Boulanger v. Wells Fargo Bank, N.A.

By the Court (Katzmann, Vuono & Agnes, JJ.), Clerk

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).

The plaintiffs appeal the summary judgment in favor of the defendant, Wells Fargo Bank, N.A., alleging various defects in the series of assignments conveying their mortgage to the defendant. We discern no error in the motion judge's ruling, and therefore affirm.

Background. The undisputed facts are as follows. On August 19, 2006, the plaintiffs refinanced their home, executing a promissory note payable to Castle Point Mortgage, Inc. (Castle Point). On the same day, the plaintiffs executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS), "acting solely as a nominee for Lender and Lender's successors and assigns." A series of assignments of the mortgage followed, with the defendant eventually acquiring the mortgage as trustee on October 23, 2009. The plaintiffs defaulted on the mortgage, and the defendant mailed a notice of foreclosure dated October 28, 2011. The plaintiffs filed this action in the Superior Court seeking to preliminarily enjoin the foreclosure and challenging the defendant's authority pursuant to G. L. c. 244, § 14, to enforce the mortgagee's power of sale, as well as the assignments' adherence to the requirements of G. L. c. 183, § 54B.

On March 12, 2012, a Superior Court judge (first judge) granted the plaintiffs' ex parte motion for a preliminary injunction, enjoining pending foreclosure proceedings by the defendant. The defendant moved for summary judgment. After a hearing, a second Superior Court judge (second judge) took no action on that motion. The second judge denied the defendant's subsequent motion for reconsideration on November 26, 2012. The first judge also presided over a hearing on the defendant's motion to dissolve the injunction on December 13, 2012. The defendant again moved for summary judgment on April 2, 2013. A third Superior Court judge (third judge) took no action pending the ruling by the first judge on the motion to dissolve the injunction. The first judge, in a thorough and well-reasoned decision, allowed the defendant's motion to dissolve the injunction on February 28, 2014. The third judge adopted the first judge's findings and, concluding that no material facts were in dispute, allowed the defendant's motion for summary judgment on March 24, 2014. The plaintiffs moved for relief from that judgment, which the third judge denied. The plaintiffs now appeal from the summary judgment.

Discussion. 1. MERS's authority to assign. The plaintiffs argue that MERS lacked authority to assign the mortgage because it was a mere nominee and not the mortgagee within the meaning of G. L. c. 244, § 14. Following the plaintiffs' reasoning, because the defendant has not demonstrated that Castle Point (the lender) explicitly granted MERS the authority to assign, the first assignment by MERS to UBS is void. This court has repeatedly rejected this argument. See Haskins v. Deutsche Bank Natl. Trust Co., 86 Mass. App. Ct. 632, 642 (2014) ("[T]here is . . . no merit to the plaintiff's claim that MERS is without capacity to execute a valid assignment of the mortgage [because it held a bare legal title to the mortgage, separated from any beneficial interest]"). In Shea v. Federal Natl. Mort. Assn., 87 Mass. App. Ct. 901, 902 (2015), interpreting language identical to that of this mortgage, we explicitly rejected the plaintiffs' contention. Here, as in Shea, the plaintiffs urge us to find that, "despite the fact that the mortgage provides that 'MERS is the mortgagee under this Security Instrument,' and that MERS holds 'legal title to the interests granted by the Borrower in this Security Instrument,' MERS did not obtain the status of mortgagee because MERS never held the note." Id. at 902-903. This argument is again unavailing. "MERS's interest as mortgagee was not 'inherently invalid because it was separated from ownership of the underlying debt.'" Id. at 903, quoting from Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 210 (2014).

2. Validity of assignment by MERS. The plaintiffs suggest that the person executing the August 13, 2009, assignment by MERS may not have had the requisite official status and personal knowledge required by G. L. c. 183, § 54B. General Laws c. 183, § 54B, as appearing in St. 2010, c. 282, § 2, requires only that an assignment be "executed before a notary public . . . by a person purporting to hold the position of president, vice president, treasurer, clerk, . . . mortgage or other officer, . . . or other similar office." The plaintiffs did not present any evidence that the person who executed the assignment was not one of the persons authorized by statute to do so. For that reason, we agree with the first judge that the notarized assignment, signed by Laura Hadley as "director" of MERS, satisfied the requirements of § 54B. See Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 503-504 (2014).

3. Defendant's acquisition of mortgage. Finally, the plaintiffs allege that the third assignment to the defendant failed to comply with the terms of the governing documents (commonly referred to as the pooling and service agreement, or the PSA) of the RMAC REMIC Trust Series 2009-9, the organization for which the defendant holds the mortgage as trustee. Providing no documentation to support their claim, the plaintiffs contend, inter alia, that the assignments should have been executed prior to the closing date dictated by the PSA. Whatever the merit of this contention, as third-party beneficiaries, the plaintiffs lack enforceable rights under the PSA. The plaintiffs do not assert that the purported defects render the assignment void. We noted in Sullivan that a mortgagor's standing to assert defects in the assignment concerns only those that would render it void, not merely voidable. 85 Mass. App. Ct. at 206 n.7. 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." 85 Mass. App. Ct. at 502. Accordingly, the plaintiffs have no standing to challenge the assignment to the defendant.

Judgment affirmed.

By the Court (Katzmann, Vuono & Agnes, JJ.),

Clerk Entered: October 13, 2015.