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COMMONWEALTH OF MASSACHUSETTS
COURT OF APPEALS NO. 2015-P-1259
U.S. BANK, N.A., AS TRUSTEE FOR RASC 2006KS9
Plaintiff-Appellant
V.
WENDY BOLLING
Defendant - Appellee
ON APPEAL FROM A FINAL JUDGMENT OF
THE WESTERN HOUSING COURT
APPELLEE’S OPENING BRIEF _______________________________________________________
Glenn F. Russell, Jr. (BBO# 656914) Glenn F. Russell, Jr. & Associates, P.C. 38 Rock Street, Suite #12 Fall River, MA 02720 phone. (508) 324-4545
fax. (508) 938-0244
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[email protected] Dated: May 24, 2016
TABLE OF CONTENTS
I. STATEMENT OF THE ISSUES PRESENTED.........1
II. STATEMENT OF THE CASE...........................................4
III. STATEMENT OF FACTS...........................................5
IV. SUMMARY OF THE ARGUMENT......................................16
V. STANDARD OF REVIEW........................................19
VI. ARGUMENT......................................19
VI. CONCLUSION......................................50 RULE 16(k)..........................................52
STATEMENT CERTIFICATE OF SERVICE....................53
ADDENDUM............................................54
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TABLE OF AUTHORITIES
Massachusetts CasesArnold v. Reed, 162 Mass. 438 , 440 (1894) ..........................27 Aurora Loans Services, LLC v. Mendenhall ...............................48 Bank of American Nat’l Assoc. v. Bassman FBT, L.L.C., et al. 981 N.E.2d 1, 7 (Ill. App. Ct. 2012) .............passim
Bank of New York Mellon Corp, as Trustee v. Wain, 11 N.E.3d. 633 .................................................................................................47
Bevilacqua v. Rodriguez, 460 Mass. 762, 771 (2011) .......27 Bongaards v. Millen, 440 Mass. 10 , 15 (2003) ...................27 Boskowitz v Held, 15 App Div 306, 310-311 .............................57 Boulanger v. Wells Fargo Bank, N.A., 14-P-1438 .................44 Comm'r of Banks v. Tremont Trust Co., 259 Mass. 162, 179–80, 156 N.E. 7, 14–15 (1927) ..............................................41
Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 918 N.E.2d 36, 44 (2009)..............................23
Deutsche Bank as Trustee v. Collins, et al, Worcester Housing Court, 1185-SP-5095 (July 18, 2013) ....................49
Eaton v. Fed. Nat’l Mortgage Ass’n, 462 Mass 569 (2012) .......................................................................................................21, 31
Eaton, 969 N.E.2d at 1127 ...................................................................23 Faneuil Investors Group, Ltd. Partnership v. Selectmen of Dennis, 458 Mass. 1 , 6 (2010) ............................................24
Hoyt v. BAC Home Loans ..........................................................................44 HSBC as Trustee v. Howe, et al .......................................................48 HSBC as Trustee v. Howe, et al, Malden Court District, No. 1350-SU-0237 (Sept. 18, 2014) ............................................51
Koufos v. U.S. Bank, N.A. .............................................................36, 42 Koufos v. U.S. Bank, N.A., 415 B.R. 8, 22 (Bankr. D. Mass. 2009) .................................................................................................42
Nickerson v. Loud, 115 Mass. 94 , 97-98 (1874) .................27 Norfolk & Dedham Mut.Fire Ins. Co. v. Morrison, -- N.E.2d --, 2010 WL 1345156, at *3 (Mass. Apr. 8, 2010) ...............................................................................................................21
S & H Petroleum Corp. v. Register of Deeds for the County of Bristol, 46 Mass. App. Ct. 535 , 537 (1999)...........................................................................................................................27
Saint Patrick's Religious, Educ. & Charitable Ass'n v. Hale, 227 Mass. 175 , 177 (1917) ..............................................24
Samuels, 415 B.R. 8, 20 (Bankr. D. Mass. 2009) ....25, 43, 44, 45
Springer v. Deutsche Bank National Trust Co.......................46 Sullivan v. Kondaur Capital, 85 Mass.App.Ct. 202, 206 n. 8, 7 N.E.3d 1113, 1116, n. 8 (2014) ................................47
U.S. BANK NAT’L ASS’N v. IBANEZ .....................................................12
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U.S. Bank Nat’l Ass’n v. Ibanez 458 Mass. 637 (2011)....................................................................................................................passim
U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011) 23 U.S. Bank National Association v. Schumacher, 467 Mass. 421 (2014) .....................................................................................15
U.S. Bank v. Hoynoski, Western Housing Court, No. 11-SP-3965 (Nov. 8, 2012) ......................................................................49
U.S. Bank v. Wright, et al, Quincy District Court, No. 1156-SU-1214 (Oct. 21, 2013) ........................................................48
U.S. National Association v. Ibanez, 458 Mass. at 650-51 ......................................................................................................................48
Wenzel v. Sand Canyon Corp., 841 F.Supp.2d 463, 477-78 (D.Mass.2012) ............................................................................................22
Other CasesAronoff v. Albanese, 446 N.Y.S.2d 368, 370 (App. Div. 1982) ...............................................................................................................54
Anderson v. Mather, 44 N.Y. 249 (N.Y.1870) ..........................54 Dernier v. Mortgage Network, Inc. 87 A.3d 465 (Vt. 2013) ...................................................................................................52, 53, 58
Dye v Lincoln Rochester Trust Co., 31 NY2d 1012) ............57 Kirsch v. Tozier 143 NY 390 (1894)..............................................51 Kirsch v. Tozier, 143 N.Y. 390, 38 N.E. 375 (1894) .......51 Feldman v. Torres, 939 N.Y.S.2d 221, 224 (App. Term 2011) ...................................................................................................................56 Dye v. Lewis, 67 Misc.2d 426, 324 N.Y.S.2d 172, 175 (N.Y.Sup.Ct.1971)………………………………………………………54 Greagan v. Buchanan, 15 Misc. 580, 37 N.Y.S. 83, 85 (N.Y.Sup.Ct. 1896) ....................................................................................55 Hine v. Huntington, 118 A.D. 585, 103 N.Y.S. 535, 540 (1907) .............................................................................................................55
In re Application of Dana, 119 Misc.2d 815, 465 N.Y.S.2d 102, 105 (N.Y.Sup.Ct. 1982) .........................................54 McPherson v. Rollins 107 NY 316 (1887) ....................................51 Mooney v. Madden, 193 A.D.2d 933, 597 N.Y.S.2d 775, 776 (1993) ...................................................................................................57
National Black Theatre Workshop Inc. v. Nubian Properties LLC, 89 A.D.3d 518, 932 N.Y.S.2d 466, 467 (2011) .............................................................................................................54
Conservative Party of the State of New York v. New York State Board of Elections, 170 Misc.2d 885, 652 N.Y.S.2d 463, 465 (N.Y.Sup.Ct.1996) ...........................................54 National Sur. Co. v Manhattan Mtge. Co., 185 App Div 733, 736-737 ..................................................................................................57 Smith v. Kidd 68 NY 130 (1877) .......................................................51
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Washburn v. Rainier, 149 A.D. 800, 134 N.Y.S. 301, 304 (1912) .............................................................................................................55
Wells Fargo Bank, N.A. v. Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct. April 29, 2013) ................................50
StatutesG. L. c. 183, § 3 ......................................................................................24 G. L. c. 183, § 4 ......................................................................................27 G. L. c. 203, §§ 2-3 ...............................................................................27 G. L. c. 240, § 1 ......................................................................................27 G.L. c. 183, §21 .............................................................................11, 23, 32 G.L. c. 244, § 35A ........................................................................13, 14, 15 G.L. c. 244, §14 ..................................................................................passim Mass. R. Civ. P., R. 56 ........................................................................21
Other Authorities6A C.J.S. Assignments § 132 (2012)..............................................23 Culhane v. Aurora Loan Servcs of Neb., 708 F.3d. 282, 291 (2013) .................................................................................35, 39, 41, 44
Federal Cases Almond v. Capital Props., Inc., 212 F.3d 20, 24 & n. 4 (1st Cir.2000)..........................................................................................22
Butler v. Deutsche Bank Trust co. Americas, 748 F.3d. 28, 37 (1st cir. 2014) .................................................................passim
Culhane v. Aurora Laon Services of Nebraska, 708 F. 3d. 282, 290 (2013)........................................................................23, 28
Edelkind v. Fairmont Funding, Ltd., 539 F.Supp.2d 449, 453-54 (D.Mass.2008) ...........................................................................22
In re Birnbaum, 117 A.D.2d 409, 503 N.Y.S.2d 451, 456 (1986) .............................................................................................................57
In re Gifty Samuels, 415 B.R. 8, 22 (B.A.P. 2009)...36, 42, 43
In re Pepi, 268 A.D.2d 477, 701 N.Y.S.2d 915, 916 (2000) .............................................................................................................57
In re Sheedy, 801 F.3d 12 (1st Cir. 2015) .........................38, 39 Livonia Property Holdings, 717 F.Supp.2d at 735 ..............54 Oum, 842 F.Supp.2d at 413 ...................................................................22 Rajamin v. Deutsche Bank Nat. Trust Co., 757 F. 3d 79 (2nd Cir. 2014) .................................................................................52, 59
Royal Bank of Canada v. Trentham Corp., 665 F.2d 515, 516 (5th Cir. 1981)..............................................................................50
Valerio v. U.S. Bank, 716 F.Supp.2d 124 (2010) .................21 Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 7-14 (1st Cir. 2014) ................................................................................passim
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Wilson v. HSBC Mortgage Servcs., Inc., 744 F.3d, 1, 10 (1st. Cir. 2014) .......................................................................................35
Woods v. Wells Fargo Bank, N.A., 733 F.3d.349, 354 (1st. Cir. 2013) .....................................................................35, 41, 42, 44
Constitutional Provisionsand XII ..............................................................................................................29 articles I .......................................................................................................29 X 29
Other StatutesFed. R. Civ. P., R. 12(b)(6) ............................................................40 28 U.S.C. § 1652 .........................................................................................50 New York law, NY CLS EPTL §7-2.4 ............................................49, 50 New York state law, N.Y. Est. Powers & Trusts Law § 7-2.4 .............................................................................................................passim
St. Uses and Trusts, 1 Rev. St. §65. .........................................52
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I. STATEMENT OF ISSUES
A. WHERE THE PLAINTIFF TRUSTEE [ON BEHALF OF THE PLAINTIFF TRUST AND OR ITS BENEFICIAL CERTIFICATEHOLDERS], CLAIMED SUPERIOR TITLE FOR POSSESSION THROUGH TITLE DERIVED FROM AN EXERCISE OF G.L. c. 244, §14, THERE CAN BE NO DISPUTE THAT PLAINTIFF BORE THE BURDEN TO DEMONSTRATE THE VALIDITY OF THE FORECLOSURE SALE ON WHICH ITS PURPORTED CLAIM TO SUPERIOR TITLE RESTED 1. To Enforce The Power of Sale Under G.L. c. 244,
§14, G.L. c. 183, §21 Requires 1) That The Terms of The Mortgage Contract Be Followed Strictly; 2) That All Mandatory Statutory Condition Precedents and Formalities Be Followed Strictly
B. WHERE THE DEFENDANT IDENTIFIES ITSELF AS A
“TRUSTEE” THAT PURPORTS TO ACT ON BEHALF OF A OF THE DEFENDANT TRUST, IT IS INDISPUTABLE THAT THE DEFENDANT TRUSTEE COULD ONLY EXERCISE DOMINION AND/OR CONTROL OVER LEGALLY HELD CORPUS ASSETS OF THE DEFENDANT TRUST THAT WERE CONVEYED UNDER THE CONROLLING TERMS OF ITS GOVERNING INSTRUMENT
1. The Defendant Trust Governing Instrument
Pooling and Servicing Agreement (PSA) Controlling Terms Set Forth The Protocol For The Creation of The Legally Held Corpus Assets, and Very Creation of, The Trust Itself.
2. New York Trust Law Governed The Requirement For The Defendant Trustee To Strictly Comply With The Governing Instrument Terms For The Legal Conveyance of Mortgage Loans To The Trust
C. THE HOUSING JUDGE PROPERLY IDENTIFIED THAT
PLAINTIFF WAS NOT SEEKING TO “ENFORCE THE PSA”, AS SHE HAD STANDING TO CHALLENGE AN ASSIGNMENT THAT WAS “VOID” WHERE SHE MADE NO THIRD PARTY CONTRACT CLAIM OF “ENFORCEMENT”
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1. In Order To Demonstrate The Validity of The Foreclosure Sale upon Which Its Purported Superior Title Rested, The Defendant Was Required To Establish That It Was In Contractual Privity With Plaintiff, Therefore Creating The Contractual Standing For Plaintiff To Allege That The Assignment Was Void
2. Under The Peculiar PSA At Issue, The Beneficial Certificateholder Owners of The Defendant Trust Had No Right To Control The Trustee, or Manage The Trust Fund, And Therefore Could Not later “Ratify” Any “Ultra-Vires” Act of The Defendant Trustee, Especially Concerning The Very Creation OF The Trust Itself
3. Massachusetts Case Law on This Issue Has
Only Examined The Unopposed Imprimatur Wrongfully Impressed Upon The Decisional Case Law That The “Borrower Lacks Standing To Enforce The PSA”, Where The Borrower Obviously Retains The Contractual Standing To Challenge A Stranger to The Mortgage Contract, or An Entity That Lacks Contractual Privity To Do So
D. THE SJC HAS ALREADY EXAMINED ISSUES RELATED TO
THE PSA IN U.S. BANK NAT’L ASS’N v. IBANEZ, AND INDICATED THAT WHERE RELYING UPON A PSA, IT MUST BE SHOWN THAT THE ENTITY PURPORTING TO ASSIGN MORTGQGE LOANS THEREUNDER (DEPOSITIOR) ACTUALLY OWNED THE MORTGAGE LOANS PURPORTEDLY TRANSFERRED TO THE TRUST THEREUNDER
II. STATEMENT OF THE CASE:
This is the Plaintiff’s appeal of the Housing
Court's decision granting summary judgment (and
therefore possession of the property) to Bolling in a
summary process eviction action. On April 17, 2012,
the Trust served Bolling with a Summary Process
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Summons and Complaint after Bolling failed to vacate
the property located at 114 Lamont Street,
Springfield, MA 01119 (hereinafter referred to as the
"Property") following a December 27, 2011 foreclosure
sale in which the Trust took title to the Property.
Bolling was served but on April 2, 2012; she had
not vacated her home. No foreclosure sale took place
(although an auction was apparently walked through) as
only a mortgagee who has received the mortgage from a
chain of mortgagees who actually legally held a real
interest in the mortgage and legally transferred has
“authority and jurisdiction” to utilize the power of
sale contained therein. The Securitized Trust that
claimed to have authorized the foreclosure never owned
the mortgage; it had nothing to sell and so nothing
was bought at the auction sale.
On April 20, 2012, Bolling filed an answer with
defenses. The Parties filed cross-motions for summary
judgment in August 2013. Bolling argued that the
foreclosure sale was void, for two reasons. First, she
argued that the Trust failed to strictly comply with
G.L. c. 244, § 35A, rendering the foreclosure void.
Second, she claimed the foreclosure sale was void
because the mortgage had been purportedly “assign” to
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the Trust, but in contravention of the controlling
terms of the Trust's Governing Instrument pooling and
servicing agreement ("PSA"), such that the foreclosure
auction sale was void due to the fact that the Trust
did not actually legally own superior title for
possession where the Plaintiff’s mortgage was never a
legally held corpus asset.
Bolling demonstrated through primary evidence
that the foreclosure sale was void because no chain of
the legal required assignments occurred prior to the
proceeding to foreclose and no party with the legal
interest in the mortgage foreclosed. See G.L. c. 244 §
14, see also U.S. Bank Nat’l Ass’n v. Ibanez 458 Mass.
637 (2011) The Plaintiff trust did not establish its
prima facie case as Bolling demonstrated with primary
evidence of the Pooling and Servicing Agreement what
assignments were necessary to establish a chain of
title and by what date (as future back-dating or
ratification is not supported in Massachusetts law)
these were not provided by Plaintiff Trust.
On November 7, 2013, the Housing Court rendered a
decision granting summary judgment in favor of
Bolling, and denying summary judgment for the Trust,
on the issue of possession of the Property. In so
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doing, the Housing Court held that G.L. c. 244, § 35A
required strict compliance, and if the foreclosing
entity did not strictly comply with that statute, the
resulting foreclosure was invalid.10 The Housing Court
found that the Trust did not strictly comply with G.L.
c. 244, § 35A, and therefore, it lacked standing to
bring the summary process action and possession
entered in favor of Bolling.11 On April 1, 2014, the
Trust filed a Motion to Vacate Judgment based on the
subsequently-rendered Supreme Judicial Court ("SJC")
decision of U.S. Bank National Association v.
