Heard: March 2, 2016.
Summary Process. Complaint filed in the Northeast Division of the Housing Court Department on September 16, 2013.
The case was heard by Timothy F. Sullivan, J.
John L. McGowan for the defendants.
John P. Miller (Jennifer H. O'Brien with him) for the plaintiff.
Present: Hanlon, Sullivan, & Massing, JJ.
The defendants, Marcus Darbouze (Marcus) and Marie R. Darbouze (Marie)(together, the Darbouzes), appeal from a judgment, after a summary process trial in the Housing Court, awarding possession of their residence in Billerica (the property) to the plaintiff, Gold Star Homes, LLC (Gold Star). The Darbouzes assert that the Housing Court judge should not have permitted the trial to go forward during the pendency in the Land Court of a related, prior action in which Marie sought a declaration invalidating the foreclosure sale. On the merits, the Darbouzes contend that the judge erred by rejecting their defenses to summary process: that Mortgage Electronic Registration Systems, Inc. (MERS), the entity that conducted the foreclosure sale, was not the mortgage holder, and that MERS's postforeclosure conveyance of the property to Gold Star by foreclosure deed was ineffective. We affirm.
Background. 1. The mortgage and foreclosure. The evidence presented at the summary process trial established the following facts.On January 20, 2006, Marie purchased the property for $345, 000, financed entirely by two loans. She borrowed $276, 000 of the purchase price from Fremont Investment & Loan (Fremont), granting a first mortgage to MERS, "acting solely as a nominee for Lender and Lender's successors and assigns." (The details of the loan for the remainder of the purchase price, secured by a second mortgage, are immaterial to the subsequent events and proceedings.) Deutsche Bank National Trust Company (Deutsche Bank), as trustee for Fremont Home Loan Trust 2006-1, purchased the loan later in 2006 as part of a pooling agreement.
On January 7, 2008, Deutsche Bank initiated proceedings under the Servicemembers Civil Relief Act, 50 U.S.C. app. §§ 501 et seq. (2006) (servicemembers act) in the Land Court prior to commencing foreclosure on Marie's mortgage.On January 24, 2008, Marie filed a petition for relief under Chapter 7 of the United States Bankruptcy Code. Deutsche Bank filed a motion for relief from the automatic stay in Marie's bankruptcy case, representing that it was "the holder of a first mortgage on real estate in the original amount of $276, 000.00 given by Marie R. Darbouze to [MERS], on or about January 20, 2006." In its motion, Deutsche Bank represented that "[t]he mortgage was assigned by [MERS] to the movant." A judge of the Bankruptcy Court granted Deutsche Bank's request for relief from the stay on June 24, 2 008.
On May 21, 2009, America's Servicing Co., Deutsche Bank's servicer for the loan, sent Marie a notice of default under G. L. c. 244, § 35A. The notice referred to Deutsche Bank as the mortgagee. On September 10, 2009, MERS filed a complaint in the Land Court under the servicemembers act. The Land Court judge entered judgment in favor of MERS on February 2, 2010. In the interim, MERS's attorneys published notice of the foreclosure sale. The foreclosure sale was held on February 8, 2010. Gary Litchfield, Gold Star's manager, purchased the property at auction for $166, 000 and paid a deposit of $5, 000.
2. The Superior Court action. On March 10, 2010, Marie filed a complaint in the Superior Court challenging her underlying Fremont loan as predatory, and seeking to invalidate the foreclosure sale as a violation of a preliminary injunction on Fremont loan foreclosures. See Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733 (2008). Marie's complaint named Deutsche Bank and Litchfield, individually and as manager of Gold Star, but not MERS, as defendants.
A judge of the Superior Court allowed Deutsche Bank's motion for summary judgment on August 8, 2012, and entered a judgment dismissing Marie's complaint on August 9, 2012. Marie filed a timely notice of appeal, but her appeal was dismissed for lack of prosecution on January 8, 2013. A later motion for relief from the judgment was denied on April 23, 2013.
3. Postforeclosure transactions. On February 14, 2011, while Marie's Superior Court action was pending, Litchfield assigned his auction bid to Gold Star. MERS executed a foreclosure deed, conveying the property to Gold Star, on September 19, 2011. MERS then executed a "Corporate Assignment of Mortgage, " dated October 28, 2011, assigning to Deutsche Bank any remaining ...