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14-P-1156 Appeals Court

WELLS FARGO BANK, N.A., trustee,

1 vs. IAN B. ANDERSON.

No. 14-P-1156.

Bristol. September 8, 2015. - May 11, 2016.

Present: Kafker, C.J., Trainor, & Massing, JJ.

Mortgage, Assignment, Foreclosure. Real Property, Mortgage.

Assignment. Practice, Civil, Standing, Summary judgment, 

Summary process. Summary Process.

Summary process. Complaint filed in the Attleboro Division 

of the District Court Department on September 1, 2011.

After transfer to the Southeastern Division of the Housing 

Court Department, the case was heard by Anne Kenney Chaplin, J., 

on motions for summary judgment.

Thomas B. Vawter for the defendant.

David A. Marsocci for the plaintiff.

TRAINOR, J. The defendant, Ian B. Anderson, former 

homeowner of property located in Norton and holdover in 

possession after the bank foreclosed, appeals from a Housing 

 

1 Of the Securitized Asset-Backed Receivables, LLC Trust 

2006-OP1, Mortgage Pass-Through Certificates, Series 2006-OP1.
2

Court judgment granting possession of his former home to

plaintiff Wells Fargo Bank, N.A. (bank). Anderson argues that 

the judge erroneously granted summary judgment to the bank. He 

argues that the judge incorrectly interpreted G. L. c. 183, 

§ 54B, by allowing the bank to rely on certain documents without 

the need to further substantiate their validity, and that the 

judge's interpretation of G. L. c. 183, § 54B, violated his due 

process rights.

Facts. The following facts are undisputed and are taken 

from the judge's memorandum of decision on the parties' cross

motions for summary judgment and the summary judgment record.

On June 20, 2005, Anderson executed a promissory note and a 

mortgage in favor of Option One Mortgage Corporation (Option 

One) using the property as collateral. The mortgage was 

recorded in the Bristol County registry of deeds, northern 

district (Bristol registry).

On January 2, 2009, Option One assigned Anderson's mortgage 

to the bank. The assignment of mortgage was recorded in the 

Bristol registry and included an effective date of August 14, 

2007.

On October 15, 2010, Sand Canyon Corporation (Sand Canyon),

formerly known as Option One, assigned Anderson's mortgage to 

the bank. The assignment of mortgage was recorded in the 

Bristol registry.
3

After a default by Anderson, the bank through its loan 

servicer, American Home Mortgage Servicing, Inc., initiated an 

action in the Land Court on October 25, 2010 under the 

Servicemembers Civil Relief Act. Judgment entered in favor of 

the bank and it proceeded with the sale of the property in 

accordance with the mortgage. On May 5, 2011, the bank was the 

highest bidder at the foreclosure auction. On August 13, 2011, 

a foreclosure deed and affidavit of sale detailing the actions 

taken by the bank were recorded at the Bristol registry.

Anderson continued to occupy the premises after the 

foreclosure sale.

Discussion. Anderson argues that both the Option One 

assignment and the Sand Canyon assignment were void because the 

Option One assignment was allegedly "robo-signed" and Sand 

Canyon had no interest to assign. Anderson argues further that 

he was denied his due process rights because the judge denied 

his discovery requests, regarding the validity of the documents 

effecting the assignment, based on an erroneous interpretation 

of G. L. c. 183, § 54B.

1. General Laws c. 183, § 54B. Anderson argues that the

judge's interpretation of G. L. c. 183, § 54B, as outlined in 

her order on the bank's motion in limine regarding that statute,

was legally incorrect and denied him his due process rights. 

Anderson is partially correct, but the judge's error did not 
4

cause him prejudice and did not deprive him of any rights to 

which he was otherwise entitled.

The judge held, and the bank argues on appeal, "that the 

provisions of G. L. c. 183, § 54B allow the [bank] to rely upon 

. . . documents[, which include the assignment of mortgage, 

foreclosure deed, and affidavit of sale,] . . . without the need 

to further substantiate their validity."2 This is incorrect,

however, because "such instruments shall bind the entity 

 

2 General Laws c. 183, § 54B, as appearing in St. 2010, 

c. 282, § 2, provides: "Notwithstanding any law to the 

contrary, (1) a discharge of mortgage; (2) a release, partial 

release or assignment of mortgage; (3) an instrument of 

subordination, non-disturbance, recognition, or attornment by 

the holder of a mortgage; (4) any instrument for the purpose of 

foreclosing a mortgage and conveying the title resulting 

therefrom, including but not limited to notices, deeds, 

affidavits, certificates, votes, assignments of bids, 

confirmatory instruments and agreements of sale; or (5) a power 

of attorney given for that purpose or for the purpose of 

servicing a mortgage, and in either case, any instrument 

executed by the attorney-in-fact pursuant to such power, if 

executed before a notary public, justice of the peace or other 

officer entitled by law to acknowledge instruments, whether 

executed within or without the commonwealth, by a person 

purporting to hold the position of president, vice president, 

treasurer, clerk, secretary, cashier, loan representative, 

principal, investment, mortgage or other officer, agent, asset 

manager, or other similar office or position, including 

assistant to any such office or position, of the entity holding 

such mortgage, or otherwise purporting to be an authorized

signatory for such entity, or acting under such power of 

attorney on behalf of such entity, acting in its own capacity or 

as a general partner or co-venturer of the entity holding such 

mortgage, shall be binding upon such entity and shall be 

entitled to be recorded, and no vote of the entity affirming 

such authority shall be required to permit recording" (emphasis 

added).
5

assigning . . . the mortgage," if it complies with the 

procedural requirements of § 54B, "without need of any vote 

affirming such authority or further evidence of [the 

signatory's] status as such an officer" (emphasis added). 

