Galiastro v. MERS | MA SJC Conclusion. We vacate the judgments of dismissal on count one of the com laint!

! alleging a lac" of authorit# to foreclose. We affirm the judgment of dismissal on counts t$o! three! and four
Anne%Marie GA&'AS(R) * another +,-./ vs. M)R(GAGE E&EC(R)-'C REG'S(RA(')S0S(EMS! '-C.! * another. +,-1/ SJC%..122. Worcester. )cto3er 4! 15.6. ,e3ruar# .6! 15.7. ... Discussion. Retroactive application of Eaton. Whether the Galiastros complaint states a claim entitling them to relief based on allegations that MERS lacked standing to effect a foreclosure by the power of sale depends first on whether the rule we announced in Eaton applies to the Galiastros claims on appeal. ... .and we now decide that the interpretation of mortgagee! announced in Eaton is applicable to cases that were pending on appeal in the "ppeals #ourt when the rescript in Eaton issued$ %&'()* and in which the litigants asserted and preser+ed a claim that a foreclosure by power of sale is in+alid where the foreclosing mortgagee does not hold the note. ... "pplying the interpretation of mortgagee! in Eaton to this case$ and others that were pending appellate re+iew on the same issue$ respects the concern identified in Eaton, supra at ,-.$ that holding as we did could wreak ha+oc with the operation and integrity of the title recording and registration systems by calling into /uestion the +alidity of any title that has a foreclosure sale in the title chain.! "lthough we now e0ercise our discretion to allow a limited set of litigants to seek relief on the basis of the interpretation of the term mortgagee! announced in Eaton, that interpretation of mortgagee! otherwise remains applicable only to mortgage foreclosure sales for which the mandatory notice of sale has been gi+en after %1une 22$ 23(2*.! ... Conclusion. We vacate the judgments of dismissal on count one of the com laint! alleging a lac" of authorit# to foreclose. We affirm the 4udgment of dismissal on counts two$ three$ and four alleging respecti+ely a +iolation of G.5. c. 67"$ ci+il conspiracy$ and fraud. &inally$ we +acate as moot the 4udgment of dismissal on count fi+e$ seeking an in4unction. 8he matter is remanded to the Superior #ourt for further proceedings consistent with this opinion. So ordered. _______________

