MISC 17-000211

March 18, 2020

Norfolk, ss.



At issue is a January 26, 2009 mortgage on 1297 N. Main Street in Randolph between defendant Marie Desrosiers and Mortgage Electronic Registration Systems Inc. ("MERS") as nominee for Village Capital & Investment LLC ("Village Capital"), now assigned to plaintiff Bank of America N.A., the original of which was never recorded and cannot now be found. What does exist is a signed copy of that mortgage, granted to secure a $172,975 promissory note, the proceeds of which were used to pay off an earlier mortgage.

What put this in doubt was Ms. Desrosiers' confusion over the events surrounding the new mortgage, the payoff of the old, an ever-changing cast on the "bank" side (assignments from MERS/Village Capital to Countrywide Home Loans, and then to Bank of America when it acquired Countrywide's assets) which led her to wonder who held what, [Note 1] and finally the bank representatives' clumsy attempts to have her sign new documents. At that point, she stopped making payments.

It is hard to blame her. During the time she was negotiating the new mortgage, Ms. Desrosiers had many communications with her lenders about restructuring her debts, but was unclear what the final results had been. She was aware that the earlier mortgage had been discharged, but was unsure if, or how, the new mortgage related to that. She thought that the agreed terms for the restructuring were (or should have been) more favorable to her than the new mortgage reflected, and suspicious when bank representatives came to her house and insisted she sign the sheaves of papers they brought (apparently a full set of closing documents). Not surprisingly, she refused.

With matters thus at an impasse, Bank of America brought this lawsuit seeking approval from the court to record a copy of the mortgage as if it was an original, and to give it nunc pro tunc effect. An evidentiary proceeding was held before me, jury-waived, at which the bank presented its proof and Ms. Desrosiers represented herself, giving her account of relevant events and fully presenting her arguments. [Note 2] Ms. Desrosiers has since died. Her estate has not been probated. Notice of all subsequent proceedings, and copies of all subsequent court orders, have been sent to her next-of-kin (her daughter, Christina Desir), but no one has appeared on behalf of her estate nor, despite the court's invitation, made any supplemental filings.

Based on my evaluation of the evidence, my assessment of the credibility of the witnesses, the reliability of their testimony, the appropriate weight to give that testimony, and my application of the relevant law, I find and rule as follows.

Facts and Analysis

I understand and sympathize with Ms. Desrosiers' confusion, and it may well be that a court or jury, looking at the events that occurred, will conclude that the interest on her mortgage should be abated, at least in part. But that is not the issue before this court, nor one within its jurisdiction. Rather, the issue before me is simple. Is the copy of the January 26, 2009 mortgage introduced into evidence at trial a true and accurate copy of the mortgage she agreed to and signed and, if so, what nunc pro tunc effect should it have once recorded?

The copy introduced into evidence (Trial Ex. 4) is initialed "MD" and "ND" on each page except for the signature page, where it is signed by "Moisena Marie Desrosiers" and "Nelson Desir" with those signatures witnessed and notarized. [Note 3] Ms. Desrosiers did not recall initialing or signing that mortgage, [Note 4] but I find that she did so as her free act and deed. The handwriting is the same as her witnessed and notarized signature on the deed by which she first acquired individual ownership of the property (Trial Ex. 1). [Note 5] It is the same as her witnessed and notarized signature on an earlier mortgage (Trial Ex. 2). It is the same as her signature on the loan application (Trial Ex. 3). It is the same as her witnessed and notarized signature on a later deed from herself (as Marie Desrosiers) to herself (as Moisena Marie Desrosiers) (Trial Ex. 5). It is the same as her signature on the HUD-1 settlement statement and addenda produced in connection with this loan (Trial Exs. 6, 7 & 8). It is the same as her signature on the compliance agreement signed in connection with this loan (Trial Ex. 9). It is the same as her signature on the promissory note reflecting the loan (Trial Ex. 10). And it is the same as her signature on all the other documents associated with this loan or her later requests for loan modification (Trial Exs. 11-20).

The bank has submitted evidence of the accuracy and completeness of the copy of the mortgage (Trial Ex. 4), as well as of its subsequent assignment to the bank, all of which I find persuasive. The mortgage is on a standard form with the usual terms. Ms. Desrosier may have wanted "better" ones, [Note 6] but "the unexpressed intent of one party cannot control the legal effect of the parties' written agreement and explicit integration clause." Realty Finance Holdings LLC v. KS Shiraz Manager LLC, 86 Mass. App. Ct. 242 , 250 (2014) (internal citations and quotations omitted). There was no evidence of any off-record modification or nullification of the mortgage, and no evidence of any fraud or mis-representation in connection with its grant. Any valid modification subsequent to the January 26, 2009 date of the mortgage would, of course, control. No evidence of any was presented to the court at any of its hearings.

A memorandum of lis pendens was recorded at the Registry on October 26, 2017, putting the world on notice of the pendency of this case and, specifically, of the bank's claim that its mortgage was valid and should be recorded with nunc pro tunc effect. I thus find that ordering the recording of a copy of the mortgage and giving it nunc pro tunc effect to the date the lis pendens was recorded (October 26, 2017) is the appropriate relief.


For the foregoing reasons, judgment shall enter authorizing the recording, upon payment of all required fees, of a copy of the January 26, 2009 mortgage (Trial Ex. 4), and that mortgage shall have nunc pro tunc effect dating from the time of the recording of the memorandum of lis pendens (October 26, 2017).



[Note 1] The collapse of Countrywide and the disbarment of Village Capital's closing attorney (for unrelated conduct) were not reassuring.

[Note 2] She had also done so at the court's previous hearings. See the Docket Entries in the case and the audio recordings made of those hearings..

[Note 3] Nelson Desir was Ms. Desrosiers' then-husband. His signature was not required on the mortgage (he had no ownership of the property; it was solely in Ms. Desrosiers' name) but it sufficed to waive his homestead rights, if any.

[Note 4] She agreed that the initials and signature looked like hers, but said she did not recognize the document and thus could not agree to it.

[Note 5] Trial Ex. 1 is the April 23, 2004 deed conveying the property from Claude Desir and Marie C. Desrosiers to Ms. Desrosiers individually.

[Note 6] Presumably the forgiveness of past principal and interest, but that would have been reflected in a different kind of document. This one is clear on that subject: the principal amount owed, the interest rate, and the term of repayment are all plainly stated.