Sullivan, et al. v. Kondaur Capital Corporation (Lawyers Weekly No. 11-039-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13‑P‑706 Appeals Court JOSEPH L. SULLIVAN & another[1] vs. KONDAUR CAPITAL CORPORATION. No. 13‑P‑706. Suffolk. February 4, 2014. ‑ April 16, 2014. Present: Kafker, Green, & Sullivan, JJ. Mortgage, Assignment, Foreclosure. Practice, Civil, Motion to dismiss, Standing. Real Property, Mortgage, Registered land, Certificate of title. Assignment. Agency, Scope of authority or employment. Corporation, Officers and agents. Land Court. Civil action commenced in the Superior Court Department on March 8, 2010. After transfer to the Land Court Department, a motion to dismiss was heard by Harry M. Grossman, J. Rockwell P. Ludden for the plaintiffs. David M. Rosen for the defendant. GREEN, J. In this appeal, the plaintiffs, Joseph L. and Mary R. Sullivan (Sullivans), challenge the title of the defendant, Kondaur Capital Corporation (Kondaur), to the Sullivans’ former residence, based on their contention that Kondaur did not hold a valid interest in the mortgage it foreclosed on the property in October, 2009. A judge of the Land Court allowed Kondaur’s motion to dismiss the Sullivans’ amended verified complaint, and thereafter denied (on grounds of futility) the Sullivans’ motion to further amend their complaint. Though several of the Sullivans’ challenges are without merit, we conclude that the complaint sufficiently stated a claim that Kondaur’s title to the mortgage was defective at the time of the foreclosure, and reverse the judgment. Background. We draw the following factual background from the allegations in the Sullivans’ verified amended complaint. On or about August 16, 2004, the Sullivans acquired title to property located at 98 Wild Hunter Road in Dennis (property). The property is registered land, and upon registration of the deed conveying the property to them, certificate of title no. 174074 issued in their names, evidencing their title. On January 11, 2006, the Sullivans executed a mortgage (mortgage), conveying the property to Mortgage Electronic Registration Systems, Inc. (MERS), “solely as nominee for [WMC Mortgage Corp. (WMC)] and [WMC’s] successors and assigns,” to secure payment of a promissory note the Sullivans executed in favor of WMC. The mortgage thereafter was duly filed for registration with the Barnstable registry district of the Land Court. By instrument dated May 21, 2008 (first assignment), MERS purported to assign the mortgage to Saxon Mortgage Services, Inc. (Saxon). Thereafter, by instrument dated February 12, 2009 (second assignment), Saxon […]