Michael Moura v. Mortgage Electronic Registration Systems, Inc.
2014 R.I. LEXIS 65
| R.I. | 2014Background
- Moura bought real property in Warwick, RI in 2007, financed by a note to Accredited Home Lenders and a mortgage naming MERS as nominee for Lender.
- Accredited endorsed the note in blank; the mortgage and note designated Accredited Home Lenders as Lender with MERS as nominee and authority to convey via power of sale.
- MERS later assigned the mortgage to Deutsche Bank National Trust Company as Trustee for the LSF MRA Pass-Through Trust; Vericrest acted as attorney-in-fact for Deutsche Bank starting in 2009.
- Mortgage default occurred in 2009; Deutsche Bank foreclosed, and Accredited REO Properties purchased at foreclosure; Vericrest executed a foreclosure deed on behalf of Deutsche Bank in 2010, recorded by Accredited REO.
- Moura filed suit in 2011 seeking declaratory judgment and injunctive relief, including quiet title, with money damages for attorney’s fees; defendants moved for summary judgment in 2012, supported by affidavits.
- Trial court granted summary judgment in 2013; court addressed standing to challenge the assignment and concluded the assignment was recorded and supported by notarization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Asher affidavit was properly admitted | Asher lacked personal knowledge | Asher affidavit satisfied Rule 56(e) and personal knowledge | Admissible; proper personal knowledge shown |
| Whether travel of the note and mortgage was properly established | Challenged the chain of title and travel of the instrument | Record shows chain: Moura signed note to Accredited; allonge in blank; Vericrest/Deutsche Bank hold; MERS assignment recorded | Chain of title established; no genuine issue of material fact |
| Whether MERS had authority to assign the mortgage to Deutsche Bank | MERS lacked authority to assign | MERS authority supported by corporate resolution and power of attorney; assignment valid | Bucci precedent governs; no reversible error found |
| Whether foreclosure notice and sale were valid | Foreclosure process flawed; improper assignment and notice | Foreclosure properly noticed and conducted; assignments valid | Foreclosure valid; sale properly noticed |
Key Cases Cited
- Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527 (R.I. 2013) (standing to challenge assignments narrowly defined)
- Bucci v. Lehman Brothers Bank FSB, 68 A.3d 1069 (R.I. 2013) (authority of MERS to assign mortgage addressed)
- Wilson v. HSBC Mortgage Services, Inc., 744 F.3d 1 (1st Cir. 2014) (standing to challenge voidable vs void assignments)
- Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282 (1st Cir. 2013) (mortgagor standing to challenge assignment; void vs voidable distinction)
- Allis v. Billings, 47 Mass. 415 (Mass. 1843) (void vs voidable analysis for contracts)