Opinion
15-P-1536
01-30-2017
Bruce NUTTING & another v. FEDERAL NATIONAL MORTGAGE ASSOCIATION & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment of the Land Court dismissing their petition to try title to certain property in Marshfield and entering judgment declaring that defendant Federal National Mortgage Association (FNMA) holds title to the property. We affirm, addressing the plaintiffs' various arguments in turn.
1. Consideration of plaintiffs' standing . There is no merit to the plaintiffs' contention that the motion judge erred in considering their standing to maintain a try title action, once he directed FNMA either to bring a separate try title action or file "an appropriate counterclaim." A claim of record title is an essential prerequisite to the plaintiffs' eligibility to maintain a try title action. See Bevilacqua v. Rodriguez , 460 Mass. 762, 767 (2011) ; Abate v. Fremont Inv. & Loan , 470 Mass. 821, 831 (2015). Though perhaps unusual, there is no inherent impediment to the initiation of a try title action by way of counterclaim; as the plaintiffs acknowledged at oral argument, had the defendant filed a separate try title action and the two cases had been consolidated, the case would have been in an identical posture. The plaintiffs' procedural argument is without merit, insofar as it challenges the judge's consideration of the plaintiffs' standing after FNMA brought an action to try its title.
We note that, contrary to the plaintiffs' contention in their brief, the judge did not enter a decree on the plaintiffs' try title claim, or order FNMA to bring an independent try title action (or file an appropriate counterclaim); instead the judge simply furnished FNMA an opportunity to avoid entry of judgment for the plaintiffs by pursuing one or the other avenue.
2. Burden of proof . We likewise discern no basis for relief in the plaintiffs' contention that the judge improperly shifted the burden of proof to them, on the question of the validity of the foreclosure and, consequently, the question of their record title and standing. As discussed in the following sections, on the record before the judge the essential facts supporting the validity of the foreclosure on the grounds of defect claimed by the plaintiffs were not in dispute.
Though the plaintiffs separately assert that it was improper for the judge to enter a declaratory judgment in favor of FNMA on the plaintiffs' motion to dismiss (which was countered by the defendants' cross motion to dismiss), the plaintiffs' brief mention of the claim on page nine of their brief does not rise to the level of acceptable appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In addition, we note that the plaintiffs and their counsel did not appear at the hearing on the motions, despite having notice of it.
3. Eaton . Contrary to the plaintiffs' contention, there is no basis to challenge the validity of the foreclosure on the ground that the defendant has not established that Nationstar Mortgage LLC was authorized to undertake it. Under Eaton v. Federal Natl. Mort. Assn ., 462 Mass. 569, 586 (2012), a valid foreclosure may be conducted by one who, "though not the note holder himself, acts as the authorized agent of the note holder, to stand ‘in the shoes' of the ‘mortgagee.’ " On the undisputed facts appearing in the record, FNMA acquired ownership of the beneficial interest in the loan on October 4, 2007, and, on or about September 12, 2012, authorized Nationstar to act on its behalf to initiate foreclosure against the plaintiffs. Accordingly, the foreclosure was not defective by reason of any failure by FNMA to establish that Nationstar acted with authority on behalf of the note holder.
Nothing of substance turns on the plaintiffs' observation that four copies of the note appeared to display minor deviations. It is undisputed that FNMA owned the beneficial interest in the loan at all relevant times.
4. Paragraph twenty-two of the mortgage . The plaintiffs separately contend that the October 18, 2010, "cure notice" sent to them did not comply with the requirements of par. twenty-two of the mortgage. We need not consider the argument; because the plaintiffs did not raise it in the Land Court, the argument is waived. See Carey v. New England Organ Bank , 446 Mass. 270, 285 (2006).
5. Section 35A . As the defendants observe, it is settled that a notice pursuant to G. L. c. 244, § 35A, may be sent by a mortgage loan servicer. See Haskins v. Deutsche Bank Natl. Trust Co ., 86 Mass. App. Ct. 632, 637-640 (2014). Accordingly, no defect in the foreclosure arises from the fact that Nationstar sent the § 35A notice in this case.
The plaintiffs assert no claim that the circumstances of this case raise a question of "fundamental unfairness," as contemplated by U.S. Bank Natl. Assn . v. Schumacher , 467 Mass. 421, 431-432 (2014) (Gants, J., concurring).
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6. Remaining issues . The plaintiffs' remaining claims may be addressed summarily. The plaintiffs' argument that the assignment of the mortgage from Mortgage Electronic Registration Systems, Inc. (MERS) to Nationstar is invalid ignores the well-established Massachusetts law that a note and/or the beneficial interest in the loan may be held separately from record title to the mortgage. See Sullivan v. Kondaur Capital Corp ., 85 Mass. App. Ct. 202, 209-210 (2014). Similarly, there was no error in the judge's ruling that, under the plain language of G. L. c. 183, § 6, an assignment of mortgage need not recite consideration. Finally, the judge correctly held that the signature on the mortgage assignment from MERS to Nationstar complied with the requirements of G. L. c. 183, § 54B, so that it is binding as against the plaintiffs.
Judgment affirmed .