Dyer v. Wells Fargo Bank, N.A., 041720 FED1, 15-2421

Docket Nº:15-2421
Opinion Judge:PER CURIAM.
Party Name:EDYTHE DYER, Plaintiff, Appellant, v. WELLS FARGO BANK, N.A., d/b/a America's Servicing Company; U.S. BANK, N.A., as Trustee for CSFB Mortgage-Backed Pass-Through Certificates, Series 2005-2, Defendants, Appellees.
Attorney:Glenn F. Russell, Jr., with whom Glenn F. Russell Jr., & Associates, P.C. was on brief, for appellant. David E. Fialkow, with whom Jeffrey S. Patterson, Michael R. Stanley, and K&L Gates LLP were on brief, for appellees.
Judge Panel:Before Howard, Chief Judge, Lipez and Thompson, Circuit Judges.
Case Date:April 17, 2020
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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EDYTHE DYER, Plaintiff, Appellant,

v.

WELLS FARGO BANK, N.A., d/b/a America's Servicing Company; U.S. BANK, N.A., as Trustee for CSFB Mortgage-Backed Pass-Through Certificates, Series 2005-2, Defendants, Appellees.

No. 15-2421

United States Court of Appeals, First Circuit

April 17, 2020

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. M. Page Kelley, U.S. Magistrate Judge

Glenn F. Russell, Jr., with whom Glenn F. Russell Jr., & Associates, P.C. was on brief, for appellant.

David E. Fialkow, with whom Jeffrey S. Patterson, Michael R. Stanley, and K&L Gates LLP were on brief, for appellees.

Before Howard, Chief Judge, Lipez and Thompson, Circuit Judges.

PER CURIAM. 1

The plaintiff, Edythe Dyer, brought this suit against U.S. Bank, N.A. ("U.S. Bank") and Wells Fargo Bank, N.A. ("Wells Fargo"), arising out of a foreclosure sale on her property. The suit was dismissed, and we now affirm.

I.

In 2004, Dyer executed a promissory note to Dreamhouse Mortgage Corporation ("Dreamhouse") and granted a mortgage on her property at 41 Commonwealth Avenue, Unit #9, in Boston, Massachusetts (the "Property"). She granted the mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS") as the "nominee" for Dreamhouse and its successors and assigns. In 2008, MERS executed a document entitled "Assignment of Mortgage," which transferred the mortgage to U.S. Bank, as trustee. The document was recorded with the Registry of Deeds for Suffolk County, Massachusetts. MERS also executed an assignment of the mortgage to U.S. Bank in 2011. In 2012, MERS published a "Confirmatory Assignment" confirming the 2008 assignment. That document explained that the 2011 assignment was a nullity because, in 2011, MERS did not have standing to assign the mortgage, given that it had already transferred the mortgage to U.S. Bank in 2008. In 2013, Wells Fargo, U.S. Bank's servicer of the loan, recorded an affidavit in the registry of deeds attesting that, as of that time, U.S. Bank held the note secured by Dyer's mortgage.

In April 2015, U.S. Bank notified Dyer that it intended to foreclose on the Property by utilizing the statutory power of sale granted in Massachusetts General Laws Chapter 183, § 21. That provision permits a proper party to execute a foreclosure sale without prior judicial authorization. See Eaton v. Fed. Nat'l Mortg. Ass'n, 969 N.E.2d 1118, 1127 (Mass. 2012). The requirements for exercising that statutory power of sale are laid out in Massachusetts General Laws Chapter 244, § 14. See Fed. Nat'l Mortg. Ass'n v. Rego, 50 N.E.3d 419, 422-23 (Mass. 2016).

Dyer filed suit against U.S. Bank and Wells Fargo in Massachusetts state court in May 2015. She sought a declaratory judgment that U.S. Bank is not a proper party to utilize the statutory power of sale, and she also sought damages against U.S. Bank for slander of title based on that same allegation. In her claim against Wells Fargo, the servicer of the loan, Dyer sought damages under Massachusetts's catch-all consumer protection statute, Massachusetts General Laws Chapter 93A.

The defendants removed the case to federal court based on diversity jurisdiction, and the parties consented to proceeding before a magistrate judge. See 28 U.S.C. § 636(c). Dyer then filed a separate motion for a preliminary injunction to stop the foreclosure sale, which the magistrate judge denied. The defendants thereafter filed a motion for judgment on the pleadings. See Fed.R.Civ.P. 12(c). The magistrate judge granted that motion and dismissed all of Dyer's claims. Dyer now appeals.

II.

We start with the issues concerning U.S. Bank. The declaratory judgment and slander of title counts in Dyer's complaint both rest on the same contention: that U.S. Bank was not authorized to exercise the statutory power of sale. Hence, if U.S. Bank had such authority, both causes of action fail. 2

In contending that U.S. Bank was not authorized to exercise the statutory power of sale, Dyer chiefly argues that U.S. Bank was not the holder of the mortgage when it purported to exercise the statutory...

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