Posts tagged "Wain"

The Bank of New York Mellon Corp. v. Wain, et al. (Lawyers Weekly No. 11-072-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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;       13‑P‑101                                        Appeals Court   THE BANK OF NEW YORK MELLON CORP., trustee,[1]  vs.  DAVID WAIN & another.[2] No. 13‑P‑101. Suffolk.     November 1, 2013.  ‑  June 24, 2014. Present:  Kafker, Milkey, & Hines, JJ.   Mortgage, Assignment, Foreclosure.  Notice, Foreclosure of mortgage.  Real Property, Mortgage.  Practice, Civil, Summary judgment, Standing.  Assignment.  Land Court, Jurisdiction.  Jurisdiction, Land Court.       Civil action commenced in the Land Court Department on February 6, 2012.   The case was heard by Alexander H. Sands, III, J., on motions for summary judgment.     Jamie Ranney for the defendants. David W. Merritt for the plaintiff.     MILKEY, J.  David Wain and Donovan Kerr (collectively, the homeowners) owned property in Nantucket that was subject to a mortgage.  The Bank of New York Mellon Corp. (bank) acquired that mortgage through an assignment from the original mortgagee.  After the homeowners defaulted, the bank foreclosed and purchased the property at the foreclosure sale.  The bank then filed an action to quiet title, and the homeowners filed counterclaims seeking to challenge the validity of the foreclosure on various grounds.  In a detailed and thoughtful decision, a Land Court judge ruled in the bank’s favor on summary judgment.  We affirm, albeit on different grounds. Background.  Except as otherwise noted, the facts are undisputed.  At a closing for the property held on November 15, 2006, the homeowners executed a note and mortgage for $ 707,000.   The mortgage was recorded at the local registry of deeds the following day.  The original mortgagee was Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the Union Capital Mortgage Business Trust. After the homeowners apparently were unable to keep up with their payments, a mortgage servicing entity known as American Home Mortgage Servicing, Inc. (American Home), sent the homeowners a “notice to cure letter” dated April 5, 2010.  See G. L. c. 244, § 35A.  That letter informed the homeowners that they were in default, it explained how the default could be cured, and it stated that if they failed to cure by July 4, 2010, a foreclosure would follow.  The letter stated that American Home was acting on behalf of “Tbw Mortgage-backed Trust 2007-1,” identified as “the Mortgagee of the Note and Deed of Trust associated with your real estate loan.” On or about July 14, 2010, a vice president of MERS executed a formal assignment […]


Posted by Massachusetts Legal Resources - June 24, 2014 at 11:39 pm

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