Summary
affirming dismissal where, without evidence, the home owner challenged the facts contained in the recorded affidavit certifying authorization from note holder to foreclose
Summary of this case from McAllister v. Countrywide Home Loans, Inc.Opinion
15-P-282
02-16-2016
ANGELINA M. HALL v. NATIONSTAR MORTGAGE, LLC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Angelina M. Hall, appeals from the Superior Court judge's dismissal of her complaint for declaratory and injunctive relief, challenging the defendant's action to foreclose upon her property. We agree with the judge that the factual allegations of the complaint failed to plausibly state a claim, and therefore affirm.
Background. The following facts are taken from Hall's verified complaint and its attachments. In 2006, Hall entered into a mortgage loan with Countrywide Home Loans, Inc. (Countrywide), as lender, to finance the purchase of a three-unit rental property in New Bedford. She executed a promissory note in the amount of $160,000, payable to the lender, and secured by a mortgage. The mortgage identified Mortgage Electronic Registration Systems, Inc. (MERS) as the mortgagee, "acting solely as a nominee for Lender and Lender's successors and assigns." In 2009, MERS assigned its interest as mortgagee to BAC Home Loans Servicing, L.P. (BAC). BAC then merged with Bank of America, which became the successor to BAC's interest. In 2014, Bank of America assigned the mortgage to the defendant, Nationstar Mortgage, LLC (Nationstar). Shortly thereafter, on May 2, 2014, Nationstar commenced foreclosure proceedings against Hall, who had defaulted on the mortgage. Hall filed this action seeking declaratory and injunctive relief to halt the foreclosure, and was granted a preliminary injunction. Nationstar's Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), motion to dismiss was allowed on December 14, 2014, dissolving the injunction.
The affidavit, signed by Matthew Johnstone as "Assistant Secretary" of Nationstar, certified Nationstar's compliance with G. L. c. 244, § 35B, and asserted that Nationstar was the authorized agent of the note holder, Countrywide.
The verified complaint also alleged a claim of slander of title, which Hall acknowledges is wholly dependent on her prevailing on her claim for declaratory relief.
Discussion. a. Standard of review. In considering whether the plaintiff has stated a claim for which relief may be granted under Mass.R.Civ.P. 12(b)(6), we accept as true all facts alleged in the complaint, and draw all reasonable inferences in the plaintiff's favor. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). "Although detailed factual allegations are not required, a complaint must set forth 'more than labels and conclusions . . . . Factual allegations must be enough to raise a right to relief above the speculative level.'" Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting from Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Our review of Hall's complaint reveals no allegation rising above the level of mere speculation, and we therefore conclude that there was no error in the allowance of Nationstar's motion to dismiss.
b. Factual allegations. As recognized by the judge, Hall's complaint consisted of four arguments: (1) MERS lacked the power of sale because it was not the "mortgagee" as defined by G. L. c. 244, § 14; (2) because it lacked the power of sale, it could not legally assign that right; (3) Nationstar's foreclosure affidavit inadequately established its authority to act as the agent of the note holder; and (4) Nationstar's affidavit was required to disclose the note holder's identity. These legal conclusions are meritless, as they are unsupported by plausible factual assertions.
Beyond reasserting these arguments on appeal, Hall advances several issues not pleaded in the complaint. We do not address appellate arguments not raised below. Lopes v. Commonwealth, 442 Mass. 170, 180 (2004).
First, the contention that MERS was not the mortgagee is belied by the language of the mortgage itself. See Shea v. Federal Natl. Mort. Assn., 87 Mass. App. Ct. 901, 902-903 (2015) (interpreting identical language). Paragraph (C) of the definitions section of the mortgage reads, in part: "MERS is the mortgagee under this Security Instrument." Under the section entitled "Transfer of Rights in the Property," the mortgage expressly grants to MERS the power of sale. The Supreme Judicial Court, in Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 586 (2012), confirmed that a foreclosing entity need not hold the underlying note in addition to the mortgage; the mortgagee need only act as the authorized agent of the note holder in order to foreclose. See Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 210 (2014).
Similarly, Hall's complaint advanced no factual basis for her claim that MERS lacked the power of sale, which was explicitly conferred on it by the terms of the mortgage: "MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of [the interests granted by the mortgage], including, but not limited to, the right to foreclose and sell the Property." Hall has asserted nothing to the contrary.
As to the May 2, 2014, affidavit of foreclosure, Hall argues that Matthew Johnstone, who signed the affidavit as Nationstar's "Assistant Secretary," lacked personal knowledge to assert Nationstar's status as authorized agent of the note holder. We agree with the judge that Hall provides no factual support for this conclusion. Moreover, by statute, the affidavit's signatory need only certify compliance with G. L. c. 244, § 35C, based on a review of Nationstar's business records. Contrary to Hall's argument, Nationstar was under no obligation to provide a further "evidentiary foundation" to support the affidavit's certification.
Finally, for the reasons enumerated by the judge, we reject Hall's argument, unsupported by law, that the foreclosure affidavit was required to state the identity of the note holder. See Curtis, 458 Mass. at 676 ("[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief").
Conclusion. Hall presented no evidence which, if true, would demonstrate Nationstar's noncompliance with the requirements for a valid foreclosure. As Hall's complaint contained only bare conclusory statements, unsupported by facts, the judge's allowance of the rule 12(b)(6) motion was not in error.
Judgment affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 16, 2016.