Summary
recognizing that the holder of the mortgage and the note could foreclose on a property when another entity had actual possession of the note on its behalf
Summary of this case from Cranmore v. Wells Fargo BankOpinion
No. 15–P–1613.
12-20-2016
Louis F. O'NEIL, Jr. & another v. The BANK OF NEW YORK MELLON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this foreclosure action, the plaintiffs, Louis F. O'Neil, Jr., and Marcia O'Neil, appeal from the entry of summary judgment in favor of the defendant, the Bank of New York Mellon (BNYM), formerly known as the Bank of New York. Largely for the reasons set forth by the motion judge in his well-reasoned memorandum of decision and order, we affirm.
BNYM moved to dismiss the O'Neils' complaint pursuant to Mass.R .Civ.P. 12(b)(6), 365 Mass. 755 (1974). Following a hearing on the motion, the judge informed the parties that the motion would be treated as one for summary judgment and granted them additional time to supplement the record.
Background. In January, 2007, the O'Neils refinanced their residence by executing a promissory note in the amount of $724,800 to America's Wholesale Lender (AWL), and a mortgage naming AWL as the lender and Mortgage Electronic Registration Systems, Inc. (MERS) as the mortgagee. The mortgage further identifies MERS as the nominee for AWL and its successors and assigns. On September 19, 2011, MERS assigned the mortgage to BNYM. The assignment was recorded at the Essex County registry of deeds on October 11, 2011. According to the affidavit of Dana Foye, a document coordinator at Bayview Loan Servicing (Bayview), the servicer of the O'Neils' 2007 mortgage loan, BNYM became holder of the note in October, 2014. As of January 7, 2015, Bank of America had actual possession of the note on behalf of BNYM; prior to that date, Bayview's custodian had actual possession of the note on behalf of BNYM. BNYM initiated foreclosure proceedings by notice dated November 19, 2014.
The residence is located on Twin Springs Drive in Saugus.
Discussion. "We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’ " Juliano v. Simpson, 461 Mass. 527, 529–330 (2012), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
In their complaint, and on appeal, the O'Neils essentially argue that MERS was not the "mortgagee" as defined by G.L. c. 244, § 14, and, accordingly, it could not "autonomously" assign the mortgage, and accompanying power of sale, to BNYM. The claims are legally and factually unsupported. The assignment from MERS, mortgagee solely as nominee for lender and lender's successors and assigns, to BNYM was valid for the reasons discussed in Shea v. Federal Natl. Mort. Assn., 87 Mass.App.Ct. 901, 902–903 (2015). Where BYNM demonstrated, through a documentary chain of title and uncontested affidavits, that it was the record owner and holder of the note and mortgage at the time the foreclosure notice issued, the judge properly ordered the entry of summary judgment in its favor. See Bank of N.Y. Mellon Corp. v. Wain, 85 Mass.App.Ct. 498, 503–504 (2014).
For that reason, the O'Neils' slander of title claim also fails.
The O'Neils also claim that the assignment is invalid because it occurred beyond the closing date set forth in the pooling and servicing agreement (PSA) between AWL and BYNM. Whatever the merit of this contention, as third-party beneficiaries, the O'Neils lack enforceable rights under the PSA. We have noted that a mortgagor's standing to assert defects in the assignment concerns only those defects that would render the assignment void, not merely voidable. Sullivan v. Kondaur Capital Corp., 85 Mass.App.Ct. 202, 206 n .7 (2014). Relying on Sullivan, we then held in Wain that, "where the foreclosing entity has established that it validly holds the mortgage, a mortgagor in default has no legally cognizable stake in whether there otherwise might be latent defects in the assignment process."Wain, supra at 502. Accordingly, the O'Neils have no standing to challenge the assignment to BNYM.
We have carefully considered each of the arguments presented in the O'Neils' brief. To the extent that we do not address any particular claim, we have deemed it to be without merit and not warranting discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.