral file left Wells Fargo's possession, on July 19, 2012 and April 22, 2014. The Mitchells assert that because it is unclear who had possession of the original collateral file during these times and what was done with it, that the file could have been manipulated or transferred to a different entity that held the Note. In particular, they argue that when the Note left Wells Fargo on July 19, 2012, it was bearer paper, and since U.S. Bank did not hold the Note at that time it was not the bearer and could not have sent the notice of foreclosure sale to the Mitchells on July 26, 2012. Contrary to the Mitchells contentions, I find that U.S. Bank as trustee, by and through its agent and document custodian, Wells Fargo, held the Note at all relevant times.

A note holder may act through an agent. See Eaton, 462 Mass. at 586 ("[W]e interpret G.L. c. 244, §§ 11-17C (and particularly § 14), and G.L. c. 183, § 21, to permit one who, although not the note holder himself, acts as the authorized agent of the note holder, to stand 'in the shoes' of the 'mortgagee.'"). "An agency relationship arises from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Harrison Conference Servs. Of Mass. Inc. v. Commissioner of Revenue, 394 Mass. 21 , 24 (1985), quoting Restatement (Second) of Agency §1(1) (1958). Based on the Custodial Agreement, the two recorded powers of attorney, and the testimony at trial, an agency relationship exists between Wells Fargo and U.S. Bank as trustee for Wells Fargo to act as the custodian of the original collateral file, containing the Note, and other documents for the Trust.

Wells Fargo took physical possession of the original collateral file on May 5, 2006. By relying on Wells Fargo's business records, including the EMB Trust Record and ICMP system, DeCaro was able to confirm possession of the Note prior to the statutory foreclosure notices. Sometime prior to July 20, 2007, the Note was specifically endorsed by MLN to EMAX. EMAX subsequently endorsed the Note in blank on the Allonge, which made the note bearer paper. See Leavitt v. Wintman, 234 Mass. 248 , 249 (1919) ("A promissory note payable to the order of the maker and by him endorsed in blank becomes in effect payable to bearer."). Based upon the location of the staple holes, the Allonge was affixed to the Note at one time. Pursuant to the Custodial Agreement, Wells Fargo, as agent, document custodian, and servicer for U.S. Bank as trustee, possessed the Note on behalf of U.S. Bank as trustee since 2006 and at the time of foreclosure. The two gaps in possession that the Mitchells point to can be easily explained and do not defeat U.S. Bank as trustee's continuous possession, including at foreclosure.

As shown on the EMB Trust Record by the designation "release internal to external," on July 19, 2012, the original collateral file was released from the vault. DeCaro testified that the original collateral file left the vault and was released to RFC, as Master Servicer for the Trust, so that RFC could examine the file. This is consistent with the Custodial Agreement, which provides:

From time to time as appropriate for the servicing or foreclosures of any Mortgage Loan . . . the Master Servicer shall deliver to the Custodian a Request for Release . . . the Custodian shall deliver the Mortgage File or such document to the Master Servicer. All Mortgage Files so released to the Master Servicer shall be held in trust for the Trustee for the use and benefit of all present and future Certificateholders.

When RFC received the original collateral file in July of 2012, RFC was holding the file in trust for U.S. Bank as trustee for the use and benefit of all present and future Certificateholders. The notice of foreclosure sale regarding the Property was sent to the Mitchells on July 26, 2012, while RFC had possession of the original collateral file and the Note. That the original collateral file was held by the Master Servicer at this time does not call into question possession of the Note. RFC was holding the Note in the same capacity that Wells Fargo as custodian was holding the Note, and was therefore acting on behalf of the noteholder. As shown on the EMB Trust Record by the designation "return external to internal," on August 9, 2012, the original collateral file was returned to Wells Fargo.

The original collateral file was released again to counsel for the Respondents on April 22, 2014. There is no further indication in the EMB Trust Record that the original collateral file was ever returned to Wells Fargo. It is irrelevant to the foreclosure proceedings who held the Note after it was released to counsel since the notice had already been issued two years prior.

U.S. Bank as trustee further demonstrated that it held the Note at the time of foreclosure through a G.L. c. 183, § 54B, affidavit. See Eaton, 462 Mass. at 589 n. 28. On May 20, 2013, Asahia Brooks, Vice President of Loan Documentation at Wells Fargo, executed Note Affidavit, which was recorded on May 6, 2014 in the registry. The Note Affidavit was notarized by Shelli Stout, a South Carolina notary public. The Note Affidavit states that U.S. Bank, as Trustee for RASC 2006-EMX4 was the holder of the Note at the time of foreclosure. The Note Affidavit complied with the requirements of G.L. c. 183, § 54B. Pursuant to § 54B, an instrument for the purpose of foreclosing a mortgage and conveying the title resulting therefrom, executed before a notary public, by a person purporting to hold the position of "president, vice president, treasurer, clerk, secretary, cashier, loan representative, principal, investment, mortgage or other officer, agent, asset manager, or other similar office or position," of the entity which holds the mortgage, is binding upon that entity without the need for any corporate vote affirming the person's authority to execute the assignment, or any further evidence of their status as such officer. G.L. c. 183, § 54B; see Sullivan, 85 Mass. App. Ct. at 212; Wain, 85 Mass. App. Ct. at 503; Strawbridge v. Bank of New York Mellon, No. NOCV2015-01023, 2015 WL 6157922 at * 3 (Mass. Super. Ct. Oct. 7, 2015) ("The Eaton court expressly stated that a foreclosing mortgage holder may establish that it either held the note or acted on behalf of the note holder by filing an affidavit in the registry of deeds pursuant to G.L. c. 183, § 54B."). As the Mitchells have not disclaimed Asahia Brooks' authority as Vice President of Loan Documentation at Wells Fargo, U.S. Bank as trustee has established that it held the Note at the time of foreclosure.

Conclusion

For the foregoing reasons, I find that U.S. Bank as trustee held the Note at the time of foreclosure and was entitled to foreclose. The Mitchells hold no title to the Property. Judgment will enter declaring that U.S. Bank holds clear, superior, record title to the Property and dismissing the Petition to Try Title with prejudice.

Judgment accordingly.