Rhau v. Village Mortgage Company et al
| Richardson Rhau |
| Mortgage Electronic Registration Systems Inc., Village Mortgage Company, MERS and Ginnie Mae II |
| 1:2020cv10501 |
| March 12, 2020 |
| US District Court for the District of Massachusetts |
| Richard G Stearns |
| Real Property: Foreclosure |
| 28 U.S.C. ยง 1345 |
| None |
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| Filing 11 Copy re 9 Order on Motion to Dismiss for Failure to State a Claim, #10 Order Dismissing Case mailed to Richardson Rhau on 4/28/20. (Pacho, Arnold) |
| Filing 10 Judge Richard G. Stearns: ORDER entered. Order of Dismissal. (Pacho, Arnold) |
| Filing 9 Judge Richard G. Stearns: ELECTRONIC ORDER entered granting #7 Motion to Dismiss for Failure to State a Claim. Defendants Mortgage Electronic Registration Systems, Inc. (MERS) and Ginnie Mae II, Guaranteed Mortgage-Backed Securities Trust Series 2014 (Ginnie Mae) ask the court to dismiss plaintiff Richardson Rha's Complaint asserting that he lacks standing to file the action and, nonetheless, fails to state any plausible claim for relief. Rhau, who is not a party to either the Note or the Mortgage at issue, claims to live at the property securing the Mortgage, 359 Pleasant Street, Brockton, Massachusetts (Property), and moved in only after the mortgage-holder, Christanne Baker, died. For the following reasons, the court agrees that Rhau's Complaint must be dismissed.In December 2014, shortly after obtaining the loan on the Property, Ms. Baker passed away. See Def.s' Ex.s 4 and 5. On May 6, 2015, Ms. Baker's husband, James Baker, was appointed the personal representative of Ms. Baker's Estate. See Ex. 6. Thereafter, the Estate defaulted on the Mortgage, and Wells Fargo initiated foreclosure. Rhau, a non-borrower, attempts to prevent the foreclosure by challenging the validity of the assignment of Mortgage and the authority of the current owner of the loan attempting to foreclose (the current owner, Wells Fargo, is not named as a party to this dispute). While Rhau claims in the Complaint to be the lone signatory to the underlying loan documents, the loan documents appended to the dispositive motion demonstrate that Ms. Baker is the lone signatory and Rhau did not respond to defendants' motion (filed on April 2, 2020). Therefore, the court finds that, without any legal relationship to the Mortgage and Note, Rhau lacks standing to maintain litigation challenging the validity of the assignment of the mortgage or the foreclosure on the Property. See Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 154 (1993) (dismissing plaintiffs' negligence, breach of contract, and 93A claims for lack of standing where she was not party to disputed mortgage); see also Anctil v. Specialized Loan Servicing, LLC,2016 WL 70451, at *1 (D. Mass. Jan. 6, 2016) (dismissing claims by non-borrower for lack of standing because he was "not a signatory on the loan note"). Notwithstanding, Rhau's assertion that MERS lacked authority to assign the mortgage rendering it void is erroneous. The Mortgage expressly authorizes MERS to assign the Mortgage. See Ex. 2 at 1-2 and para. 12. Moreover, in Massachusetts, the note and the mortgage need not be held by the same entity. See Culhane v. Aurora Loan Servs. of Nebraska, 708 F.3d 282, 292 (1st Cir. 2013); Eaton v. Fed. Nat'l Mortg. Ass'n, 462 Mass. 569, 576 (2012) ("As a consequence, in Massachusetts a mortgage and the underlying note can be split."). The mortgage, however, is always subject to the note because the note is the beneficial interest and the mortgage is the legal interest. Culhane, 708 F.3d at 293. For these reasons, defendants' motion to dismiss is ALLOWED. (mkz) |
| Filing 8 MEMORANDUM in Support re #7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Ginnie Mae II, Mortgage Electronic Registration Systems Inc.. (Attachments: #1 Exhibit 1 (Note), #2 Exhibit 2 (Mortgage), #3 Exhibit 3 (Assignment), #4 Exhibit 4 (Probate Docket), #5 Exhibit 5 (Death Certificate), #6 Exhibit 6 (Order Appointing Personal Representative))(Boudreau, Hollee) |
| Filing 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Ginnie Mae II, Mortgage Electronic Registration Systems Inc..(Boudreau, Hollee) |
| Filing 6 NOTICE of Appearance by David E. Fialkow on behalf of Ginnie Mae II, Mortgage Electronic Registration Systems Inc. (Fialkow, David) |
| Filing 5 SUMMONS Returned Executed as to Village Mortgage Company. Served on 3/12/2020, answer due 4/2/2020. (Pacho, Arnold) |
| Filing 4 Filing fee/payment: $400.00, receipt number 1BST079194 for #1 Complaint (Coppola, Katelyn) |
| Filing 3 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Vieira, Leonardo) |
| Filing 2 ELECTRONIC NOTICE of Case Assignment. Judge Richard G. Stearns assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Marianne B. Bowler. (Finn, Mary) |
| Filing 1 COMPLAINT against All Defendants, filed by Richardson Rhau. (Attachments: #1 Civil Cover Sheet, #2 Category Sheet) (Vieira, Leonardo) |
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