Posts tagged "1101215"

Shea v. Federal National Mortgage Association, et al. (Lawyers Weekly No. 11-012-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1630                                       Appeals Court   PAUL SHEA  vs.  FEDERAL NATIONAL MORTGAGE ASSOCIATION & others.[1] No. 13-P-1630.     February 18, 2015. Real Property, Mortgage.  Assignment.  Mortgage, Real estate, Assignment, Foreclosure.  Practice, Civil, Motion to dismiss.      At issue is whether a judge properly dismissed[2] the plaintiff’s claims[3] attacking the validity of a mortgage foreclosure to which Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569 (2012), does not apply.[4]  The plaintiff contends that the foreclosure was void because the mortgage was not validly assigned to OneWest Bank FSB (OneWest), the foreclosing mortgagee.  He argues that the assignment was invalid because (1) the assignor never held the underlying note, and (2) the assignment was not specifically authorized by the owner of the debt.[5]  We affirm.[6]   Background.[7]  The plaintiff (and another person who is not a party to this case) purchased the property at issue in April 2005.  In 2007, as part of a refinancing of the property, the plaintiff granted a mortgage to IndyMac Bank, FSB (IndyMac) to secure a loan in the amount of $ 281,600.  In pertinent part, the 2007 mortgage contained the following provisions.   The mortgage defines IndyMac, which is the owner of the debt, as the “Lender.”  The mortgage defines Mortgage Electronic Registration System, Inc. (MERS), as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns.  MERS is the mortgagee under this Security Instrument” (emphasis in original).   A section entitled “TRANSFER OF RIGHTS IN THE PROPERTY” provides that the mortgage secures both the repayment of the loan and the borrower’s performance of covenants and agreements to the Lender.  That section continues as follows:   “Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with power of sale . . . .   . . .   “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right:  to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing […]

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Posted by Massachusetts Legal Resources - February 18, 2015 at 10:48 pm

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