Larivaux v. Bank of America, N.A., 1:12-cv-11172

Background

Daphne Larivaux and her then-husband refinanced a Malden, MA home in 2006; MERS was named mortgagee and MortgageIT was the lender. A $414,000 note was executed.
The loan servicing changed hands (IndyMac → IndyMac Federal → OneWest); Countrywide indorsed the note in blank; OneWest allegedly held the note by May 2009.
Larivaux defaulted in 2008; IndyMac Federal sent a § 35A cure notice in January 2009 naming IndyMac Federal (the servicer) as the mortgage holder; the default was not cured.
MERS recorded an assignment of the mortgage to OneWest on May 6, 2009; OneWest foreclosed in January 2010 and Bank of America bought the property and later sought eviction.
Larivaux sued in state court and federal court asserting unlawful foreclosure and related claims; by the time of summary judgment the only remaining claim was unlawful foreclosure against OneWest and Bank of America.
The central legal disputes: whether the assignment/possession requirements for a valid power-of-sale foreclosure were satisfied, and whether the § 35A cure notice complied when sent by the servicer rather than the record mortgagee.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of assignment/holder for power-of-sale foreclosure	Larivaux challenges who held the note and contends improper chain undermines the power of sale	Defendants contend the mortgage assignment to OneWest was valid and OneWest had the power to foreclose; under pre-Eaton law holder of note not required	The assignment of mortgage to OneWest was valid; it could exercise the power of sale; whether it held the note was immaterial for a foreclosure commenced before Eaton.
Compliance with Mass. Gen. Laws ch. 244 § 35A cure-notice requirements	Larivaux argues the notice named the servicer (IndyMac Federal) not the record mortgagee (MERS) and so failed to strictly comply with § 35A	Defendants argue the servicer is an appropriate named contact and the notice satisfied § 35A’s purpose of providing a meaningful point of contact	The court held the notice complied: Massachusetts Division of Banks’ regulations and guidance treat servicers as mortgagees for § 35A purposes and the servicer-named notice satisfied the statute.
Effect of MERS assignment formalities	Plaintiff implies MERS-related recordkeeping or identity issues invalidate foreclosure	Defendants point to a notarized assignment by a MERS officer and applicable recording statutes making the assignment binding	Court found the notarized assignment by a person purporting to be MERS’s officer was binding under Mass. recording statute; plaintiff did not contest the mortgage assignment itself.
Remedy sought (voiding foreclosure/eviction)	Larivaux seeks to void foreclosure and stop eviction	Defendants seek summary judgment upholding foreclosure and permitting eviction	Court granted summary judgment for defendants, denying plaintiff relief.

Key Cases Cited

Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282 (1st Cir. 2013) (power-of-sale foreclosure standards and servicer issues)
Eaton v. Federal National Mortgage Association, 462 Mass. 569 (Mass. 2012) (holding re: requirement to hold the note for post-Eaton foreclosures)
U.S. Bank National Association v. Ibanez, 458 Mass. 637 (Mass. 2011) (strict compliance with power-of-sale requirements and invalidity of defective sales)
Juarez v. Select Portfolio Servicing, Inc., 708 F.3d 269 (1st Cir. 2013) (assignment requirement when current holder is not original mortgagee)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard)
Mesnick v. General Electric Co., 950 F.2d 816 (1st Cir. 1991) (role of summary judgment in piercing pleadings)