Schumacher, 467 Mass. 421 (2014).
On April 25, 2014, the Housing Court vacated its
November 7, 2013 Order, but on grounds that relied
upon Bolling's second argument in her Motion for
Summary Judgment regarding the PSA. The Housing Court
held that Bolling had standing to challenge the
assignment of mortgage and that the assignment of
mortgage was void because it did not comply with the
terms of the PSA, rendering the foreclosure void.
Specifically, the Housing Court found that Bolling had
standing to challenge the assignment of mortgage due
to action taken by the Trustee in contravention of the
terms of the PSA. Relying predominantly on New York
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state law (Wells Fargo Bank, N.A. v. Erobobo, 39
Misc.3d 1220 (A) (2013)), as well as other authorities
citing Erobobo, the Housing Court found that because
the mortgage was assigned after the closing date
indicated in the PSA, this constituted an ultra vires
act, resulting in a void assignment of the mortgage.
The Housing Court reasoned that because the
foreclosing entity therefore was never legally
assigned the mortgage, it did not properly foreclose
on the Property under G.L. c. 244, §14, precluding the
Trustee’s claim of “Superior Title”. In so holding,
the Housing Court held that the PSA is governed by New
York state law as specified in the PSA, and,
therefore, New York state law* including Erobobo,
governs the matter. On these grounds, the Housing
Court again dismissed the Trust's claim for possession
and entered judgment for Defendant.
On May 1, 2014, the Trust filed a Notice of
Appeal.17 On May 20, 2014, the Trust also filed a
Motion for Reconsideration of the Housing Court's
April 25, 2014 Order, which Bolling opposed. On March
5, 2015, the Housing Court denied the Trust's Motion
for Reconsideration and entered a final judgment in
favor of Bolling on the issue of possession.19 On
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March 11, 2015, the Trust filed a subsequent Notice of
Appeal.
III. STATEMENT OF FACTS
On July 21, 2006, Bolling granted a mortgage to
Aegis Funding Corporation (“Lender”) to secure a
promissory note and loan in the amount of
$138,700.00.21. Undisclosed to Bolling, Mortgage
Electronic Registration Systems, Inc. ("MERS")
purported to act as a “nominee” for the Lender. MERS
purported to assign the mortgage to U.S. Bank National
Association as Trustee for RASC 2G06KS9, and an
assignment of mortgage was recorded on April 30, 2010
U.S. Bank National Association as Trustee for RASC
2006KS9 initiated the statutory remedy through
publication of the notice of the Mortgagee's Sale of
Real Estate on December 6, 2011, December 13, 2011 and
December 20, 2011,
On December 27, 2011, U.S. Bank National
Association as Trustee for RASC 2006KS9 conducted a
purported foreclosure sale of the Property by public
auction and the Trust claimed to be the “highest
bidder”, taking the property under a “credit bid”, and
Demanding Bolling Vacate the Property on or about
March 7, 2012. Bolling failed to vacate the Property,
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resulting in the Trust commencing the underlying
summary process eviction action in the Housing Court.
Bolling continues to occupy the Property, where
the Court correctly ruled in her favor, denying
Defendant possession. The Trust cannot accept rent or
take any action to create a tenancy with Bolling
following the void foreclosure sale.
IV. SUMMARY OF ARGUMENT:
Plaintiff-Appellant Securitized Trust RASC
2006-KS9 argues that the Housing Court erred in
granting Bolling possession by relying on (i)
authorities from other jurisdictions that (ii) have
since been reversed, discredited and contain unsound
reasoning. Positing that the majority of Massachusetts
and other decisions have determined that purportedly
foreclosed homeowners lack standing to challenge
assignments made in contravention of the express
requirements PSAS either because such violative
assignments are “voidable” and not “void” or because
they are not parties nor beneficiaries to the Trust,
Plaintiff-Appellant Trust then states that Bolling did
not rebut their prima facie argument.
Appellant deletes the historic first top state
Court Securitized Trust decision: the Mass SJC’s
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decision in Ibanez. As a combined case, the Court
applied its new legal test for Securitized Trusts
acquiring mortgage loans to two Securitized Trusts. It
started its analysis from the founding Trust
Documents, the PSAs, for the Trusts as controlling of
their attempts to acquire the Ibanez and LaRace loans.
And while the Ibanez Court scrutinized the
compliance by the Trusts with their own controlling
trust documents as defined by their requirements of
assignors and assignees and their governing state
laws, it reminded all Massachusetts courts that a
failed assignment – given that it is a transfer of
interest in property – is void by operation of law ab
initio. It found these assignments were void without
any homeowner even being party to the case.
Appellant attempts to impugn the Housing Court
decision as having only “opined” that New York law
governs the interpretation of the PSA even though this
is its explicit language and The Housing Court in its
decision repeated both parties acknowledgement that
the PSA is governed by New York law. Appellant
attempts to impugn that reliance by making an
unsupported claim that New York jurisprudence of the
interpretation of express trusts has been primarily
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against a recognition that the acts of a Trustee in
contravention of a Trust document are void ab initio
when over hundred years of decisions uphold that such
acts are void.
The Appellant points first to the reversal of the
Erobobo decision on Appeal when the reserval was not
based on the instant legal issue but on a procedural
issue of the timing of the standing challenge1.
Appellant attempts then to discredit other top court
decisions like Glasko because like the Housing Court
they relied on the black letter law of New York2 and
the precedents cited in Erobobo which reach all the
way back to Powers v. Bergen (1852) 6 N.Y. 358, Smith
1 Quoting the New York Appellate Court: “there is no language in the answer from which it could be inferred that he [Erobobo] sought to assert the defense of lack of standing. Nor did Erobobo raise this defense in a pre-answer motion to dismiss the complaint. Accordingly, the defendant waived the defense of lack of standing… “. It is on this procedural basis alone that Erobobo was reversed. Wells Fargo Bank, N.A. v Erobobo, 2015 NY Slip Op 03522 [127 AD3d 1176] (2015). 2 § 7-2.4 was preceded by a statute of nearly identical language[2] – 1 R.S. 730, § 65. That statute was first considered by the highest court in New York, the Court of Appeals, in 1852. Powers v. Bergen (1852) 6 N.Y. 358, found a sale of certain real property held in trust under the direction that the real property would be a life estate for the beneficiary was void under that statute – despite the fact that the beneficiary did not object and that the legislature made a private statute specifically to facilitate such sale. The high court of New York found neither the ratification of the beneficiary, nor private statute of the legislature made the act of the trustees in contravention of the trust agreement anything less than void. See also Briggs v. Davis (1859) 20 N.Y. 15 (grantees of land in trust for the payment of debts reconveyed to the grantor, reciting that the trusts had been executed. In fact, the debts had not all been paid. The debtor then mortgaged the land to one having no actual notice of the trust. It was held that the reconveyance, being in contravention of the trust, was void, and that the legal estate remained in the trustees.); Genet et al. v. Hunt et al. (1889) 113 N.Y. 158 (“The statute makes every conveyance or other act of the trustees of an express trust in lands, in contravention of the trust, absolutely void…”); Russell v. Russell (1867) 36 N.Y. 581 (Transfer in contravention of the trust agreement void, despite mutual assent to it by the trustee and beneficiary).
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v. Kidd 68 NY 130 (1877), McPherson v. Rollins 107 NY
316 (1887) and Kirsch v. Tozier 143 NY 390 (1894).
Appellant asks this Court to rely on two lines of
decisions which are either not argued on a comparable
basis or inapposite. First, Appellant argues a chain
of cases that are progeny of an argument that the
purportedly foreclosed homeowner must be a party or
beneficiary of the PSA to challenge an assignment that
is actually void by operation of law. This argument is
made in direct contradiction of the Trust’s own
founding document where certificateholders (the
beneficiaries) are explicitly not able to vote on the
actions of the Trustee.
Second, Appellant argues a chain of cases the
progeny of which is the almost baseless “analysis” of
New York “Trust” cases in the Illinois Bassman
decision. Bassman analyzed ten top New York decisions
to establish a history of “voidable” Trust transfers
to discredit the necessity of strict compliance with
New York’s expressed trust law. Most of these ten
decisions are inapposite as not regarding “express
trusts” and two of the decisions about expressed
Trusts in fact upheld the voidness of the ultra vires
attempts to transfer assets under NY EPTL 7-2.4.
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Most importantly, the Appellant appears to argue
that Massachusetts Trust law controls. Instead, the
existence of Securitized Trusts are beholden to the
historic uniqueness of New York Common Trust law and
the recent specially-crafted Business Trust law of
Delaware –which require strict “verbatim” adherence by
Trusts to their founding documents and determine that
ultra vires acts by Trustees are void.
THE FINANCIAL BAR HAS CONSISTENTLY ADVANCED INCORRECT LEGAL THEORY THAT HAS BEEN ACCEPTED BY THE COURT, UNTIL CLOSE SCRUNTINY BY THE APPELLATE COURTS OF THIS COMMONWEATH.
Indeed, over a ten year (or more) period, where
the foreclosing entity sought to utilize the
“statutory remedy” under G.L. c. 244, §14, courts
repeatedly held that such foreclosing entity needed
possession of the mortgage only to be a statutory
“mortgagee”, because the statute was addressed to
“mortgagees” not note holders, see Valerio v. U.S.
Bank, 716 F.Supp.2d 124 (2010); “The Massachusetts
statute governing foreclosure sales is addressed to
mortgagees, not note holders, G.L. c. 244, § 14.” This
incorrect statement of the law held sway, until this
issue was squarely presented to the SJC in Eaton v.
Fed. Nat’l Mortgage Ass’n, 462 Mass 569 (2012), where
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the SJC found that the historical ratio decidendi, and
legislative intent was that to meet the statutory
definition of the term “mortgagee” there must be a
connection to the note and mortgage. Another incorrect
“theory” advanced by the financial bar for the better
part of a decade was that a borrower “lack standing to
challenge an assignment of mortgage”. However, when
this issue was squarely presented to the U.S. Court of
Appeals for the First Circuit, that Court found that
this “theory” could not stand muster where an
assignment was “void”, as a Massachusetts mortgagor
finds herself in a unique position, that would leave
her without any ability to defend the title to her
home, if not able to question an entity without
contractual standing to utilize an extra judicial
remedy,
“As applied here, these considerations raise a potential question as to whether the plaintiff's standing is jeopardized by the prudential concern that a litigant should not normally be permitted to assert the rights and interests of a third party. With this in mind, several courts have ruled that mortgagors lack standing to challenge mortgage assignments because they are neither parties to nor third-party beneficiaries of the assignments. See, e.g., Oum, 842 F.Supp.2d at 413 (citing Edelkind v. Fairmont Funding, Ltd., 539 F.Supp.2d 449, 453-54 (D.Mass.2008)); Wenzel v. Sand Canyon Corp., 841 F.Supp.2d 463, 477-78 (D.Mass.2012). We think that these cases paint with too broad a brush. It is true that a nonparty who does not benefit from a contract generally
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lacks standing to assert rights under that contract. See, e.g., Almond v. Capital Props., Inc., 212 F.3d 20, 24 & n. 4 (1st Cir.2000); Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 918 N.E.2d 36, 44 (2009). But a Massachusetts real property mortgagor finds herself in an unusual position because of two key facts. First, as explained below, a Massachusetts mortgagor has a legally cognizable right under state law to ensure that any attempted foreclosure on her home is conducted lawfully. See G.L. c. 183, §21; id. G.L. c. 244, § 14. Second, where (as here) a mortgage contains a power of sale, Massachusetts law permits foreclosure without prior judicial authorization. See Eaton, 969 N.E.2d at 1127. Thus — unlike an ordinary debtor who could challenge an assignment as a defense upon being hauled into court by the assignee seeking to collect on her debt, see 6A C.J.S. Assignments § 132 (2012) — a Massachusetts mortgagor would be deprived of a means to assert her legal protections without having standing to sue. As such, we hold only that Massachusetts mortgagors, under circumstances comparable to those in this case, have standing to challenge a mortgage assignment. Culhane v. Aurora Laon Services of Nebraska, 708 F. 3d. 282, 290 (2013)
The above reasoning applies with equal force to claims
made under a PSA, where the failure to transfer assets
under the controlling terms of this Trust Governing
Instrument creates a void [not ”voidable”] assignment,
and thus represents a challenge “qua mortgagee”.
Indeed, Culhane was correctly cited to and relied upon
by the Housing Court Judge, where formulating his well
reasoned and legally sound decision, related to the
PSA
A. THE SJC IN IBANEZ CLEARLY SPOKE TO THE PRECISE ISSUE PRESENTED TO THIS COURT REGARDING THE PSA
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Indeed, in U.S. Bank Nat’l Ass’n v. Ibanez, 458
Mass. 637 (2011), the Supreme Judicial Court
specifically addressed requirements that must be
established for an entity that is claiming as a
“securitized trust” and seeks to utilize the statutory
remedy under G.L. c. 244, §14. At p. 649 of Ibanez
the SJC makes the prescient observation:
“Like a sale of land itself, the assignment of a mortgage is a conveyance of an interest in land that requires a writing signed by the grantor. See G. L. c. 183, § 3; Saint Patrick's Religious, Educ. & Charitable Ass'n v. Hale, 227 Mass. 175 , 177 (1917). In a "title theory state" like Massachusetts, a mortgage is a transfer of legal title in a property to secure a debt. See Faneuil Investors Group, Ltd. Partnership v. Selectmen of Dennis, 458 Mass. 1 , 6 (2010). ….. Where, as here, mortgage loans are pooled together in a trust and converted into mortgage-backed securities, the underlying promissory notes serve as financial instruments generating a potential income stream for investors, but the mortgages securing these notes are still legal title to someone's home or farm and must be treated as such.” Ibanez at p. 649
Further, while Ibanez involved Plaintiff Bank Trustees
seeking to Quiet Title, the SJC clearly stated that
“There is no question that the relief the plaintiffs sought required them to establish the validity of the foreclosure sales on which their claim to clear title rested.” Ibanez, at 645
The above standard is precisely what the Plaintiff
Trustee’s burden was before the Housing Court
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It is also beyond dispute that the statutory
foreclosure process in this Commonwealth is deemed
“initiated” at the time of the first publication of
auction sale, and therefore whereas here the
Plaintiffs published the auction [and have now
subsequently held the auction sale], the Defendant
therefore had to establish that it had at that point
the “jurisdiction and authority” to foreclose by the
power of sale. In Ibanez at p. 651 of that holding,
the Court specifically references the following:
“Where a pool of mortgages is assigned to a securitized trust, the executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder. However, there must be proof that the assignment was made by a party that itself held the mortgage. See In re Samuels, 415 B.R. 8, 20 (Bankr. D. Mass. 2009).”
As the basis for the above referenced statement,
the SJC stated that with regard to the Ibanez loan,
that even if the Bank Trustee had provided a “Mortgage
Loan Schedule”, with the required information
[notating those borrowers names and addresses], the
Bank Trustee failed to produce any document that
supported the fact that the Depositor ever held the
mortgage to be assigned;
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“Finally, even if there were an executed trust agreement with the required schedule, U.S. Bank failed to furnish any evidence that the entity assigning the mortgage -- Structured Asset Securities Corporation -- ever held the mortgage to be assigned.” Ibanez, at 650.
With respect to the LaRace mortgage, the SJC stated:
“Turning to the LaRace mortgage, Wells Fargo claims that, before it issued the foreclosure notice, it was assigned the LaRace mortgage under the PSA.. Moreover, Wells Fargo provided the judge with no document that reflected that the ABFC (depositor) held the LaRace mortgage that it was purportedly assigning in the PSA.” Ibanez, at 650
In the matter before this Court, Plaintiff
Trustee failed to provide any evidence that
Residential Asset Securities Corporation (Depositor)
ever held the mortgage that it purported to convey
under the Governing Instrument of the Plaintiff Trust,
which the Housing Court properly recognized.
