Introduction
On July 20, 2007, petitioner Andrew Barrett borrowed $792,000 from First Horizon Home Loans, a division of First Tennessee Bank N.A., signing a promissory note for the loan ("the note") and, to secure the note's repayment, granting a mortgage on his property at 17 Pine Tree Road in Nantucket to defendant Mortgage Electronic Registration Systems Inc. ("MERS") as First Horizon's nominee. 17 Pine Tree Road is registered land, and the mortgage was duly registered on Mr. Barrett's certificate of title.
The note, now endorsed in blank and thus "bearer paper" (i.e., owned by its possessor, see G.L. c. 106, §3-205(b)), is currently held by the Bank of New York Mellon in its trustee capacity. MERS assigned the mortgage to Bank of New York Mellon as trustee, and that assignment is also registered on the certificate of title.
Mr. Barrett has not paid anything towards his note and mortgage for over seven years [Note 2] and, since 2010, has been facing foreclosure proceedings, currently being brought by defendant NationStar Mortgage as agent for Bank of New York Mellon. [Note 3] This petition, brought under G.L. c. 185, §§114, 115, [Note 4] was filed to forestall that foreclosure, making, in essence, two claims. The first is a challenge to the validity of the mortgage assignment from MERS to Bank of New York Mellon. The second contests the accuracy of the Affidavit Regarding Note Secured by a Mortgage to Be Foreclosed, registered on the title certificate, which states that G.L. c. 244, §35B was inapplicable to the foreclosure and that Bank of New York Mellon was the holder of the note at the time of the Affidavit (July 10, 2013). The foreclosure sale has been cancelled pending the disposition of this case.
The respondents have moved for judgment on the pleadings, contending that, on the facts as shown in the pleadings and the other materials this court may review in connection with such a motion, Mr. Barrett's claims fail as a matter of law. For the reasons that follow, I agree. Judgment shall enter dismissing Mr. Barrett's claims.
Discussion
A motion for judgment on the pleadings "effectively functions as a 'motion to dismiss'" and is analyzed under the same standard. Okerman v. VA Software Corp., 69 Mass. App. Ct. 771 , 775 (2007). See Jarosz v. Palmer, 436 Mass. 526 , 529-530 (2002). The complaint (here, the petition) [Note 5] must allege facts "plausibly suggesting (not merely consistent with) an entitlement to relief." Strawbridge v. Bank of New York Mellon, 91 Mass. App. Ct. 827 , 829-830 (2017) (internal quotations omitted) and cases cited therein. In evaluating whether the plaintiff has met this standard, "the allegations of the complaint are taken to be true along with any reasonable inferences that may be drawn in the plaintiff's favor." Id. at 829. The inquiry is not limited to those allegations, though. In addition to the pleadings, the court may take into account matters of public record and documents integral to, referenced in, or explicitly relied upon in the complaint, whether or not they were attached to it. See Marram v. Kobrick Offshore Fund Ltd., 442 Mass. 43 , 45 & 45 n. 4 (2004); Harhen v. Brown, 431 Mass. 838 , 839-840 (2000); Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); Kilnapp Enterprises Inc. v. Mass. State Automobile Dealers Ass'n, 89 Mass. App. Ct. 212 , 213-214 (2016); Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 & 329 n.2 (2008). In matters addressed by those documents, their contents govern; a party's characterizations cannot contradict the documents themselves, see Ng Bros. Constr. Inc. v. Cranney, 436 Mass. 638 , 647- 648 (2002); Shuel, 16 LCR at 329 & n.2, and the interpretation of those documents is a matter of law for the court. See Monadnock Display Fireworks Inc. v. Andover, 388 Mass. 153 , 157 (1983).
