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Carver v. Bank of New York Mellon

United States District Court, D. Massachusetts

December 10, 2014

STEVEN CARVER, SALLY J. CARVER, Plaintiffs,
v.
THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, as Trustee for the holders of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FHAMS 2005-FA11, by First Horizon Home Loans, a division of First Tennessee Bank National Association, Master Servicer, in its capacity as agent for the Trustee under the Pooling and Servicing Agreement (

MEMORANDUM AND ORDER ON PLAINTIFF'S REVISED MOTION TO COMPEL DISCOVERY (#58)

ROBERT B. COLLINGS, Magistrate Judge.

I. Background

This action, a try title pursuant to Massachusetts General Laws chapter 240, was removed from the Commonwealth of Massachusetts Land Court on January 2, 2013. (#1) On January 22, 2013, the defendant, The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the holders of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FHAMS 2005-FA11, by First Horizon Home Loans, a division of First Tennessee Bank National Association, Master Servicer, in its capacity as agent for the Trustee under the Pooling and Servicing Agreement ("BONYM"), filed an answer to the Second Amended Petition to Try Title Pursuant to G. L. c. 240 as well as a four-count counterclaim alleging claims for Breach of Contract (Count I), Unjust Enrichment (Count II), Declaratory Judgment (Count III) and Possession (Count IV). (#9) On February 12, 2013, the plaintiffs filed an answer to the counterclaim. (#10)

II. The Facts

The facts so far as able to be gleaned from the record developed to date are that according to a foreclosure deed recorded in the Plymouth County Registry of Deed on March 11, 2013, in Book 42779, Page 138 (#19-1, Exh. A), BONYM is the record owner of property located at 157 Old Ocean Street, Marshfield, Massachusetts (the "Property"). (#21 ¶ 1) On November 21, 2005, Steven Carver executed a note to lender First Horizon Home Loan Corporation in the amount of three hundred thirty-three thousand seven hundred and fifty dollars ("Carver Note"). (#19-1, Exh. B; #21 ¶ 2) In order to secure the loan obligation, Steven Carter and Sally J. Carver, as joint tenants, gave a mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS") as a nominee for First Horizon Home Loan Corporation on the Property which was recorded at the Plymouth County Registry of Deeds on December 5, 2005 in Book 31854, Page 219-34 ("Carver Mortgage"). (#19-1, Exh. C; #21 ¶ 3) On December 29, 2005, the Carver Note was transferred to BONYM, and BONYM has held the Carver Note since then.

An assignment of mortgage from MERS to First Horizon Home Loans, A Division of First Tennessee Bank National Association ("First Horizon Home Loans") effective December 17, 2008 was recorded at the Plymouth County Registry of Deeds on January 26, 2009 in Book 36722, Page 128-29. (#19-1, Exh. D; # 21 ¶ 4) By letter dated June 17, 2008, First Horizon Home Loans advised Steven and Sally J. Carver that consequent to their failure to meet obligations, their mortgage and note on the Property were in default and that they had until September 15, 2008, i.e., ninety days, within which to cure the default. (#19-1, Exh. F; #21 ¶ 6) On April 26, 2011, Steven and Sally J. Carver entered into a loan modification agreement with First Horizon Home Loans that was recorded at the Plymouth County Registry of Deeds on September 7, 2011 in Book 40295, Page 24. (#19-1, Exh G; #21 ¶ 7)

Nationstar Mortgage, LLC ("Nationstar") began servicing the Carvers' mortgage loan effective August 16, 2011. (#21 ¶ 8) By letter dated September 9, 2011, Nationstar, as a sub-servicer of First Tennessee Bank National Association, advised Steven Carver and Sally J. Carver individually that they were in default on the loan and mortgage for failure to make August and September 2011 mortgage payments, and that they had one hundred fifty days to pay the full amount of the default. (#19-1, Exh. H; #21 ¶ 9) Steven Carver and Sally J. Carver did not cure the default. (#21 ¶ 11) As a consequence, in May 2012 Nationstar retained the law firm of Doonan Graves and Longoria, LLC to commence foreclosure proceedings on behalf of BONYM, including filing a Servicemembers Action with the Massachusetts Land Court. (Affidavit of Reneau J. Longoria, Esq. #20 ¶ 5; #21 ¶ 11) On June 11, 2012, BONYM filed a Complaint To Determine Military Status, i.e., a Complaint to Foreclose a Mortgage, and a Mortgagee's Affidavit with the Massachusetts Land Court, Civil Action No. 12 MISC 466132. (#20 ¶ 5; #20-1, Exh. 1; #21 ¶ 12) An assignment of mortgage on the Property from First Horizon Home Loans to BONYM dated June 13, 2012 was recorded at the Plymouth County Registry of Deeds on June 21, 2012 at Book 41543, Page 321. (#19-1, Exh. E; #21 ¶¶ 5, 13)