Unlike Plaintiff-Appellant’s incorrect argument
otherwise; the Housing Court wisely did not rely upon
the mere fact that assignments were recorded to
establish their legal sufficiency. Such sole reliance
upon the recordation of a purported “assignment”
establishes no legal validity as the recorded
assignments indisputably facially contradict the
requirements of the Plaintiff Trust’s Governing
Instrument related to a legal conveyance of assets to
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the Trust. Further, the SJC has definitively opined
that recordation upon a registry of deeds is for
notice purposes only, and cannot in any manner
establish the legal validity of the document in
question, see Bevilacqua v. Rodriguez, 460 Mass. 762,
771 (2011)
“there is nothing magical in the act of recording an instrument with the registry that invests an otherwise meaningless document with legal effect. See S & H Petroleum Corp. v. Register of Deeds for the County of Bristol, 46 Mass. App. Ct. 535 , 537 (1999) ("The function of a registry of deeds is to record documents. It is essentially a ministerial function . . ."). Recording may be necessary to place the world on notice of certain transactions. See, e.g., G. L. c. 183, § 4 (leases and deed); G. L. c. 203, §§ 2-3 (trust documents). Recording is not sufficient in and of itself, however, to render an invalid document legally significant. See Arnold v. Reed, 162 Mass. 438 , 440 (1894); Nickerson v. Loud, 115 Mass. 94 , 97-98 (1874) ("mere assertions . . . whether recorded or unrecorded, do not constitute a cloud upon title, against which equity will grant relief"). As a result, it is the effectiveness of a document that is controlling rather than its mere existence. See Bongaards v. Millen, 440 Mass. 10 , 15 (2003) (where grantor lacks title "a mutual intent to convey and receive title to the property is beside the point"). The effectiveness of the quitclaim deed to Bevilacqua thus turns, in part, on the validity of his grantor's title. Accordingly, a single deed considered without reference to its chain of title is insufficient to show "record title" as required by G. L. c. 240, § 1.” Bevilacqua at 771
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As the SJC established in Ibanez; a purported
“assignment” on the Registry of Deeds that is recorded
and executed before a notary public, therefore
appearing facially valid, - can still be found to be a
legally inoperative document, due of non-compliance
with the terms of the PSA, and therefore be void by
operation ab initio, see Ibanez, at p. 650:
Turning to the LaRace mortgage, Wells Fargo claims that, before it issued the foreclosure notice, it was assigned the LaRace mortgage under the PSA. The PSA, in contrast with U.S. Bank's PPM, uses the language of a present assignment ("does hereby . . . assign" and "does hereby deliver") rather than an intent to assign in the future. But the mortgage loan schedule Wells Fargo submitted failed to identify with adequate specificity the LaRace mortgage as one of the mortgages assigned in the PSA. Moreover, Wells Fargo provided the judge with no document that reflected that the ABFC (depositor) held the LaRace mortgage that it was purportedly assigning in the PSA In the context of a post foreclosure challenge to
the exercise of the statutory remedy by a foreclosing
claimant, Ibanez established that the foreclosing
entity bore the burden to demonstrate the validity of
the foreclosure auction sale upon which its purported
claim to superior title rested, see Ibanez, at p. 645.
The First Circuit stated that a borrower such as
Bolling has “standing” to challenge an assignment that
is void, and that
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“a Massachusetts mortgagor would be deprived of a means to assert her legal protections without having standing to sue.” See Culhane at p. 290
Additionally, Bolling as a party to our Commonwealth's
constitution has a declared right to the protection of
her rights to life, liberty and property under such
laws under articles I, and X, and the protection of
those rights through our Courts under articles XI and
XII, as well as her protections under the United
States Constitution.
1. In Addition To The Housing Court’s Findings Related To New York Law, Long Standing And Well Established General Trust Law Theory Supports Bolling’s Allegation That The Recorded Assignments That The Plaintiff Trustee Relies Upon Are Indisputably Void As Bolling Did Not Allege That She Sought To “Enforce” The PSA
The Plaintiff Trust’s Governing Instrument PSA
controlling terms clearly recite that the term
“Closing Date” is defined as October 27, 2006 [SA022].
At Section 2.03(b) of the PSA Governing Instrument,
the controlling terms clearly state that the
“Depositor” [Residential had good title to, and was
the sole owner of, each mortgage loan [including
Plaintiff’s] [SA054]. The Controlling terms also state
that there is only a two year exception period
“following the Closing Date” (defined as October 27,
2006), to transfer any additional mortgage loan not
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conveyed to the Defendant Trustee at the “Closing
Date”, see SA054-SA055], SEE ALSO AT Section 2.04
[SA055]. See Article X, AT Section 10.01 (m)(iv),
which specifically states that the Trustee cannot
purchase any Mortgage Loan under Article II or Article
III of the PSA, after the “Closing Date”, unless it
would not adversely affect the Status of any REMIC
created under the PSA, see [SA099]. Further, at
“Section 2.03, the controlling terms of the Trust
clearly identify that “on or prior to the Closing Date
the Custodian shall deliver to the Trustee and Initial
Certification in the form annexed hereto at Exhibit
One evidencing receipt of each Custodial file for each
Mortgage Loan” [SA123]. Custodial File is defined
under the controlling terms as “Any Mortgage Loan
document in the Mortgage File that is required to be
delivered to the Trustee or the Custodian pursuant to
Section 2.01(b) of this Agreement”, [SA022]. Section
2.01(b) states that the required documents required
thereunder consist of; 1) the original Mortgage Note,
2) the original Mortgage, 3) the assignment, (v)(c)(b)
“if MERS is identified on the mortgage or on a
properly recorded assignment of the mortgage, as
applicable, as the mortgagee of record solely as
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nominee for Residential Funding, its successors and
Asigns. The Assignment that Defendant purport to rely
upon, indisputably avers that MERS [autonomously]
“assigned” the Plaintiff’s Mortgage [singly] to the
Defendant Trustee on April 22, 2010.3 There can be no
dispute that such purported transfer contravened the
above temporal limitations set forth by the
controlling terms as to “Closing Date” of October 27,
2006, and such purported “assignment” also does not
fall within the two year exception date for such
addition to the Trust corpus, making the assignment
indisputably void, not “voidable”.
Additionally, the controlling terms of the
Governing Instrument PSA, clearly identify that it was
the title of Depositor to the mortgage loans that was
sold to the Defendant Trustee that would become the
legally held corpus assets of the Trust, see at
Section 2.01(a) [SA051]. The Depositor is indisputably
defined as Residential Asset Securities Corporation
[SA007, at para. Above “Preliminary Statement”]. Thus,
the Pooling and Servicing Agreement provides
indisputable evidence of the strictly-required,
3 Even pre-Eaton, the SJC found that a mortgage holder singly could not undertake any affirmative autonomous act, nas such purported entity would only act in a reversionary trust capacity, see Eaton, at n. 10.
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purported intermediate transfers of the title to the
Plaintiff’s mortgage, which never took place on or by
the temporal date certain the date “Closing Date”, as
correctly identified by the Housing Court Judge.
Specifically, where utilizing the statutory remedy under G.L. c. 244, §14, where Defendant proffered no legally tangible indicia that the Trust was ever legally possessed of any legal ownership of Defendant’s mortgage and note, as legally held corpus assets of the “Trust Fund”, the Plaintiff Trustee is indisputably left in want of being in contractual privity with Defendant, and therefore precluded from utilizing the statutory remedy under G.L. c. 244, §14, and G.L. c. 183, §21. Should the Plaintiff Trustee seek to rely upon decisional case law indicating that the “beneficial owners of the Trust could always later “ratify” and Ultra Vires act by the Trustee, Section 11.03(b); unlike previous PSA examinations before other judicial tribunals, the particular and peculiar PSA before the Housing Court contains specific controlling terms affirmatively stating there is a “Limitation of Rights of the Certificateholder” beneficial owners, precluding them from engaging in or; “in any manner otherwise control the operation or management of the Trust Fund, or the obligations of the parties thereto” [SA 101]. Thus, the Plaintiff Trustee cannot rely upon previous decisional case law opining that the “beneficial owners could always later “ratify” any act of the Trustee, is not applicable to the instant PSA, under the above referenced limitation terms. Further, Section 11.04, indisputably avers that the Governing Law to be applied to the Governing Instrument controlling terms is indisputably New York Law, [SA101], To drive the point home that in fact this is a Governing Instrument of a Trust, and not a “contract among the parties thereto, please reference the PSA at Article X, at (a)(2) “provided however that in no event shall the trust created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late
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ambassador of the United States to the Court of St. James, living on the date hereof…” [SA094].
Thus, the Housing Court Judge’s findings in this
matter indisputably does not make any finding that the
Plaintiff seeks to “enforce the PSA”, and arguments
otherwise made by Defendant otherwise are disingenuous
at best
Thus, where it was the title of the Depositor to
the mortgage loans that was to form the legally held
corpus assets of the Plaintiff Trust, this would make
the Depositor the “Settlor” of the Trust. The PSA
requires a temporal date certain for a legal
conveyance of assets to the Trust, such that the same
would become legally held corpus assets constituting
part of the “Trust Fund”. Pursuant to the terms of the
Governing Instrument,
The controlling terms of the Trust’s Governing
Instrument defines the “Closing Date”, as October 27,
2006.
The SJC has definitively stated that where a
foreclosing claimant relies upon a PSA to have
“assigned” title, it must be shown that the entity
purporting to “assign” such title [the “Depositor”]
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actually owned the loan that was purportedly being
transferred thereunder, and Ibanez at 650-651.4
The SJC affirmed that a transfer of interest in
property, whether deed or assignment, occurs on the
date it occurs and only upon that date. A later
assignment cannot be made effective on a previous date
whether by “back-dating” or later ratification.
The Housing Court correctly decided that under
the particular terms of the instant Plaintiff common
law express trust, the beneficial Certificateholder
owners have no legal right to “ratify” any act of the
Plaintiff Trustee:
“Section 11.03… Limitation on Certificateholders… (b) No certificateholder shall have any right to vote (except as expressly provided herein) or in any manner otherwise control the operation and management of the Trust Fund, or the obligations of the parties hereto,… Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.”
It is indisputable that the purported recorded
“assignments that Plaintiff purports to rely upon,
facially contravene the controlling term requirements
4 Such prescient finding by the SJC, clearly comports with the requirements as set out under the Plaintiff Trust’s Governing Instrument above.
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for there to have been any legal conveyance of the
Bolling note and mortgage as assets.
As Defendant-Appellee is not aware of any
controlling authority sounding in Trust Law that would
stand for the proposition that where an asset was not
conveyed to a trust under the controlling terms of the
trust’s governing document, that this would witness a
“voidable” assignment, especially where such
conveyance purportedly took place to create the trust,
and where here under the peculiar dictates of the
individual Governing Instrument in question, the
beneficial owners lacked any legal authority to
“ratify” any such act,.
2. The Historical Decisions From The Appellant Trust Regarding Borrowers Reliance Upon The “PSA” Indisputably Advanced Different Legal Theory And Claims For Relief, Nowhere Alleged By Defendant
Plaintiff-Appellant’s case law decisions that it
relies upon claiming to refute the Housing Court’s
decision, include; Woods v. Wells Fargo Bank, N.A.,
733 F.3d.349, 354 (1st. Cir. 2013), Wilson v. HSBC
Mortgage Servcs., Inc., 744 F.3d, 1, 10 (1st. Cir.
2014), Culhane v. Aurora Loan Servcs of Neb., 708
F.3d. 282, 291 (2013), Butler v. Deutsche Bank Trust
co. Americas, 748 F.3d. 28, 37 (1st cir. 2014).
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These cases are founded upon legal theory and
allegation raised by other borrowers in these cited
matters, which are completely distinct from the basis
of the Housing Court’s decision. The genesis of the
Securitized Trusts’ citations have held that a
borrower “lacks standing” to “enforce” the PSA, is
from the citation in Woods, at n. 4, which cites to
solely to In re Gifty Samuels, 415 B.R. 8, 22 (B.A.P.
2009), [incorrectly captioned as Koufos v. U.S. Bank,
N.A.].
The Plaintiff Trustee’s attempts to discredit the
Housing Court’s finding in favor of Bolling, are
mistakenly based upon arguing that these other cases
stood for the proposition that borrowers lacked the
legal standing to attack a mortgage foreclosure based
upon claimed deficiencies under a PSA, regarding an
assignment of mortgage and that based upon these case
law citations, any issue with the assignment would
render it merely voidable at the election of the
parties to the transaction as opposed to being void.
Rather, these other case law citations, involved
completely different allegations and claims [as they
sought relief based upon injury to third parties, see
Samuels, at p. 22]. However, unlike Samuels [and its
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progeny], Bolling never made these same allegations
regarding the PSA. Indeed, none of these matters cited
to by Plaintiff, ever considered, discussed, or even
examined pleadings making the precise argument as
advanced by Defendant.
In particular, Plaintiff Trust’s citations are
based upon other borrower allegations and attempt to
erase clearly distinguishable claims and to treat all
borrowers as advancing precisely the same legal theory
and allegation regarding the PSA.
For example in Wilson v. HSBC Mortg. Servs.,
Inc., 744 F.3d 1, 7-14 (1st Cir. 2014), the first
circuit made a specific examination of the
plausibility of Wilson’s pleadings in particular5:
“The reasoning behind the Wilsons' argument that the 2009 Assignment is void runs as follows: Strauss is an employee of HSBC; Strauss executed the 2009 Assignment; when Strauss executed the assignment, she did so as an employee of HSBC; therefore, MERS never assigned the mortgage to HSBC. The Wilsons' own Complaint, however, flatly contradicts this position, as it explicitly alleges that “[t]he March 19, 2009 assignment from MERS to [HSBC] was executed by Shelene Strauss, as Vice President of MERS.” Thus, the Complaint actually alleges that Strauss wore multiple hats, serving both as an employee of HSBC and an officer of MERS. Significantly, the Complaint does not allege that such dual agency violates the common
.5 See Wilson also at pp. 10-11; “The parties, having taken standing for granted with respect to the 2009 Assignment, have not presented any extensive argument with respect to that issue”.
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law or any statute or applicable regulation. Accordingly, the facts set forth in the Complaint actually describe a valid assignment from MERS to HSBC. While this defective pleading is likely enough on its own to doom the Wilsons' first six counts, it is not the only thing we have to go on. We also have available for consideration the text of the 2009 Assignment. According to the Wilsons, “there is no indication that Ms. Straus[s] executed the assignment with purported authority from MERS.” This statement is simply incorrect: the 2009 Assignment clearly identifies MERS as the assignor and HSBC as the assignee.”
Unlike Wilson’s allegations above, Bolling’s
allegation regarding the Governing Instrument for the
Plaintiff Express Trust; clearly does not
speculatively attack any signatory authority on an
assignment to support its voidness, but rather the
specific trust law legal theory that Bolling relies
upon a void, not voidable, assignment.
In re Sheedy, 801 F.3d 12 (1st Cir. 2015) involved
an appeal of a bankruptcy matter challenging a “proof
of claim”, the particular allegations regarding the
“PSA” made by Sheedy, unlike Plaintiff’s allegation,
merely involved Sheedy’s allegation that flatly pled
that “the assignment violated the PSA”, with no
apparent plausible argumentation as to why this was
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so, and also failed to even allege that the assignment
was void.6:
“Sheedy's standing challenge is that Deutsche Bank cannot enforce the Mortgage against her because it was transferred into the Securitized Trust in violation of the PSA, six years after the trust was created. Sheedy cannot question Deutsche Bank's status as her creditor unless she "challenge[s] a mortgage assignment as invalid, ineffective, or void[,]" rather than as an assignment that is only "voidable." Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282, 291 (1st Cir. 2013). Yet a valid challenge for violations of the terms of a PSA would result in the assignment being voidable and not void. Butler v. Deutsche Bank Tr. Co. Americas, 748 F.3d 28, 37 (1st Cir. 2014) ("Under Massachusetts law, it is clear that claims alleging disregard of a trust's PSA are considered voidable, not void.").” Sheedy, at 26.
Unlike Wilson, the Housing Court here, relied on
the specific legal grounds for Bolling’s possession,
that the Plaintiff Trustee relies upon void recorded
assignments. Unlike Wilson, Bolling’s Note and
Mortgage, this asset, clearing outside any claim by
the Plaintiff Trustee that the same is a current
legally held corpus asset of the Plaintiff Trust.
The Housing Court’s decision rest upon these
well-reasoned examination of undisputable facts that
preclude the Plaintiff Trustee from exercising
6 Thus, mirroring the type of defective pleadings described in Ashcroft v. Iqbal, 556 U.S. 662 (2009), as referenced by Twombly. Sheedy’s specific allegation involved third party rights, which were clearly not redressable to any injury to him/her.
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contractual rights in the Plaintiff’s mortgage, and
therefore, left the Plaintiff Trustee unable to
utilize the statutory remedy given that the
Assignments that the Plaintiff Trustee relies upon are
void.7 Plaintiff Trust fails by ignoring the fact that
the Plaintiff Trustee is, in fact, not in current
contractual privity with her.
The apparent foundational basis for the
historical “voidable” PSA argument Plaintiff Trust
trots out can be traced back to citation of pleadings
alleged by a specific borrower in an appeal of a
bankruptcy matter before the Bankruptcy Appellate
Panel, where that borrower specifically alleged claims
related to third party(s) rights, that he was not a
party to.8 It directly cited to Wilson [which advanced
different allegation than Bolling], and Butler v.
Deutsche Bank Tr. Co. Americas, 748 F.3d 28 (1st Cir.
2014) for authority. Butler also involved a Motion to
Dismiss, under Fed. R. Civ. P., R. 12(b)(6), and which
7 Indeed, please reference G.L. c. 183, §21, requiring that the foreclosing entity comply with the terms of the mortgage first, then with all statutes related to foreclosure, see also G.L. c. 244, §14, last paragraph. 8 Indeed, there may be questions whether a Bankruptcy Appellate Panel even had subject matter jurisdiction to reach this issue at all, see In re Correia, 452 B.R. 319, at n. 3, (1st Cir. BAP 2011).