As noted above, Mr. Barrett challenges the validity of the mortgage assignment from MERS to Bank of New York Mellon and the accuracy of the Affidavit Regarding Note Secured by a Mortgage to Be Foreclosed. His "assignment" arguments are as follows:
(1) A claim that the mortgage was never validly assigned to the Bank of New York Mellon because the assignment documents (there are two on file at the registry, both of which are noted on Mr. Barrett's certificate of title) use the trust's abbreviated deal name (the first assignment), and then the deal name (the second assignment), rather than the trust's formal name. However, since the trustee (the Bank of New York Mellon) was correctly named in each of them, and since both the abbreviated deal name and deal name sufficiently clearly reference this trust (there is no separate entity that uses either of those names), [Note 6] there is no merit to this argument. See Citibank, N.A., trustee v. Gonick, 86 Mass. App. Ct. 1117 , 2014 WL 5470796 at *1-*2 and *1 nn. 5 & 6 (Oct. 30, 2014) (Mem & Order Pursuant to Rule 1:28) (minor errors in mortgagee's name do not invalidate otherwise valid foreclosure sale; misnomers must be such as would cause a party to be unaware, uncertain, or in reasonable doubt of the identity of the foreclosing party); Federal Deposit Ins. Corp. v. Kefalas, 62 Mass. App. Ct. 1121 , 2005 WL 277693 at *2 (Feb. 4, 2005) (Mem. & Order Pursuant to Rule 1:28) (notice of foreclosure published in name of "Bank of New England" and foreclosure made in name of "New Bank of New England"; court failed to see why "change in name was significant" and, for that and other reasons, held that the title derived from the foreclosure sale was valid); LaSalle Bank N.A., trustee v. Truong, Land Court Case No. 08 MISC. 390707 (KCL), Mem. & Order on Plaintiff's Motion for Default Judgment (Mar. 26, 2009).
(2) A claim that MERS had no authority to assign the mortgage without proof of express authorization from the note holder, which was now different from the entity that held the note at the time of MERS' designation as mortgagee. There is no merit to this argument. As the mortgagee, MERS had full authority to assign the mortgage on its own, regardless of who held the note. [Note 7] See Shea v. Federal Nat'l Mtge. Ass'n, 87 Mass. App. Ct. 901 , 903 (2015) (recognizing MERS' status as the mortgagee holding "legal title to the interests granted by [the] borrower" in the mortgage, and noting that: (1) "[u]nder our law, a mortgage and the underlying note can be split", (2) "[a]lthough the note holder possesses an equitable right to demand and obtain an assignment of the mortgage, absent a provision in the mortgage instrument restricting transfer, a mortgagee may assign its mortgage to another party", and (3) holding that MERS, as mortgagee, could unilaterally make such an assignment (internal citations and quotations omitted)). See also Strawbridge, 91 Mass. App. Ct. at 831 ("MERS's nominee status does not preclude it from validly assigning the mortgage, nor does it limit MERS's power to exercise a right of sale"); Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202 , 210 (2014).
(3) A claim that the MERS assignment of the mortgage "skips over" earlier assignments that were never recorded and was thus invalid. This argument also has no merit. At the time it made the assignment to Bank of New York Mellon. MERS was the record holder of the mortgage. "A foreclosing entity may provide a complete chain of assignments linking it to the record holder of the mortgage, or a single assignment from the record holder of the mortgage." U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 , 651 (2011). See Strawbridge, 91 Mass. App. Ct. at 831-832 (citing Ibanez, 458 Mass. at 651) (same).
(4) A claim that the MERS assignment to the Bank of New York Mellon violated the MERS agreement, the trust agreement, and/or the Mortgage Loan Purchase Agreement ("MLPA"). These arguments fail, among other reasons, because Mr. Barrett has no standing to make them. Any defects in the assignment simply make the assignments voidable at the instance of their parties, not void ab initio. Thus, only First Horizon, MERS, or the Bank of New York Mellon have standing to set the assignments aside. Mr. Barrett is not, by any stretch of the imagination, a "third-party beneficiary" of any of those agreements. Rather, as the borrower, he is an arms-length stranger to them. See Strawbridge, 91 Mass. App. Ct. at 832; Bank of New York Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 , 502-504 (2014); Kondaur Capital Corp., 85 Mass. App. Ct. at 205-206.