Sullivan v. Kondaur Capital Corp., 85 Mass. App. Ct. 202, 212 

(2014).

3 The statute binds only the entity making and recording 

the assignment, if such action has been made in compliance with 

its provisions. The statute does not bind any other party that 

has standing to contest the validity of the assignment.

2. Standing. Anderson relies on Culhane v. Aurora Loan 

Servs. of Nebraska, 708 F.3d 282 (1st Cir. 2013), in arguing 

that he has standing to challenge the Option One assignment and 

the Sand Canyon assignment. That court held that "in 

Massachusetts, a mortgagor has a legally cognizable right to 

challenge a foreclosing entity's status qua mortgagee. This 

may, in certain instances, require challenging the validity of 

an assignment that purports to transfer the mortgage to a 

successor mortgagee." Id at 291. Anderson omitted, however, 

the court's explicit and very limited application of standing 

when it explained further that "a mortgagor has standing to 

 

3 Compare Haskins v. Deutsche Bank Natl. Trust Co., 86 Mass. 

App. Ct. 632, 642 (2014) (Dicta summarily stating that "[the 

mortgagor's] challenge to the validity of the signatures on the 

mortgage assignment is precluded by the provisions of G. L. 

c. 183, § 54B"). The bank cites to this case as dispositive 

authority.
6

challenge a mortgage assignment as invalid, ineffective, or void

. . . . If successful, a challenge of this sort would be 

sufficient to refute an assignee's status qua mortgagee . . . . 

[A] mortgagor does not have standing to challenge shortcomings 

in an assignment that render it merely voidable at the election 

of one party but otherwise effective to pass legal title." 

Ibid.

We must determine here whether Anderson's claims would 

render the assignments void and therefore render "[a]ny effort 

to foreclose by a party lacking 'jurisdiction and authority' to 

carry out a foreclosure under [our] statutes [as] void." U.S. 

Bank Natl. Assn. v. Ibanez, 458 Mass. 637, 647 (2011).

The bank maintains, and we agree, that either the Option 

One assignment or the Sand Canyon assignment4 transferred the

mortgage to the entity that ultimately foreclosed, the bank. 

"[W]here the foreclosing entity has established that it validly 

holds the mortgage, a mortgagor in default has no legally 

cognizable stake in whether there otherwise might be latent 

defects in the assignment process." Bank of N.Y. Mellon Corp. 

v. Wain, 85 Mass. App. Ct. 498, 502 (2014).

3. Assignments and Foreclosure. Anderson argues that the 

Option One assignment was defective because of alleged 

 

4 Likely a confirmatory instrument.
7

irregularities ("robo-signing") in that assignment. Anderson, 

however, does not contest the fact that Option One held the 

mortgage. The Option One assignment to the bank followed and 

complied with all the statutory requirements of G. L. c. 183, 

§ 54B, and Option One was bound by that assignment for all 

purposes. The assignment was not void and any potential defect 

could have been pursued by a party with standing (e.g., the

bank). Since Option One held the mortgage and its assignment 

followed the requirements of the statute, the assignment was not 

void and Anderson had neither standing to challenge it nor to 

seek further discovery regarding the validity of the documents

effecting the assignment.

Anderson also argues that the Sand Canyon assignment was 

void because at the time of the assignment it did not own any 

residential mortgages. This however is a circular argument 

because if the Option One assignment failed for any reason, Sand 

Canyon would have still owned the residential mortgage at issue. 

This assignment was therefore confirmatory in nature. If the 

Option One assignment had been successful, the Sand Canyon 

assignment was superfluous and harmless. Either way the bank

had been properly assigned the mortgage.

The judge correctly found that the mortgage assignments 

followed the requirements of G. L. c. 183, § 54B, and that the 

bank properly exercised the statutory power of sale, based on 
8

the affidavit of sale. See G. L. c. 183, §§ 21, 54B; G. L. 

c. 244, §§ 14, 15.

Conclusion. The judge correctly determined that both the 

Option One assignment and the Sand Canyon assignment, as well as 

the foreclosure deed and the affidavit of sale, were executed by 

individuals holding offices of the types required by G. L. 

c. 183, § 54B, and that all of those documents were notarized. 

Option One and Sand Canyon were therefore bound conclusively by 

the recorded assignments. The assignments may have been 

theoretically voidable by a party of interest and having 

standing but they were not void. Since the assignments were not 

void, Anderson had no standing to contest their validity and had 

no right to discovery beyond what was recorded pursuant to the 

statute.5

Judgment affirmed.

 

5 The bank's request for appellate attorney's fees and 

double costs is denied.