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Wells Fargo Bank, NA v. Bush

Superior Court of Maine, Cumberland

October 28, 2014

WELLS FARGO BANK, NA, Plaintiff
v.
GRAEME W. BUSH, et al, Defendants

ORDER ON DEFENDANTS' MOTION TO DISMISS

Nancy Mills, Justice.

Before the court is defendants' motion to dismiss the complaint with prejudice for lack of standing. Defendants argue that plaintiff Wells Fargo Bank, N.A. lacks standing because the mortgage was assigned to plaintiff by Mortgage Electronic Registration Systems, Inc. (MERS), an entity that lacked the right to foreclose on the mortgage. For the following reasons, the motion is granted and the complaint is dismissed without prejudice.

BACKGROUND

The following facts are taken from the plaintiffs complaint or documents referred to in plaintiff's complaint.[1] Defendants Graeme Bush and Gregory Bush are co-trustees of the Sterling C. Bush Trust, which is the record owner of property located at 134 Mountain Road in Falmouth, Maine. (Compl. ¶ 2.) On November 7, 2001, the late Sterling C. Bush executed and delivered a promissory note in the amount of $150, 000 to Fleet. National Bank. (Compl. ¶ 4.) The note was secured by a mortgage executed and delivered to MERS, as nominee for Fleet National Bank. (Compl. ¶ 6.)

The definitions section of the mortgage document contains the following language:

(C) "MERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, Michigan 48501-2026, tel. (888) 679-MERS. FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD.
(D)" Lender" means FLEET NATIONAL BANK

(Defs.' Ex. C.) The mortgage also contains the following provision regarding MERS:

BORROWER'S TRANSFER TO LENDER OF RIGHTS IN THE PROPERTY
I mortgage, grant and convey the Property to MERS (solely as nominee for Lender and Lender's successors and assigns), with mortgage covenants, subject to the terms of this Security Instrument, to have and to hold all of the Property to MERS (solely as nominee for Lender and Lender's successor and assigns) and to its successors and assigns, forever. This means that, by signing this Security Instrument, I am giving Lender those rights that are stated in this Security Instrument and also those rights that Applicable Law gives to Lenders who hold mortgages on real property.
I understand and agree that MERS holds only legal title to the rights granted by me in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right:
(A) to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and
(B) to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument
I grant and mortgage to MERS (solely as nominee for Lender and Lender's successors in interest) the ...

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