SUPREME JUDICIAL COURT
for the Commonwealth
Case Docket
FRANCIS J. BEVILACQUA, III vs. PABLO RODRIGUEZ
SJC-10880

BRIEF OF THE ATTORNEY GENERAL ON BEHALF OF THE
COMMONWEALTH OF MASSACHUSETTS, AMICUS CURIAE

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EXCERPT:

Statement of the Relevant Facts

The relevant facts are set Forth in the Land Court’s Memorandum and Order dismissing plaintiff’s petition [A24-28] and in the plaintiff’s Petition to Compel Adverse Claimant to Try Title [A3-51.

On March 18, 2005, respondent Pablo Rodriguez granted a mortgage securing 126-128 Summer Street, Haverhill, Massachusetts (the “Property”) to Mortgage Electronic Registration Systems, Inc. (”MERS”) , as nominee for Finance America, LLC. [A41 In or around April 2006, U.S. Bank, N.A. (“U.S. Bank”) initiated foreclosure proceedings without first obtaining a valid, written assignment of the mortgage from Finance America, LLC or its nominee, MERS. [A41 Indeed it was not until after the foreclosure sale, on July 21, 2006 that MERS assigned the mortgage to U . S . Bank. -Id. On October 17, 2006, Mr. Bevilacqua acquired a quitclaim deed from U.S. Bank. [A3-A41]

Argument

This case exemplifies the continuing harms caused by the securitization of mortgage loans and a secondary mortgage market that ignored state law in an effort to sell and resell mortgages and securities backed by mortgages. As this Court so recently observed in U.S. Bank, N.A. v. Ibanez, 458 Mass. 637 (2011), some participants in the secondary mortgage market ignored Long standing requirements of Massachusetts law concerning when and how a mortgage holder may exercise its right to foreclose, resulting in numerous invalid foreclosures. In this case, because U.S. Bank did not hold a valid assignment of the mortgage at the time it initiated foreclosure proceedings, it failed to acquire title through the foreclosure deed. Thus, U.S. Bank’s subsequent conveyance of the Property by quitclaim deed in favor of Mr. Bevilacqua failed to transfer title to the Property to Mr. Bevilacqua. Accordingly, Mr. Bevilacqua has no claim to title to the Property.

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