U.S. Bank National Association v. Bear Stearns Residential Mortgage Corporation

• Court: Superior Court of Maine
• Decided: January 30, 2017
• Docket: CUMre-16-060
• Status: Unpublished

Opinion

ST ATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. RE-16-060 ~ U.S. BANK TRUST, N.A., AS TRUSTEE SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION AS TRUSTEE AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CERTIFICATE HOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES I LLC, ASSET­ BACKED CERTIFICATES, SERIES 2007-HE6,

Plaintiff

V. JUDGMENT

BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION,

Defendant

and STATE OF MAlNE. MORTGAGE ELECTRONIC REGISTRATION Cumberland.s~. Clerk's Offic& SYSTEMS, INC., AS NOMINEE FOR BEAR JAN 31 2011 ST.EARNS RESIDENTIAL MORTGAGE CORPORATION and LAUREN M. THOMAS, RECEIVED Parties in Interest

Background

By order filed on September 13, 2016, the court denied plaintiff's "motion for

quiet title and declaratory default judgment and judgment on the pleadings." 1 The court

1 A quiet title action is not an appropriate cause of action for the relief plaintiff seeks. See 14 M.R.S. § 6651 (2016) (authorizing a "person in possession" of real property or a "person who has conveyed such property" to bring quiet title action); U .S. Bank. N.A. v. Decision One Mortg . Co., 2016 Me. Super. LEXIS 173, at *6 (July 26, 2016) ("Quiet title actions are vehicles to confirm legal title to teal estate, not to adjudicate ownership interests in a mortgage, which secures the right to payment under the note instrument."); Levis v. Konitzky, 2016 ME 167, ~ 24,

1 scheduled the case for trial pursuant to M.R. Civ. P. 55(b)(2). Jury-waived trial was held

on plaintiff's complaint for declaratory judgment.

Plaintiff presented the original promissory note, dated May 18, 2007 and executed

by defendant and party in interest Thomas. The note was endorsed to EMC Mortgage

Corporatism by defendant and in blank by EMC Mortgage Corporation. Plaintiff also

presented certified copies of the mortgage dated May 18, 2007 and executed by defendant

and party in interest Thomas and an assignment of the mortgage dated February 28, 2012

from party in interest Mortgage Electronic Registration Systems, Inc. (MERS), as

nominee for defendant, to plaintiff. The mortgage in this case contains the same

language regarding MERS as the Law Court discussed in Greenleaf. See Bank of Am. v.

Greenleaf, 2014 ME 89, ! 13, 96 A.3d 700.

Plaintiff's witness, a representative from Select Portfolio Servicing, Inc. (SPS),

testified that he reviewed and is familiar with the records with regard to this loan, for

which the servicing rights were transferred to SPS in November 2013. Plaintiff did not

qualify the witness to testify about the records of the various entities involved in this

transaction. M.R. Evict. 803(6); Beneficial Me. Inc. v. Carter, 2011 ME 77, !! 13-14, 25

A.3d 96. The witness testified that the records indicate that plaintiff is the owner of the

note and mortgage, and there is no indication that anyone else is the owner. He relied on

a pooling and servicing agreement for these conclusions. The agreement was not offered

_ A.3d _ ("[R]elief pursuant to the quiet title statute is only available if the plaintiff in such an action provides the legal basis for that title. The statute does not provide an independent basis for a claim of title.").

2 m evidence and not explained in any detail, but apparently identifies this loan. He

testified further that defendant is no longer authorized to do business in Maine.

Declaratory Judgment

Plaintiff seeks an order of the transfer of the mortgage and all rights contained

therein, including ownership, to the plaintiff and a declaration that plaintiff is the owner

of the mortgage. (Pl.'s Comp!. 4-5.) Maine's Declaratory Judgments Act empowers the

court to "declare rights, status and other legal relations" when doing so will "terminate

the controversy or remove an uncertainty." 14 M.R.S. §§ 5953, 5957 (2016). First, it is

unclear whether there is a controversy "between the litigants." Berry v. Daigle, 322 A.2d

320, 325 (Me. 1974); (Order filed 9/13/16 2.)

Further, in Greenleaf, the Law Court concluded that the language in the mortgage

granted MERS the right only to record the mortgage; MERS did not qualify as a

mortgagee. Greenleaf, 2014 ME 89, ! 14, 96 A.3d 700. The Law Court noted there was

no other "evidence in the record purporting to demonstrate that MERS acquired any

authority with respect to Greenleaf' s mortgage by any means other than that defined in

the mortgage itself." Id.! 15. There is no such other evidence in this case with regard to

MERS.

