Eaton v. Federal National Mortgage Association

969 N.E.2d 1118 (2012)

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Nature of the Case

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Facts

P refinanced the mortgage on her home by executing a promissory note payable to BankUnited, FSB (BankUnited, or lender) for $145,000. P also executed a mortgage, referred to in the mortgage itself as a 'security instrument.' The mortgage is separate from, but by its terms clearly connected to, the promissory note. MERS as mortgagee holds legal title to the property with power of sale 'solely as nominee' of the lender BankUnited (or its assignee). MERS has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender. D on default by P may 'invoke the STATUTORY POWER OF SALE and any other remedies permitted by applicable law.' MERS assigned its interest as mortgagee to Green Tree and recorded the assignment in the Suffolk County registry of deeds. P failed to make payments on the note. Green Tree, as assignee of MERS, moved to foreclose on her home through exercise of a power of sale contained in the mortgage. At auction, Green Tree was the highest bidder. Green Tree assigned the rights to its bid to D, and a foreclosure deed was recorded in the Suffolk County registry of deeds. D commenced a summary process action to evict P. P filed a counterclaim, arguing that the underlying foreclosure sale was invalid because Green Tree did not hold P's mortgage note at the time of the foreclosure sale and lacked the authority to foreclose on her equity of redemption. P filed a complaint in the Superior Court for injunctive and declaratory relief seeking a declaration that the foreclosure sale and foreclosure deed were null and void and that P was the owner in fee simple. The court preliminarily enjoined D from proceeding with P's eviction, and D appealed.