October 3, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
plaintiff, Susan Cochran, seeks declaratory and injunctive
relief against the defendants, Carrington Mortgage Services,
LLC (" CMS"), and Wells Fargo Bank, N.A, as Trustee
for Carrington Mortgage Loan Trust Series 2006-NC4 Asset
Backed Pass Through Certificates (" Wells Fargo"),
alleging violations of G. L. c. 244, § 35B (Count I) and
G. L. c. 244, § 35A (Count II), breach of contract
(Count III), and violations of G. L. c. 244, § 14
(Counts IV and V) in connection with an intended, but as of
yet uncompleted, mortgage foreclosure.
Ms. Cochran alleges that the defendants had no authority to
foreclose under G. L. c. 244, § 14, on the basis that
defendant Wells Fargo's receipt of the mortgage by
assignment was invalid due to the assignor's prior
bankruptcy proceedings. She further alleges that the
defendants failed to recite proper chain of title in their
published notice of sale and that they failed to provide
proper statutory notice and notice required by the original
mortgage agreement. Both defendants now move for summary
reasons set forth below, the defendants' motion for
summary judgment is DENIED.
undisputed facts are summarized as follows. On June 22, 2006,
New Century Mortgage Corporation (" NCMC") loaned
$169, 800 to Ms. Cochran's husband, Adam Cochran,
individually, secured by a mortgage from the Cochran's
encumbering their home located at 33 Athens Street, East
Longmeadow, Massachusetts (the " property"). In a
series of transactions not involving the Cochrans, set forth
below, the mortgage was transferred to the defendants, or so
was a mortgage loan originating company that regularly
engaged in securitization transactions transferring mortgage
loans from the originator to the trustee of a mortgage
pool. On September 28, 2006, Carrington
Securities, LP (" CSLP") sold a collection of
mortgages to Stanwich Asset Acceptance Corporation ("
Stanwich") under a Mortgage Loan Purchase Agreement (the
" purchase agreement"). The purchase agreement
named an affiliated entity as the " Responsible
Party" for the mortgages and NCMC as the "
Servicer." A pooling agreement with a closing date of
September 28, 2006 anticipated that Stanwich would serve as
the " Depositor" and transfer mortgage loans to
trustee Wells Fargo. Under the pooling agreement, NCMC
retained servicing rights for the included mortgage loans.
April 2, 2007, NCMC's parent company, New Century
Financial Corporation, filed for Chapter 11 bankruptcy. In
May of 2007, NCMC sold its interests in its servicing rights
to CMS in an agreement approved by the United States
Bankruptcy Court for the District of Delaware. On June 18,
2007, NCMC granted a Limited Power of Attorney to CMS,
including the power to assign both deeds of trust and
mortgages. In July 2008, the bankruptcy court confirmed a
Chapter 11 plan creating the New Century Liquidating Trust
(" liquidating trust") and ordered the parent
company to transfer its assets into the Trust as of the
Effective Date, August 1, 2008.
Cochrans were separated as of 2010, and later divorced in
November 2012. At some point in time, they stopped paying
their mortgage loan. On February 4, 2011, CMS sent the
Cochrans a notice of default. On October 2011, NCMC recorded
an assignment of their mortgage to Wells Fargo, signed by CMS
as attorney in fact for the liquidating trust. In April 2013,
Wells Fargo initiated foreclosure proceedings on the
property. Ms. Cochran brought this suit for declaratory and
injunctive relief to enjoin foreclosure in the Western
Division Housing Court in May 2013. The Housing Court
transferred this matter to the Hampden Superior Court on
jurisdictional grounds in May 2014.
parties dispute several factual issues related to the
transactions described above. Defendants assert that Ms.
Cochran's mortgage transferred to Stanwich through the
purchase agreement, then to Wells Fargo through the pooling
agreement. Ms. Cochran contends that her mortgage did not
transfer to Stanwich or to Wells Fargo. In particular, Ms.
Cochran asserts that the record does not detail how CSLP came
to be in possession of the mortgages it purportedly
transferred in the purchase agreement. It is likewise not
clear in the record how New Century Capital Corporation came
to play a role in the purchase agreement. Additionally, the
parties dispute the ...