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also involved Butler’s particular allegation, this
Court noted:
“Under Massachusetts law, it is clear that claims alleging disregard of a trust's PSA are considered voidable, not void. See Woods, 733 F.3d at 354 (“[C]laims that merely assert procedural infirmities in the assignment of a mortgage, such as a failure to abide by the terms of a governing trust agreement, are barred for lack of standing.”); Wilson, 744 F.3d at 10 (“[W]hen a corporate officer acts beyond the scope of his authority, his acts in excess of [that] authority, although voidable by the corporation, legally could be ratified and adopted by it.”) (alterations and quotation marks omitted) (quoting Comm'r of Banks v. Tremont Trust Co., 259 Mass. 162, 179–80, 156 N.E. 7, 14–15 (1927)); cf. Culhane, 708 F.3d at 291 (allowing for standing where claims are predicated on the theory that “the assignor had nothing to assign or had no authority to make an assignment to a particular assignee”). Thus, having only presented facts sufficient to show the assignment was voidable under Massachusetts law, Butler lacks standing to challenge Deutsche Bank's possession of the mortgage on this ground. Culhane, 708 F.3d at 291. Absent such standing, this theory as to the invalidity of Deutsche Bank's possession cannot form the basis for relief.” Butler, at 37
Again, the foundational basis for Plaintiff
Trust’s citation to Butler, related to claims
regarding the PSA are “voidable” above, was
predicated upon Woods v. Wells Fargo Bank, N.A., 733
F.3d. 349, at n. 4. In Woods, which matter also
involved a Motion to Dismiss Woods’s particularized
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pleadings9:
“Insofar as Wood's amended complaint also suggests that the assignments were in violation of the trust's Pooling and Servicing Agreement, we find that no standing exists as to these alternate claims, which would render the assignment only voidable. See, e.g., Koufos v. U.S. Bank, N.A., 415 B.R. 8, 22 (Bankr. D. Mass. 2009)..”
Thus the foundational basis for Plaintiff Trust’s
citation to Woods v. Wells Fargo Bank, N.A., 733 F.3d.
349, at n. 4 was predicated citation to 415 B.R. 8,
[being incorrectly titled as Koufos v. U.S. Bank,
N.A.]10. In fact, reviewing the particular pleadings of
the borrower in this bankruptcy matter, [Gifty
Samuels], at p. 22, this borrower specifically alleged
the following, with regard to the PSA:
“Second, the Debtor argues that the PSA required that all mortgages acquired thereunder to be funneled to Deutsche Bank, as pool trustee, through the entity designated by the PSA as "depositor," ARSI. A failure to follow this protocol—such as by direct assignment of the mortgage from the loan originator to the pool trustee, bypassing the depositor— would, the Debtor contends, constitute a breach of the PSA, a
9 Additionally, case citation related to a corporate officers “ultra vires” acts being later ratified, has no application to the Housing Court’s determination under trust law theory, and where Plaintiff Trust’s Governing Instrument precludes the beneficial owners of the Trust from later ratifying any act of the Trustee. 10 The Woods opinion errs in its caption to the citation at “415 B.R. 8”, as being titled “Koufos v. U.S. Bank N.A”, as this citation indisputably references a bankruptcy matter captioned “In re Gifty Samuels”,
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breach of fiduciary obligations under the PSA to investors, a breach of federal regulations, and an act giving rise to unfavorable tax consequences for the investors. The Debtor argues that because the Confirmatory Assignment is a direct assignment from Argent to Deutsche Bank that bypasses the depositor, it must be invalid. This argument falls far short of its goal. Even if this direct assignment were somehow violative of the PSA, giving rise to unfavorable tax, regulatory, contractual, and tort consequences, neither the PSA nor those consequences would render the assignment itself invalid. In fact, under the Debtor's own argument, the unfavorable consequences could and would arise only if, and precisely because, the assignment were valid and effective.” In re Samuels, at p. 22.
Plaintiff Trust’s citations to Wilson, Butler or
other matters advancing distinctly different
allegation are inapplicable to the Bolling decision.
Tracing the above referenced, Plaintiff Trust’s
attempt to undermine the Housing Court’s decision
based on an inapplicable “voidable PSA issue”. Indeed,
the “precedent” that asserts that a borrower “lacks
standing to challenge the PSA”, apparently has its
genesis from the above passage in Samuels, at p. 22
where that litigant borrower flatly pled that;
“A failure to follow this protocol—such as by direct assignment of the mortgage from the loan originator to the pool trustee, bypassing the depositor— would, the Debtor contends, constitute a breach of the PSA, a breach of fiduciary obligations under the PSA to investors, a breach of federal regulations, and an act giving rise to unfavorable tax consequences for the investor.”
Clearly Samuel’s particularized pleadings above,
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sought to enforce obligations that he as a borrower
was not in privity with, and therefore lacked standing
“to enforce”, making those particular claims not
redressable and inapplicable here. The Samuels Court
also made no analysis as to the borrower Samuels
ability to challenge an assignment that was void.
Unlike Samuels, the Housing Court nowhere relied upon
any of these facially deficient claims as advanced by
Samuels. The Housing Court relied upon the failure to
convey the Bolling note and mortgage as an asset to
the Plaintiff Trust, under the requirements of the
terms of its Governing Instrument PSA, creating a void
assignment. The Housing Court correctly found that
this precluded the Plaintiff Trustee from utilizing
the statutory remedy against Bolling. This failure to
transfer in compliance with the PSA indisputably
renders the assignment void ab initio by operation of
law, not voidable.11
11 Indeed, state law matters have relied upon these same line of cases, without apparently examining those particular borrower’s pleadings, see Hoyt v. BAC Home Loans, 14-P-517, (2013) [unpublished R. 1:28 Opinion], at p. 5; “See Woods v. Wells Fargo Bank, N.A., 733 F.3d 349, 354 (1st Cir. 2013) (holding that "claims that merely assert procedural infirmities in the assignment of a mortgage, such as a failure to abide by the terms of a governing trust agreement, are barred for lack of standing")……Because "a mortgagor does not have standing to challenge shortcomings in an
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Thus, to recapitulate, unlike Samuels [and its
progeny], Wilson, and Butler, the Housing Court relied
upon violations of the Trust’s governing document and
governing law to which, as in the Ibanez and LaRace
analysis, the homeowner need not be a party as the
assignments are void by operation of law ab initio.
Bolling is not aware of any authority sounding in
trust law, that would stand for the proposition that
an improperly conveyed asset to a trust at the time of
its creation, would be “voidable” by the recipient
assignee Trustee, such that existing “voidability”
would somehow magically render the Plaintiff Trustee’s
reliance upon void recorded assignments, representing
assignment that render it merely voidable at the election of one party but otherwise effective to pass legal title[,]" Culhane v. Aurora Loan Servs., 708 F.3d 282, 291 (1st Cir. 2013) (applying Massachusetts law), the judge properly concluded that the plaintiffs' complaint failed to state a claim. See also Boulanger v. Wells Fargo Bank, N.A., 14-P-1438 [Unpublished r. 1:28 Opinion] (2015), “Finally, the plaintiffs allege that the third assignment to the Plaintiff failed to comply with the terms of the governing documents (commonly referred to as the pooling and service agreement, or the PSA) of the RMAC REMIC Trust Series 2009-9, the organization for which the Plaintiff holds the mortgage as trustee. Providing no documentation to support their claim, the plaintiffs contend, inter alia, that the assignments should have been executed prior to the closing date dictated by the PSA. Whatever the merit of this contention, as third-party beneficiaries, the plaintiffs lack enforceable rights under the PSA. The plaintiffs do not assert that the purported defects render the assignment void.”
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an existing improper conveyance of an asset to a
trust, now legally valid, and/or able to be later
“ratified”, especially where there is a specific
temporal limitation (“Closing Date”) for a legally
valid conveyance of assets to the Plaintiff Trust, and
where the specific Governing Instrument precludes the
beneficial owners from so ratifying. Indeed, it is to
be remembered that the Plaintiff is a New York common
law express Trust, not an ongoing corporation, or
ongoing business concern.
Indeed, in the few Massachusetts state law
matters examining this issue, also all involved
defective allegations as specifically advanced by
those borrowers. For instance, see Springer v.
Deutsche Bank National Trust Co.,
“Plaintiff alleges in Count II that: “Defendant knew or should have known that it was required under the terms of the pooling and servicing agreement under which it receives its authority to act as Trustee, that the mortgage for the Plaintiff’s property had not been properly assigned to the REMIC [Note 21] within the time period allowed by law” and that therefore Defendant lacked standing to foreclose on the plaintiff’s property. More specifically, the plaintiff alleges as follows:B. REMIC ISSUES:11. The Defendant…is a trustee for a Real Estate Mortgage Investment Conduit (REMIC).12. Under the Internal Revenue Code regulations relative to REMIC’s, all mortgage assets must be transferred into the Trust at the start date of the Trust, in
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order for it to maintain [its] tax-exempt status. 26 USC 860 (G)(a)(3). 13. As the REMIC for which the Defendant is Trustee was formed September 1, 2006 and the mortgage was not assigned to the Defendant until June 12, 2009, the Defendant cannot be the valid holder of the mortgage without being in violation of the Internal Revenue Code.” Springer, at 21 LCR 22, (2013).
Also see Sullivan v. Kondaur Capital, 85 Mass.App.Ct.
202, 206 n. 8, 7 N.E.3d 1113, 1116, n. 8 (2014). See
also Bank of New York Mellon Corp, as Trustee v. Wain,
11 N.E.3d. 633.
3. Plaintiff-Appellant’s Reliance on chains of decisions flowing from Bassman’s misrepresentation of NY jurisprudence as divided on Void and Voidability of Ultra Vires Attempted Transfers of Express Trusts. a. The Trust’s Lack of Chain to Exercise the
Power of Sale Rests in its Void Transfer of the Boyers Mortgage
The remaining question, then, is whether the
assignment to a trust itself is void or voidable if it
is in contravention of the PSA. All of the courts
agree that this hinges on the New York courts’
interpretation of ultra vires actions as “void” or
“voidable”. Several lower Massachusetts Courts have
decided upon a shared understanding that NY State law
is explicit and consistent that such ultra vires
transfers in express Trusts is void.
In addition to the Bolling decision upholding the
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purportedly post-foreclosure homeowner’s right to
superior possession based on its determination that
the Trust’s ultra vires actions voided its legal claim
to the homeowner’s mortgagee and so the prior
foreclosure, four other Massachusetts lower court
decisions concur.
U.S. Bank v. Wright, et al, Quincy District
Court, No. 1156-SU-1214 (Oct. 21, 2013):
“At issue is the chain of title from MERS to US Bank. On April 16, 2006, MERS assigned the mortgage to Wachovia Bank, N.A. as trustee of the Aegis Asset Back Security Trust, Mortgage Pass-through Certificates, Series 2004-2. ... it cannot be demonstrated that Aegis Lending Corporation ever assigned or transferred the mortgage which defendants had granted to it to the Aegis Asset Back Security Trust ... Series 2004-2. ... the defect in title... exists on the evidence introduced by the Plaintiff... Exhibits... are only probative on the plaintiff’s right to possession upon acceptance of the representation that the mortgage at issue is one which is part of Aegis Asset Back Security Trust, Mortgage Pass-through Certificates, Series 2004-2.” [Emphasis added]
HSBC as Trustee v. Howe, et al, Malden Court
District, No. 1350-SU-0237 (Sept. 18, 2014) looked to
NY Law (EPTL § 7-2.4):
“In Aurora Loans Services, LLC v. Mendenhall, the New York Supreme Court stated: it inexorably follows that the acts taken by the Trustee were clearly ultra vires and therefore would necessarily be void ab initio. ... The assignment was over three years after the cutoff date, July 1, 2007, to be included in the
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trust according to the PSA. The assignment was void under New York state law, N.Y. Est. Powers & Trusts Law § 7-2.4. Also, the plaintiff failed to provide any evidence that the Howe mortgage was on the schedule of loans in an exhibit for the PSA as required in U.S. National Association v. Ibanez, 458 Mass. at 650-51.”
In U.S. Bank v. Hoynoski, Western Housing Court,
No. 11-SP-3965 (Nov. 8, 2012), the court determined:
“If, as alleged by Hoynoski “upon information and belief,” the mortgage at issue here was subject to a pooling and servicing agreement that involved a trust formed under New York law, the terms of which were contravened by the assignment of the subject mortgage into the trust such that the assignment was void ab initio under New York law, NY CLS EPTL §7-2.4, the Bank arguably would not have acquired good title and would have no superior right to possession herein. This analysis does not implicate third party beneficiary status; rather it involves a direct challenge to a prima facie element of the Bank’s case, namely that it holds good title.”
And in Deutsche Bank as Trustee v. Collins, et
al, Worcester Housing Court, 1185-SP-5095 (July 18,
2013), Judge upheld Defendants’ Motion for Summary
Judgment “for reasons set forth”. These included:
“This assignment which the plaintiff offers as part of their prima facie proof of standing does not comply with the Pooling and Servicing agreement.... the PSA says that for loans – both the note and the mortgage – to get into the trust they would have to have been assigned to Sheffield Receivables Corporation, Sutton Funding, LLC, Securitized Assets Backed Receivables, LLC before being transferred into the trust. This assignment ... goes from MERS to Deutsche Bank ... as Trustee.... It only mentions New Century Mortgage Corporation. Neither MERS
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nor New Century Mortgage Corporation are any of the parties required to transfer a mortgage into the Trust.... “the closing date for the Trust was on or about June 14, 2007; the PSA allows only an additional 90 days beyond June 14, 2007 for any loan to have been reviewed and rejected. This assignment ... happened on July 28, 2009. The trust was already closed ... no evidence of the transfer of the Note. ... “As NY Trust law explicitly voids any transfer of assets in contravention of the Trust’s instrument, this assignment is void as a matter of law. Deutsche Bank ... as Trustee ... did not, therefore, own the mortgage and therefore, did not have the power to exercise the power of sale in the mortgage. The foreclosure is therefore void. Plaintiff lacks standing to bring this eviction action.”
Glaski v. Bank of America, No. F064556 (7/31/13,
Cal. 5th App. Dist.), Saldivar v. JPMorgan Chase, 2013
WL 2452699 (Bky. S.D. Texas 6/5/13) and HSBC Bank USA,
National Association, et al. v. Marra, No. 2008 CA
000630 NC (Aug. 14, 2013) give weight to the clear
language of New York EPTL § 7-2.4; they voided these
foreclosures because of ultra vires acts. From
Saldivar:
“Under 28 U.S.C. § 1652, this Court has the duty to apply New York law in accordance with the controlling decision of the highest state court. Royal Bank of Canada v. Trentham Corp., 665 F.2d 515, 516 (5th Cir. 1981). While the Court finds no applicable New York Court of Appeals decision... See Wells Fargo Bank, N.A. v. Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct. April 29, 2013). In Erobobo, defendants argued that plaintiff (a REMIC trust) was not the owner of the note because plaintiff obtained the note and mortgage after the trust had closed in
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violation of the terms of the PSA governing the trust, rendering plaintiff’s acquisition of the note void. Id. at *2. The Erobobo court held that under § 7-2.4, any conveyance in contravention of the PSA is void... Based on the Erobobo decision and the plain language of N.Y. Est. Powers & Trusts Law § 7-2.4, the Court finds that under New York law, assignment of the Saldivars’ Note after the start up day is void ab initio.”
Once a Trust is created under NY Common Law Trust
statute as specified in Plaintiff’s PSA, it is
controlled by EPTL § 7-2.4 for all the world not just
the investors for whom the Trust complied with REMIC
code3 (A000417)
See Mendenhall the most recent decision from NY
above:
“Defendants allege, inter alia, that the acceptance of the asset, viz. the note and mortgage at issue, by the Trustee was actually accomplished in a manner other than that either prescribed or permitted by the ... PSA, which is the controlling instrument for the REMIC.... it inexorably follows that the acts taken by the Trustee were clearly ultra vires and therefore would necessarily be void ab initio. “For well over one hundred years, it has been the law in New York that where the transfer of a mortgage to a third party is effectuated in a manner that contravenes the express terms of a governing trust, the transfer is ultra vires and is void, Kirsch v. Tozier 143 NY 390 (1894)..., all successors and subsequent assignees are charged with constructive knowledge of the express terms of the trust and hence cannot claim to be bona fide purchasers thereafter inasmuch as they would either know or would have reason to know that any interest transferred would be subject to the operative terms of the trust, Smith v. Kidd 68 NY 130 (1877), McPherson v.
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Rollins 107 NY 316 (1887).”
