Opinion
14-P-1275
11-19-2015
SELECT PORTFOLIO SERVICING, INC. v. NANCY M. NEEDEL & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case was previously before this court. See Select Portfolio Servicing, Inc. v. Needel, 83 Mass. App. Ct. 1130 (2013) (SPS I). We remanded the case to the Land Court. The issue on remand was whether the mortgage loan to the defendant Needels was included in the pool of loans that U.S. Bank National Association (U.S. Bank) purchased from New Century Mortgage Association (New Century). (See SPS I for background facts concerning the note and mortgage.)
On remand, the Land Court judge found that the plaintiff Select Portfolio Servicing, Inc. (SPS), as U.S. Bank's agent, had "supplied adequate proof of U.S. Bank's ownership of the New Century [m]ortgage loan." In his decision, the Land Court judge noted that if the assignment had been executed in blank, as the Needels contended it had, it would be "invalid." The judge further stated that the fact that the "2002-HE1 Trust did not yet exist at the time of the execution of the Assignment is immaterial, as the parties easily could have entered the name of the trust on the Assignment with an eye toward the trust's formal institution two months later." The judge further found that SPS had proved that the relevant New Century mortgage loan was included in the loans pooled in the 2002-HE1 Trust. Judgment after remand entered in favor of SPS on May 14, 2014. The Needels filed a timely appeal to this court.
After the briefs had been filed in this court, the Supreme Judicial Court transferred the case to itself sua sponte on March 12, 2015. The next day, that court issued an announcement that it was soliciting amicus briefs on the issue "[w]hether an assignment of a mortgage loan to a trustee of a trust that does not yet exist, but that is formed thereafter, constitutes a valid assignment."
Before argument occurred at the Supreme Judicial Court, SPS notified that court that the assignment had been executed in blank, as the defendants had contended. In an order dated July 23, 2015, the Supreme Judicial Court stated, inter alia, that "[t]he changed posture of the case makes it uncertain whether the appellate court deciding the appeal will reach the issue whether an assignment of a mortgage loan to a trustee of a trust that does not yet exist, but that is formed thereafter, constitutes a valid assignment. We are not inclined to decide that issue unnecessarily." The order remanded the case to the Appeals Court and directed this court to either decide the appeal "in its current posture" or to remand it to the Land Court.
On remand to this court, both parties have made motions to remand the case to the Land Court. The parties have disagreed about the scope of the remand. The basic purpose of any remand would be to have the blank assignment introduced in evidence and to allow the fact finder the first opportunity to assess the importance of this evidence in this case.
Therefore, as both parties have moved for a remand, we remand this matter to the Land Court to reopen the case in order to allow the introduction of the blank assignment in evidence and to consider what, if any, impact that piece of evidence has on the case. If the Land Court judge determines that the introduction of the blank assignment necessitates the consideration of any other arguments or evidence, the Land Court judge, in his or her discretion, may consider those matters.
In view of this outcome, we consider it unnecessary to rule on the defendants' motion to supplement the record.
The judgment after remand that was entered on May 14, 2014, is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Cypher, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: November 19, 2015.