U.S. Bank National Association v. Ibanez

Supreme Judicial Court of Massachusetts · 2012 · Property

941 N.E.2d 40 (Mass. 2011)

Updated July 23, 2026

PropertyMortgagesForeclosureAssignmentspower of salestrict compliancemortgage assignmentnotice of sale

Facts

Neither plaintiff was the original mortgagee. Each plaintiff foreclosed by power of sale, published notice identifying itself as the present holder of the mortgage, bought the property at the foreclosure sale, and then later obtained and recorded a written assignment from the record holder or its purported successor. To show earlier ownership, the plaintiffs relied on securitization documents, but the record lacked documents showing a complete chain of assignments from the record holder to the plaintiff before notice and sale, and the submitted schedules did not adequately establish that the specific mortgages were included. The Land Court concluded that the plaintiffs had not shown they held the mortgages when they foreclosed.

Issue

Whether plaintiffs seeking declarations of clear title after nonjudicial foreclosure proved that they were the holders of the mortgages, or otherwise authorized to foreclose, at the time they published notice of sale and conducted the foreclosure sales. More specifically, the question was whether the submitted securitization documents and later assignments established valid preforeclosure assignments.

Rule

Under G. L. c. 183, § 21, and G. L. c. 244, § 14, only the mortgagee, its assigns or successors, or another person specifically authorized by statute may exercise the statutory power of sale, and strict compliance with those requirements is essential. An assignment of a mortgage, as a conveyance of an interest in land, requires a writing signed by the grantor, and the foreclosing entity must hold the mortgage at the time of the notice of sale and the foreclosure sale. A postforeclosure assignment cannot retroactively supply authority to foreclose, though a postforeclosure confirmatory assignment may be recorded if it confirms an earlier valid assignment.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Worcester, Nora Field gave a mortgage to Pine Harbor Lending. Two years later, Cedar Street Trust published notice of foreclosure identifying itself as the present holder and then conducted the sale. Cedar Street had received a written, signed assignment from Pine Harbor three days before the notice, but did not record the assignment until two months after the sale.

If the mortgagor challenges the foreclosure solely because the assignment was unrecorded when notice was published and the sale occurred, what is the best answer?

Explanation. A foreclosing party exercising the statutory power of sale must strictly comply with the statutes and must hold the mortgage, or otherwise be statutorily authorized, at the time of notice and sale. But the majority stated that the assignment need not be recorded or even be in recordable form at that time, so long as there is proof of a valid earlier assignment. Because Cedar Street had a signed written assignment before notice and sale, late recording alone does not invalidate the foreclosure.