As the Massachusetts decision in HSBC as Trustee
v. Howe, et al, Malden Court District, No. 1350-SU-
0237 (Sept. 18, 2014) stated:
“For well over one hundred years, it has been the law in New York that where the transfer of a mortgage to a third party is effectuated in a manner that contravenes the express terms of a governing trust, the transfer is ultra vires and is void, Kirsch v. Tozier, 143 N.Y. 390, 38 N.E. 375 (1894)…. None of these cases mentioned or distinguished Kirsch v. Tozier, 143 N.Y. 390, 38 N.E. 375 (1894), in which the Court of Appeals stated: “[A]ny act thereafter done by [the trustee] in contravention of the trust was by the common law and by the statute void. (St. Uses and Trusts, 1 Rev. St. §65.)”.
The second set of decisions Plaintiff-Appellant
relies heavily upon are Rajamin v. Deutsche Bank Nat.
Trust Co., 757 F. 3d 79 (2nd Cir. 2014) and its
progeny or Dernier v. Mortgage Network, Inc. 87 A.3d
465 (Vt. 2013) out of Vermont; to argue that “most”
Courts have found violations of Pooling and Servicing
Agreements voidable not void. However, both the
citations to Bank of American Nat’l Assoc. v. Bassman
FBT, L.L.C., et al. 981 N.E.2d 1, 7 (Ill. App. Ct.
2012)’s flawed survey of New York jurisprudence in
Dernier and the specific cases from Bassman that
Rajamin rely upon do not reflect decisions of only
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express NY Common Law Trusts. In fact, Rajamin does
not address NY EPTL 7-2.4, the specifically applicable
statute to express Trusts with founding documents, nor
addresses Erobobo to distinguish it.
The basis for claiming dissension among NY
decisions is an assessment by the Illinois Bassman
Court (given their “exhaustive search” of NY
decisions) that the NY record was inconsistent in the
application of EPTL 7-2.4 voiding acts by Trustees
that contravene the “trust” documents.
The high court decisions across the US that claim
that NY courts are inconsistent in voiding ultra vires
actions of express trusts depend upon the Bassman case
review. The Vermont SJC in Dernier did decide for the
mortgagor but did not rely on NY EPTL § 7-2.4; they
felt based on Bassman that the NY courts were split on
the void or voidability of ultra vires acts.
In the review to follow of the 10 cases cited by
Bassman, (an Illinois Court attempting to interpret
N.Y. Law) incorrectly claimed documented NY Courts’
interpretation of ultra vires transfers by Trustees as
voidable. Bassman argued given NY Courts’
inconsistency, that without a party voiding illegal
transfers into NY Securitized Trusts, the Court cannot
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determine that a break in the chain of title to the
mortgage exists. However, 6 cases were simply
inapposite; none upheld a “voidability” interpretation
of attempted ultra vires transfers; and two actually
upheld NY EPTL 7-2.4 after Court scrutiny.
In fact, even Bassman first admits the long
lineage of NY rulings voiding ultra vires transfers
into express trusts under EPTL 7-2.4.
“If this statute controls, the transfer of the mortgages to the trust would appear to be a nullity (we note that this statute has been in effect in New York in some form since at least 1870 (see Anderson v. Mather, 44 N.Y. 249 (N.Y.1870))). Moreover, this is the sort of defense — namely, that the transaction is void under the statute — that defendants would be permitted to raise. Livonia Property Holdings, 717 F.Supp.2d at 735. Indeed, several New York courts have applied the statute, or its predecessors, in such a manner. See, e.g., In re Application of Dana, 119 Misc.2d 815, 465 N.Y.S.2d 102, 105 (N.Y.Sup.Ct. 1982); Dye v. Lewis, 67 Misc.2d 426, 324 N.Y.S.2d 172, 175 (N.Y.Sup.Ct.1971).”
For EPTL § 7-2.4 to apply, a Trust must have a
controlling instrument12. The Defendant Trust
indisputably has a “controlling instrument” by which
it was purportedly established; the PSA.
Six of the decisions Bassman cited did not
address express Trusts at all and are inapposite.
Three involved sections of NY Law unrelated to trusts:
12 Footnote EPTL 7-2.4 again
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National Black Theatre Workshop Inc. v. Nubian
Properties LLC, 89 A.D.3d 518, 932 N.Y.S.2d 466, 467
(2011) does not involve a Trust; Conservative Party of
the State of New York v. New York State Board of
Elections, 170 Misc.2d 885, 652 N.Y.S.2d 463, 465
(N.Y.Sup.Ct.1996) revolved around interpretation of NY
Const, art I, § 1 related to the Trust of voters in
elections; Aronoff v. Albanese, 446 N.Y.S.2d 368, 370
(App. Div. 1982) is based on NY corporate law to which
EPTL 7-2.4 cannot apply as business common law trusts
do not exist in NY13.
Three cases involved implied trusts. Greagan v.
Buchanan, 15 Misc. 580, 37 N.Y.S. 83, 85 (N.Y.Sup.Ct.
1896) involved the acts of a court appointed
administrator after a man died intestate. Hine v.
Huntington, 118 A.D. 585, 103 N.Y.S. 535, 540 (1907)
has to do with the disposition of a remaining piece of
property from an estate foreclosed by the executors in
trust for the remaining heirs, themselves and their
sister. Washburn v. Rainier, 149 A.D. 800, 134 N.Y.S.
301, 304 (1912) involves an unfulfilled debt and the
transfer of assets and liabilities through a contract
13 The only place in NY law where business trusts are referenced is in tax statutes created to cover such out of state trusts since other states allow them.
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before that debt was fulfilled by the adjudicated
debtor.
4. Courts have a Role Even When Ultra Vires Actions are Void
The remaining 4 cases that Bassman analyzed do
involve “express trusts” that is trusts with founding
documents that are covered by NY EPTL § 7-2.4 which
makes ultra vires attempts to transfer assets void. In
two of these four cases, the Court after analysis
declared the ultra vires acts void. But even though
transfers into an express trust are covered under NY
EPTL § 7-2.4, there is a role for the Courts when
there is disagreement on the interpretation of the
Trust documents or for fact-finding. An act may be
outside the scope of the Trust document and require
judicial interpretation14. After fact-finding,
questionable acts may be found to be ultra vires and
void but have had such impact that the Court needs to
determine additional equitable resolution.
In Feldman v. Torres, 939 N.Y.S.2d 221, 224 (App.
14 In these remaining Bassman citations, the Trust Documents may allow beneficiaries to ratify otherwise ultra vires acts by the Trustee rendering them no longer ultra vires. With no access to case documents see if such ratification is included, Defendant addresses the legitimate judicial role of the Court without undermining NY EPTL 7-2.4 regardless of the Trust documents’ specifics.
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Term 2011), the Court was queried to interpret the
Trust document but could not determine the ultra vires
issue because of insufficient facts: “defendant's
submissions did not demonstrate as a matter of law
that Sherry lacked actual or apparent authority to
bind the Trust to the note.” This decision did not go
to the voidability of ultra vires acts but the
inability to determine if the acts were ultra vires.
In two cases, the Court after fact finding
applied EPTL § 7-2.4 and declared the acts void.
Mooney v. Madden, 193 A.D.2d 933, 597 N.Y.S.2d 775,
776 (1993) decision ordered a review of a fact basis
for whether an agreement by the trustees ... “is
binding upon the trustees and enforceable so that
votes cast in violation of that agreement may be ...
declared a nullity”. The Court then sought an
equitable resolution given the impact of the void act
with ratification by all the beneficiaries.
Similarly, In re Pepi, 268 A.D.2d 477, 701
N.Y.S.2d 915, 916 (2000) fulfills the purpose of EPTL
§ 7-2.4 and voids ultra vires acts of the Trustee
showing the evolution of Trust Law in NY so that an
ultra vires act would be assumed void based on the
Trust Document itself. From In re Pepi:
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“It was the duty of the appellants to inquire as to whether the proceeds obtained through the use of a trust asset were to be used for the ultimate benefit of the trust (see, Dye v Lewis, 40 AD2d 582, affd sub nom. Dye v Lincoln Rochester Trust Co., 31 NY2d 1012). Since the appellants had reason to know that the conveyance was made in contravention of the trust, the transaction is void (see, EPTL 7-2.4; see also, National Sur. Co. v Manhattan Mtge. Co., 185 App Div 733, 736-737, affd 230 NY 545; Boskowitz v Held, 15 App Div 306, 310-311, affd 153 NY 666).”
In re Birnbaum, 117 A.D.2d 409, 503 N.Y.S.2d 451,
456 (1986) the beneficiaries sued the Trust to clarify
and if needed, re-write Trust documents. Again the
Court was not imposing the voidness of ultra vires
acts, it was need to interpret the Trust Document
itself. A Court must rule when Trustees themselves
disagree as to their enabling document15.
However, PSAs do not contemplate all
beneficiaries being able to ratify together a
Trustee’s acts; see explicit standard language in the
instant PSA at sections 11.03 and 11.04. When these
Trusts run afoul of the law, they become party to
lawsuits and a court must decide. Just as stealing is
15 New York’s has an apparent 3-prong test of circumstances in which courts have to play a role even though EPTL section 7-2.4 voids acts in contravention with the “Trust document”. These are cases where acts require: (1) interpretation of the Trust Documents; (2) an equitable resolution; (3) if restitution is owed to the beneficiaries, ratification of resolution by all beneficiaries.
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illegal, when a Trust document is violated, a Court
still has a role in fact finding, enforcement, and
restitution.
The litany of ten NY decisions supposedly
determining ultra vires acts voidable in contradiction
to NY EPTL § 7-2.4, trotted out in the Bassman
decision in fact yielded: 6 completely inapplicable;
two upholding the voidness of ultra vires acts; and
two needing the Court’s assistance in interpreting the
Trust Document itself. This hardly a sterling basis of
jurisprudential analysis for Dernier and the other
Bassman progeny to root themselves in. Even Rajamin
which drew on only some of the Bassman citations did
not stand on an accurate analysis of New York’s
highest court’s actual consistency of decisions.
Ultra Vires attempted transfers where there
exists a founding Trust Document are void not voidable
under Trust Law as historically and uniquely developed
in the state of NY, the Housing Court’s correctly
identified governing law of the instant Securitized
Trust.
VI. CONCLUSION
For all of the foregoing reasons, and ratio
decidendi cited to herein, the Defendant Bolling
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respectfully request that this court Affirm the
Housing Court Judge’s well reasoned ruling
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ADDENDUM
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TABLE OF CONTENTS
1. August 08, 2015, Decision and Order 2. 3. August 08, 2015 - Entry of Judgment 4. G.L. c. 183 §3 5. G.L. c. 183 §4 6. G.L. c. 183 §21 7. G.L. c. 203 §2 8. G.L. c. 203 §3 9. G.L. c. 240 §1 10. G.L. c. 183, § 21 11. G.L. c. 244 § 14 12. G.L. c. 244 § 35A
13. Mass. R. Civ. P., R. 56
14. NY EPTL 7-2.4
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12H79SP001393 U.S. Bank Naitonal Association As Trustee on Behalf of Rasc2006KS9 c/o GMAC Mortgage, LLC vs. Wendy Bolling Also Know As WendyBowling
Case Type Housing Court Summary Process Case Status ClosedStatus Date: 04/17/2012 File Date 04/17/2012Case Judge: DCM Track:Next Event:Property Address114 Lamont Street Springfield MA 01119
All Information Party Event Docket Linked Case Disposition Judgment
Alias Attorney/Bar Code Phone NumberHagopian, Esq., Michael R (549919)Vaulding, Esq., Lori (678404)
Alias Attorney/Bar Code Phone Number
Party InformationU.S. Bank Naitonal Association Plaintiff
More Party Information
Bolling, Wendy Defendant
More Party Information
Events
Date Session Locality Location Type Result
04/26/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Rescheduled
05/10/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Continued
06/07/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Continued
07/13/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Rescheduled
08/02/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Continued
08/16/2012 09:00 AM Session 2 Western Housing Court Summary Process Trial Not held but resolved
09/05/2012 03:30 PM HCT Session Western Housing Court Case Management Conference Continued
09/19/2012 03:30 PM HCT Session Western Housing Court Case Management Conference Rescheduled
10/31/2012 03:30 PM HCT Session Western Housing Court Case Management Conference Held
01/04/2013 10:00 AM Session 1 Western Housing Court Trial Continued
03/08/2013 09:00 AM Session 1 Western Housing Court Motion Hearing Continued
03/15/2013 09:00 AM Session 1 Western Housing Court Motion Hearing Held
03/29/2013 10:00 AM Session 2 Western Housing Court Summary Process Trial Rescheduled
04/26/2013 09:00 AM Session 1 Western Housing Court Motion Hearing
05/07/2013 03:00 PM HCT Session Western Housing Court Case Management Conference Held
05/20/2013 02:00 PM Session 2 Western Housing Court Motion Hearing Held
06/10/2013 02:00 PM HCT Session Western Housing Court Case Management Conference Held
07/10/2013 02:00 PM HCT Session Western Housing Court Case Management Conference Held
08/30/2013 05:00 PM Session 1 Western Housing Court Review
09/06/2013 02:00 PM Session 1 Western Housing Court Hearing RescheduledADD012
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09/06/2013 02:00 PM Session 1 Western Housing Court Hearing Rescheduled
09/11/2013 02:00 PM Session 1 Western Housing Court Hearing Held
01/03/2014 09:00 AM Session 1 Western Housing Court Motion Hearing Continued
01/10/2014 09:00 AM Session 1 Western Housing Court Motion Hearing Continued
01/22/2014 02:00 PM Session 1 Western Housing Court Motion Hearing Held
04/01/2014 02:00 PM Session 1 Western Housing Court Motion Hearing Allowed
04/08/2014 12:00 PM Session 1 Western Housing Court Motion Hearing Held
05/27/2014 09:00 AM Session 1 Western Housing Court Motion Hearing Held
07/14/2014 05:00 PM Session 1 Western Housing Court Review Held
09/18/2015 09:00 AM Session 1 Western Housing Court Motion Hearing Allowed
Docket Information
DocketDate
Docket Text FileRefNbr.
04/17/2012 SP Summons and Complaint Foreclosure 1
04/17/2012 SURCHARGE 185C:Entry of Action filed (Section 466 M.G.L. c. 185C, §19) SURCHARGE Receipt: 44148 Date: 04/17/2012
04/17/2012 Summary Process: MGL Chapter 185C Section 19; Chapter 262 Section 2
Receipt: 44148 Date: 04/17/2012
04/20/2012 Answer of Wendy Bolling Also Know As Wendy Bowling 2
04/20/2012 Defendant Discovery Requests 3
04/23/2012 Scheduled
Event: Summary Process Trial
Date: 04/26/2012 Time: 09:00 AM Result: Rescheduled
04/24/2012 Event Resulted
The following event: Summary Process Trial scheduled for 04/26/2012 09:00 AM has been resulted as follows:
Result: Rescheduled
Reason: By operation of rule
04/24/2012 Scheduled
Event: Summary Process Trial
Date: 05/10/2012 Time: 09:00 AM Result: Continued
05/10/2012 Event Resulted
The following event: Summary Process Trial scheduled for 05/10/2012 09:00 AM has been resulted as follows:
Result: Continued
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Reason: Both Parties Request
05/10/2012 Scheduled
Event: Summary Process Trial
Date: 06/07/2012 Time: 09:00 AM Result: Continued
05/15/2012 Plaintiff Discovery Response 4
06/07/2012 Event Resulted
The following event: Summary Process Trial scheduled for 06/07/2012 09:00 AM has been resulted as follows:
Result: Continued
Reason: Both Parties Request
06/07/2012 Scheduled
Event: Summary Process Trial
Date: 07/13/2012 Time: 09:00 AM Result: Rescheduled
07/12/2012 Motion by Wendy Bolling Also Know As Wendy Bowling to compel discovery
sch'd for 71212 @ 9am
5
07/12/2012 Notice of limited appearance by Hugh D Heisler, Esq. for Wendy Bolling Also Know As Wendy Bowling. 6
07/13/2012 Event Resulted
The following event: Summary Process Trial scheduled for 07/13/2012 09:00 AM has been resulted as follows:
Result: Rescheduled
Reason: Both Parties Request
07/13/2012 Scheduled
Event: Summary Process Trial
Date: 08/02/2012 Time: 09:00 AM Result: Continued
08/02/2012 Event Resulted
The following event: Summary Process Trial scheduled for 08/02/2012 09:00 AM has been resulted as follows:
Result: Continued/ KAH
Reason: Both Parties Request
08/06/2012 Scheduled
Event: Summary Process Trial
Date: 08/16/2012 Time: 09:00 AM Result: Not held but resolved
08/16/2012 Notice of limited appearance by Aaron M. Dulles, Esq. for Wendy Bolling Also Know As Wendy Bowling. 7
08/16/2012 Notice of withdrawal of limited appearance by Aaron M. Dulles, Esq. for Wendy Bolling Also Know As Wendy 8ADD014
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08/16/2012 Notice of withdrawal of limited appearance by Aaron M. Dulles, Esq. for Wendy Bolling Also Know As Wendy Bowling.