(5) A claim that there may have been "irregularities" in the assignment, including, but not limited to, issues related to the authority of the executing officer or in the form of the notarization of his signature. This argument, too, fails. There is nothing on the face of the assignment to suggest that the instrument is defective. Pursuant to G.L. c. 183, §54B, an assignment of mortgage "shall be binding upon such [assigning] entity and shall be entitled to be recorded" if it is "executed before a notary public
whether executed within or without the commonwealth, by a person purporting to hold the position of
vice president
secretary
or other similar office or position, including assistant to any such office or position, of the entity holding such mortgage
" without need of any vote affirming such authority or further evidence of their status as such an officer. Here, the assignments from MERS satisfy the requirements of the statute because they were signed by an individual purporting to hold an appropriate office in MERS ("Assistant Secretary" on the first assignment, and "Vice President" on the second), and the signatures were sufficiently duly notarized. [Note 8] It was thus "otherwise effective to pass legal title and cannot be shown to be void." Wain, 85 Mass. App. Ct. at 503 (internal citations and quotations omitted).
The plaintiff's arguments with respect to the Affidavit Regarding Note Secured by a Mortgage to Be Foreclosed are, in essence, a contention that the Affidavit is inaccurate. As noted above, that Affidavit states that G.L. c. 244, §35B was inapplicable to the foreclosure, and that Bank of New York Mellon was the holder of the note at the time of the Affidavit (July 10, 2013). There is no merit to the plaintiff's challenge to either of those statements.
As the Bank of New York Mellon has shown, G.L. c. 244, §35B is inapplicable in this situation, and its Affidavit so stating is correct. §35B was inserted by the Legislature to provide additional notice and modification protection to homeowners facing foreclosure. St. 2012, c. 194 preamble. Its effective date was November 1, 2012, St. 2012, c. 194, §9, and its protections extended to certain homeowners who would not otherwise have been covered by the Act as long as they received their G.L. c. 244, §35A notice to cure after August 3, 2012. St. 2012, c. 194, §7, and St. 2012, c. 194, emergency preamble; Enfeld v. Rockland Trust Co., 87 Mass. App. Ct. 1103 , 2015 WL 522658 at *1 n. 2 (Jan. 30, 2015) (Mem. & Order Pursuant to Rule 1:28). Here, the plaintiff received his 150-day §35A notice by letter dated January 21, 2011, over 18 months before the provisions of §35B went into effect. [Note 9] "As such, the plaintiff was not entitled by law either to the notice or the modification process set forth in §35B." Enfield, 2015 WL 522658 at *1. See Lewis v. Wells Fargo Bank N.A., No. Civ. A. 13-11896-RWZ, 2014 WL 1429684 at *2 (D. Mass. Apr. 14, 2014).
Lastly, the Affidavit's statement that the Bank of New York Mellon (f/k/a The Bank of New York) was the holder of the note was true by virtue of the Mortgage Loan Purchase Agreement between First Horizon Home Loans and First Horizon Asset Securities Inc. (Sept. 27, 2007) and the Pooling and Servicing Agreement between First Horizon Asset Securities Inc., First Horizon Home Loans and Bank of New York (Sept. 1, 2007). See Exs. B, C & D to Respondents' Answer and Counterclaims to Petitioner's 1st Amended Petition to Amend Certificate of Title (Nov. 17, 2014). In any event, the issue is now moot since Bank of New York Mellon is in physical possession of the original note, endorsed in blank, and thus bearer paper. See G.L. c. 106, §3-205(b).
Conclusion
For the foregoing reasons, the claims in Mr. Barrett's petition and their associated requests for relief are DISMISSED in their entirety, WITH PREJUDICE, and the respondents' counterclaims for an order (1) declaring that the references to the securitized trust for which the Bank of New York Mellon is trustee are sufficient to identify the trust, and (2) striking the second (2014) assignment of the mortgage from the Certificate of Title, are ALLOWED.
Judgment shall enter accordingly.
SO ORDERED.
ANDREW BARRETT v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., THE BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as trustee for the holders of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FH07-AR3, [Note 1] NATIONSTAR MORTGAGE LLC, and FIRST HORIZON HOME LOANS, a division of First Tennessee Bank N.A.