In connection with the Servicemembers Action, the Order of Notice was published in the Marshfield Mariner on August 15, 2012, it was served on Steven Carter and Sally J. Carter, individually, on August 22, 2012, and was recorded at the Registry of Deeds on August 27, 2012. (#20-1, Exh. 2) On September 5, 2012, pursuant to Mass. Gen. L. c. 244 §§ 14 and 17B, Notice of Intent to Foreclose Mortgage and Intent to Pursue Deficiency After Foreclosure of Mortgage was sent via certified mail to Steven Carver and Sally J. Carver. (#20 ¶ 7; #20-1, Exh. 3; #21 ¶ 16) On even date, an affidavit of counsel attesting to the mailing of the Notices of Intent to Foreclose Mortgage and Pursue Deficiency After Foreclosure of Mortgage was executed in compliance with the requirements of Mass. Gen. L. c. 244 § 17B. (#20 ¶ 8; #20-1, Exh. 4; #21 ¶ 17) On September 5, 2012, September 12, 2012, and September 19, 2012 the Notice of Mortgagee's Sale of Real Estate was published in the Marshfield Mariner noticing the sale for October 2, 2012. (#20 ¶ 9; #20-2, Exh. 5; #21 ¶ 15) On September 11, 2012, BONYM's motion for judgment on the Complaint to Determine Military Status was allowed, it being ordered and adjudged that Steven Carver and Sally J. Carver were not entitled to the benefits of the Servicemembers Civil Relief Act. (#20 ¶ 10; #20-2, Exh. 6; #21 ¶ 19) On September 13, 2012, Jeffrey Jefferson, Limited Vice President, Nationstar, as attorney in fact for BONYM, executed an Affidavit Regarding Note Secured by Foreclosure Mortgage with respect to the Property wherein he attested that he was a duly authorized agent of Nationstar, that Nationstar was the mortgage loan servicer, and that BONYM, the foreclosing mortgagee, was the authorized agent of the holder of the Carver Note on the dates when notice of the sale relating to the mortgage at issue was published. (#19-1, Exh. I; #21 ¶ 18)

As of September 9, 2012, the Property had an approximate fair market value of $220, 000.00. (#19 ¶ 26; 19-2, Exh. J; #21 ¶ 38) The October 2, 2012 Mortgagee's Foreclosure Sale of the Property was continued by public proclamation to October 17, 2012; courtesy Notice of Mortgagee's Continued Foreclosure Sale was sent to Steven and Sally J. Carver by certified mail on October 11, 2012. (#9-1, Exh. A; #20 ¶ 11; #20-2, Exh. 7; #21 ¶¶ 20, 21) The October 17, 2012 Mortgagee's Foreclosure Sale of the Property was further continued by public proclamation to November 16, 2012; courtesy Notice of Mortgagee's Continued Foreclosure Sale was sent to Steven and Sally J. Carver by certified mail on November 11, 2012. (#9-1, Exh. A; #20 ¶ 12; #20-2, Exh. 8; #21 ¶¶ 22, 23) The foreclosure sale occurred on November 16, 2012, and the Property was purchased by BONYM for $66, 000.00 (Purchase Price). (#19 ¶ 19; #19-1, Exh. A; #20 ¶ 13; #20-2, Exh. 9; #21 ¶ 24) At the time of the foreclosure sale, Steven Carver and Sally J. Carver were due for the February 2012 payment. (#19 ¶ 21; #21 ¶ 25)

The total debt owed by Steven Carver and Sally J. Carver as of November 16, 2012, not including legal fees and costs, was $407, 403.16. (#19 22; #21 ¶ 26) From the time of the foreclosure referral in May 2012 until November 19, 2012, the recoverable foreclosure fees and costs totaled $7, 095.09. (#19 ¶ 23; #21 ¶ 27) Litigation fees and costs from November 2012 through December 10, 2013, total $12, 585.60. (#19 ¶ 24; #21 ¶ 28) Steven Carver owes a deficiency of $361, 083.85. (#19 ¶ 25; #21 ¶ 29) A Post-Foreclosure 3-Day Notice to Quit dated March 21, 2013 was served on Steven Carver on April 1, 2013. (#20 ¶ 14; #20-2, Exh. 10; #21 ¶ 34) BONYM has not rented or leased the Property to Steven Carver and/or Sally J. Carver since acquiring it at the foreclosure sale. (#19 ¶ 27; #21 ¶ 35) BONYM has never had a tenancy relationship with Steven Carver and/or Sally J. Carver. (#19 ¶ 28; #21 ¶ 36) Since acquiring the Property at the foreclosure sale, BONYM has not received any use and occupancy payments from Steven Carver and/or Sally J. Carver. (#19 ¶ 29; #21 ¶ 37) In short, the Carvers have been living at the property rent-free since August, 2011.[1]

II. The Discovery Dispute

Plaintiffs' counsel claims he needs certain discovery and filed Plaintiff's Revised Motion to Compel Discovery (#58); defendant opposes the discovery requests contending that they deal with irrelevant matters under the current state of the law. The Court heard the motion on October 30, 2014. At the hearing, plaintiff's counsel, in his words "to cut to the chase", listed the documents he seeks to discover by filing the motion. Specifically, he seeks a complete copy of the MERS Rules for 2009, the servicing agreements between MERS and Nationstar, MetLife and First Horizon, and MERS membership agreements with those parties.

First, one of the asserted reasons why the discovery is necessary is plaintiffs' contention that MERS cannot execute an assignment itself and that only MERS members can execute the assignment. The Court concludes that this is an incorrect ...


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