Mortgages – Foreclosure – Assignment

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Where a mortgage clearly named the mortgagee, giving it the power to assign the mortgage to the defendant banks, the plaintiff has not shown a likelihood of success on his claim that the defendants lacked the authority to foreclose on his home.

Accordingly, the plaintiff’s motion for a preliminary injunction will be denied.

“The plaintiff contends that the defendants have failed to comply with the requirements for a statutory foreclosure under G.L.c. 244, section14 because [Mortgage Electronic Registration Systems, Inc. (MERS)] had no authority to assign the mortgage to the defendants. The plaintiff argues that the mortgage names Monument as the lender and only the lender has the right to enforce the power of sale, while MERS is the nominee for Monument and has no independent claim to the title. The plaintiff argues that the definition of ‘nominee’ is unclear in the mortgage context, and MERS cannot be considered a mortgagee under Massachusetts law.

“The plaintiff suggests that this court should follow the decision in Farmer v. Federal Nat’l Mortgage Ass’n, 31 Mass. L. Rptr. 204, 2013 WL 1976240 (Mass. Super. 2013), in which the court (Fahey, J.) found ‘that MERS can only act in its nominee capacity when it acts as the agent of [the lender].’ … The court in Farmer based its decision on the ‘limited appellate case law in Massachusetts,’ while noting that other courts, including other Superior Court judges and the Court of Appeals for the First Circuit … have found otherwise. … The plaintiff argues that under Farmer, MERS must provide evidence as to who instructed MERS to execute the assignment and whether that party is a member of MERS.

“Since the Farmer decision, the Appeals Court has rejected the argument that ‘any assignment by MERS to another entity is invalid unless supported by evidence of authorization of that assignment by the owner of the debt.’ …The Appeals Court held that it was irrelevant whether the lender and original note holder held any ownership interest in the note or the mortgage because MERS held the record -legal interest in the mortgage at the time of the assignment. …

“Here, the mortgage clearly named MERS as the mortgagee, and as owner of the mortgage, MERS had the power to assign the mortgage to the defendants. … Therefore, the plaintiff has not shown that the defendants lack the authority to foreclose and have failed to comply with G.L.c. 244, section14. Because the court finds that the plaintiff has not shown a likelihood of success on the merits, the plaintiff’s motion for a preliminary injunction will be denied.”

Jeevanandam v. Santander Bank, N.A., et al. (Lawyers Weekly No. 12-141-14) (4 pages) (Miller, J.) (Middlesex Superior Court) Glenn F. Russell Jr. for the plaintiff; Nathalie Salomon, of Harmon Law Offices, for defendant Santander Bank (Docket No. 14-8234) (Nov. 24, 2014).