Massachusetts SJC, May Determine Validity of MERS Under Mass Law

I currently have a matter pending before the Massachusetts Supreme Judicial Court, in Galiastro v. MERS, SJC-11299..

The Docket, and briefs for this case can be found here

http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-11299

Video of the oral argument can be found here

http://www2.suffolk.edu/sjc/archive/2013/SJC_11299.html

In Eaton v. Fed Nat’l Mortgage Ass’,n 462 Mass. 569 (2012), The Massachusetts Supreme Judicial Court made references to MERS in the footnotes of the opinion, and specifically at n. 29, that;it is currently unclear as to what the meaning of the term “nominee” means in the mortgage context, and only that it may relate to agency, but left that specific question open to Henrietta Eaton on Remand back to the Suffolk County Superior Court..

http://masscases.com/cases/sjc/462/462mass569.html

Due to the fact that Eaton never advanced any direct argumentation regarding MERS, and/or the validity of its business model under the peculiar requirements of Massachusetts law, the SJC was left to only make references to this entity in the footnotes of the opinion.Galiastro v MERS, picks up where Eaton left off, in that theGaliastro pleadings have specifically challenged the legal validity of MERS itself, and its business model, under Massachusetts law.

Galiastro involves a situation whereby MERS was attempting to foreclose in its own name, through a March 01, 2010 publication of the mandatory Notice of sale to comply with the Massachusetts non-judicial foreclosure construct of G.L. c. 244 Section 14. MERS was named as the autonomous mortgagee, and as such claimed all rights attendant to one who “holds” a mortgage under statute.

I challenged the attempted foreclosure by MERS in the Worcester Superior Court, by filing a Motion for Preliminary Injunction, Memorandum of Law In Support, along with an underlying verified complaint.

I also uncovered the fact that it appears as though Harmon Law Offices, P.C. may have violated the Restrictions placed upon foreclosing upon mortgage loans originated by Fremont Investment &; Loan, in that under the ruling by the Massachusetts Supreme Judicial Court in; Commonwealth of Mass. v. FremontInvestment & Loan; 452 Mass. 733 (2008); http://masscases.com/cases/sjc/452/452mass733.html The SJC affirmed that any entity seeking to foreclose upon a Fremont originated loan, must first contact the Office of the Attorney General.

Harmon Law Offices, P.C. is also currently under a Civil Investigative Demand (“CID”) by the Massachusetts Office of the Arrorney General, who is inquiring whether in fact Harmon was violating this restriction. Harmon subsequently brought suit against the Attorney General’s Office, to prevent disclosure of documents related to this issue (as well as potential violations associated with evictions). In June of 2013, the Massachusetts Appeals Court upheld the Superior Court ruling against Harmon, requiring Harmon to turn over all documents related to these issues to the Attorney General under the CID;, in Harmon Law Offices, P.C. v. Attorney General 83 Mass. App. Ct. 830 (2013)

http://masscases.com/cases/app/83/83massappct830.html

The Worcester Superior Court Judge denied my request for a Preliminary Injunction, and further dismissed the Galiastros’; verified complaint based ;”solely upon the reasoning set forth in the Defendants Opposition”.

On February 24, 2011, I filed a timely appeal with the Massachusetts Appeals Court

http://www.ma-appellatecourts.org/display_docket.php?dno=2011-P-0312

After being on the Appeals Court docket for7 months, and after the Galiastros had paid me to draft, print, bind and deliver, the 22 copies of brief and appendix, to the Court , a purported “assignment” was thereafter created purporting that MERS “assigned”; the Galiastro mortgage to Deutsche Bank National Trust Company as Trustee for the Fremont Home Loan Trust Series 2006-3, who immediately pubished a new and “improved” foreclosure auction notice of sale.

I thereafter sought to enjoin the new sale at the Appeals Court, which was not granted, and subsequent to new hearings before the Worcester Superior Court, the auction took place, whereby ;the new and improved foreclosing entity now sought to evict the Galiasros (all the while the current appeal remained alive).

The Galiastro appeal was stayed until the outcome of Eaton, and once Eaton was decided, both Harmon and MERS indicated their availability for oral argument inSeptember of 2012 Instead of indicating my own availability for oral argument, I submitted an application to the SJC for Direct Appellate Review

http://www.ma-appellatecourts.org/display_docket.php?dno=DAR-20960

MERS and Harmon now claimed that any appeal by the Galiastros was “moot”; as MERS no longer “owned”the Galiastro mortgage. This Motion to Moot was also renewed on the SJC Docket by MERS, whereby MERS has now brought in its top counsel in Morgan Lewis, and in particular admitted Robert Brochin pro hac vice to argue this case before the SJC. Mr. Brochin usually only is brought in to defend MERS “where the company is on the line“.. A quick Google search regarding Mr Brochin will reveal that he has routinely defended MERS top officers in depositions, and at trial.

The Justices have also asked for briefing as to whether the “prospective” application of the Eaton Ruling would be in applicable to cases that were concurrently on Appeal (such as Galiastro) while the Eaton matter was pending.

Therefore the Galiastro matter before the Supreme Judicial Court, has the potential to 1) determine the legal validity of MERS to act as an autonomous “mortgagee”; without having possession of the Galiastro Note, and 2) whether such consideration is applicable under the prospective mandate of Eaton for a case on appeal (where this matter was specifically stayed whileEaton was heard and decided, as this appeal was filed before Eaton);

Additionally, the potential for review lies as to whether a purported subsequent “assignment”; by MERS autonomously would be legally effective to transfer the legal title to the Galiastro real property to the Fremont Common law Trust, that Deutsche Bank purports to have acted as Trustee for, as Massachusetts is a “title theory”; jurisdiction.

This case MAY have widespread national implications as to precisely what MERS is and what it really purports to do. I will follow up with updates regarding this very important case, which in some respects is far more important than another matter I had before the Mass SJC back in 2011, in U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011) http://masscases.com/cases/sjc/458/458mass637.html

SJC-11299