Updated (1/14/13): SJC Rules Against Lender, Holds That Ownership of Mortgage Must Be Established
Court May Decide Lenders’ Standing In All Foreclosure Cases Involving Securitized Mortgages
With all the hoopla yesterday surrounding Attorney General Martha Coakley’s monumental lawsuit against the big banks over foreclosure practices, the Supreme Judicial Court on November 29, 2011 quietly agreed to hear an appeal over whether a lender holding a securitized mortgage has standing to even begin a foreclosure action in the Land Court under the Servicemembers Civil Relief Act–one of the first steps in the Massachusetts foreclosure process.
The case is HSBC Bank v. Jodi Matt. The docket can be downloaded here.
The SJC will ostensibly decide whether lenders holding mortgages held in a securitized pool, with questions whether they in fact were validly assigned those mortgages, can start foreclosures in Massachusetts.
First Steps: The Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act is one of the first steps in the foreclosure process. Lenders must file a complaint in the Land Court under the Act to ensure the borrower is not in active military service. Once the Land Court determines the borrower’s status in the military, then the lender can proceed to advertise and hold a public foreclosure auction. Historically, the Servicemembers action was rather perfunctory, but today borrowers have begun to challenge lenders’ right to start foreclosures in these initial Land Court proceedings.
Lower Court Opinion
In the lower court, Land Court Judge Keith Long (the judge in both the landmark U.S. Bank v. Ibanez and Bevilacqua cases), ruled that HSBC Bank had standing to start the foreclosure process under the Servicemembers Civil Relief Act, despite serious questions as to whether HSBC validly held the mortgage. The original mortgage was held by New Century, which was in bankruptcy when it purported to assign the mortgage to HSBC. There was no evidence the assignment was authorized by the bankruptcy trustee and whether the signatory had any office or authority to transfer New Century’s bankrupt assets to other parties. Despite these questions, Judge Long ruled that HSBC, through a securitized pooling and servicing agreement, had the contractual right to become the holder of the mortgage, thereby conferring enough standing to start the foreclosure process.
SJC Takes Appeal Sua Sponte
The SJC, in a rare move, took the appeal on its own initiative (sua sponte in legalese) from the Appeals Court. It has not yet released an argument schedule. We’ll be following the case here, so stay tuned.
Notably, foreclosure defense attorney Glenn Russell, Esq., the attorney who prevailed before the SJC in the Ibanez case, is representing the home owner in this case.
The Land Court’s ruling is embedded below.