8
08/16/2012 Event Resulted
The following event: Summary Process Trial scheduled for 08/16/2012 09:00 AM has been resulted as follows:
Result: Not held but resolved, LAR/LARW for deft, Agm filed
Reason: Both Parties Request
08/16/2012 Agreement, cmc request for 82912/per PQM sch'd for 9512 @ 3:30pm 9
08/16/2012 Scheduled
Event: Case Management Conference
Date: 09/05/2012 Time: 03:30 PM (Resch'd notice) Result: Continued
09/05/2012 Event Resulted The following event: Case Management Conference scheduled for 09/05/2012 03:30 PM has been resulted as follows:
Result: Continued
Reason: Court Action
09/12/2012 Scheduled Event: Case Management Conference Date: 09/19/2012 Time: 03:30 PM
09/19/2012 Event Resulted The following event: Case Management Conference scheduled for 09/19/2012 03:30 PM has been resulted as follows:
Result: Rescheduled
Reason: Both Parties Request
09/21/2012 Notice of limited appearance by for . 10
09/25/2012 Scheduled Event: Case Management Conference Date: 10/31/2012 Time: 03:30 PM
10/31/2012 Event Resulted The following event: Case Management Conference scheduled for 10/31/2012 03:30 PM has been resulted as follows:
Result: Held
11/02/2012 Scheduled Event: Trial Date: 01/04/2013 Time: 10:00 AM
11/02/2012 pretrial Order 11
01/03/2013 Notice of limited appearance by Aaron M. Dulles, Esq. for Wendy Bolling Also Know As Wendy Bowling. 12
01/03/2013 Agreement filed to continue 2hour bench trial along with discovery requests. 13
01/03/2013 Event Resulted The following event: Trial scheduled for 01/04/2013 10:00 AM has been resulted as follows:
Result: Continued
Reason: Both Parties Request
01/04/2013 Scheduled Event: Summary Process Trial Date: 03/29/2013 Time: 10:00 AM
03/05/2013 Motion to Dismiss, and Second Motion to Compel Discovery filed by Wendy Bolling Also Know As Wendy Bowling
14
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03/05/2013 Scheduled
Event: Motion Hearing on Defendant's Motion to Dismiss, and Second Motion to Compel Discovery
Date: 03/08/2013 Time: 09:00 AM
03/06/2013 Opposition to defendant's motion to dismiss and/or compel discovery by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
15
03/08/2013 Event Resulted
The following event: Motion Hearing scheduled for 03/08/2013 09:00 AM has been resulted as follows:
Result: Def's counsel present and reported that Pl's counsel was unable to be present due to weather and that the parties were amenable to one week continuation to 3/15/13 @ 9am.
03/08/2013 Scheduled
Event: Motion Hearing on Defendant's Motion to Dismiss & Second Motion to Compel Discovery
Date: 03/15/2013 Time: 09:00 AM
03/13/2013 Correspondence received from Defendant's attorney confirming motion hearing of 3/15/13.
03/15/2013 Event Resulted The following event: Motion Hearing scheduled for 03/15/2013 09:00 AM has been resulted as follows:
Result: Held by J. Fein. Both parties present through counsel. STATED ON RECORD
1) The defendant's motion to dismiss is DENIED; and 2) The defendant's motion to compell is ALLOWED in its enterity on the subject of "use & occupancy"; POA and Pulling & Servicing Agreement.
Defendant's oral motion for attys fees. Def's requested to file their motion for Attys fees w/in 7 days; Plaintiff to file opposition to Attys fees 7 days thereafter.
16
03/15/2013 Event Resulted
The following event: Summary Process Trial scheduled for 03/29/2013 10:00 AM has been resulted as follows:
Result: Rescheduled
Reason: Court Action as the parties opened their window for discovery request. As set forth on entries made on 3/15/13.
04/03/2013 Scheduled
Event: Case Management Conference
Date: 05/07/2013 Time: 03:00 PM
04/22/2013 Motion by Wendy Bolling Also Know As Wendy Bowling to compel discovery
and to dismiss
17
04/22/2013 Scheduled
Event: D's motion to dismiss & 3rd mtn to compel discovery Hearing
Date: 04/26/2013 Time: 09:00 AM
04/26/2013 Motion to dismiss filed by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC, Wendy Bolling Also Know As Wendy Bowling (voluntary)
18
04/26/2013 Notice of withdrawal of limited appearance by Aaron M. Dulles, Esq. for Wendy Bolling Also Know As Wendy Bowling.
20
04/26/2013 R 41(a)(1) Voluntary Dismissal of use and occupancy claim 19
05/06/2013 Notice of limited appearance by Pro Se for Wendy Bolling Also Know As Wendy Bowling.
Attorney: Dulles, Esq., Aaron M.
21
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05/07/2013 Event Resulted The following event: Case Management Conference scheduled for 05/07/2013 03:00 PM has been resulted as follows:
Result: Held
05/07/2013 Proposed 1st Amended Answer and Counterclaim of Defendant 22
05/07/2013 Motion to amend answer filed by Wendy Bolling Also Know As Wendy Bowling 23
05/08/2013 Scheduled
Event: Motion Hearing to amend her answer and counterclaims
Date: 05/20/2013 Time: 02:00 PM
05/08/2013 Order issued 24
05/20/2013 Event Resulted The following event: Motion Hearing scheduled for 05/20/2013 02:00 PM has been resulted as follows:
Result: Held by J. Fein. After hearing with both parties motion Allowed. Clerk's office request to schedule a cmc. (SEE ENDORSEMENT ON #23)
05/24/2013 Notice of withdrawal of limited appearance by Pro Se for Wendy Bolling Also Know As Wendy Bowling.
Attorney: Dulles, Esq., Aaron M.
25
05/29/2013 Scheduled Event: Case Management Conference Date: 06/10/2013 Time: 02:00 PM
05/29/2013 Correspondence received from parties re:request for case managment conference
05/30/2013 Appearance by attorney for Wendy Bolling Also Know As Wendy Bowling
Attorney: Dulles, Esq., Aaron M.
06/10/2013 Event Resulted
The following event: Case Management Conference scheduled for 06/10/2013 02:00 PM has been resulted as follows:
Result: Held Both counsel present. counsel will request back PQM
Reason: Both Parties Request
06/26/2013 Correspondence received from attorney Dulles re:request for cmconf/Per PQM sch for 71013 @ 2pm
06/27/2013 Scheduled Event: Case Management Conference Date: 07/10/2013 Time: 02:00 PM Result: Held
07/10/2013 Event Resulted
The following event: Case Management Conference scheduled for 07/10/2013 02:00 PM has been resulted as follows:
Result: Held further pretrial order to issue PQM
Reason: Both Parties Request
07/12/2013 Further Pretrial Order *See condition, hrg on such mtn 9613 @ 2pm w/Judge Fields. Copies mailed 26
07/12/2013 Scheduled Event: Hearing Date: 09/06/2013 Time: 02:00 PM Result: Rescheduled
08/07/2013 Event Resulted
The following event: Hearing scheduled for 09/06/2013 02:00 PM has been resulted as follows:
Result: Rescheduled to 91113 @ 2pm w/Judge Fields KAH
Appeared:
08/07/2013 Scheduled
Event: Hearing ADD017
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Event: Hearing
Date: 09/11/2013 Time: 02:00 PM
Result: Held
08/07/2013 Change of Address by
Atty Dulles
27
08/12/2013 Authorities Cited in support of deft's mtn for summary judg, with twelve attachments 28
08/12/2013 Affidavit of Aaron Dulles in support of deft's mtn for summary judgment, w/nine attachments 29
08/12/2013 Memorandum of Wendy Bolling Also Know As Wendy Bowling
of fact and law in support of mtn for summary judgment
30
08/12/2013 Motion by Wendy Bolling Also Know As Wendy Bowling for summary judgment
(per PQM to be heard on 91113)
31
08/12/2013 Scheduled
Event: Review
Date: 08/30/2013 Time: 05:00 PM (for opposition to mtn filed on 81213, give to Judge Fields)
08/22/2013 Opposition to deft's mtn for summary judgment by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
and plaintiff's cross motion for summary judgment
32
09/03/2013 Opposition to plaintiff's motion for summary judgment(including motion to strike) by Wendy Bolling Also Know As Wendy Bowling
and defendant's reply to plaintiff's opposition to her motion for summary judgment
33
09/11/2013 Event Resulted
The following event: Hearing scheduled for 09/11/2013 02:00 PM has been resulted as follows:
Result: Held
Reason: TAKEN UNDER ADVISEMENT rgf
Appeared:
09/11/2013 Memorandum of U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
in support of object to summary judgment
34
09/11/2013 Authorities for Plaintiff's objection 35
11/07/2013 Order of Dismissal *See conditions, judgment for defendant for possession, CASE DISMISSED. Copies mailed
36
11/07/2013 Judgment issued Final Judgment Finding Fields, Hon. Robert G Judgment For: Bolling, Wendy Judgment Against: U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC Terms of Judgment: Interest Begins: 04/17/2012 Jdgmnt Date: 11/07/2013 Damages: Damage Amt: .00 Costs Pd to Court: .00 Other Costs: .00 Punitive Damages: .00 Crt Ord Atty Fee: .00 Further Orders: JUDGMENT FOR DEFENDANT
37
11/07/2013 After notice and opportunity to appear for the following event:
09/11/2013 02:00 PM Hearing
the above entitled matter is dismissed for the following reason(s): * By order of the court..
PER ORDER DATED 11713ADD018
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PER ORDER DATED 11713
12/23/2013 Motion to Amend Judgment, or for Relief filed by Wendy Bolling Also Know As Wendy Bowling 38
12/24/2013 Scheduled
Event: Motion Hearing on Defendant's Motion to Amend Judgment, or for Relief
Date: 01/03/2014 Time: 09:00 AM Result: Continued
01/09/2014 Scheduled
Event: Motion Hearing to amend judgment or relief
Date: 01/22/2014 Time: 02:00 PM Result: Held
01/09/2014 Event Resulted The following event: Motion Hearing scheduled for 01/10/2014 09:00 AM has been resulted as follows: Result: Continued Reason: Court Action Appeared:
01/22/2014 Event Resulted The following event: Motion Hearing scheduled for 01/22/2014 02:00 PM has been resulted as follows: Result: Held Reason: TAKEN UNDER ADVISEMENT Appeared:
02/26/2014 OrderNew civil action to be initiated for 93A count 39
02/26/2014 DEFENDANT'S COUNTER CLAIM (93A) TRANSFERRED INTO 14CV126. TWO SEPARATE FOLDERS ARE BEING KEPT. CIVIL CASE FOR DEFENDANT'S 93A CLAIM ONLY.
03/13/2014 Appearance by attorney for U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
03/13/2014 Notice of Appeal by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC from Judgment dated 11/07/2013
40
03/17/2014 Motion to dismiss appeal filed by Wendy Bolling Also Know As Wendy Bowling 41
03/17/2014 Affidavit of Aaron Dulles 42
03/26/2014 Opposition to Defendan't Motion to Dismiss by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
43
03/26/2014 Scheduled Event: Motion Hearing Date: 04/01/2014 Time: 02:00 PM Result: Allowed (ENDORSEMENT OF #41)
04/01/2014 Answer of U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC 44
04/01/2014 Motion by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC to vacate judgment
summary judgment
45
04/03/2014 Event Resulted
The following event: Motion Hearing scheduled for 04/01/2014 02:00 PM has been resulted as follows:
Result: Allowed
Reason: Court Actionappeal dismissed
Appeared:
04/03/2014 Scheduled Event: Motion Hearing Date: 04/08/2014 Time: 12:00 PM Result: Held
04/07/2014 Opposition to P's mtn to vacate judgment by Wendy Bolling Also Know As Wendy Bowling 46
04/08/2014 Event Resulted
The following event: Motion Hearing scheduled for 04/08/2014 12:00 PM has been resulted as follows:
Result: Held ADD019
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Result: Held
Reason: Court Action
Appeared: both
04/25/2014 Order11/7/2013 order is vacated; Plaintiff's claim for possession is dismissed; Defendant's claims are transferred to 14CV126
47
05/02/2014 Notice of Appeal by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC from Judgment dated 04/25/2014
48
05/05/2014 Motion for clarification re: 4/25/14 order filed by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC hsg ct conf, no sessions, pqm called counsel, he will renotice
49
05/19/2014 Scheduled
Event: Motion for clarification, Hearing
Date: 05/20/2014 Time: 09:00 AM Result: Held
05/21/2014 ack of appeal: mailed to all parties 50
05/22/2014 Motion for reconsideration RE: order 42514 filed by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
51
05/27/2014 Event Resulted The following event: Motion Hearing scheduled for 05/27/2014 09:00 AM has been resulted as follows: Result: Held DEFENDANT TO FILE AND SERVE OPPOSITION ON OR BEFORE 62424 PLAINTIFF TO FILE AND SERVE REPLY ON OR BEFORE 7914 FILE TO JUDGE FIELDS 71414 ( this order was entered on 3/5/15)
06/04/2014 Scheduled
Event: Review
Date: 07/14/2014 Time: 05:00 PM FILE TO JUDGE FIELDS Result: Held
06/24/2014 Motion to Strike, and Alternatively, Opposition to Plaintiff's Motion for Reconsideration filed by Wendy Bolling Also Know As Wendy Bowling
52
07/14/2014 Event Resulted The following event: Review scheduled for 07/14/2014 05:00 PM has been resulted as follows: Result: Held Appeared:
01/21/2015 Taken under advisement w/ RGF
03/05/2015 Ordermailed 53
03/05/2015 Judgment issued Final Judgment Finding Fields, Hon. Robert G Judgment For: Wendy Bolling Also Know As Wendy Bowling Judgment Against: U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC Terms of Judgment: Jdgmnt Date: 03/05/2015
54
03/12/2015 Tape Cassette and Digital Recordings of Proceedings MGL 262 section 4b Receipt: 73773 Date: 03/12/2015
03/12/2015 Notice of Appeal by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC from Judgment dated
renewed notice
55
03/12/2015 cassette order form 56
04/22/2015 Appearance Withdrawn by David W. Merritt, Esq. by U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
57
04/22/2015 Appearance by attorney for U.S. Bank Naitonal Association As Trustee on Behalf of Rasc 2006KS9 c/o GMAC Mortgage, LLC
58
04/23/2015 letter sent regarding CD being ready for pickup 59
04/28/2015 Verification cassette reveived 60ADD020
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04/28/2015 Verification cassette reveived 60
05/07/2015 Correspondence received from attorney Vaulding re:Notice Pursuant to Mass.R.A.P. 8(b) 61
05/27/2015 Transcript of hearing 09/11/13,01/22/14,04/08/14&05/27/14 filed (inside binder) 62
06/09/2015 Tape Cassette and Digital Recordings of Proceedings MGL 262 section 4b Receipt: 75668 Date: 06/09/2015
07/10/2015 Notice pursuant to Mass.R.A.P. 8(b) 63
07/31/2015 Transcript of hearing filed 64
09/14/2015 Motion to withdraw filed by Wendy Bolling Also Know As Wendy Bowling
09/16/2015 Scheduled Event: Motion Hearing to withdraw as counsel Date: 09/18/2015 Time: 09:00 AM Result: Allowed
09/18/2015 Event Resulted The following event: Motion Hearing scheduled for 09/18/2015 09:00 AM has been resulted as follows: Result: Allowed Reason: Court Action
09/23/2015 Requesting Party Received CDs from Clerk Office
09/23/2015 Notice of Entry (appeals court)
Linked Cases
Link Group Case # File Date Link Role
14H79CV000126 14H79CV000126 02/26/2014 Associated Case
Case Disposition
Disposition Date
Agreement 08/16/2012
Judgments
Date Type Method For Against
03/05/2015 Final Judgment Finding Bolling, Wendy U.S. Bank Naitonal Association
11/07/2013 Final Judgment Finding Bolling, Wendy U.S. Bank Naitonal Association
ADD021
Home > Laws by Source > Mass. Primary Law > Court Rules > Civil Procedure > Rule 56
Massachusetts Civil Procedure Rule 56:Summary Judgment[Disclaimer]
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or toobtain a declaratory judgment may, at any time after the expiration of 20 days from thecommencement of the action or after service of a motion for summary judgment by the adverseparty, move with or without supporting affidavits for a summary judgment in his favor upon all orany part thereof.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is assertedor a declaratory judgment is sought may, at any time, move with or without supporting affidavits fora summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before thetime fixed for the hearing. The adverse party prior to the day of hearing may serve opposingaffidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answersto interrogatories, and responses to requests for admission under Rule 36, together with theaffidavits, if any, show that there is no genuine issue as to any material fact and that the movingparty is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character,may be rendered on the issue of liability alone although there is a genuine issue as to the amountof damages. Summary judgment, when appropriate, may be rendered against the moving party.
