Opinion
13-P-331
05-02-2014
MAUREEN H. CAVANAUGH v. FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 18, 2005, the plaintiff, Maureen Cavanaugh, executed a note to GMAC Mortgage Corporation (GMAC) in the amount of $223,200, secured by a mortgage on her property located at 7 Wamsutta Street in Fairhaven (the property). The mortgage listed GMAC as the lender and Mortgage Electronic Registration Systems, Inc. (MERS), as GMAC's nominee as well as the mortgagee of record. The mortgage was recorded in the Bristol County registry of deeds. Several assignments of Cavanaugh's mortgage ensued. On March 27, 2008, MERS assigned the mortgage to Federal National Mortgage Association (Fannie Mae). Then, on or about April 14, 2009, Fannie Mae assigned the mortgage to GMAC Mortgage, LLC (GMAC LLC).
On December 14, 2010, GMAC LLC commenced foreclosure proceedings and eventually purchased the property at a foreclosure auction held on January 4, 2011. Thereafter, by foreclosure deed dated January 5, 2011, GMAC LLC transferred title to the property to Fannie Mae, which subsequently agreed to sell the property to Timothy Lowney for $116,000.
Cavanaugh then brought this action in the Land Court against MERS, Fannie Mae, and GMAC LLC, seeking to remove a cloud from her title and a declaration that the foreclosure auction of the property was void. Four days after Cavanaugh filed suit, Fannie Mae transferred its interest in the property to Lowney by quitclaim deed dated May 24, 2011. Cavanaugh then amended her complaint to add Lowney as a party. GMAC LLC, Fannie Mae, and MERS filed a motion for entry of judgment. They conceded that the foreclosure sale conducted by GMAC LLC was void, but asserted that the mortgage was valid and enforceable and that Cavanaugh's remaining claims were moot. Lowney filed a limited opposition, and argued that although the foreclosure sale was void, the various transactions operated to assign the mortgage to him, a point disputed by Cavanaugh on the ground that GMAC LLC lacked standing to enforce the mortgage or assign it.
It is undisputed that GMAC LLC failed to give proper notice under G. L. c. 244, § 14, and therefore the foreclosure sale was invalid. GMAC LLC published notice of the foreclosure sale in the Fall River Herald, which is neither published in the town in which the property lies (Fairhaven) nor in general circulation there, and thus the notice (and the sale) did not satisfy § 14.
Following a hearing, judgment entered declaring, among other things, that (1) the foreclosure was void; (2) Cavanaugh remained the fee owner of the property subject to the mortgage; (3) the foreclosure deed from GMAC LLC to Fannie Mae operated as an assignment of the mortgage, and the quitclaim deed from Fannie Mae to Lowney operated as a further assignment of the mortgage to Lowney; and (4) Lowney was the holder of the mortgage. The judgment ordered GMAC LLC, Fannie Mae, or MERS to negotiate and deliver the note underlying the mortgage to Lowney. Cavanaugh's remaining claims were not adjudicated. Rather, they were preserved for litigation in a subsequent proceeding, if any, in a court of competent jurisdiction.
On appeal, Cavanaugh's primary argument is that the judge erred in concluding that the foreclosure and quitclaim deeds operate as an assignment of the mortgage from Fannie Mae to Lowney. The judge did not err or otherwise abuse his discretion. In Bevilacqua v. Rodriguez, 460 Mass. 762, 773-774 (2011), the Supreme Judicial Court, citing venerable and still valid case law, observed that 'a foreclosure deed, ineffective due to noncompliance with the power of sale, [may] nevertheless operate as an assignment of the mortgage itself.' Thus, the judge correctly ruled that despite the invalidity of the foreclosure sale, the foreclosure deed from GMAC LLC to Fannie Mae was a valid assignment of the mortgage. Similarly, the quitclaim deed from Fannie Mae to Lowney operated as a valid assignment of the mortgage.
Other assertions advanced by Cavanaugh not specifically addressed herein 'have not been overlooked. We find nothing in them that requires discussion.' Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Finally, we discern no abuse of discretion in connection with the declaratory relief ordered by the judge because, by its terms, the judgment preserved all of Cavanaugh's remaining claims.
Judgment affirmed.
By the Court (Katzmann, Vuono & Wolohojian, JJ.),