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14-P-1156                                              Appeals Court

    WELLS FARGO BANK, N.A., trustee,1       vs.   IAN B. ANDERSON.


                              No. 14-P-1156.

            Bristol.      September 8, 2015. - May 11, 2016.

            Present:   Kafker, C.J., Trainor, & Massing, JJ.


Mortgage, Assignment, Foreclosure. Real Property, Mortgage.
     Assignment. Practice, Civil, Standing, Summary judgment,
     Summary process. Summary Process.



     Summary process. Complaint filed in the Attleboro Division
of the District Court Department on September 1, 2011.

     After transfer to the Southeastern Division of the Housing
Court Department, the case was heard by Anne Kenney Chaplin, J.,
on motions for summary judgment.


    Thomas B. Vawter for the defendant.
    David A. Marsocci for the plaintiff.


    TRAINOR, J.        The defendant, Ian B. Anderson, former

homeowner of property located in Norton and holdover in

possession after the bank foreclosed, appeals from a Housing

    1
       Of the Securitized Asset-Backed Receivables, LLC Trust
2006-OP1, Mortgage Pass-Through Certificates, Series 2006-OP1.
                                                                       2


Court judgment granting possession of his former home to

plaintiff Wells Fargo Bank, N.A. (bank).    Anderson argues that

the judge erroneously granted summary judgment to the bank.       He

argues that the judge incorrectly interpreted G. L. c. 183,

§ 54B, by allowing the bank to rely on certain documents without

the need to further substantiate their validity, and that the

judge's interpretation of G. L. c. 183, § 54B, violated his due

process rights.

    Facts.     The following facts are undisputed and are taken

from the judge's memorandum of decision on the parties' cross

motions for summary judgment and the summary judgment record.

    On June 20, 2005, Anderson executed a promissory note and a

mortgage in favor of Option One Mortgage Corporation (Option

One) using the property as collateral.    The mortgage was

recorded in the Bristol County registry of deeds, northern

district (Bristol registry).

    On January 2, 2009, Option One assigned Anderson's mortgage

to the bank.    The assignment of mortgage was recorded in the

Bristol registry and included an effective date of August 14,

2007.

    On October 15, 2010, Sand Canyon Corporation (Sand Canyon),

formerly known as Option One, assigned Anderson's mortgage to

the bank.   The assignment of mortgage was recorded in the

Bristol registry.
                                                                    3


    After a default by Anderson, the bank through its loan

servicer, American Home Mortgage Servicing, Inc., initiated an

action in the Land Court on October 25, 2010 under the

Servicemembers Civil Relief Act.    Judgment entered in favor of

the bank and it proceeded with the sale of the property in

accordance with the mortgage.    On May 5, 2011, the bank was the

highest bidder at the foreclosure auction.    On August 13, 2011,

a foreclosure deed and affidavit of sale detailing the actions

taken by the bank were recorded at the Bristol registry.

    Anderson continued to occupy the premises after the

foreclosure sale.

    Discussion.     Anderson argues that both the Option One

assignment and the Sand Canyon assignment were void because the

Option One assignment was allegedly "robo-signed" and Sand

Canyon had no interest to assign.    Anderson argues further that

he was denied his due process rights because the judge denied

his discovery requests, regarding the validity of the documents

effecting the assignment, based on an erroneous interpretation

of G. L. c. 183, § 54B.

    1.   General Laws c. 183, § 54B.    Anderson argues that the

judge's interpretation of G. L. c. 183, § 54B, as outlined in

her order on the bank's motion in limine regarding that statute,

was legally incorrect and denied him his due process rights.

Anderson is partially correct, but the judge's error did not
                                                                   4


cause him prejudice and did not deprive him of any rights to

which he was otherwise entitled.

     The judge held, and the bank argues on appeal, "that the

provisions of G. L. c. 183, § 54B allow the [bank] to rely upon

. . . documents[, which include the assignment of mortgage,

foreclosure deed, and affidavit of sale,] . . . without the need

to further substantiate their validity."2   This is incorrect,

however, because "such instruments shall bind the entity


     2
       General Laws c. 183, § 54B, as appearing in St. 2010,
c. 282, § 2, provides: "Notwithstanding any law to the
contrary, (1) a discharge of mortgage; (2) a release, partial
release or assignment of mortgage; (3) an instrument of
subordination, non-disturbance, recognition, or attornment by
the holder of a mortgage; (4) any instrument for the purpose of
foreclosing a mortgage and conveying the title resulting
therefrom, including but not limited to notices, deeds,
affidavits, certificates, votes, assignments of bids,
confirmatory instruments and agreements of sale; or (5) a power
of attorney given for that purpose or for the purpose of
servicing a mortgage, and in either case, any instrument
executed by the attorney-in-fact pursuant to such power, if
executed before a notary public, justice of the peace or other
officer entitled by law to acknowledge instruments, whether
executed within or without the commonwealth, by a person
purporting to hold the position of president, vice president,
treasurer, clerk, secretary, cashier, loan representative,
principal, investment, mortgage or other officer, agent, asset
manager, or other similar office or position, including
assistant to any such office or position, of the entity holding
such mortgage, or otherwise purporting to be an authorized
signatory for such entity, or acting under such power of
attorney on behalf of such entity, acting in its own capacity or
as a general partner or co-venturer of the entity holding such
mortgage, shall be binding upon such entity and shall be
entitled to be recorded, and no vote of the entity affirming
such authority shall be required to permit recording" (emphasis
added).
                                                                    5


assigning . . . the mortgage," if it complies with the

procedural requirements of § 54B, "without need of any vote

affirming such authority or further evidence of [the

signatory's] status as such an officer" (emphasis added).

Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 212

(2014).3   The statute binds only the entity making and recording

the assignment, if such action has been made in compliance with

its provisions.    The statute does not bind any other party that

has standing to contest the validity of the assignment.

     2.    Standing.   Anderson relies on Culhane v. Aurora Loan

Servs. of Nebraska, 708 F.3d 282 (1st Cir. 2013), in arguing

that he has standing to challenge the Option One assignment and

the Sand Canyon assignment.    That court held that "in

Massachusetts, a mortgagor has a legally cognizable right to

challenge a foreclosing entity's status qua mortgagee.     This

may, in certain instances, require challenging the validity of

an assignment that purports to transfer the mortgage to a

successor mortgagee."    Id at 291.   Anderson omitted, however,

the court's explicit and very limited application of standing

when it explained further that "a mortgagor has standing to

     3
       Compare Haskins v. Deutsche Bank Natl. Trust Co., 86 Mass.
App. Ct. 632, 642 (2014) (Dicta summarily stating that "[the
mortgagor's] challenge to the validity of the signatures on the
mortgage assignment is precluded by the provisions of G. L.
c. 183, § 54B"). The bank cites to this case as dispositive
authority.
                                                                     6


challenge a mortgage assignment as invalid, ineffective, or void

. . . .    If successful, a challenge of this sort would be

sufficient to refute an assignee's status qua mortgagee . . . .

[A] mortgagor does not have standing to challenge shortcomings

in an assignment that render it merely voidable at the election

of one party but otherwise effective to pass legal title."

Ibid.

     We must determine here whether Anderson's claims would

render the assignments void and therefore render "[a]ny effort

to foreclose by a party lacking 'jurisdiction and authority' to

carry out a foreclosure under [our] statutes [as] void."      U.S.

Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 647 (2011).

     The bank maintains, and we agree, that either the Option

One assignment or the Sand Canyon assignment4 transferred the

mortgage to the entity that ultimately foreclosed, the bank.

"[W]here the foreclosing entity has established that it validly

holds the mortgage, a mortgagor in default has no legally

cognizable stake in whether there otherwise might be latent

defects in the assignment process."    Bank of N.Y. Mellon Corp.

v. Wain, 85 Mass. App. Ct. 498, 502 (2014).

     3.    Assignments and Foreclosure.   Anderson argues that the

Option One assignment was defective because of alleged


     4
         Likely a confirmatory instrument.
                                                                    7


irregularities ("robo-signing") in that assignment.     Anderson,

however, does not contest the fact that Option One held the

mortgage.   The Option One assignment to the bank followed and

complied with all the statutory requirements of G. L. c. 183,

§ 54B, and Option One was bound by that assignment for all

purposes.   The assignment was not void and any potential defect

could have been pursued by a party with standing (e.g., the

bank).   Since Option One held the mortgage and its assignment

followed the requirements of the statute, the assignment was not

void and Anderson had neither standing to challenge it nor to

seek further discovery regarding the validity of the documents

effecting the assignment.

    Anderson also argues that the Sand Canyon assignment was

void because at the time of the assignment it did not own any

residential mortgages.   This however is a circular argument

because if the Option One assignment failed for any reason, Sand

Canyon would have still owned the residential mortgage at issue.

This assignment was therefore confirmatory in nature.    If the

Option One assignment had been successful, the Sand Canyon

assignment was superfluous and harmless.   Either way the bank

had been properly assigned the mortgage.

    The judge correctly found that the mortgage assignments

followed the requirements of G. L. c. 183, § 54B, and that the

bank properly exercised the statutory power of sale, based on
                                                                    8


the affidavit of sale.   See G. L. c. 183, §§ 21, 54B; G. L.

c. 244, §§ 14, 15.

     Conclusion.   The judge correctly determined that both the

Option One assignment and the Sand Canyon assignment, as well as

the foreclosure deed and the affidavit of sale, were executed by

individuals holding offices of the types required by G. L.

c. 183, § 54B, and that all of those documents were notarized.

Option One and Sand Canyon were therefore bound conclusively by

the recorded assignments.   The assignments may have been

theoretically voidable by a party of interest and having

standing but they were not void.   Since the assignments were not

void, Anderson had no standing to contest their validity and had

no right to discovery beyond what was recorded pursuant to the

statute.5

                                    Judgment affirmed.




     5
       The bank's request for appellate attorney's fees and
double costs is denied.
