Plaintiff filed its unverified Complaint on January 23, 2012, pursuant to G. L. c. 240, §§6-10, attempting to determine the validity of a foreclosure sale by Defendant Wells Fargo Bank, N.A., as Trustee under Pooling and Servicing Agreement dated as of April 1, 2005 Asset-Backed Pass Through Certificates Series 2005-WHQ2 ("Wells Fargo") [Note 1] of property located at 19-21 Rhodora Street, Lowell, Massachusetts ("Locus"), and to quiet title to Locus. On February 10, 2012, Defendant Jonathan Goldsmith, Chapter 7 Bankruptcy Trustee ("Goldsmith"), filed his Answer. A case management conference was held on February 23, 2012. Wells Fargo filed its Answer on March 19, 2012. [Note 2]
Plaintiff filed its Motion for Summary Judgment on August 17, 2012, together with supporting memorandum, Statement of Material Facts, Affidavit of Jeffrey B. Loeb, and Declarations of Denise Apicella (two). On August 27, 2012, Wells Fargo filed its Notice of No Opposition. Plaintiff filed Declaration of Denise Apicella (third) on September 10, 2012. On October 15, 2012, Goldsmith filed his Opposition, together with supporting memorandum, Statement of Additional Material Facts, Affidavit of Jonathan Goldsmith, and Appendix. A hearing was held on the motion on March 13, 2013, and the matter was taken under advisement. A decision of today's date has been issued (the "Decision"). In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that Plaintiff has not carried its burden to show that Wells Fargo had title to a mortgage granted by Sopheap Nuon to Argent Mortgage Company, LLC, dated February 2, 2005, and recorded with the Middlesex North District Registry of Deeds at Book 18378, Page 34, at the time Wells Fargo commenced the foreclosure proceedings on November 16, 2006; as a result the foreclosure deed dated March 6, 2007, from Wells Fargo Bank, NA as Trustee, to Wells Fargo is not valid.
ORDERED and ADJUDGED that Plaintiff's Motion of Summary Judgment is DENIED.
By the court. (Sands, J.)
[Note 1] It is unclear from the record as to whether Wells Fargo Bank, NA as Trustee is the same entity as Wells Fargo Bank, N.A., as Trustee under Pooling and Servicing Agreement dated as of April 1, 2005 Asset-Backed Pass Through Certificates Series 2005-WHQ2. The Complaint treats the two as the same. Such distinction is not relevant to the outcome of this case.
[Note 2] Defendants Sreu Nuon, Stephan J. Flanagan ("Stephan") and Deborah J. Flanagan ("Deborah") (together, the "Flanagans") have not filed an Answer. Sreu Nuon has never appeared. Stephan and Deborah appeared at a number of conferences but did not file an Opposition to the summary judgment motion.