Tucker v. U.S. Bank, N.A.
292 F. Supp. 3d 546
| D.D.C. | 2018Background
- Tucker purchased a Martha's Vineyard vacation home in 2006 and executed a $564,000 mortgage and note; Flagstar was the original lender.
- The note was later endorsed in blank to New Century and ultimately is alleged to be held by U.S. Bank, N.A., as Trustee for a Citigroup trust; the mortgage was assigned by MERS to U.S. Bank, as Trustee, with a 2013 confirmatory assignment correcting a 2011 recording.
- Plaintiff defaulted, received a Notice of Intention to Foreclose in August 2017 with an attached certification under 209 Mass. Code Regs. 18.21A(2)(c), and sought relief in state court, obtaining a preliminary injunction ex parte.
- Defendants removed the action to federal court; defendants moved to dissolve injunction and to dismiss Counts I–III under Fed. R. Civ. P. 12(b)(6).
- Claims: Count I — declaratory judgment that U.S. Bank, as Trustee, lacks power of sale; Count II — Chapter 93A claim that the certification was inadequate; Count III — slander of title from recording assignments; Count IV — trespass and theft (remanded to state court for lack of federal jurisdiction).
- The court concluded the Trustee held the mortgage and note (or acted as agent), dismissed Counts I–III, and remanded Count IV; the court also warned counsel about repetitive, frivolous arguments and threatened Rule 11 sanctions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to foreclose / power of sale | Tucker: U.S. Bank, as Trustee, lacked statutory power of sale due to defective assignments (especially MERS actions) | Defendants: Trustee holds the note/mortgage (or is authorized agent); assignments and confirmatory assignment valid | Dismissed — Trustee had title or otherwise proper authority; MERS may validly assign and confirm assignments |
| Validity of assignments vis-à-vis PSA | Tucker: Assignments violated the Pooling and Servicing Agreement, so transfers are invalid | Defendants: Tucker lacks standing to enforce PSA; PSA breaches make assignments voidable, not void | Dismissed — mortgagor lacks standing to enforce PSA; alleged PSA breach not a basis to void assignments against borrower |
| Adequacy of foreclosure certification (209 CMR 18.21A(2)(c)) / Chapter 93A claim | Tucker: Certification omitted intermediate/unrecorded transfers and was therefore deficient and deceptive | Defendants: Regulation requires a certification showing recorded chain supporting foreclosing party's basis to foreclose; provided chain was sufficient | Dismissed — provided recorded chain satisfied regulation; similar challenges rejected by precedent |
| Slander of title from recorded assignments | Tucker: False assignments recorded injured her title | Defendants: Recorded assignments were not false; no malice; corrective confirmatory assignment exists | Dismissed — no malicious falsehood; claim derivative of failed declaratory claim |
Key Cases Cited
- U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637 (Mass. 2011) (Massachusetts explains mortgage as transfer of legal title and effect of assignments)
- Eaton v. Fed. Nat'l Mortg. Ass'n, 462 Mass. 569 (Mass. 2012) (mortgagee must hold note or act as authorized agent to foreclose by power of sale)
- Culhane v. Aurora Loan Servs., 708 F.3d 282 (1st Cir. 2013) (note and mortgage can travel separately; mortgagor's standing to challenge only void assignments)
- Dyer v. Wells Fargo Bank, N.A., 841 F.3d 550 (1st Cir. 2016) (rejects certain MERS-related standing theories concerning beneficial interest)
- Hayden v. HSBC Bank USA, N.A., 867 F.3d 222 (1st Cir. 2017) (courts reject repeated challenges to MERS/assignment practices)
- Butler v. Deutsche Bank Trust Co. Ams., 748 F.3d 28 (1st Cir. 2014) (assignments inconsistent with a PSA are voidable by trust parties but not void ab initio for mortgagors)