U.S.BANK TRUST, N.A., AS TRUSTEE SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION AS TRUSTEE AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CERTIFICATE HOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES I LLC, ASSET-BACKED CERTIFICATES, SERIES 2007-HE6, Plaintiff
BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION, Defendant and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION and LAUREN M. THOMAS, Parties in Interest
order filed on September 13, 2016, the court denied
plaintiff's "motion for quiet title and declaratory
default judgment and judgment on the
pleadings." The court scheduled the case for trial
pursuant to M.R. Civ. P. 55(b)(2). Jury-waived trial was held
on plaintiffs complaint for declaratory judgment.
presented the original promissory note, dated May 18, 2007
and executed by defendant and party in interest Thomas. The
note was endorsed to EMC Mortgage Corporation by defendant
and in blank by EMC Mortgage Corporation. Plaintiff also
presented certified copies of the mortgage dated May 18, 2007
and executed by defendant and party in interest Thomas and an
assignment of the mortgage dated February 28, 2012 from party
in interest Mortgage Electronic Registration Systems, Inc.
(MERS), as nominee for defendant, to plaintiff. The mortgage
in this case contains the same language regarding MERS as the
Law Court discussed in Greenleaf. See Bank of
Am. v. Greenleaf, 2014 ME 89, ¶ 13, 96 A.3d 700.
witness, a representative from Select Portfolio Servicing,
Inc. (SPS), testified that he reviewed and is familiar with
the records with regard to this loan, for which the servicing
rights were transferred to SPS in November 2013. Plaintiff
did not qualify the witness to testify about the records of
the various entities involved in this transaction. M.R. Evid.
803(6); Beneficial Me. Inc. v. Carter. 2011 ME 77,
¶¶ 13-14, 25 A.3d 96. The witness testified that
the records indicate that plaintiff is the owner of the note
and mortgage, and there is no indication that anyone else is
the owner. He relied on a pooling and servicing agreement for
these conclusions. The agreement was not offered in evidence
and not explained in any detail, but apparently identifies
this loan. He testified further that defendant is no longer
authorized to do business in Maine.
seeks an order of the transfer of the mortgage and all rights
contained therein, including ownership, to the plaintiff and
a declaration that plaintiff is the owner of the mortgage.
(Pl's Compl. 4-5.) Maine's Declaratory Judgments Act
empowers the court to "declare rights, status and other
legal relations" when doing so will "terminate the
controversy or remove an uncertainty." 14 M.R.S.
§§ 5953, 5957 (2016). First, it is unclear whether
there is a controversy "between the litigants."
Berry v. Daigle, 322 A.2d 320, 325 (Me. 1974);
(Order filed 9/13/16 2.)
in Greenleaf, the Law Court concluded that the language in
the mortgage granted MERS the right only to record the
mortgage; MERS did not qualify as a mortgagee.
Greenleaf, 2014 ME 89, ¶ 14, 96 A.3d 700. The
Law Court noted there was no other "evidence in the
record purporting to demonstrate that MERS acquired any
authority with respect to Greenleaf's mortgage by any
means other than that defined in the mortgage itself."
Id. ¶ 15. There is no such other evidence in
this case with regard to MERS.
as in Greenleaf, plaintiff here received in the
assignment only what MERS possessed and has not proved it has
the requisite interest in the mortgage to establish standing.
Id. ¶¶ 16, 34; (Order filed 9/13/16 2). On
this record, there is no basis on which the court can order
the transfer of the mortgage and all rights contained
therein, including ownership, to the plaintiff and to find
plaintiff is the owner of the mortgage, as plaintiff
Complaint for Declarator Judgment
is DISMISSED without Prejudice.