Posts tagged "Loan"

Aurora Loan Services, LLC v. Murphy (Lawyers Weekly No. 11-186-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   13-P-874                                          Appeals Court   AURORA LOAN SERVICES, LLC  vs.  WALTER MURPHY.[1] No. 13-P-874.   Plymouth.    November 4, 2015. – December 11, 2015.   Present:  Berry, Meade, & Maldonado, JJ. Mortgage, Foreclosure, Real estate.  Real Property, Mortgage, Sale.  Sale, Real estate.  Notice, Foreclosure of mortgage. Practice, Civil, Retroactivity of judicial holding. Retroactivity of Judicial Holding.     Summary process.  Complaint filed in the Southeast Division of the Housing Court Department on February 6, 2012.   The case was heard by Anne Kenney Chaplin, J., and a motion for reconsideration was heard by her.     Paul R. Collier, III, for the defendant. Shawn Michael Masterson for the plaintiff.     MEADE, J.  Walter Murphy purchased his home in 2007 with a mortgage loan from GreenPoint Mortgage Funding, Inc. (GreenPoint).  In November of 2010, Murphy received a notice from Aurora Loan Services, LLC (Aurora), notifying him that he had defaulted on his loan.  The letter also informed him of his right to cure the default, or to assert the nonexistence of a default or any other defense to acceleration of the loan in a foreclosure proceeding.  Acting as nominee for GreenPoint, the Mortgage Electronic Registrations Systems, Inc. (MERS), assigned the mortgage to Aurora on April 13, 2011.  In October, 2011, Aurora foreclosed on and purchased the property in an extrajudicial foreclosure auction.  Thereafter, Aurora commenced a summary process action to evict Murphy. In Housing Court, the judge determined that Aurora, as mortgage servicer, adequately complied with the requirements under G. L. c. 244, § 35A, as mortgagee, and granted it summary process to recover possession of the premises.  On appeal from the judgment, Murphy claims that, pursuant to the Supreme Judicial Court’s (SJC) recent decision in Pinti v. Emigrant Mort. Co., 472 Mass. 226 (2015), Aurora’s failure to strictly comply with the notice of foreclosure procedures contained in Murphy’s mortgage renders the subsequent foreclosure void.  Asserting that a ruling in his favor would not impair existing property interests and doing so would apply Pinti‘s otherwise prospective limitation equitably and without appearing arbitrary and capricious, Murphy claims the Pinti ruling ought to extend to cases pending on appeal (when the claim was raised and preserved) at the time of the Pinti decision’s release.  We agree and therefore reverse. 1.  Background.  Murphy purchased 245 Holmes Street in Halifax on March 13, 2007, through a mortgage loan […]

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Posted by Massachusetts Legal Resources - December 11, 2015 at 8:42 pm

Categories: News   Tags: , , , , , ,

Abate v. Fremont Investment & Loan, et al. (Lawyers Weekly No. 10-040-15)

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-11638   THOMAS C. ABATE  vs.  FREMONT INVESTMENT & LOAN & others.[1] Suffolk.     November 4, 2014. – March 9, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Real Property, Record title, Mortgage.  Mortgage, Assignment, Foreclosure.  Jurisdiction, Land Court.  Land Court, Jurisdiction.  Practice, Civil, Parties, Standing, Dismissal.       Civil action commenced in the Land Court Department on May 25, 2012.   Motions to dismiss were heard by Robert B. Foster, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Thomas B. Vawter for the petitioner. James L. Rogal for Deutsche Bank National Trust Company & another. Robert M. Brochin for Mortgage Electronic Registration Systems, Inc. James P. Long, pro se, amicus curiae, submitted a brief.     HINES, J.  In this appeal, we determine whether a respondent in a try title action brought pursuant to G. L. c. 240, §§ 1-5, may test the substantive merits of a petitioner’s claims in the “first step” of such an action.  The issue arises because the try title statute, in keeping with its purpose to allow a person holding record title to compel an adverse claimant to prove the merits of the adverse claimant’s interest in the property, contemplates a two-step procedure in which the substantive merits of the parties’ claims are determined at a trial.  Under our interpretation of the statute, the “first step” requires that the petitioner must satisfy the jurisdictional elements[2] of the statute and, if satisfied, the “second step” requires the adverse claimant either to bring an action to assert the claim to title, or to disclaim an interest in the property.  Bevilacqua v. Rodriguez, 460 Mass. 762, 766 (2011), citing G. L. c. 240, § 1.  Recognizing the potential conflict between jurisdictional determinations and a petitioner’s right under the statute to compel an adverse claimant to bring his or her own action to assert that claim, we transferred the petitioner’s appeal to this court on our own motion.  For the reasons explained below, we affirm the Land Court judgment dismissing his petition. Background.  1.  Procedural history.  The petitioner, Thomas C. Abate, brought this action in the Land Court asserting that a purported assignment of a mortgage was invalid and, thereby, indirectly challenging a foreclosure by Deutsche Bank National Trust Company, as trustee for Carrington Mortgage Loan Trust, […]

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Posted by Massachusetts Legal Resources - March 9, 2015 at 5:37 pm

Categories: News   Tags: , , , , , ,