"Sima Schwartz Saga" Continues; Bay State Homeowner Scores Big Win In Continuing Battle With Banksters To Hang Onto Home As Court Voids F'closure Sale
Primarily on the basis of the Massachusetts Supreme Judicial Court ruling in U.S. Bank Nat. Ass'n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40 (2011), the court found that that Deutsche Bank inexcusably screwed up in bringing a foreclosure where, while holding the promissory note, it failed to acquire the mortgage from MERS and, consequently, U.S. Bankruptcy Judge Melvin S. Hoffman declared the foreclosure sale of Ms. Schwartz void.(1)
For the ruling, see In re Schwartz, Case No. 06-42476-MSH, Adversary Proceeding No. 07-04098 (Bankr. D. Mass. August 22, 2011).
For most recent prior post on the ongoing "Sima Schwartz Saga," see 'Ibanez' Issue Compels Bay State Bankruptcy Court To Vacate Unfavorable Earlier Ruling Against Homeowner Fighting Foreclosure.
(1) The court concluding its opinion with this nutshell:
- Having determined that MERS, and not Deutsche, held legal title to the mortgage on Ms. Schwartz's home mortgage as of May 3, 2006, when the notice of the foreclosure sale of her home was first published, it follows that Deutsche did not have the right to exercise the statutory power of sale and to foreclose the mortgage. See, e.g., Novastar Mortgage, Inc. v. Safran (may first require free registration to LexisOne Free Case Law; if not registered, TRY HERE) 79 Mass.App.Ct. 1124, 948 N.E.2d 917 (2011) (finding, in a post-foreclosure eviction proceeding, that the foreclosing entity had the burden to prove its title to the property by establishing that the mortgage had been assigned to it by MERS "at the critical stages of the foreclosure process.").
By publishing notice of the foreclosure sale when it was not the mortgagee, Deutsche failed to comply with Mass. Gen. Laws ch. 244, § 14, and thus its foreclosure sale is void. Ibanez, 438 Mass. at 646-47.
A declaratory judgment to that effect shall enter on count I of the complaint.
********************
Congratulations to Ms. Schwartz on this, and hopefully future success in this matter.
<< Home