Lister v. Bank of America, N.A.
8 F. Supp. 3d 74
D.R.I.2014Background
- Plaintiffs allege invalid foreclosure against Bank of America, Homeward, MERS, and OCWEN.
- Lister purchased property in Lincoln, RI in 2000 and refinanced with MLN in 2006.
- Plaintiffs claim the note and mortgage were not executed, witnessed, or notarized, and lack recollection of signing.
- Mortgage documents show MERS as nominee; later assignments suggest Bank of America and then Homeward hold/foreclose.
- Plaintiffs seek interim relief, quiet title, and credit-relief relief, while Defendants move to dismiss under Rule 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether quieting title is plausible where note/mortgage execution is in doubt | Lister argues note/mortgage not duly signed and recorded. | Defendants contend mortgage valid and enforceable; quiet title fails. | Quiet title pleadings insufficient; mortgage valid. |
| Whether production of the note is required to enforce the loan | Note cannot be enforced due to lack of production. | UCC 6A-3-301 allows enforcement even if note not in possession. | Production not required; enforcement valid. |
| Whether plaintiffs have standing to challenge the mortgage assignment | Assignment recorded issues and power-of-attorney concerns void assignment. | Standing limited; assignment not void, only voidable if defects present. | Plaintiffs lack standing to challenge voidable assignment. |
| Whether MERS/OCWEN have authority to foreclose on behalf of note holder | Foreclosure authority disputed due to split note/mortgage ownership. | MERS and OCWEN have statutory/contractual authority to foreclose as nominee and servicer. | MERS/OCWEN validly authorized to foreclose. |
| Whether the mortgage was properly executed under Rhode Island law | Mortgage not signed/acknowledged as required by RI law. | Mortgage was signed, acknowledged, and recorded; valid. | Mortgage properly executed; claim rejected. |
Key Cases Cited
- Bucci v. Lehman Bros. Bank, FSB, 68 A.3d 1069 (R.I. 2013) (MERS may foreclose as nominee where note holder is separate)
- Mruk v. Mortgage Elec. Registration Sys., Inc., 82 A.3d 527 (R.I. 2013) (standing to challenge foreclosure assignments when appropriate)
- Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1 (1st Cir. 2014) (void vs voidable assignment; homeowners may challenge void assignments)
- Culhane v. Wells Fargo Bank, N.A., 708 F.3d 282 (1st Cir. 2013) (combines with MERS nominee concept; mortgage/note can be separated)
- Cosajay v. Mortgage Elec. Registration Sys., Inc., 980 F. Supp. 2d 238 (D.R.I. 2013) (similarities between MA/RI mortgage law; supports analysis)