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Haskins v. Deutsche Bank National Trust Co.

Appeals Court of Massachusetts, Worcester

November 10, 2014

John E . Haskins
v.
Deutsche Bank National Trust Company, trustee, [1] & others. [2]

Argued September 3, 2014.

Civil action commenced in the Superior Court Department on June 13, 2012.

A motion to dismiss was heard by Janet Kenton-Walker, J.

Adam T. Sherwin for the plaintiff.

Christopher A. Cornetta for the defendants.

Present: Green, Graham, & Katzmann, JJ.

OPINION

[19 N.E.3d 456] Green, J.

We are called upon to address a question raised but not resolved in U.S. Bank Natl. Assn. v. Schumacher, 467 Mass. 421, 5 N.E.3d 882 (2014) ( Schumacher ): whether a notice of a mortgagor's right to cure a mortgage loan default, sent pursuant to G. L. c. 244, § 35A, is deficient if it is sent by the mortgage servicing

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agent (rather than the record holder of the mortgage), or if it identifies the servicing agent as the mortgage holder. We conclude that the notice in the present case complied with the statute, and affirm the judgment of the Superior Court dismissing the plaintiff's complaint.[3]

Background.

The plaintiff, John E. Haskins, purchased his residence at 98 Southville Road, Southborough, in 2002. In 2004, incident to a refinancing transaction, he granted a mortgage to defendant Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First Magnus [19 N.E.3d 457] Financial Corporation (First Magnus).[4] Haskins thereafter defaulted on his loan payment obligations and, by letter dated May 4, 2010, IndyMac Mortgage Services, the mortgage servicing division of defendant OneWest Bank, FSB (IndyMac), informed Haskins that he was in default, but that he had the right to cure the default within ninety days. The letter identified " IndyMac Mortgage Services, a Division of OneWest Bank" as the mortgage holder.[5] In fact, record title to the mortgage was held at the time by MERS, and the equitable or beneficial ownership of the loan secured by the mortgage was held by defendant Deutsche Bank National Trust Company (Deutsche Bank), as trustee of the Residential Asset Securitization Trust 2004-A2, Mortgage Pass-Through Certificates, Series 2004-B (securitization trust). By letter dated December 8, 2010, IndyMac again advised Haskins of the default, and of his right to cure the default (this time within 150 days); like the May 4 letter, the December 8 letter identified " IndyMac Mortgage Services, a Division of OneWest Bank" as the mortgage holder. Haskins did not cure the default, and Deutsche Bank thereafter obtained a judgment from the Land Court, pursuant to the Servicemembers Civil Relief Act, allowing it to foreclose the mortgage pursuant to the statutory power of sale. Prior to foreclosure, however, Haskins commenced the present action in Superior Court, seeking declaratory and injunctive relief to prevent the foreclosure, as well as money damages. A judge allowed the defendants' motion to dismiss the complaint for failure to state a claim upon which relief may be granted. The case comes to us on the plaintiff's appeal from

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the resulting judgment of ...


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