Home MARY BISHAY and BAHIG BISHAY, Plaintiffs, v. U.S. BANK, NATIONAL ASSOCIATION, as Trustee for Asset Backed Securities Corporation Home Equity Loan Trust, Series OOMC 2006-HE5, Asset Backed Pass-Through Certificates, Series OOMC 2006-HE5, Defendant

MISC 18-15269 05-001

NOVEMBER 5, 2020




On October 27, 2020, the court issued its Memorandum and Order on Cross-Motions for Summary Judgment (Memorandum and Order), allowing the motion for summary judgment of defendant U.S. Bank, National Association, as Trustee for Asset Backed Securities Corporation Home Equity Loan Trust, Series OOMC 2006-HE5, Asset Backed-Pass-Through Certificates, Series OOMC 2006-HE5 (U.S. Bank), and denying the cross-motion for summary judgment of plaintiffs Mary and Bahig Bishay (the Bishays). In the Memorandum and Order, the court found that U.S. Bank held the note at issue and could enforce the note under a lost note affidavit, held the mortgage at issue, and is entitled to exercise the power of sale under the mortgage.

On November 4, 2020, the Bishays filed Plaintiffs' "Motion for Reconsideration" Pursuant to Rule 59(e) of the Mass Rules of Civil Procedure, Rule 60(b)(3) and (6), in the Alternative (Motion for Reconsideration). Pursuant to Land Court Rules 6 and 9, the court decides the Motion for Reconsideration without hearing.

Whether treated as a motion for reconsideration, a motion to alter or amend the judgment under Mass. R. Civ. P. 59(e), or a motion for relief from judgment or order under Mass. R. Civ. P. 60, the outcome of the Motion for Reconsideration is the same. The Bishays have not presented in the Motion for Reconsideration any grounds for amending or reconsidering the Memorandum and Order. First, the Bishays repeat the same legal arguments that the court considered and rejected in the Memorandum and Order. The court stands by its analysis. Second, the Bishays also point to the deposition of Ms. Childs, the keeper of the records for U.S. Bank's servicer, as either requiring summary judgment in their favor or creating issues of material fact requiring a trial. To the extent it was not made explicit in the Memorandum and Order, the court clarifies that nothing in Ms. Childs's deposition contradicts or takes issue with the undisputed facts on which the court relied. Her testimony is entirely consistent with the lost note affidavit executed by Ocwen Loan Servicing, LLC and the records showing the history of holding the note and the agents for U.S. Bank. Finally, to the extent that the Bishays argue that relief from the Memorandum and Order is necessary on the grounds of fraud under Mass. R. Civ. P. 60(b)(3), they have failed to present anything approaching the level of specificity of evidence required for such a finding. Therefore, for the forgoing reasons, the Motion for Reconsideration is DENIED.