Case Blurb: Culhane v. Aurora Loan Services of Nebraska

Massachusetts District Court Judge Young issued an order ruling in favor of Aurora Loan Services when Aurora filed for Summary Judgment.

A copy of the 59 page order can be found at this link.  The decision is full of commentary about Mortgage Electronic Registration System (MERS).

If you do not want to read the 59 page order, then Bloomberg Business Week wrote a quick synopsis of the decision.  I have included an excerpt from Bloomberg Business Week article below.  The full write up can be found on this page.

MERS Foreclosures Held Valid under Massachusetts Law

“The Mortgage Electronic Registration System, known as MERS, complies with Massachusetts law and allows mortgages to be foreclosed assuming several simple conditions are met, U.S. District Judge William G. Young in Boston ruled on Nov. 28 by handing down a 59-page opinion. Young characterized MERS as the “Wikipedia of land registration systems.”

Near the end of the opinion, Young wrote a six-page, single-spaced footnote saying that the result may have been different were the case in state court where the judges have greater ability to modify state judge-made law in response to novel factual issues.

Before foreclosure was initiated, the mortgage note was assigned to a bank serving as trustee holding securitized mortgages. The mortgage had been assigned by MERS to the servicer for the bank, as trustee.

Young interpreted Massachusetts law as requiring the party foreclosing to be the holder of the mortgage and also to own the mortgage note or be the servicer for the noteholder.

In the case before him, the servicer was wearing both hats and thus was entitled to foreclose, Young ruled. Young declined to follow several Massachusetts cases holding that the holder of the mortgage and note need not be the same.

Young described in detail how individuals not associated with MERS can be deputized as officers of MERS authorized to assign mortgages and mortgage notes. Young said he was “deeply troubled that, with little or no oversight, individuals without any tie to or knowledge of the company on whose behalf they are acting may assign mortgages – that is, they may transfer legal title to someone else’s home.”

Young’s decision may not hold in states with different real estate laws.

In a case earlier this year called Veal v. American Home Mortgage Servicing Inc., the Bankruptcy Appellate Panel for the 9th Circuit denied foreclosure when the holder of the mortgage couldn’t prove it was also the owner of the mortgage note. To read about the Veal case, click here for the June 14 Bloomberg bankruptcy report.

The Massachusetts case is Culhane v. Aurora Loan Services of Nebraska, 11-11098, U.S. District Court, District of Massachusetts (Boston).”

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2 thoughts on “Case Blurb: Culhane v. Aurora Loan Services of Nebraska

  1. Can Y' Dig? says:

    I think Young is wrong, as prolific a legal analyst and writer he is. Mass. law clearly shows it is the OWNER of the debt who is the equitable owner of the mortgage. Where does he come accross saying that the owner’s servicer can be the foreclosing mortgagee? Mass. case law does not say that. None of the cases he cites allow for that. If Duetsche held the mortgage and note and Aurora simply foreclosed in care of Duetsche as its administator then I see that as being in compliance with Mass. law. Young quotes nothing that supports his ruling that one merely saying it is a servicer can be the assignee of the mortgage and foreclose in its name. Mass. law (c. 183 s. 21) requires the note and mortgage to be in the name of the owner of the debt. Young seems to put the servicer on the same footing as the owner which it is not. I spectulate that the reason for the practice of the servicers like Aurora foreclosing in their name instead of that of their principal is furtherance of the fraud of concealment of the bigger fraud in the mortgage backed securities rip-off. Judge Rakoff refused to let them hide like Young did. It is intriging how much disdain Young shows for the practices of Aurora and MERS yet he says they pass legal muster perfectly fine. Isn’t that law supposed to stand for what is decent, equitable, fair, and in the public interest. What Young has revealed in this opinion is that he is just another technocrat judge.

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