United States District Court, D. Massachusetts
SUSAN J. STEBBINS, Plaintiff,
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as successor-in-interest to all permitted successors and assigns of JPMorgan Chase Bank as Trustee for Nomura Asset Acceptance Corporation Mortgage Pass Through Certificates, Series 2004-AP2
MEMORANDUM AND ORDER ON DEFENDANTS MOTION TO DISMISS
(DOC. NO. 12)
TIMOTHY S. HILLMAN, DISTRICT JUDGE.
Stebbins ("Plaintiff) brings this action against the
Bank of New York Mellon Trust Company, N.A., as
successor-in-interest to all permitted successors and assigns
of JP Morgan Chase Bank as Trustee for Nomura Asset
Acceptance Corporation Mortgage Pass-Through Certificates,
Series 2004-AP2 ("Defendant") alleging: void
foreclosure (Count I); voidable foreclosure (Count II);
wrongful foreclosure (Count III) and; trespass (Count IV).
The Defendant filed this motion pursuant to Fed.R.Civ.P.
12(b)(6) arguing that the complaint must be dismissed because
the Plaintiff lacks standing to challenge the foreclosure and
the complaint fails to state a plausible claim for relief.
third-party couple (the "Eastman's"), whose
relationship to the Plaintiff is unknown, purchased property
in Boylston, MA (the "Property") in 2003. The
Complaint alleges a number of conveyances between the
Eastman's, the Plaintiff, and Roger Stebbins
("Roger"). The first conveyance occurred on March
17, 2004 when the Eastman's conveyed the Property to
themselves, the Plaintiff, and Roger, by way of quitclaim
deed for consideration of less than $100. On March 22, 2004,
the Eastman's executed a promissory note
("Note") in favor of Mortgage Network Inc.
("Mortgage Network") to secure a mortgage on the
Property (the "Mortgage"). The Mortgage was granted
to Mortgage Electronic Registration Systems, Inc.
("MERS"), acting as nominee for Mortgage Network.
The last conveyance of the Property occurred on March 18,
2010 when Roger and Plaintiff conveyed the Property to
Plaintiff by way of quitclaim deed and recorded it in the
registry of deeds ("Registry").
November 25, 2013, MERS, as nominee for Mortgage Network,
assigned the Mortgage to Nomura Credit Capital
("NCC")(the "First Assignment") and it
was recorded in the Worcester Registry of Deeds (the
"Registry") on December 2, 2016. On March 7, 2016,
Nomura Credit & Capital, Inc. ("NC&C,
Inc.") assigned the Mortgage to the Defendant (the
"Second Assignment") and it was recorded in the
Registry on March 17, 2016. On July 13, 2017, Defendant
mailed Plaintiff a notice of sale to Plaintiff through the
care of her attorney.
August 14, 2017, Defendant entered the Property to foreclose.
At the time of the foreclosure Defendant was the holder of
the Note. On August 22, 2017, the Defendant executed
a foreclosure deed for the Property. On September 22, 2017,
the Plaintiff filed a complaint in state court and the
Defendant timely removed the action to this Court. The
Defendant subsequently filed this motion to dismiss the
main dispute in this case centers on the validity of the
First and Second Assignments and whether based on the
misnamed entities the Defendant was the record holder of the
Mortgage at the time of the foreclosure. The Plaintiff
asserts that NCC and NC&C, Inc. are different entities
and because there is no showing that NCC assigned its rights
to NC&C, Inc., the Defendant is not the record holder of
the Mortgage and lacked the authority to foreclose.
Defendant argues that Plaintiff lacks standing to challenge
the foreclosure and I agree. "[U]nder Massachusetts law
a mortgagor has standing only "to challenge a
mortgage assignment as invalid, ineffective or void" but
not "to challenge shortcomings in an assignment that
render it merely voidable at the election of one party but
otherwise effective to pass legal title.'"
Wilson v. HSBC Mortg. Services, Inc., 744 F.3d 1, 9
(1st Cir. 2014)(citing Culhane v. Aurora Loan
Servs. Of Neb., 708 F.3d 282, 291 (1st Cir.
2013)). "[A] scrivener's error will not invalidate
an assignment if there is evidence that the assignment is
otherwise valid." Clockedile, 189 F.Supp.3d
312, 315 (D. Mass. 2016) (citing Sullivan v. Kondaur
Capital Corp., 85 Mass.App.Ct. 202, 213 (2014)). In
Clockedile, this Court found that although the
assignment referenced an expired power of attorney, there was
a legally valid power of attorney at the time of the
assignment granting the defendant proper authority to
foreclosure. Therefore, because the assignment was only
voidable at the election of one of the parties to the
assignment, the plaintiff lacked a "legally cognizable
stake" in the error of assignment to assert the claim.
Clockedile, 189 F.Supp.3d at 315 (quoting Bank
of New York Mellon Corp. v. Wain, 85 Mass.App.Ct. 498,
Plaintiff argues that because there is no evidence that NCC
ever assigned its rights to NC&C Inc., there is a gap
between the First and Second Assignments and the Defendant
was not the record holder of the Mortgage at the time of
foreclosure by pointing to U.S. Bank Nat. Ass'n v.
Ibanez, 458 Mass. 637 (2011). However, in
Ibanez, the assignment of the mortgage to the
foreclosing parties was not executed or recorded until after
the foreclosure. Therefore, the court found that the
foreclosing parties lacked legal authority to foreclose at
the time of sale because they were not the record
holders' of the mortgages. Ibanez, 458 Mass. at
651 ("the foreclosing entity must hold the mortgage at
the time of the notice and sale in order to accurately
identify itself as the present holder in the notice and in
order to have the authority to foreclose under the power of
sale"). While not entirely clear from the Complaint or
Plaintiffs Opposition, it appears that the Plaintiff is
arguing that in the absence of a "written assignment of
the mortgage underlying the note, the assignment of the note
does not carry with it the assignment of the mortgage."
U.S. Bank Nat. Ass'n v. Ibanez, 458 Mass. 637,
the Mortgage was assigned, supported by the written document,
and recorded prior to the foreclosure. The facts in this case
are therefore, distinguishable from the facts in
Ibanez. Although Plaintiff attempts to phrase her
claim as a "present record holder" issue, it is
clear that she is in fact attempting to challenge the
scrivener's error in the face of the assignment document.
This she cannot do.
Plaintiffs other argument that the foreclosure was void
because the Defendant violated M.G.L. c. 244,
§14 by sending Plaintiffs bankruptcy counsel
notice of the foreclosure instead her directly is also
insufficient to state a claim. The affidavit of sale attached
to the Complaint shows that Defendant complied with the
statute and Plaintiff does not allege that she did not
receive adequate notice prior to the sale or that she was
prejudiced by the manner in which she received it.
these reasons, the Defendant's Motion to Dismiss (Doc.
No. 12) is granted.