Galiastro v. MERS

9osted on 'o+ 7$ 23(7 ,:(-am 9S8 Massachusetts SJC! Ma# 8etermine 9alidit# of MERS :nder Mass &a$ ; currently ha+e a matter pending before the Massachusetts Supreme 1udicial #ourt$ in Galiastro v. MERS$ S1#<((266.. 8he =ocket$ and briefs for this case can be found here http:>>www.ma<appellatecourts.org>display?docket.php@dnoAS1#<((266 Bideo of the oral argument can be found here http:>>www2.suffolk.edu>s4c>archi+e>23(7>S1#?((266.html ;n Eaton v. Fed Natl Mortgage Ass,n ).2 Mass. ,.6 C23(2D$ 8he Massachusetts Supreme 1udicial #ourt made references to MERS in the footnotes of the opinion$ and specifically at n. 26$ thatEit is currently unclear as to what the meaning of the term nominee! means in the mortgage conte0t$ and only that it may relate to agency$ but left that specific /uestion open to Fenrietta Eaton on Remand back to the Suffolk #ounty Superior #ourt.. http:>>masscases.com>cases>s4c>).2>).2mass,.6.html =ue to the fact that Eaton ne+er ad+anced any direct argumentation regarding MERS$ and>or the +alidity of its business model under the peculiar re/uirements of Massachusetts law$ the S1# was left to only make references to this entity in the footnotes of the opinion.Galiastro v MERS$ picks up where Eaton left off$ in that theGaliastro pleadings ha+e specifically challenged the legal +alidity of MERS itself$ and its business model$ under Massachusetts law. Galiastro in+ol+es a situation whereby MERS was attempting to foreclose in its own name$ through a March 5.! 15.5 publication of the mandatory 'otice of sale to comply with the Massachusetts non<4udicial foreclosure construct of G.5. c. 2)) Section (). MERS was named as the autonomous mortgagee$ and as such claimed all rights attendant to one who holds! a mortgage under statute. ; challenged the attempted foreclosure by MERS in the Worcester Superior #ourt$ by filing a Motion for 9reliminary ;n4unction$ Memorandum of 5aw ;n Support$ along with an underlying +erified complaint. ; also unco+ered the fact that it appears as though Farmon 5aw Gffices$ 9.#. may ha+e +iolated the Restrictions placed upon foreclosing upon mortgage loans originated by &remont ;n+estment HE 5oan$ in that under the ruling by the Massachusetts Supreme 1udicial #ourt inE Common ealt! of Mass. v. Fremont"nvestment H 5oanE ),2 Mass. I77 C233-DEhttp:>>masscases.com>cases>s4c>),2>),2massI77.html 8he S1# affirmed that any entity seeking to foreclose upon a &remont originated loan$ must first contact the Gffice of the "ttorney General. Farmon 5aw Gffices$ 9.#. is also currently under a #i+il ;n+estigati+e =emand C #;=!D by the Massachusetts Gffice of the "rrorney General$ who is in/uiring whether in fact Farmon was +iolating this restriction. Farmon subse/uently brought suit against the "ttorney Generals Gffice$ to pre+ent disclosure of documents related to this issue Cas well as potential +iolations associated with e+ictionsD. ;n 1une of 23(7$ the Massachusetts "ppeals #ourt upheld the Superior #ourt ruling against Farmon$ re/uiring Farmon to turn o+er all documents related to these issues to the "ttorney General under the #;=E$ in #armon $a %ffices, &.C. v. Attorne' General -7 Mass. "pp. #t. -73 C23(7D http:>>masscases.com>cases>app>-7>-7massappct-73.html 8he Worcester Superior #ourt 1udge denied my re/uest for a 9reliminary ;n4unction$ and further dismissed the GaliastrosE +erified complaint based E!solely upon the reasoning set forth in the =efendants Gpposition!. Gn ,e3ruar# 17! 15..$ ; filed a timely appeal with the Massachusetts "ppeals #ourt http:>>www.ma<appellatecourts.org>display?docket.php@dnoA23((<9<37(2 "fter being on the "ppeals #ourt docket for4 months$ and after the Galiastros had paid me to draft$ print$ bind and deli+er$ the 22 copies of brief and appendi0$ to the #ourt $ a purported assignment! was thereafter created purporting that MERS assigned!E the Galiastro mortgage to =eutsche Jank 'ational 8rust #ompany as 8rustee for the &remont Fome 5oan 8rust Series 233.<7$ who immediately pubished a new and impro+ed! foreclosure auction notice of sale.

; thereafter sought to en4oin the new sale at the "ppeals #ourt$ which was not granted$ and subse/uent to new hearings before the Worcester Superior #ourt$ the auction took place$ whereby Ethe new and impro+ed foreclosing entity now sought to e+ict the Galiasros Call the while the current appeal remained ali+eD. 8he Galiastro appeal was stayed until the outcome of Eaton$ and once Eaton was decided$ both Farmon and MERS indicated their a+ailability for oral argument inSe tem3er of 15.1 ;nstead of indicating my own a+ailability for oral argument$ ; submitted an application to the S1# for =irect "ppellate Re+iew http:>>www.ma<appellatecourts.org>display?docket.php@dnoA="R<236.3 MERS and Farmon now claimed that any appeal by the Galiastros was moot!E as MERS no longer owned!the Galiastro mortgage. 8his Motion to Moot was also renewed on the S1# =ocket by MERS$ whereby MERS has now brought in its top counsel in Morgan 5ewis$ and in particular admitted Robert Jrochin pro !ac vice to argue this case before the S1#. Mr. Jrochin usually only is brought in to defend MERS !ere t!e compan' is on t!e line .. " /uick Google search regarding Mr Jrochin will re+eal that he has routinely defended MERS top officers in depositions$ and at trial. 8he 1ustices ha+e also asked for briefing as to whether the prospecti+e! application of the Eaton Ruling would be in applicable to cases that were concurrently on "ppeal Csuch as GaliastroD while the Eaton matter was pending. 8herefore the Galiastro matter before the Supreme 1udicial #ourt$ has the potential to (D determine the legal +alidity of MERS to act as an autonomous mortgagee!E without ha+ing possession of the Galiastro 'ote$ and 2D whether such consideration is applicable under the prospecti+e mandate of Eaton for a case on appeal Cwhere this matter was specifically stayed while Eaton was heard and decided$ as this appeal was filed before EatonDE "dditionally$ the potential for re+iew lies as to whether a purported subse/uent assignment!E by MERS autonomously would be legally effecti+e to transfer the legal title to the Galiastro real property to the &remont #ommon law 8rust$ that =eutsche Jank purports to ha+e acted as 8rustee for$ as Massachusetts is a title theory!E 4urisdiction. 8his case M"K ha+e widespread national implications as to precisely what MERS is and what it really purports to do. ; will follow up with updates regarding this +ery important case$ which in some respects is far more important than another matter ; had before the Mass S1# back in 23(($ in (.S. )an* Natl Assn v. "+ane,$ ),Mass. .7I C23((D http:>>masscases.com>cases>s4c>),->),-mass.7I.html 8he Massachusetts 1udicial Jranch