(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not renderedupon the whole case or for all the relief asked and a trial is necessary, the court at the hearing ofthe motion, by examining the pleadings and the evidence before it and by interrogating counsel,shall if practicable ascertain what material facts exist without substantial controversy and whatmaterial facts are actually and in good faith controverted. It shall thereupon make an orderspecifying the facts that appear without substantial controversy, including the extent to which theamount of damages or other relief is not in controversy, and directing such further proceedings inthe action as are just. Upon the trial of the action the facts so specified shall be deemedestablished, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposingaffidavits shall be made on personal knowledge, shall set forth such facts as would be admissiblein evidence, and shall show affirmatively that the affiant is competent to testify to the mattersstated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavitshall be attached thereto or served therewith. The court may permit affidavits to be supplementedor opposed by depositions, answers to interrogatories, or further affidavits. When a motion forsummary judgment is made and supported as provided in this rule, an adverse party may not rest
Massachusetts Civil Procedure Rule 56 http://www.lawlib.state.ma.us/source/mass/rules/civil/mrcp56.html
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upon the mere allegations or denials of his pleading, but his response, by affidavits or asotherwise provided in this rule, must set forth specific facts showing that there is a genuine issuefor trial. If he does not so respond, summary judgment, if appropriate, shall be entered againsthim.
(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing themotion that he cannot for reasons stated present by affidavit facts essential to justify hisopposition, the court may refuse the application for judgment or may order a continuance to permitaffidavits to be obtained or depositions to be taken or discovery to be had or may make such otherorder as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time thatany of the affidavits presented pursuant to this rule are presented in bad faith or solely for thepurpose of delay, the court shall forthwith order the party employing them to pay to the other partythe amount of the reasonable expenses which the filing of the affidavits caused him to incur,including reasonable attorney's fees, and any offending party or attorney may be adjudged guiltyof contempt.
Amended March 7, 2002, effective May 1, 2002.
Reporter's Notes to Rule 56(c) (2002) The 2002 amendment to Rule 56(c) deletes thephrase "on file" from the third sentence, in recognition of the fact that discovery documentsare generally no longer separately filed with the court. See Rule 5(d)(2) and Superior CourtAdministrative Directive No. 90-2. The previous reference to admissions has also beenreplaced by a reference to "responses to requests for admission under Rule 36." Theamendment is merely of the housekeeping variety and no change in practice is intended.
(1973) Except in a narrow class of cases, Massachusetts has up to now lacked anyprocedural device for terminating litigation in the interim between close of pleadings and trial.Under G.L. c. 231, §§ 59 and 59B, only certain contract actions could be disposed of prior totrial. In all other types of litigation, no matter how little factual dispute involved, resolution hadto await trial.
Rule 56, which, with a small addition, tracks Federal Rule 56 exactly, responds to the needwhich the statutes left unanswered. It proceeds on the principle that trials are necessary onlyto resolve issues of fact; if at any time the court is made aware of the total absence of suchissues, it should on motion promptly adjudicate the legal questions which remain, and thusterminate the case.
The statutes, so far as they went, embodied this philosophy. They aimed "to avoid delay andexpense of trials in cases where there is no genuine issue of fact." Albre Marble & Tile Co.,Inc. v. John Bowen Co., Inc., 338 Mass. 394, 397 (1959). Rule 56 will extend this principlebeyond contract cases. Thus in tort actions where the facts are not disputed, summaryjudgment for one party will be appropriate. Should the facts concerning liability be undisputed,but damages controverted, Rule 56(c) authorizes partial summary judgment: the court may
Massachusetts Civil Procedure Rule 56 http://www.lawlib.state.ma.us/source/mass/rules/civil/mrcp56.html
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Previous Rule Next Rule
determine the liability issue, leaving for trial only the question of damages.
The important thing to realize about summary judgment under Rule 56 is that it can begranted if and only if there is "no genuine issue as to any material fact." If any such issueappears, summary judgment must be denied. So-called "trial by affidavits" has no place underRule 56. Affidavits (or pleadings, depositions, answers to interrogatories, or admissions) aremerely devices for demonstrating the absence of any genuine issue of material fact.Introduction of material controverting the moving party's assertions of fact raises such anissue and precludes summary judgment.
On the other hand, because Rule 56 recognizes only "genuine" material issues of fact, Rule56(e) requires the opponent of any summary judgment motion to do something more thansimply deny the proponents allegations. Faced with a summary judgment motion supportedby affidavits or the like, an opponent may not rely solely upon the allegations of his pleadings.He bears the burden of introducing enough countervailing data to demonstrate the existenceof a genuine material factual issue.
If, however, the opponent is convinced that even on the movant's undisputed affidavits, thecourt should not grant summary judgment, he may decline to introduce his own materials andmay instead fight the motion on entirely legal (as opposed to factual) grounds. Indeed, thefinal sentence of Rule 56(c) makes clear that in appropriate cases, summary judgment maybe entered against the moving party. This is eminently logical. Because by definition themoving party is always asserting that the case contains no factual issues, the court shouldhave the power, no matter who initiates the motion, to award judgment to the party legallyentitled to prevail on the undisputed facts.
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Last update: March 7, 2013 11:03 AM.
Massachusetts Civil Procedure Rule 56 http://www.lawlib.state.ma.us/source/mass/rules/civil/mrcp56.html
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Section 21. The following “power” shall be known as the “Statutory Power of Sale”, and may beincorporated in any mortgage by reference:
(POWER.)
But upon any default in the performance or observance of the foregoing or other condition, themortgagee or his executors, administrators, successors or assigns may sell the mortgagedpremises or such portion thereof as may remain subject to the mortgage in case of any partialrelease thereof, either as a whole or in parcels, together with all improvements that may bethereon, by public auction on or near the premises then subject to the mortgage, or, if more thanone parcel is then subject thereto, on or near one of said parcels, or at such place as may bedesignated for that purpose in the mortgage, first complying with the terms of the mortgage andwith the statutes relating to the foreclosure of mortgages by the exercise of a power of sale, andmay convey the same by proper deed or deeds to the purchaser or purchasers absolutely and infee simple; and such sale shall forever bar the mortgagor and all persons claiming under himfrom all right and interest in the mortgaged premises, whether at law or in equity.
PART II
TITLE I
CHAPTER 183
Section 21
REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS(Chapters 183 through 210)
TITLE TO REAL PROPERTY
ALIENATION OF LAND
“Statutory power of sale” in mortgage
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24/05/16 3:10 PMGeneral Laws: CHAPTER 183, Section 3
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Section 3. An estate or interest in land created without an instrument in writing signed by the grantoror by his attorney shall have the force and effect of an estate at will only, and no estate or interest inland shall be assigned, granted or surrendered unless by such writing or by operation of law.
PART II
TITLE I
CHAPTER 183
Section 3
REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE TO REAL PROPERTY
ALIENATION OF LAND
Estate created without instrument in wri t ing
ADD026
24/05/16 3:11 PMGeneral Laws: CHAPTER 183, Section 4
Page 1 of 1https://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter183/Section4/Print
Section 4. A conveyance of an estate in fee simple, fee tail or for life, or a lease for more than sevenyears from the making thereof, or an assignment of rents or profits from an estate or lease, shall notbe valid as against any person, except the grantor or lessor, his heirs and devisees and personshaving actual notice of it, unless it, or an office copy as provided in section thirteen of chapter thirty-six, or, with respect to such a lease or an assignment of rents or profits, a notice of lease or a noticeof assignment of rents or profits, as hereinafter defined, is recorded in the registry of deeds for thecounty or district in which the land to which it relates lies. A ''notice of lease'', as used in this section,shall mean an instrument in writing executed by all persons who are parties to the lease of whichnotice is given and shall contain the following information with reference to such lease:—the date ofexecution thereof and a description, in the form contained in such lease, of the premises demised,and the term of such lease, with the date of commencement of such term and all rights of extensionor renewal. A ''notice of assignment of rents or profits'', as used in this section, shall mean aninstrument in writing executed by the assignor and containing the following information:— adescription of the premises, the rent or profits of which have been assigned, adequate to identify thepremises, the name of assignee, and the rents and profits which have been assigned. A provision ina recorded mortgage assigning or conditionally assigning rents or profits or obligating the mortgagorto assign or conditionally assign existing or future rents or profits shall constitute a ''notice ofassignment of rents or profits''.
PART II
TITLE I
CHAPTER 183
Section 4
REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE TO REAL PROPERTY
ALIENATION OF LAND
Effect of recordation or actual notice of deeds or leases, or of assignments of rents or prof i ts
ADD027
24/05/16 3:12 PMGeneral Laws: CHAPTER 203, Section 2
Page 1 of 1https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter203/Section2/Print
Section 2. If a trust concerning land is created or declared by such instrument, the recording of theinstrument, or of a certificate conforming to the requirements of section 35 of chapter 184, in theregistry of deeds or the registration office of the land court, in either case for the county or districtwhere the land lies, shall be equivalent to actual notice to every person claiming under aconveyance, attachment or execution thereafter made or levied.
PART II
TITLE II
CHAPTER 203
Section 2
REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS AND ABSENTEES,GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS
TRUSTS
Record of trust; notice
ADD028
24/05/16 3:13 PMGeneral Laws: CHAPTER 203, Section 3
Page 1 of 1https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter203/Section3/Print
Section 3. No trust concerning land, whether implied by law or created or declared by the parties,shall defeat the title of a purchaser for a valuable consideration without notice of the trust, or preventa creditor who has no notice of the trust from attaching the land or from taking it on execution as ifno such trust existed.
PART II
TITLE II
CHAPTER 203
Section 3
REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
DESCENT AND DISTRIBUTION, WILLS, ESTATES OF DECEASED PERSONS AND ABSENTEES,GUARDIANSHIP, CONSERVATORSHIP AND TRUSTS
TRUSTS
Purchasers without notice
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24/05/16 3:14 PMGeneral Laws: CHAPTER 240, Section 1
Page 1 of 1https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleIII/Chapter240/Section1/Print
Section 1. If the record title of land is clouded by an adverse claim, or by the possibility thereof, aperson in possession of such land claiming an estate of freehold therein or an unexpired term of notless than ten years, and a person who by force of the covenants in a deed or otherwise may beliable in damages, if such claim should be sustained, may file a petition in the land court stating hisinterest, describing the land, the claims and the possible adverse claimants so far as known to him,and praying that such claimants may be summoned to show cause why they should not bring anaction to try such claim. If no better description can be given, they may be described generally, asthe heirs of A B or the like. Two or more persons having separate and distinct parcels of land in thesame county and holding under the same source of title, or persons having separate and distinctinterests in the same parcel or parcels, may join in a petition against the same supposed claimants.If the supposed claimants are residents of the commonwealth, the petition may be inserted like adeclaration in a writ, and served by a copy, like a writ of original summons. Whoever is in theenjoyment of an easement shall be held to be in possession of land within the meaning of thissection.
PART III
TITLE III
CHAPTER 240
Section 1
COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
REMEDIES RELATING TO REAL PROPERTY
PROCEEDINGS FOR SETTLEMENT OF TITLE TO LAND
Petit ion to compel adverse claimant to try t i t le
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24/05/16 3:15 PMGeneral Laws: CHAPTER 244, Section 14
Page 1 of 3https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleIII/Chapter244/Section14/Print
Section 14. The mortgagee or person having estate in the land mortgaged, or a person authorizedby the power of sale, or the attorney duly authorized by a writing under seal or the legal guardian orconservator of such mortgagee or person acting in the name of such mortgagee or person, may,upon breach of condition and without action, perform all acts authorized or required by the power ofsale; provided, however, that no sale under such power shall be effectual to foreclose a mortgage,unless, previous to such sale, notice of the sale has been published once in each of 3 successiveweeks, the first publication of which shall be not less than 21 days before the day of sale, in anewspaper published in the city or town where the land lies or in a newspaper with generalcirculation in the city or town where the land lies and notice of the sale has been sent by registeredmail to the owner or owners of record of the equity of redemption as of 30 days prior to the date ofsale, said notice to be mailed by registered mail at least 14 days prior to the date of sale to saidowner or owners to the address set forth in section 61 of chapter 185, if the land is then registeredor, in the case of unregistered land, to the last address of the owner or owners of the equity ofredemption appearing on the records of the holder of the mortgage, if any, or if none, to the addressof the owner or owners as given on the deed or on the petition for probate by which the owner orowners acquired title, if any, or if in either case no owner appears, then mailed by registered mail tothe address to which the tax collector last sent the tax bill for the mortgaged premises to be sold, orif no tax bill has been sent for the last preceding 3 years, then mailed by registered mail to theaddress of any of the parcels of property in the name of said owner of record which are to be soldunder the power of sale and unless a copy of said notice of sale has been sent by registered mail toall persons of record as of 30 days prior to the date of sale holding an interest in the property juniorto the mortgage being foreclosed, said notice to be mailed at least 14 days prior to the date of saleto each such person at the address of such person set forth in any document evidencing the interestor to the last address of such person known to the mortgagee. Any person of record as of 30 daysprior to the date of sale holding an interest in the property junior to the mortgage being foreclosedmay waive at any time, whether prior or subsequent to the date of sale, the right to receive notice bymail to such person under this section and such waiver shall constitute compliance with such noticerequirement for all purposes. If no newspaper is published in such city or town, or if there is nonewspaper with general circulation in the city or town where the land lies, notice may be publishedin a newspaper published in the county where the land lies, and this provision shall be implied inevery power of sale mortgage in which it is not expressly set forth. A newspaper which by its title
PART III
TITLE III
CHAPTER 244
Section 14
COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
REMEDIES RELATING TO REAL PROPERTY
FORECLOSURE AND REDEMPTION OF MORTGAGES
Foreclosure under power of sale; procedure; notice; form
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24/05/16 3:15 PMGeneral Laws: CHAPTER 244, Section 14
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page purports to be printed or published in such city, town or county, and having a circulation in thatcity, town or county, shall be sufficient for the purposes of this section.
The following form of foreclosure notice may be used and may be altered as circumstances require;but nothing in this section shall be construed to prevent the use of other forms.
(Form.)
MORTGAGEE'S SALE OF REAL ESTATE.
By virtue and in execution of the Power of Sale contained in a certain mortgage given by . . . . . . . . .. . .<\/y> to . . . . . . . . . . . .<\/y> dated . . . . . . . . . . . .<\/y> and recorded with
. . . . .
Deeds, Book . . . . . . . . . . . .<\/y>, page . . . . . . . . . . . .<\/y>, of which mortgage the undersigned isthe present holder, . . . . . . . . . . . .<\/y>.
(If by assignment, or in any fiduciary capacity, give reference to the assignment or assignmentsrecorded with . . . . .Deeds, Book . . . . . . . . . . . .<\/y>, page . . . . . . . . . . . .<\/y>, of which mortgagethe undersigned is the present holder, . . . . . . . . . . . .<\/y>)
for breach of the conditions of said mortgage and for the purpose of foreclosing the same will besold at Public Auction at . . . . . . . . . . . .<\/y>o'clock, . . . . . . . . . . . .<\/y> M. on the . . . . . . . . . . . .<\/y> day of . . . . . . . . . . . .<\/y> A.D. (insert year), . . . . . . . . . . . .<\/y> (place) . . . . . . . . . . . .<\/y>all and singular the premises described in said mortgage,
(In case of partial releases, state exceptions.)
To wit: ''(Description as in the mortgage, including all references to title, restrictions, encumbrances,etc., as made in the mortgage.)''
Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time andplace of the sale, and the time or times for payment of the balance or the whole as the case maybe.)
Other terms to be announced at the sale.
(Signed) ___
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24/05/16 3:15 PMGeneral Laws: CHAPTER 244, Section 14
Page 3 of 3https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleIII/Chapter244/Section14/Print
Present holder of said mortgage.___
A notice of sale in the above form, published in accordance with the power in the mortgage and withthis chapter, together with such other or further notice, if any, as is required by the mortgage, shallbe a sufficient notice of the sale; and the premises shall be deemed to have been sold and the deedthereunder shall convey the premises, subject to and with the benefit of all restrictions, easements,improvements, outstanding tax titles, municipal or other public taxes, assessments, liens or claims inthe nature of liens, and existing encumbrances of record created prior to the mortgage, whether ornot reference to such restrictions, easements, improvements, liens or encumbrances is made in thedeed; provided, however, that no purchaser at the sale shall be bound to complete the purchase ifthere are encumbrances, other than those named in the mortgage and included in the notice of sale,which are not stated at the sale and included in the auctioneer's contract with the purchaser.
For purposes of this section and section 21 of chapter 183, in the event a mortgagee holds amortgage pursuant to an assignment, no notice under this section shall be valid unless (i) at the timesuch notice is mailed, an assignment, or a chain of assignments, evidencing the assignment of themortgage to the foreclosing mortgagee has been duly recorded in the registry of deeds for thecounty or district where the land lies and (ii) the recording information for all recorded assignmentsis referenced in the notice of sale required in this section. The notice shall not be defective if anyholder within the chain of assignments either changed its name or merged into another entity duringthe time it was the mortgage holder; provided, that recited within the body of the notice is the fact ofany merger, consolidation, amendment, conversion or acquisition of assets causing the change inname or identity, the recital of which shall be conclusive in favor of any bona fide purchaser,mortgagee, lienholder or encumbrancer of value relying in good faith on such recital.