Accordingly, as in Greenleaf, plaintiff here received in the assignment only what

MERS possessed and has not proved it has the requisite interest in the mortgage to

establish standing. Id.,, 16, 34; (Order filed 9/13/16 2). On this record, there is no basis

on which the court can order the transfer of the mortgage and all rights contained therein,

including ownership, to the plaintiff and to find plaintiff is the owner of the mortgage, as

plaintiff requests.

3 The entry is

Plaintiff's Complaint for Declaratory Judgment is DISMISSED · without Prejudice.

Date: January 30, 2017

CUMB RE-16-060

4 ERK OF COURT.S Jmberland- County Jury Street, Ground Floor :kt/and, ME 04101

JOHN DOONAN ESQ f DOONAN GRAVES & LONGORIA 100 CUMMINGS CENTER, STE 225 D BEVERLY MA.01915

I I I I

I I \ \ I STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION Docket No. RE-16-060 J STATE OF MAII\IE U.S. BANK NATIONAL Cumberliw:i 'ls Clerk's Office ASSOCIATION, SEP 13 2016 Plaintiff

V. RECEIVED DECISION AND ORDER

Before the court is plaintiff U.S. Bank National Association's motion for a default

judgment and judgment on the pleadings in its declaratory judgment action against

defendant Bear Stearns Residential Mortgage Corporation. Mortgage Electronic

Registration Systems, Inc. (MERS) and Lauren Thomas, the mortgagor, are parties-in­

interest. For the following reasons, plaintiff's motion is denied.

FACTS

On May 18, 2007, Ms. Thomas executed and delivered to defendant a promissory

note in the amount of $243,000.00. (Pl.'s Compl. 9I 8; Pl.'s Ex. B.) To secure the note, Ms.

Thomas executed a mortgage deed on property located at 9 Monroe Drive in Naples.

(Pl.'s Compl. 9I 10; Pl.'s Ex. C.) The mortgage was in favor of MERS as nominee for

defendant. (Pl.'s Compl. 9I 10.) MERS purported to assign the mortgage to plaintiff on

February 28, 2012. (Id. 9I 12; Pl.'s Ex. D.)

Plaintiff filed this declaratory judgment action on March 1, 2016. Plaintiff seeks a

confirmatory nunc pro tune order, an "effective reaffirmation" of the assignment from

MERS to plaintiff, and a finding that plaintiff is the owner of both the note and the

1 mortgage. (Pl.'s Compl. 9116.) Defendant and MERS were served with the complaint on

March 3, 2016. Ms. Thomas was served on April 14, 2016. None of the parties answered

the complaint. Plaintiff filed its motion for a default judgment and judgment on the

pleadings on June 29, 2016. None of the parties responded to plaintiff's motion.

DISCUSSION

Maine's Declaratory Judgments Act empowers the court to "declare rights, status

and other legal relations" when doing so will "terminate the controversy or remove an

uncertainty." 14 M.R.S. §§ 5953, 5957 (2015). First, it is unclear whether there is a

controversy "between the litigants." Berry v. Daigk, 322 A.2d 320, 325 (Me. 1974).

Further, plaintiff has not established that it has standing to bring this action. The

mortgage was purportedly assigned to plaintiff by MERS as nominee for defendant,

and plaintiff has not offered "evidence of any independent assignment." See Bank of

Am., .A. v. Greenleaf, 2014 ME 89, 9191 16-17, 96 A.3d 700. Plaintiff's standing is

therefore unclear, regardless of whether this action is characterized as one for

foreclosure or declaratory judgment. See kl; Berry, 322 A.2d at 325-26; (Pl.'s Mem. in

Support of Mot. Default J. and J. Pleadings 4.)

Finally, especially in matters involving mortgage foreclosure, procedural rules

must be followed. See JPMorgan Chase Bank v. Harp, 2011 ME 5, 9[ 15, 10 A.3d 718.

Rule 55(b )(2) authorizes the court to conduct a hearing the court deems necessary and

proper "to establish the truth of any averment by evidence." M.R. Civ. P. 55(b)(2).

CONCLUSION

Plaintiff has not shown that it has standing to bring this action. A hearing is

necessary to establish the truth of plaintiff's averments. M.R. Civ. P. 55(b )(2).

2 T'he entry is

Plaintiff's Motion for a Default Judgment artd Judgment on the Pleadings is DENIED.

Date: September 12, 2016 ancy Mills Justice, Superi

CUMB-RE-16-060