EATON v. FANNIE MAE, GREEN TREE SVCING | MASS SUPERIOR COURT "Mortgagee NOT in Possession of the Note, MERS, IBANEZ, Prelim Injunction"


EATON v. FANNIE MAE, GREEN TREE SVCING | MASS SUPERIOR COURT “Mortgagee NOT in Possession of the Note, MERS, IBANEZ, Prelim. Injunction”

EATON v. FANNIE MAE, GREEN TREE SVCING | MASS SUPERIOR COURT “Mortgagee NOT in Possession of the Note, MERS, IBANEZ, Prelim. Injunction”

mortgagee without mortgage note holds “naked legal title” in trust


N0.-11 1381 E


vs .



The Defendants have produced a photocopy of the Note. It is endorsed in blank and does not bear an allonge indicating when it was endorsed or who held it at the time of the foreclosure. For the purposes of this motion only, Defendants stipulate that Green Tree did not hold the Note when the foreclosure occurred.


There is no inconsistency between this analysis and the recent decision in U.S.Bank National Association v. Ibanez, 458 Mass. 637 (2011). Ibanez restated common law of the Commonwealth to the effect that the assignment of a mortgage must be effective before foreclosure in order to be valid. In Ibanez, it was undisputed that the foreclosing entities were the note holders. The plaintiffs argued that, as note holders, they had a sufficient financial interest to foreclose. Not so, said the Court; as note holders separated from the mortgage due to a lack of effective assignment, they had only a beneficial interest in the mortgage note. The Court held that the power of sale statute, by its terms, granted that authority to the mortgagee, not to the owner of the beneficial interest.2 The SJC did not address the authority of the assignee of the mortgage not in possession of the note to foreclose.


In finding that Eaton is likely to succeed on her claim, the court is cognizant of sound reason that would have historically supported the common law rule requiring the unification of the promissory note and the mortgage note in the foreclosing entity prior to foreclosure. Allowing foreclosure by a mortgagee not in possession of the mortgage note is potentially unfair to the mortgagor. A holder in due course of the promissory note could seek to recover against the mortgagor, thus exposing her to double liability. See 5- Star Mgmt., Inc. v. Rogers, 940 F. Supp. 512, 520 (D. E.D.N.Y. 1996); Cf. Cooperstein v. Bogas, 317 Mass. 341, 344 (1944) (noting that allowing a creditor ofthe mortgagee to reach and apply the interest of the debtor in the mortgage itself would “leav[ e] the note outstanding as a valid obligation of the mortgagor to the holder of the note who might possibly be a person other than the mortgagee.”).


For the reasons set forth above, Eaton’s motion for preliminary injunction is ALLOWED. Fannie Mae is hereby enjoined until further order of this court from proceeding with its previously commenced summary process action Housing Court Docket 2010-2010-SP-0379 with respect to Eaton’s residence at 141 Deforest Street, Roslindale, Massachusetts, or from interfering with the Eaton’s possession and enjoyment thereof. 9


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