The Firm has a matter on appeal before the U.S. Court of Appeals For The First Circuit, Baldinelli v. U.S. Bank Trust, N.A., Ca. 17-1591 [pending]whereby the trial court Judge [Hon. Young, J.], requested that the Defendant in that matter agree to certify questions of law to the Massachusetts Supreme Judicial Court ("SJC"), because this was an undecided and "tricky" area of state law. The Defendant of course declined such invitation. However, in his ruling, the Hon Young, J. stated that he continues to believe that MERS has no ability to "assign" mortgages under the peculiar and specific state law of Massachusetts, and suggested that the Firm seeks such certification before the First Circuit on appeal., see Baldinelli v. U.S. Bank,Trust, N.A., et. al., Ca. No. 1:16-cv-11070-WGY, (D.Mass April 18, 2017)
The Hon Judge Young is no stranger to MERS. Indeed, he authored the comprehensive 59 page decision in Culhane v. Aurora Loan Services of Nebraska, Ca. No. 11-11099, (D. Mass. 2011) in which he found that MERS lacks any ability to "assign" mortgages under the centuries old Massachusetts state law, and decisional case law interpretation of that law. However, Judge Young stated that as a federal district court judge confronted with a state law issue, he had no authority to opine on this open area of state law.
Of course Culhane was Appealed to the First Circuit, however the pro se Culhane's complaint was hardly a modicum of legal analysis of the legal validity of MERS to act in Massachusetts [in fact there were no claims against MERS at all in the 1 and 1/2 page pro se complaint]. The First Circuit authored an opinion that completely sidestepped the issues raised by the Hon. Judge Young, in Culhane v. Aurora Loan Services of Nebraska, Ca. No. 12–1285 (1st Cir. 2013). Further, "Culhane" continues to be held up as an impenetrable barrier regarding MERS, despite the fact that it involved a pro se complaint, under the former construction of G.L. c. 244, Section 14, and additional failure to consider the rather obvious fact that a litigant can advance different theories of recovery, despite involving the same issue of law.
The First Circuit additionally failed to address the open "nominee" question regarding MERS' claimed status, as twice opined by the SJC. The First Circuit incorrectly cited to Morrison v. Lennett, 415 Mass 857 (Mass. App. Ct. 1993) to define "nominee". However, Morrison involvedan examination of a nominee trust, and not a "nominee" within the mortgage context as twice opined by the SJC in Eaton v. Fed Nat'l Mortgage Ass'n, 462 Mass. 569, n. 29 (SJC 2012), andGaliastro v. MERS, 467 Mass. 160 n. 19 (SJC 2014) -[successfully argued by this firm].
The SJC has yet to opine on open issues of state law relative to MERS claimed ability to "assign" mortgages, or what the impact of the revised interpretation of G.L. c. 244, Section 14, as a result of the Eaton ruling would be upon MERS claimed "nominee status". In fact the SJC signaled its questioning of a mortgage holder [by itself], ability to undertake any [autonomous] affirmative act[s] [such as purporting to assign a mortgage], where such "holder" would only be acting in the capacity of a "reversionary trustee", see Eaton, at n. 10. Again Culhane never addressed this issue. Culhane was also a "pre-Eaton" fact pattern in which that Court did not even have to consider issues relative to the note, as under the old construction of statute the examination was solely focused on being "the holder of the mortgage", also reference 209 CMR 18.21A(2)(c), which requires that a Certification be provided to the borrower along with the statutory notice of auction sale, and which "Certification", requires a disclosure of the chain of title to the Note and mortgage from the date of the original recordation of the mortgage through to the foreclosing claimant. There is no "carve out" excluding notes indorsed in blank. The preceding makes eminent sense, as only one that was in possession of a bearer instrument could claim to have held "title" to enforce within the chain of ownership of the borrower's Note
The Firm filed the appeal in Baldinelli to the First Circuit on December 17, 2017, and Motion to Certify Questions of Law to the SJC Regarding MERS on December 31, 2017, and which still remain pending as of the time of the drafting of this blog entry.
This is an extremely important development involving the law of Massachusetts, in which the Firm is seeking to change the interpretation of state law to benefit consumers.
We will keep you abreast of this developing story.