Amicus Announcement
SJC%..122
8FE SL9REME 1L=;#;"5 #GLR8 ;S SG5;#;8;'G "M;#LS JR;E&S GR MEMGR"'=" &RGM ;'8ERES8E= 9"R8;ES ;' 8FE &G55GW;'G M"88ER 9E'=;'G JE&GRE 8FE #GLR8 "RGLME'8 ;S S#FE=L5E= &GR S9R;'G 23(7 "M;#LS SLJM;SS;G'S "RE =LE 'G 5"8ER 8F"' 8WG WEEMS JE&GRE 8FE &;RS8 ="K G& 8FE S;88;'G ;' WF;#F 8FE #"SE ;S S#FE=L5E= &GR "RGLME'8 SJC%..122 Anne%Marie Galliastro v. Mortgage Electronic Registration S#stems! 'nc. Whether Mortgage Electronic Registration Systems C MERS!D has standing to pursue a foreclosure in its own right as a named mortgagee! with ability to act limited solely as a nominee! and without any ownership interest or rights in the promissory note associated with the mortgageE whether the prospecti+e mandate of

Eaton +. &ederal 'ational Mortgage "ssociation$ ).2 Mass. ,.6 C23(2D$ applies to cases that were pending on appeal at the time that case was decided. "nterested parties ma' file t!eir +riefs in t!e %ffice of t!e Cler* for t!e Common ealt!, -o!n Adams Court!ouse, Suite ./011, &em+erton S2uare, )oston MA 13.14/.530 67elep!one 8.5/995/.131:. &arties filing amicus +riefs are e;pected to compl' it! t!e re2uirements of Rules .5, .< and 31 of Mass. Rules of Appellate &rocedure. Amicus +riefs, to assist t!e court, s!ould focus on t!e ramifications of a decision and not solel' on t!e interests of t!e parties filing suc! +riefs. &ebruary 23(7 ??????????????????????????????????? M" Nforeclosure fighters: Show up 2 support Oruss7;es< Monday$ Gctober Ith 23(7$ 6 "M http:>>bit.ly>GFmgcb "''E<M"R;E G"5;"S8RG +s NMERS

P 23(3<(7 &GRE#5GSLRE &R"L= Q by =inS&5". "ll rights reser+ed. www.Stop&oreclosure&raud.com Related posts: J"MR; + MERS$ JG'K$ 8RG88 H 8RG88 9# Q Michigan "ppeals #ourt REBERSE= MERS did not ha+e the authority to foreclose by ad+ertisement$ 'o interest in 'ote! S 8 " 8 E G & M ; #... "nother GF "ppeals #ourt =ismissal &or 5ack of &inal "ppealable Grder '"8;G'S8"R +. &;SFER "re we seeing a pattern here@ E0cerpt: 8his case before... Mortgage Electronic Registration Systems CMERSD seeks dismissal of =elaware lawsuit alleging decepti+e practices When you conceal the identity of something on purpose and... Michigan #ourt Gf "ppeals Rules$ #onsolidates C2D #ases MERS S8R"WM"'! Fas 'o "uthority 8o &oreclose F>8 to M&;<Miami S 8 " 8 E G & ... '1 "ppellate =i+. =enies L.S. J"'M Bacate =efault 1udgment$ &oreclosing ;nterest of MERS in Residential Realty! Q W"#FGB;" J"'M + WR;GF8 SL9ER;GR #GLR8 G& 'EW 1ERSEK "99E55"8E =;B;S;G' =G#ME8
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