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[Text of section effective until January 1, 2016. For text effective January 1, 2016, see below.]
Section 35A. (a) As used in this section, the following words shall, unless the context clearlyrequires otherwise, have the following meanings:
“Borrower”, a mortgagor of a mortgage loan.
“Borrower’s representative”, an employee or contractor of a non-profit organization certifiedby Housing and Urban Development, an employee or contractor of a foreclosure educationcenter pursuant to section 16 of chapter 206 of the acts of 2007 or an employee or contractorof a counseling agency receiving a Collaborative Seal of Approval from the MassachusettsHomeownership Collaborative administered by the Citizens’ Housing and PlanningAssociation.
“Creditor”, a person or entity that holds or controls, partially, wholly, indirectly, directly, or in anominee capacity, a mortgage loan securing a residential property, including, withoutlimitation, an originator, holder, investor, assignee, successor, trust, trustee, nominee holder,Mortgage Electronic Registration System or mortgage servicer, including the Federal NationalMortgage Association or the Federal Home Loan Mortgage Corporation. “Creditor” shall alsoinclude any servant, employee or agent of a creditor.
“Creditor’s representative”, a person who has the authority to negotiate the terms of andmodify a mortgage loan.
“Modified mortgage loan”, a mortgage modified from its original terms including, but notlimited to, a loan modified pursuant to 1 of the following: (i) the Home Affordable ModificationProgram; (ii) the Federal Deposit Insurance Corporation’s Loan Modification Program; (iii)any modification program that a lender uses which is based on accepted principles and thesafety and soundness of the institution and recognized by the National Credit UnionAdministration, the Division of Banks or any other instrumentality of the commonwealth; (iv)
PART III
TITLE III
CHAPTER 244
Section 35A
COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES(Chapters 211 through 262)
REMEDIES RELATING TO REAL PROPERTY
FORECLOSURE AND REDEMPTION OF MORTGAGES
Right of residential real property mortgagor to cure a default; good faith effort tonegotiate for commercial ly reasonable alternative to foreclosure; response from borrower; aff idavit uponinit iat ion of foreclosure proceedings; accelerat ion of maturi ty of balance prohibited; notice
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the Federal Housing Agency; or (v) a similar federal refinance plan.
“Mortgage loan”, a loan to a natural person made primarily for personal, family or householdpurposes secured wholly or partially by a mortgage on residential property.
“Net present value”, the present net value of a residential property based on a calculationusing 1 of the following: (i) the federal Home Affordable Modification Program Base NetPresent Value Model, (ii) the Federal Deposit Insurance Corporation’s Loan ModificationProgram; or (iii) for the Massachusetts Housing Finance Agency’s loan program used solelyby the agency to compare the expected economic outcome of a loan with or without a loanmodification.
“Residential property”, real property located in the commonwealth having thereon a dwellinghouse with accommodations for 4 or less separate households and occupied, or to beoccupied, in whole or in part by the obligor on the mortgage debt; provided, however, thatresidential property shall be limited to the principal residence of a person; provided further,that residential property shall not include an investment property or residence other than aprimary residence; and provided further, that residential property shall not include residentialproperty taken in whole or in part as collateral for a commercial loan.
(b) A mortgagor of residential property shall have a 150-day right to cure a default of arequired payment as provided in the residential mortgage or note secured by the residentialproperty by full payment of all amounts that are due without acceleration of the maturity ofthe unpaid balance of the mortgage; provided, however, that if a creditor certifies that: (i) ithas engaged in a good faith effort to negotiate a commercially reasonable alternative toforeclosure as described in subsection (c); (ii) its good faith effort has involved at least 1meeting, either in person or by telephone, between a creditor’s representative and theborrower, the borrower’s attorney or the borrower’s representative; and (iii) after suchmeeting the borrower and the creditor were not successful in resolving their dispute, thenthe creditor may begin foreclosure proceedings after a right to cure period lasting 90 days.A borrower who fails to respond within 30 days to any mailed communications offering tonegotiate a commercially reasonable alternative to foreclosure sent via certified and firstclass mail or similar service by a private carrier from the lender shall be deemed to haveforfeited the right to a 150-day right to cure period and shall be subject to a right to cureperiod lasting 90 days. The right to cure a default of a required payment shall be grantedonce during any 3 year period, regardless of mortgage holder.
(c) For purposes of this section, a determination that a creditor has made a good faith effortto negotiate and agree upon a commercially reasonable alternative to foreclosure shall
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mean that the creditor has considered: (i) an assessment of the borrower’s currentcircumstances including, without limitation, the borrower’s current income, debts andobligations; (ii) the net present value of receiving payments pursuant to a modifiedmortgage loan as compared to the anticipated net recovery following foreclosure; and (iii)the interests of the creditor; provided, however, that nothing in this subsection shall beconstrued as prohibiting a creditor from considering other factors; provided, further, thatthe creditor shall provide by first class and certified mail or similar service by a privatecarrier to a borrower documentation of good faith effort 10 days prior to meeting,telephone conversation or a meeting pursuant to subsection (b).
(d) A borrower who receives a loan modification offer from the creditor resulting from thelender’s good faith effort to negotiate and agree upon a commercially reasonablealternative to foreclosure shall respond within 30 days of receipt of first class or certifiedmail. A borrower shall be presumed to have responded if the borrower provides: (i)confirmation of a facsimile transmission to the creditor; (ii) proof of delivery through theUnited States Postal Service or similar carrier; or (iii) record of telephone call to thecreditor captured on a telephone bill or pin register. A borrower who fails to respond to thecreditor’s offer within 30 days of receipt of a loan modification offer shall be deemed tohave forfeited the 150-day right to cure period and shall be subject to a right to cure periodlasting 90 days.
(e) Nothing in this section shall prevent a creditor from offering or accepting alternatives toforeclosure, such as a short sale or deed-in-lieu of foreclosure, if the borrower requestssuch alternatives, rejects a loan modification offered pursuant to this subsection or doesnot qualify for a loan modification pursuant to this subsection.
(f) A creditor that chooses to begin foreclosure proceedings after a right to cure periodlasting less than 150 days that engaged in a good faith effort to negotiate and agree upona commercially reasonable alternative but was not successful in resolving the dispute shallcertify compliance with this section in an affidavit. The affidavit shall include the time andplace of the meeting, parties participating, relief offered to the borrower, a summary of thecreditor’s net present value analysis and applicable inputs of the analysis and certificationthat any modification or option offered complies with current federal law or policy. Acreditor shall provide a copy of the affidavit to the homeowner and file a copy of theaffidavit with the land court in advance of the foreclosure.
(g) The mortgagee, or anyone holding thereunder, shall not accelerate maturity of theunpaid balance of such mortgage obligation or otherwise enforce the mortgage because ofa default consisting of the mortgagor’s failure to make any such payment in subsection (b)
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by any method authorized by this chapter or any other law until at least 150 days afterthe date a written notice is given by the mortgagee to the mortgagor; provided, however,that a creditor meeting the requirements of subsection (b) that chooses to beginforeclosure proceedings after a right to cure period lasting less than 150 days mayaccelerate maturity of the unpaid balance of such mortgage obligation or otherwiseenforce the mortgage because of a default consisting of the mortgagor’s failure to makeany such payment in subsection (b) by any method authorized by this chapter or anyother law not less than 91 days after the date a written notice is given by the creditor tothe mortgagor.
Said notice shall be deemed to be delivered to the mortgagor: (i) when delivered by handto the mortgagor; or (ii) when sent by first class mail and certified mail or similar serviceby a private carrier to the mortgagor at the mortgagor’s address last known to themortgagee or anyone holding thereunder.
(h) The notice required in subsection (g) shall inform the mortgagor of the following:—
(1) the nature of the default claimed on such mortgage of residential real property and ofthe mortgagor’s right to cure the default by paying the sum of money required to cure thedefault;
(2) the date by which the mortgagor shall cure the default to avoid acceleration, aforeclosure or other action to seize the home, which date shall not be less than 150 daysafter service of the notice and the name, address and local or toll free telephone numberof a person to whom the payment or tender shall be made unless a creditor chooses tobegin foreclosure proceedings after a right to cure period lasting less than 150 days thatengaged in a good faith effort to negotiate and agree upon a commercially reasonablealternative but was not successful in resolving the dispute, in which case a foreclosure orother action to seize the home may take place on an earlier date to be specified;
(3) that, if the mortgagor does not cure the default by the date specified, the mortgagee,or anyone holding thereunder, may take steps to terminate the mortgagor’s ownership inthe property by a foreclosure proceeding or other action to seize the home;
(4) the name and address of the mortgagee, or anyone holding thereunder, and thetelephone number of a representative of the mortgagee whom the mortgagor maycontact if the mortgagor disagrees with the mortgagee’s assertion that a default hasoccurred or the correctness of the mortgagee’s calculation of the amount required to curethe default;
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(5) the name of any current and former mortgage broker or mortgage loan originator forsuch mortgage or note securing the residential property;
(6) that the mortgagor may be eligible for assistance from the HomeownershipPreservation Foundation or other foreclosure counseling agency, and the local or tollfree telephone numbers the mortgagor may call to request this assistance;
(7) that the mortgagor may sell the property prior to the foreclosure sale and use theproceeds to pay off the mortgage;
(8) that the mortgagor may redeem the property by paying the total amount due, prior tothe foreclosure sale;
(9) that the mortgagor may be evicted from the home after a foreclosure sale; and
(10) the mortgagor may have the following additional rights, depending on the terms ofthe residential mortgage: (i) to refinance the obligation by obtaining a loan which wouldfully repay the residential mortgage debtor; and (ii) to voluntarily grant a deed to theresidential mortgage lender in lieu of foreclosure.
The notice shall also include a declaration, in the language the creditor has regularlyused in its communication with the borrower, appearing on the first page of the noticestating: “This is an important notice concerning your right to live in your home. Have ittranslated at once.”
The division of banks shall adopt regulations in accordance with this subsection.
(i) To cure a default prior to acceleration under this section, a mortgagor shall not berequired to pay any charge, fee or penalty attributable to the exercise of the right to curea default. The mortgagor shall pay late fees as allowed pursuant to section 59 ofchapter 183 and per-diem interest to cure such default. The mortgagor shall not beliable for any attorneys’ fees relating to the mortgagor’s default that are incurred by themortgagee or anyone holding thereunder prior to or during the period set forth in thenotice required by this section. The mortgagee, or anyone holding thereunder, may alsoprovide for reinstatement of the note after the 150-day notice to cure has ended.
(j) A copy of the notice required by this section and an affidavit demonstratingcompliance with this section shall be filed by the mortgagee, or anyone holdingthereunder, in any action or proceeding to foreclose on such residential real property.
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(k) A copy of the notice required by this section shall also be filed by the mortgagee,or anyone holding thereunder, with the commissioner of the division of banks.Additionally, if the residential property securing the mortgage loan is sold at aforeclosure sale, the mortgagee, or anyone holding thereunder, shall notify thecommissioner of the division of banks, in writing, of the date of the foreclosure saleand the purchase price obtained at the sale.
Chapter 244: Section 35A. Right of residential real property mortgagor to cure a default; notice required toaccelerate maturity of balance; contents of notice; late fees; filing
[Text of section as amended by 2010, 258, Sec. 8 effective January 1, 2016. See2010, 258, Sec. 14. For text effective until January 1, 2016, see above.]
Section 35A. (a) Any mortgagor of residential real property located in thecommonwealth, shall have a 90-day right to cure a default of a required payment asprovided in such residential mortgage or note secured by such residential realproperty by full payment of all amounts that are due without acceleration of thematurity of the unpaid balance of such mortgage. The right to cure a default of arequired payment shall be granted once during any 5-year period, regardless of themortgage holder. For the purposes of this section, “residential property”, shall meanreal property located in the commonwealth having thereon a dwelling house withaccommodations for 4 or less separate households and occupied, or to be occupied,in whole or in part by the mortgagor; provided, however, that residential property shallbe limited to the principal residence of a person; provided further, that residentialproperty shall not include an investment property or residence other than a primaryresidence; and provided further, that residential property shall not include residentialproperty taken in whole or in part as collateral for a commercial loan.
(b) The mortgagee, or anyone holding thereunder, shall not accelerate maturity of theunpaid balance of such mortgage obligation or otherwise enforce the mortgagebecause of a default consisting of the mortgagor’s failure to make any such paymentin subsection (a) by any method authorized by this chapter or any other law until atleast 90 days after the date a written notice is given by the mortgagee to themortgagor.
Said notice shall be deemed to be delivered to the mortgagor: (i) when delivered byhand to the mortgagor; or (ii) when sent by first class mail and certified mail or similarservice by a private carrier to the mortgagor at the mortgagor’s address last known to
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the mortgagee or anyone holding thereunder.
(c) The notice required in subsection (b) shall inform the mortgagor of thefollowing:—
(1) the nature of the default claimed on such mortgage of residential real propertyand of the mortgagor’s right to cure the default by paying the sum of money requiredto cure the default;
(2) the date by which the mortgagor shall cure the default to avoid acceleration, aforeclosure or other action to seize the home, which date shall not be less than 90days after service of the notice and the name, address and local or toll freetelephone number of a person to whom the payment or tender shall be made;
(3) that, if the mortgagor does not cure the default by the date specified, themortgagee, or anyone holding thereunder, may take steps to terminate themortgagor’s ownership in the property by a foreclosure proceeding or other action toseize the home;
(4) the name and address of the mortgagee, or anyone holding thereunder, and thetelephone number of a representative of the mortgagee whom the mortgagor maycontact if the mortgagor disagrees with the mortgagee’s assertion that a default hasoccurred or the correctness of the mortgagee’s calculation of the amount required tocure the default;
(5) the name of any current and former mortgage broker or mortgage loan originatorfor such mortgage or note securing the residential property;
(6) that the mortgagor may be eligible for assistance from the MassachusettsHousing Finance Agency and the division of banks and the local or toll freetelephone numbers the mortgagor may call to request this assistance;
(7) that the mortgagor may sell the property prior to the foreclosure sale and use theproceeds to pay off the mortgage;
(8) that the mortgagor may redeem the property by paying the total amount due,prior to the foreclosure sale;
(9) that the mortgagor may be evicted from the home after a foreclosure sale; and
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(10) the mortgagor may have the following additional rights, depending on theterms of the residential mortgage: (i) to refinance the obligation by obtaining a loanwhich would fully repay the residential mortgage debtor; and (ii) to voluntarily granta deed to the residential mortgage lender in lieu of foreclosure.
The notice shall also include a declaration, appearing on the first page of the noticestating: “This is an important notice concerning your right to live in your home. Haveit translated at once.”
The division of banks shall adopt regulations in accordance with this subsection.
(d) To cure a default prior to acceleration under this section, a mortgagor shall notbe required to pay any charge, fee, or penalty attributable to the exercise of theright to cure a default. The mortgagor shall pay late fees as allowed pursuant tosection 59 of chapter 183 and per-diem interest to cure such default. Themortgagor shall not be liable for any attorneys’ fees relating to the mortgagor’sdefault that are incurred by the mortgagee or anyone holding thereunder prior to orduring the period set forth in the notice required by this section. The mortgagee, oranyone holding thereunder, may also provide for reinstatement of the note after the90 day notice to cure has ended.
(e) A copy of the notice required by this section and an affidavit demonstratingcompliance with this section shall be filed by the mortgagee, or anyone holdingthereunder, in any action or proceeding to foreclose on such residential realproperty.
(f) A copy of the notice required by this section shall also be filed by the mortgagee,or anyone holding thereunder, with the commissioner of the division of banks.Additionally, if the residential property securing the mortgage loan is sold at aforeclosure sale, the mortgagee, or anyone holding thereunder, shall notify thecommissioner of the division of banks, in writing, of the date of the foreclosure saleand the purchase price obtained at the sale.
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24/05/16 3:20 PM7-2.4 - Act of trustee in contravention of trust :: 2013 New York Consolidated Laws :: US Codes and Statutes :: US Law :: Justia
Page 2 of 3http://law.justia.com/codes/new-york/2013/ept/article-7/part-2/7-2.4
Justia Legal Resources
Universal Citation: NY Est Pow & Trusts L § 7-2.4
(2012)
§ 7-2.4 Act of trustee in contravention
of trust
If the trust is expressed in the
instrument creating the estate of the
trustee, every sale, conveyance or
other act of the trustee in
contravention of the trust, except as
authorized by this article and by
any other provision of law, is void.
Disclaimer: These codes may not be the most recent
version. New York may have more current or accurate
information. We make no warranties or guarantees
about the accuracy, completeness, or adequacy of the
information contained on this site or the information
linked to on the state site. Please check official
sources.
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