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U.S. Bank Trust, N.A. v. Bear Stearns Residential Mortgage Corp.

Superior Court of Maine, Cumberland

January 30, 2017

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
v.
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

          JUDGMENT

          Nancy Mills, Justice

         Background

         By order filed on September 13, 2016, the court denied plaintiff's "motion for quiet title and declaratory default judgment and judgment on the pleadings."[1] 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.

         Facts

         Plaintiff 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.

         Plaintiffs 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.

         Declaratory Judgment

         Plaintiff 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.)

         Further, 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.

         Accordingly, 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 requests.

         The entry is

         Plaintiff's Complaint for Declarator Judgment is DISMISSED without Prejudice.

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