Galiastro, et al. v. Mortgage Electronic Registration Systems, Inc., et al. (Lawyers Weekly No. 10-023-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11299     ANNE-MARIE GALIASTRO & another[1]  vs.  MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., & another.[2] Worcester.     October 7, 2013.  ‑  February 13, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Civil, Motion to dismiss, Retroactivity of judicial holding.  Retroactivity of Judicial Holding.  Mortgage, Foreclosure, Real estate.  Real Property, Mortgage.  Consumer Protection Act, Unfair act or practice.  Conspiracy.       Civil action commenced in the Superior Court Department on March 29, 2010.   A motion to dismiss was heard by John S. McCann, J.   The Supreme Judicial Court granted an application for direct appellate review.     Glenn F. Russell, Jr., for the plaintiffs. Robert M. Brochin (Todd S. Holbrook with him) for Mortgage Electronic Registration Systems, Inc. Nathalie K. Salomon for Harmon Law Offices, P.C. Grace C. Ross, pro se, amicus curiae, submitted a brief. Geoffry Walsh, for National Consumer Law Center, amicus curiae, submitted a brief.     DUFFLY, J.  We address in this case whether the plaintiffs and others who had appeals pending in the Appeals Court when we decided Eaton v. Federal Nat’l Mtge. Ass’n, 462 Mass. 569, 569 (2012) (Eaton), may pursue claims seeking to invalidate foreclosure proceedings based on our decision in that case.[3]  We held in Eaton that a foreclosure by power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, is invalid unless a foreclosing party holds the mortgage and also either holds the underlying mortgage note or acts on behalf of the note holder.  Id. at 571.  We concluded also that the interpretation of “mortgagee” in statutes governing foreclosures under statutory power of sale provisions would have only prospective effect, although we applied our newly announced interpretation to the claims asserted by the plaintiffs in that case.  Id.  We now extend application of the holding in Eaton to cases such as this one, in which the issue was preserved and an appeal was pending in the Appeals Court on June 22, 2012, the date of the rescript in Eaton.   Background.[4]  The plaintiffs, Anne-Marie and Joseph Galiastro (Galiastros), obtained a home mortgage loan on July 26, 2006, from Fremont Investment & Loan (Fremont).[5]  To secure the obligation, the Galiastros contemporaneously granted a mortgage on the home to defendant Mortgage Electronic Registration Systems, Inc. (MERS), which was described in the mortgage as “a separate corporation that […]

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